[kemitchell]

Intellectual property law is only coherent in the face of information. It's the property law of intangibles.

Economics didn't run up to the industrial revolution and stop. The book I cited, Slauter's Who Owns the News?, gives a great history of English law from before the Statute of Anne. For a view from the Internet era back, on an economics angle, Shapiro and Varian's Information Rules is a great read. For a more nuanced view from those who lean open, James Boyle's books are all worthwhile.

The author is, as it happens, an open-leaning intellectual property lawyer.

[Kednicma]

The author is dangerously close to realizing that all property rights are incoherent! Just take the contrapositive of your current position, and then keep going.

Economics still works fine. The funny thing, though, is that information doesn't behave like a typical good; it's only got marginal cost to duplicate, and is usually too cheap to meter, and every purchase adds a new seller to the market. Thus, it's kind of hard to even justify applying the economic question to information. Indeed, our societies are so drenched in information that we put price tags on tooling which can reduce, filter, aggregate, summarize, and otherwise lower the total number of bits of information within our control.

Any pragmatic and ethical intellectual property law regime must account for the practical truth that artists and scientists can only receive a full education by participating in an underground copyright-infringement movement which consists of private libraries, ad-hoc study sessions, thumb drives full of art and philosophy, and most recently Bittorrent and Sci-Hub. Our current law regime is completely out of touch with this reality, and fixing it will require drastically shortening the length of copyright, ending works-for-hire, and taking other big actions to destroy the media cartels.

[kemitchell]

You've given me the tech-exceptionalist party line circa 1999. I could've given you the same, way back then. Lessig. Drahos. Braithwaite. With more nuance, Boyle. Have you done any reading from the other side? I hadn't.

Valuable information that's easy to reproduce isn't a new phenomenon. See Who Owns the News?. Nor is it peculiar to digitally reproducible works today. See Rothman's The Right of Publicity. Both highly skeptical of many legal developments, but not doctrinaire or absolutist.

Digital technology didn't take the economic theory of property by surprise. See Information Rules, or even Landes and Posner's The Economic Structure of Intellectual Property Law. The latter goes light on software and the Internet, but covers all the same dimensions of marginal cost, prior work, and so on, in analysis of other domains. Cost savings with digital technology didn't break the theories or policy justifications. They just made analysis of certain combinations more valuable.

If I've guessed right, here comes the part where you lump me in with Disney, the Copyright Office, the IP Watchdog people, and other "IP maximalists". They lump me in with the pirates.

[Kednicma]

I wouldn't lump you with IP maximalists; I'd lump you with status-quo supporters. There is a way forward for our society, and your entire response is that I should read a book or two and think harder about my position. It's no different from when modern Democrats tell Democratic Socialists to shut up and eat doughnuts; I'm not going to mistake you for a Republican merely because you dislike socialism, but I am going to point out how little distance there is between the Republican and Democratic positions!

We need to halt the abuse of artists in our society. It is common, it is automated, and it is cruel. Ensnaring them in ever-more-complicated licensing schemes is not a substitute for a living wage, nor does it recognize that art fundamentally needs to be shared between people in order to be effective.

Legal technology, like all technology, is not culturally neutral. We choose how the law develops by how we practice and observe it. We are obligated to construct societies whose laws are not just moral, but ethical, and which dole out a portion of justice to everybody under their ambit. Your attitude that supporting UBI and tearing down copyright is so "circa 1999" and thus somehow tired and outdated is ridiculous. What's so new that's replaced this position? You offer only compromise with the existing system, rather than a hope for an improvement.

[kemitchell]

You've retreated to generalities.

The working artists, designers, and other creators I know, and no few I've worked with, don't want to abolish the legal regime set up to ensure them compensation. They don't want to trade what leverage they have for the dole, or for "universal basic income", which is much the same when you'd qualify for either. I've heard and read much the same from their guilds and industry groups.

That doesn't mean the status quo. Many would reform or replace fair use and add orphan-work safe harbors. Others would make copyright protection entirely opt-in, as before Berne. Some would expand "moral rights", or implement them where they haven't been. Others want commonly negotiated terms, like portfolio rights for works made for hire, made defaults, under law. Views on term of protection vary.

There's nothing terribly tired about arguing for copyright abolition, other than that we've heard it for decades now, and political prospects might be worse now than they were then. What is tired is portraying intellectual property as standing on no firm policy foundation, especially no economic foundation. Activists have been making a straw man of economic theory, pretending it got as far as 19th century industrial considerations and stopped, since the nascent years of Internet exceptionalism. The idea that low or no marginal cost of reproduction totally confounds public policy underlying property protection is emblematic. Low marginal cost of reproduction didn't begin with the Internet. It occurred to economists discussing intellectual property, and was well integrated by them, generations before.

[Kednicma]

I don't think that I've really retreated; I had started on UBI and copyright in my very top post. But let's get specific! (Also, just as a side note, please grok that UBI does not have qualifications; that's rather the point of it.)

I went to music school. I copied CDs and sheet music from the school library. I also burned CDs and copied thumb drives from other musicians. My jazz class mandated listening to dozens of albums, didn't give us copies, and expected us to acquire them however. My professors taught us how to listen to the radio and reproduce what we heard. I played out of "The Great American Songbook," which is the tradition where you play what folks in the USA like to listen to, or you don't get paid for the gig. My compensation was per-gig and based on live performance, not based on royalties or licensing. Despite what amounted to a pretty good hourly wage, the actual number of hours per week was very low, and I had a day job. This was not atypical, but the intended route for the bulk of professional performers, and nothing has changed since I went to school other than that copyright infringement is cheaper and easier than ever.

Nothing is new under the sun. Making original music is incredibly difficult. We swim in such a massive sea of ambient art, and almost all of it is licensed in ways which forbid us from integrating that experience into our original artwork. The entire discipline of remixing exists as a proud affront to copyright, just like libraries once did and still do. And today's musicians are a product of a system which simultaneously requires them to continuously infringe in order to be productive, while using the law to punish them for infringing.

When I hear you talking about the folks that you know and work with, and imagine what kind of musician actually is lucky enough to receive royalties, I imagine a privileged few folks. They're not bad people, but they benefit from a system designed to compensate them at the expense of everybody else. And their actual benefit is relatively meager! Middlemen at the labels suck out nickel and dime, and even successful musicians find themselves flipping burgers. They're propping up a system which disenfranchises them.

And when I hear you talking about "their guilds and industry groups"! I personally believe that ASCAP is a plague upon practicing musicians, music venues, music lovers, and the entire tradition of making music. They have the audacity to take royalties on behalf of those great legends who are long since departed, and their entire justification is that it's a legal theft of the public domain, and why shouldn't they do what they're legally entitled to do? The RIAA's not any better, with multiple members committing acts upon their customers and artists that, in literally any other context, would be criminal. Imagine if I, an independent musician, published a CD with infectious malware on it, and used it to attack my listeners; I'd be convicted and thrown in prison!

The worst part of all of this is "political prospects". Yes, fascism is popular right now. No, we shouldn't abide by it. No, fascism isn't an excuse to avoid socialist reforms. No, we shouldn't just give up on what we the people want just because it's inconvenient for the ruling classes.