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Designer's Notebook: The End Of Copyright

November 28, 2005

I think we are witnessing the beginning of the end of a major era in world history. It may take fifty years, it may take a hundred, but the age of copyright is drawing to a close. I don’t know if this is a good thing or a bad thing, but it’s inevitable. And I say this as the author of two books and over 75 columns like this one, all copyrighted.

Just 550 years ago this year, a guy named Johann Gutenberg figured out how to make large quantities of metal type in a hurry. He didn’t invent printing—the Chinese had been doing that with wooden blocks for centuries—but he did find a way to make it fast and efficient. Gutenberg changed the world and helped to bring on the Renaissance.

Johann Gutenberg

There were no copyright laws at that point. Before the printing press, books in Europe were copied by hand, and having someone go to the trouble of copying your book was about the highest praise an author could get. But with the printing press, the concept of intellectual property was born. Over the next two centuries or so, copying books went from being high praise to being a crime. As printing presses were large and heavy—i.e. difficult to conceal and difficult to move—it wasn’t all that hard to prosecute the offenders. The smaller and faster they got, though, the tougher it became.

I’m old enough to remember when photocopiers became commonplace. At first, there used to be signs in libraries, warning the users against duplicating copyrighted material—any copyrighted material, ever. But people did it anyway. They didn’t think they were doing any harm, and they weren’t planning to sell the copy, they just needed it for their own use.

When enough people feel that it’s OK to do a thing, that thing ceases to be wrong in their own cultural context. You can complain about moral relativism all you like, but the facts are inescapable: that’s how people behave. When the photocopier came along, people simply didn’t think it was wrong to copy a few pages out of a book, even though it was against the law and the authors would have preferred that they buy the whole book. So eventually, the Fair Use doctrine evolved with respect to copyright materials. The law changed. It’s now OK to photocopy parts of books for educational, non-commercial use. In effect, the authors and book publishers had to give some ground in the face of the overwhelming tide of public opinion.

You can see where this is going, can’t you?

On June 27, 2005, the US Supreme Court decided to hold companies that make file-sharing software responsible for copyright infringements perpetrated by the software’s users. Everyone expected that they would rule as they did when Universal City Studios sued Sony over the Betamax in 1984: there were legitimate uses of the technology, and it shouldn't be held responsible simply because it can be used unlawfully. Instead, however, they ruled that file-sharing software actively encourages piracy and the makers should be held accountable.

The Supreme Court's action has done the exact opposite of what MGM and the other content distributors who brought the suit hoped it would. File-sharing software will become open-source and public domain. File-sharing will continue to grow ever more popular, but now there will be no one to sue. The Supreme Court's ruling hasn't even delayed the inevitable; it has actually brought it closer.

There’s no intrinsic reason why someone should continue to get paid for something long, long after the labor they expended on it is complete. Architects don’t get paid every time someone steps into one of their buildings. They’re paid to design the building, and that’s that. The ostensible reason we have patent and copyright law is, as the US Constitution says, “to promote the Progress of Science and useful Arts.” But travesties like the Digital Millennium Copyright Act don’t promote the progress of science; they actively discourage it. So do software and biotechnology patents. The patent system was intended to allow inventors to profit for a limited time on particular inventions, not to allow huge technology companies to put a stranglehold on innovation by patenting every tiny advance they make.

Right now, the music and movie industries are howling and beating their breasts and doing their best to go after anybody who violates their copyrights on a large scale. The fury with which they’re doing it is a measure of their desperation. The Sony rootkit debacle is a perfect example: in an effort to prevent piracy, they secretly installed dangerous spyware into people’s PCs, which itself may have been a criminal act. This was about the dumbest public-relations move since Take-Two lied about the Hot Coffee content, and as with Take-Two, it will cost them vastly more than they could hope to gain from it. Did they really think nobody would find out?

The lawsuits, the spyware, the DMCA: these are the death struggles of an outdated business model. It’s the modern-day equivalent of throwing the Christians to the lions in an effort to discourage Christianity. It didn’t work for the ancient Romans and it won’t work now.

Part of the issue is related to the question of how much money it took to create a copyrighted work in the first place. With books and music, the answer is simply, “not that much.” Forget notions of what their rights may be in law; the idea that a band or an author should be paid millions upon millions over the next several decades for something that it cost them at most a few thousand dollars to make, just feels silly to most people. You’ll notice that it’s the megastars who are fighting the hardest over this in music—Madonna, Metallica, and so on. They’re the ones who stand to lose the most. But the smaller, less well-known groups are embracing new business models for distributing their music. They’re like authors back before the printing press: “Copy my music and listen to it! Please!”

Movies and video games are more problematic. They take millions to make in the first place and a good many of them don’t earn back their investment, even with full copyright protection in place. If we’re going to go on making video games, the publishers have to find a way to make them pay for themselves. One approach is an advertising model, although I’m reluctant to say it because I hate the idea of ads in games. Another is to treat games as a service rather than a product. With broadband distribution, I think this is increasingly likely: you won’t ever have a durable copy of a game, you’ll download it every time you play it. Each instantiation will be unique, personalized for a particular machine and Internet address; encrypted to discourage hacking; and expires after a few hours. After that you’ll have to download a new copy.

Yet another model is the donor model: somebody who is known for creating great work can collect up donations in advance; when he has collected enough to fund the work, he builds it, and releases the game copyright-free when it’s finished. The donors will have paid and everyone else gets it for nothing, but they get it first and perhaps some special recognition for their contribution. I’d be happy to put down $40 two years in advance for a new Sid Meier game, particularly if I knew it would be released copyright-free when it came out. And I bet a lot of other fans of Sid’s work would say the same.

The donors have to trust that the developer will finish it, of course; but this is effectively how freeware development works now. Somebody makes a name for themselves with a piece of freeware; they ask for donations; the donations help to fund further work on a new version. So far it has only been tried on a small scale, but—as the mobile and casual games are showing us—there’s still plenty of demand for small scale games in the world.

(A variant of this system, pioneered by cyberspace engineer Crosbie Fitch, is already in place for music, except that people give pledges rather than donations. When the musician releases the work, she collects all the pledges made towards it. See for details. Credit where it’s due: I first heard about this whole idea from Crosbie.)

In short, there are a heck of a lot of ways to recover the development and marketing costs of video games besides trying to sell individual physical copies and prevent their duplication. That system is awkward, wasteful, and theft-prone. It supports too many middlemen and, like Prohibition, puts money in the pockets of some very nasty gangsters.

Of course, some alternative distribution models still rely on copyright, and publishers will still be trying to prevent people from redistributing their content. But sooner or later that model is doomed. The perceived value of a thing is inversely proportional to the ease with which it can be duplicated. If the public simply refuse to acknowledge that copying books or movies or software is wrong, then in a democracy, it will eventually cease to be wrong. People elect the legislators, and legislators make the laws.

Does the end of copyright mean that books or music or movies or games will die? Of course not. The urge to create is too strong in all of us, and consumers will always be willing to pay for novelty and for excellence. It may mean that nobody gets mega-wealthy any more. What it does mean for sure is that the giant dinosaurs that currently dominate the distribution channels had better learn to adapt or die. There are a lot of fast-moving little mammals in the underbrush eating the dinosaurs’ eggs.

And fifty years from now, kids will be asking, “What does that © symbol mean in this old book, Grandpa?”


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