Practically, though, if you could make any law you wanted: what would you do? How would you manage the transition from the current regime to some more permissive regime? From the perspective of copyright owners, that will look like a legislative taking, like seizing a piece of real estate or canceling a pension.

Would you grandfather in the current IP holders, or give them some kind of grace period? (And perpetuate the old system?) Or just take their property? (Do you think that's generally a good public policy? Or is this case an exception for some reason?)

I'm curious about your comment about intellectual "property" being a red herring. I certainly don't mean to mean to defend the current regime, but I'd be really interested to learn more about your ideas.

From a historical perspective, why is the notion of intellectual property any less legitimate than the notion of real property? In both cases, we are granting to a private concern the exclusive right to exploit something that used to be in the commons. Land "ownership" seems obvious now, but once, it seemed absurd to many people that anyone could own the space on Earth that we all occupy.

In the case of both real and intellectual "property", there is a resource from which limited value can be extracted. There are a limited number of cows that can graze in a given number of acres, there is a limited amount of money that can be made by selling a particular molecule as a drug, and there is a limited number of tickets that can be sold during opening weekend of a film.

In both real and intellectual property, there are multiple possible uses of the resource, and they can conflict. If I chop down the forest and plant wheat, you can't hunt there. If you make Mickey Mouse porn and promote it in infomercials, it changes who Mickey Mouse is in our culture. (Maybe we think it's in the public interest to allow that to happen, but it could definitely conflict with what Walt Disney wants to have happen, and prevent them from starting creative projects that they otherwise would have started.)

So it seems to me that opposition to intellectual property can't come from "legitimacy," unless we also consider ownership of real estate to be illegitimate. That would be a sad state of affairs, because I think the human race would be worse off without the idea of land deeds.

Edit: RF spectrum is another example, I suppose -- there's a limited amount of value to extract (only so many channels), and there are conflicting uses that create different kinds of value (which applications to run on which frequencies with which propagation characteristics.) And the policy tradeoffs in spectrum "property" seem to be different again from those in real or intellectual property. For one thing, there's the rapid advance of technology, and the possibility of spread spectrum.

The difference is as clear as day. Now matter how much you exploit an intangible good, you cannot deplete it. It's not scarce, so it makes no sense to hand anyone a monopoly over it.

Also, land ownership can be questioned as well. It's most often justified by reciting the Tragedy of the Commons, but private ownership isn't the only solution you could apply to the problem it describes (depletion of a shared resource), but I digress.

Land has scarcity; not everyone can use it at once. You've argued that the same thing applies to works currently controlled by copyright, but I (and many other people) fundamentally disagree. Movie tickets have scarcity because not everyone fits in the theater at once; just look at the lines outside theaters on opening night of a popular film. However, the film itself has no scarcity; that doesn't represent a moral statement, just a statement of reality.

That might mean that people making films have to find other ways to extract value, but as a culture that falls under "not our problem". For a film people want to see, clearly the existence of the film has value, and people have found ways to make that support the film; just look at things like Kickstarter for one example, which would work just fine without copyright. (They'll probably work far better once they become a necessity; right now they have to compete with the effectively subsidized development of works controlled by copyright.)

Also, the ability to interactively change our culture represents a feature, not a bug. (Among many other things, see https://en.wikipedia.org/wiki/Remix_culture .) We deal with media we find distasteful by giving a collective "ewww" and moving on. That doesn't invalidate the huge value of having a rich public domain. (And in the case of Disney and numerous others, note that most of their movies couldn't exist without a rich public domain for them to have drawn from.)

> So it seems to me that opposition to intellectual property can't come from "legitimacy," unless we also consider ownership of real estate to be illegitimate. That would be a sad state of affairs, because I think the human race would be worse off without the idea of land deeds.

"Understatement" doesn't quite cover the implications of not respecting the exclusivity of property. But no, your premise doesn't hold; no natural scarcity exists for copyright and patents as presumed by the loaded phrase "intellectual property", the way it does for real estate.

Classic sci-fi thought experiment: if someone invented the replicator tomorrow, what else suddenly has no natural scarcity? Real estate would rapidly become the only component of the physical world with scarcity; apart from that, only services would have value.

> Edit: RF spectrum is another example, I suppose -- there's a limited amount of value to extract (only so many channels), and there are conflicting uses that create different kinds of value (which applications to run on which frequencies with which propagation characteristics.) And the policy tradeoffs in spectrum "property" seem to be different again from those in real or intellectual property. For one thing, there's the rapid advance of technology, and the possibility of spread spectrum.

RF spectrum absolutely does have scarcity, albeit somewhat flexible scarcity since we continuously find new ways to pack more into less. I don't think we currently handle spectrum regulation in the most efficient way (auctions don't necessarily seem like the right approach), but RF spectrum does at least have a legitimate claim as a limited resource that needs some kind of special handling. That said, the value of special-purpose RF protocols has gone down significantly, compared to just finding ways to connect devices to the Internet.

So, instead of tracking the physical copies -- which I think we'd both agree are an irrelevant artifact of an antiquated distribution system -- I think we should talk about the value that is created for humanity when someone comes up with a new piece of information. When I make a movie, I've added a certain amount of value to the world. When I establish that a molecule can safely be used to treat a disease, I've added a certain amount of value to the world. It is hard to find units to measure this value (revenue potential in USD is a distorted one), but it is undoubtedly finite, and different for each movie or drug. None of this changes with your sci-fi replicator.

The question is, should I as the creator of the information be able to capture all that value? Some of that value? None of that value?

If we thought of IP as a natural right, we'd say "all." Copyright would be perpetual and there'd be no fair use. In a post-scarcity world where everyone got food and housing and paint and movie cameras for free, we might say "none" and hope (correctly I think) that people would still create for the pleasure of creation.

Historically in the US we've said "some," nominally because we think it maximizes the rate of production of value for the commons, but in fact because of the natural vulnerability of our legislative system to capture by rent-seeking copyright aggregators. It is like a resonant frequency of democratic capitalism.

> The question is, should I as the creator of the information be able to capture all that value? Some of that value? None of that value?

You have the right to try; you don't have any fundamental right to succeed, but you can certainly try.

I agree with the concept that you create value when you create new information, rather than at some later time. That seems like the perfect time to attempt to extract value, since you can choose not to create the information if you can't get value for it, and you can choose to focus on creating information for which you can derive value.

That model fits nicely with systems like Kickstarter: raise money to create something, then create it. If those become the primary model for funding creative work, they'll almost certainly attract more interest and more funding, which would otherwise go to copyright-subsidized creativity. Seems to me like a pretty reasonable model. Other sensible post-copyright models almost certainly exist; people just haven't thought of them yet, or haven't demonstrated that they can succeed.

hxa7241, above, links his summaries of four deontological argumentations on this issue.

http://news.ycombinator.com/item?id=3305043

That actually seems even less defensible than the normal pragmatic, consequentialist position. See Koepsell and Wilson, as summarised in this article: http://www.hxa.name/articles/content/copyright-ethics-agains...

Also, one can see a simple question that no moral argument for copyright/IP seems able to answer: why impose a restriction on a beneficial abundance? (where there is no need and no gain). Copyright creates an entirely artificial restriction. How can there be duty in that, or derivable from that? Why would we want to make a rule to restrict a beneficial abundance? It does not seem possible for that to make much rational sense.

Even copyright and patent law wasn't in inception about natural rights, so much as it was about 'encouraging continued creation,' but I've yet to see convincing evidence that intellectual property rights actually have this effect, or that lack of intellectual property rights discourage it.

If that means that music is only created by those passionate enough to make it themselves as a hobby without any thought of remuneration ... well, that actually sounds like a pretty good filter to me. If you think that that means that music will die out, then that probably means that nobody cared enough about it in the first place. If you think that that will decrease the overall quality, I've been surprised at what dedicated volunteers can do, see open source.

Growing up as a kid, I was excluded from the culture of my peers as my parents (despite my pleeding) could not afford it. The plight of the starving movie director does not convince me.

I guess we could exclude other professions as well -- why not doctors? Medicine should be practiced only by those who are passionate enough to do it for free, don't you think?

The upshot of this system, though, is that people have to figure out a way to get people to pay them for their contributions. It doesn't change for artists. Charging people for ~0 marginal cost copies is rapidly becoming not a way to get people to pay you. I think artists are going to do fine.

Creating a system that rewards desirable behavior is the job of regulators. I don't see why we should succumb to defeatist claims like "It's all over. Just accept that your work is now worthless". No, we should do something about it, just like we are tackling pollution, crime, etc.

One crucial step would be to make it easy for a creator to sell their work over the Web with a one-click interface, like buying an iPhone app.

(BTW, I agree with the "less badly" assessment. Capitalism has been known to reward total crap.)

And I think copyright introduces lots of opportunity for abuse, as well as introducing weird notions (like "intellectual property") into the culture. I don't like that people think they can own ideas. Just look at the state of patents.

I suppose you could introduce technologies that make it so cheap and easy to buy music that it's not worth the effort to pirate, but I don't see that as a very good source of revenue.

I think things like what Amanda Palmer is doing are great. I also think Kickstarter shows that we're only just beginning to see the possibilities for new ways to reward people for their contributions without having to resort to extra regulations.

In short, my attitude is not defeatist, it's optimistic for a decentralized, entrepeneurial, directly participatory future of art and culture!

And, btw, thanks so much for the lively discussion (on this and the other thread) without devolving into flaminess! I feel enriched for having had the exchange.

I think the best approach is to reward the actual creative activity, not "added services". It's a basic management principle: reward for what is actually valuable. For example, if you ask programmers to provide their software for free and charge for support services (which is often proposed as a substitute for per-copy charges), you are incentivizing them to design hard-to-use software. Similarly, if musicians are only able to make money on concerts, this will incentivize the creation of music that sounds good live (not all good music does) and caters to the concert-going demographic (usu. young people with no families).

Kickstarter is nice, but I don't see it as a real source of income. How many people are going to pay for the promise of a product vs. for the actual product? I don't know what Amanda Palmer is doing. From what I can tell from her site, it's the "live shows + t-shirts" model I've already discussed.

I don't know what abuse of copyright you have in mind, but I am the first to argue that copyright law should be reformed. I would shorten the copyright term, for example.

Finally, I would like to address something you've brought up repeatedly in this thread: the issue of zero marginal cost. There is no rule that says that the cost of something should be equal to its marginal cost. Do you believe the cost of a book should be the cost of the paper + distribution? Or that if there are free seats at a movie screening, I should be legally allowed to watch that movie for free (since the marginal cost of another viewer is zero)?

Time to wrap up. Thanks for the discussion. I would like to change somebody's mind on the Internet just once. So far it hasn't happened (I've been on the Web for 16 years). Maybe next year will be the year.

I think Kickstarter is potentially game-changing. Not only can you market-test an idea before you even execute it, but you can form a relationship with your audience and form a community. People don't really know about it yet, but I for one would gladly fund the efforts of some of my favorite artists.

Amanda Palmer isn't just doing concerts and t-shirts. She's doing all kinds of stuff like comics, weird collaborations, short films, plays, etc. She's doing everything and seeing what sticks, but she's also always forming relationships with her audience.

re marginal cost: I think it's a fairly basic rule of economics, that in a competitive market, the price of a product falls to its marginal cost. I wasn't making a moral judgment, just an economic observation. Maybe you're arguing that this is a special circumstance that doesn't apply? I'm curious as to how.

re changing my mind: I was for intellectual property before I was against it. Someone on the internet changed my mind. It happens, probably not very often, but it does. I guess a pertinent question is: what would it take to change your mind?

If you proposed another system in which a recording (not performing!) artist or software publisher gets rewarded proportionally to the value people place on their work, then I might be convinced that copyright should go away.

Kickstarter is interesting and if it worked, it might be able to fulfill this need, but I am not optimistic because it encourages free-riding. If I'm a fan of Stephen King, it does not make sense for me to fund his next book on Kickstarter. The optimal strategy is to wait for others to bear the cost, then consume the work for free (since there's no copyright). I'm not absolutely certain that Kickstarter won't work, but I wouldn't bet on it.

I am not okay with saying "if you're a musician with a family, then you'd better find another job". A recording musician with a family can produce valuable works of art. In an ideal world, he would produce these works and society would reward him. For me the only question is, how to bring about that ideal world? Copyright is closer to that world than free copying.

re: economics: I'm not sure why you're bringing up that economic rule. We are talking about what SHOULD HAPPEN, not what HAPPENS in a free-market economy. I don't think either of us believes the free market equilibrium is always optimal for society. Arguing whether that rule really holds (and BTW I don't think it does in the real world) would serve no purpose here.

re intellectual property: Notice that if there were no IP laws at all, then I could take someone's song and claim I wrote it. Then I could make money by performing it. I mean, once we accept that intellectual property doesn't exist and that the original creator doesn't own his creation in any way, what's to stop me? I think you actually support a middle-ground system, where I am allowed to make a copy of anything and give it to anyone, but I am NOT allowed to profit from it -- only the creator gets to do that. If so, then you support IP to some degree. (Just an observation. No real argument here.)

re changing your mind: Did you change your mind in an Internet discussion or after reading some article? The latter seems much more likely to me. In a public discussion, people never say "Your arguments convinced me and now I believe the opposite of what I said in the beginning." Doing so would mean conceding the other party's intellectual superiority and would make one appear inconsistent. The best you'll get is something like "Okay, there's some merit in what you're saying, but...". Translation: "Alright, you won this one, but don't think you're such a smartass".

The desire to be consistent means the more times you publicly state your point of view, the more invested you become in it. So each subsequent exchange between you and me actually decreases the probability that one of us will change his mind. If either of us changes his mind, it will be long after this public exchange is over. This makes convincing strangers on the Internet a very unrewarding activity, as I will probably never find out if you changed your mind eventually (and vice versa).

You may want to check out this talk by Jaron Lanier. He was not the one who convinced me of the value of copyright, but his book ("You Are Not A Gadget") provides some nice examples and arguments.

http://zocalopublicsquare.org/full_video.php?event_id=359...

Of course, there is no such system, but capitalism is the closest we've gotten. Copyright is an attempt to get closer to that system than pure capitalism, but I don't think it works.

Kickstarter has already enabled the creation of lots of stuff that simply wouldn't have been possible before. But you're right that it might not work for infinitely copyable art. We'll see. My real point, though, is that Kickstarter shows that new technologies are enabling models that weren't possible before. I think Kickstarter is only the beginning.

"In an ideal world, he would produce these works and society would reward him. For me the only question is, how to bring about that ideal world? Copyright is closer to that world than free copying."

Again, the problem is how to decide who provides value. Capitalism is the best system we've come up with. It's not perfect, but I'm arguing that copyright is worse.

Re economics: But I'm saying that a mostly free-market economy is the closest we've come to making things happen the way they SHOULD. In my view, copyright is an artificial restriction that doesn't do what it's supposed to, which is to encourage artistic works. It just changes the type of art that gets created, while enriching middle men.

re IP: I think what I'm against is the conception of ideas a property. I'm not against attribution, or enforcement of attribution, but notice that attribution has nothing to do with property if you just think of it as not lying. Ideas as property also reinforces the, imo faulty, notion that there is any one single creator of any idea ex nihilo. Ideas come from other ideas, and circumstance, and brilliance, and the more ideas can move around, the more ideas we'll have.

re changing minds: I changed my mind after many online discussions, offline discussions, and reading. And generally for me, when I do change my mind, it's not during a discussion. Instead, it's usually after I have a discussion in which I refuse to give ground, and then later I simply realize that I've changed positions.

"A foolish consistency is the hobgoblin of little minds." I think the desire to be consistent is real, but not always helpful.

My question is: if you don't think anyone changes their minds from online discussion, why are you engaging in this one?

I've read Lanier before, and I find him fascinating, but I don't ever really follow him to his conclusions. I'll check out the link. Thanks!

"copyright is an artificial restriction that doesn't do what it's supposed to, which is to encourage artistic works"

I'm not sure copyright doesn't encourage artistic works, but I would actually dispute that this is the only goal of copyright. I would say that the goal of copyright is for a creator of reproducible works to be rewarded proportionally to the value they contributed to society.

Consider this thought experiment: Suppose we had absolute proof that doctors would still heal people exactly as much as they do now if we stopped paying them. They would live in poverty, but they would practice medicine out of their passion for the field, desire to do good, whatever. Would it then be right to institute a system of "free medicine"?

I am inclined to think it wouldn't be right. Contributions should be rewarded, even (or perhaps especially?) if the contributor is not doing it because of the reward.

re IP: I think you support more restrictions than just correct attribution. Can I take someone's song and perform it for money without paying them, provided I credit them? Can I burn the song on CDs and sell them in a store without paying them? Can I record a concert in HD and sell streaming access to it? Can I take Microsoft Windows, crack the copy protection, and legally sell the cracked software in an online store? If not, can I distribute it freely on a website on which I sell advertising?

Notice also that a policy of free copying would introduce an arbitrary distinction. If you host a word processor on your server ("software as a service") and sell access to it, you can make money. If you sell a word processor that runs on your customer's computer, you cannot make money, because then customers will be able to legally copy the software among each other. This is arbitrary -- in both cases the value provided to society is the same, it's just that in the first case, you obscure your code from your customers to prevent copying.

Apart from the arbitrariness and, well, unfairness of this system, it would encourage centralized software provision and draconian DRM schemes (for example, people would write desktop apps in which crucial parts of the code run on some central server, so that the customer's computer never "sees" the code). This is bad for the customer -- you have to be online to use the app, it eliminates privacy, it encourages obscurity which is bad for security, etc. We'd be telling software developers: "You can make money only if nobody ever gets their hands on your code. So you'd better hide it really well".

I realize we already have some bad DRM schemes (esp. in games), but it would be worse if copying was legal. Right now copyright restrictions stop many people from using pirated software. Not so much individuals, but think about businesses. The only way for Microsoft, Adobe, etc. to make money would be to run large parts of Windows/Office/Photoshop on some central server. That wouldn't be good.

Of course software makers would still be better off than songwriters and authors -- they cannot hide their work from the world.

"if you don't think anyone changes their minds from online discussion, why are you engaging in this one"

I'm not sure. Two answers come to mind: 1. I can't stop myself when someone who appears smart writes things I consider to be false on a subject I consider important. 2. I believe (as I've previously suggested and you have confirmed) that sometimes people change their mind after the discussion is over, even if they won't budge during the actual discussion.

Likewise! I don't really enjoy drinking, but if you're ever in Portland, OR, let me know!

"I would say that the goal of copyright is for a creator of reproducible works to be rewarded proportionally to the value they contributed to society."

I've never actually heard this as a rationale for copyright. Even so, I don't think it holds as a justification. Because you're starting from the premise that these contributions have an inherent value. But the premise of capitalism is that the best way to determine something's value is how much others are willing to pay for it. In the absence of any restriction, these creators haven't created anything of value because it's easily reproducible. If you place the arbitrary restriction of 'copyright' on these works, then, yes, they become valuable through artificial scarcity. But that's true of anything that has very little value.

In your doctor thought experiment, you're sort of violating the basic premise of capitalism. You're also here making a deontological argument, that it's only morally right to support some sort of payment to these altruistic doctors, even though they have no actual value, since they'll work for free. In this world, how do you decide how much to pay them? In other words, how do you determine the value of their contribution?

re IP: "Can I take someone's song and perform it for money without paying them, provided I credit them?"

Yes.

"Can I burn the song on CDs and sell them in a store without paying them? Can I record a concert in HD and sell streaming access to it? Can I take Microsoft Windows, crack the copy protection, and legally sell the cracked software in an online store? If not, can I distribute it freely on a website on which I sell advertising?"

Yes, yes, yes, and yes, but no one will pay for any of it because it will be available for free.

"Notice also that a policy of free copying would introduce an arbitrary distinction..."

It's not arbitrary, though. There's a very important distinction: you can easily demonstrate your value and charge money without arbitrary legal restriction through one model, and you can't through the other.

"...it would encourage centralized software provision and draconian DRM schemes..."

Please notice that this is already happening? Why? Because it's an easier and more sure way to make money.

Centralization of software has its good and bad points. But the elimination of privacy and security are separate issues that aren't particularly relevant to copyright. Centralized computing is actually something I'm kind of worried about, but it's an orthogonal issue.*

"Two answers come to mind"

These are both great reasons! Let good discussions between open minds strive for truth in opposition! Let opposing minds passionately disagree, but remain amicable!

* I just recently wrote a post along these lines: http://blog.byjoemoon.com/post/13581915694/an-amateurs-lamen...

"Because you're starting from the premise that these contributions have an inherent value."

Yes, things have value. You're not going to ruin everything by arguing that there is not such thing as value (other than market value) and that without market value we are in no position to say whether a cure for cancer is more valuable than the Holocaust, are you?

"But the premise of capitalism is that the best way to determine something's value is how much others are willing to pay for it."

And why would anyone accept that premise? It's absurd. I see people paying tons of money for things that have little value. If value were definitionally equal to market price or revenue, then it would be meaningless to say that someone wasted their money on something. In this worldview (which I would call "market fundamentalism"), if Patsy paid $10000 for a rubber chicken, then the rubber chicken is by definition worth $10000. Anyone with even a cursory knowledge of how markets work knows that they are prone to groupthink, panic, irrational exuberance and other anomalies.

Another example: if you accept this "no value but market value" nonsense, you have to conclude that giving medicine to sick people in Africa has no value, since these people are not paying for the medicine (they have no money).

Value is ultimately a moral category. The goal of the economic system is to make sure valuable contributions are rewarded with appropriate economic value. At least it's one of the possible goals.

"In the absence of any restriction, these creators haven't created anything of value because it's easily reproducible."

It may be easily reproducible, but for someone to reproduce it, it must be created in the first place. The creating is the hard part, not copying bits.

"If you place the arbitrary restriction of 'copyright' on these works, then, yes, they become valuable through artificial scarcity. But that's true of anything that has very little value."

Yes, I see your point. You can inflate the economic value of anything through regulations. That doesn't mean, however, that all such regulations are wrong. To say otherwise would be to say "the market is always right".

You are okay with making money on SaaS because it happens "without arbitrary legal restriction". But the reason why a SaaS company can maintain the secrecy of their source code is rooted in arbitrary legal restrictions. One such restriction is that I cannot break into the 37signals HQ and copy their codebase. Why not? I don't see why I shouldn't be allowed to enter a particular building and have a look around, as long as I don't break anything (and even if I do, I can reimburse 37signals for broken locks, smashed windowpanes, etc.). So in a way, you can make money on SaaS because of an arbitrary legal restriction.

Just as we have laws that prohibit people from entering corporate buildings, we can have laws that prohibit copying of content unless authorized by the creator. Unless I'm making some kind of mistake in reasoning (I'm kind of sleepy right now), I'm not sure one of these is more arbitrary than the other.

"In this world, how do you decide how much to pay them? In other words, how do you determine the value of their contribution?"

The government sets the restrictions (e.g. the copyright term, fair use, penalties); the rest is determined by the market. The restrictions themselves are somewhat arbitrary, but any human-made formal system is somewhat arbitrary. For example, the government sets an arbitrary requirement that you should have your car checked every year. This creates a market for vehicle inspection services. The price for this service is determined by the market and depends on many things, including the supply of specialists. Similarly, environmental laws create artificial demand for recycling services, green technology, etc.

Why is this done? Because we believe road safety and a clean environment have more value than the free market assigns to them. It is a matter of public policy.

As long as that paradigm shift includes open source software. I should be able to use open source software in any proprietary software application without having to release the source code.

Any time the GNU license is violated, many people here on HN talk about "theft" and "stealing". It's exactly the same thing as pirating software: the original piece of open source is never really taken. Bits are just shifted.

Also, people that pirate may think they are helping the software community. However, it will only push software companies and developers like me to release Software as services.

You now have to pay a monthly fee rather than a one-time price.

No. I'm saying the legal regime that supports 77 years of copyright is profoundly flawed and a little civil disobedience is a reasonable way to keep the conversation moving forward. There is no law that those with enough resources cannot obey. It's those with limited resources who agitate for change.

I'm arguing that 77 years of copyright is too long. Maybe 6 months or a year. That's the timeframe some scientific journals are moving toward for making their archives available. I would also argue the fair use exception should be made far broader, especially for education. Are you arguing that 77 years of copyright is acceptable? Do fully endorse the current system without reservation?

I will wait until a smaller, successful company's copyright expires after a year and I will replicate it exactly. Because I have more resources, I will be able to easily compete and most likely put that company out of business.

After a big block-buster movie comes out, which costs a million+, I could make t-shirts and all sorts of things to make money..and I didn't have to put any of the work into creating it.