More On Copyright

In my last post on copyright and stealing, I had some pretty strong things to say about copyright law, that it was “stupid and shortsighted, having the effect of crippling the very people it’s designed to protect.” I want to make clear that those comments were directed, not at copyright as a whole, but particularly at the Digital Millennium Copyright Act of 1998, which extended the copyright protection of corporate icons like Mickey Mouse indefinitely, and created stiff barriers to distributing copyright material, even for free.

The problem with this law is that the cat is already out of the bag. It’s completely ineffective to make illegal something that is cheap and effortless. The classic example is the kaleidoscope, invented by David Brewster. He had it patented, but unfortunately it was so easy to make that enforcement was nearly impossible. People simply couldn’t be convinced that something so cheap and easy to make ought to be bought.

Unfortunately, for nearly 100 years, copyright has been the keystone of a business model for musicians (and photographers) which is simply no longer tenable. For writers and publishers of books, the model has gone on even longer. It has to do with the fact that, until now, the equipment necessary for producing quality copies was so bulky and expensive that the only way a person could justify owning it is if they used the equipment to produce multiple copies of things at a profit.

Copyright originally meant that the original producer was entitled to the profits made by selling copies. This is entirely reasonable: I write a book; I sell it to you for $20. You take it home, reproduce it in your own printing press, and sell your copy of my book for another $20. You have committed a crime, not because you stole, but because you disenfranchised me of my wages. The obvious punishment is that you should be forced to give me the profits you had by selling my book: $20. If you sold 400 copies at $20 each, you owe me $8000. I suppose if we were to be punitive about things, and you had been in the habit of selling copyright material, we could take your printing press away, thereby presenting you with a considerable barrier to entry into the publishing business again. But we don’t take your original book away. And the person who bought the copied book also gets to keep theirs. They’ve paid, not for the original, but for a copy, which they own free and clear. They can even resell it on the market.

But today, when copying things is so cheap, it all becomes a muddle. Say my dad takes your photograph. He’s a very good portrait photographer and could easily charge just for the service of taking up his time – a sitting fee. But, because of copyright law, he instead opts to give you a free sitting in order to sell you copies – prints, perhaps amounting to hundreds of dollars. It used to be that a single 14×11 photo could cost $200. Now however, high quality copies are cheap and cheaply had. You take your $200 14×11 photo to Wal-Mart and ask for a copy. Because the Wal-Mart photo technician is incredibly stupid, he can’t tell the difference between a professionally produced portrait and a Kodak moment snapshot. So he makes a copy. Cost? 35 cents.

Now according to old copyright law, what is my dad supposed to do? Should he sue Wal-Mart for the profit they made off of his photo, 35 cents? The legal fees alone prohibit. Perhaps a class action suit, then. But honestly, my dad doesn’t want 35 cents. He wants the $200 dollars he might otherwise have gotten. Wal-Mart isn’t going to give it to him. And you aren’t either. You would never have paid another $200 for another 14×11. Copies cost 35 cents and you know it. For an exorbitant fee like that, you assume that what you paid for is actually the right to reproduce. It gets worse when you consider the fact that most pictures end up on computers rather than walls now, anyway. You didn’t want wallets, you wanted an icon for your MySpace page. So what does my dad do? Take away your copy? Take away your “original”? If he can’t trust the customer with the picture at all, he might as well close up shop. Which is what he did around 2003.

I maintain, though, that at no time was any stealing involved. Stealing, again, is taking something, such that the original owner no longer has access to that thing. At no time did this happen. My dad had access to the originals *the entire time*. What we had instead was a wage problem, and an inequitable market. The system was broke. Up to now, copyright law ensured that the producer went around giving away what was valuable, but couldn’t be sold (the time and expertise necessary to create the original) and sold at hefty profit what was intrinsically worth little (the copies). He could do this because of a thorough bottleneck (the prohibitively expensive copying machine) which gave him control over who had access to what was valuable. But once technology removes the bottleneck – overnight, my dad is suddenly in the position of giving away what is valuable (the time and skill) and charging much for what is worthless (the copies).

The result is what I believe economists would call a “market disruption,” which is to say, they lost nearly everything, and many other photographers have as well. This is a travesty which I sorely wish could have been avoided. But please, don’t say it was theft. Theft can be mitigated by enforcing the law. The culprit can be found, the property returned. The risk of theft can be insured. There is no insurance for market disruption, and no matter how many thieves are caught and brought to justice, none of them can return to my father his former way of life.

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