Klarinet Archive - Posting 000050.txt from 2010/07

From: Joseph Wakeling <joseph.wakeling@-----.net>
Subj: Re: [kl] Sheet music copyright
Date: Tue, 06 Jul 2010 03:32:11 -0400

On 07/06/2010 12:53 AM, Kevin Fay wrote:
> <<<I think it is a question that is less clear-cut than you make out given
> the degree of reach and publicity that can be gained from free internet
> distribution. The scale of both have changed dramatically and that has big
> consequences for what the most profitable distribution model is.>>>
>
> Not true. The question isn't what is the most economically beneficial for
> the artist, it's who gets to make that choice.

I was responding to your specific point that "Private distribution of
sheet music - and recordings - most definitely reduces demand for the
commercially published stuff, hitting the composer square in the
pocketbook." That specific assertion is indeed no longer so clear cut
in the internet age.

Whether that change in the economic situation should impact copyright
law is another question; but the fact that the economic realities have
shifted shouldn't in itself be dismissed.

> Your distinction between the theft of physical objects and copying of
> "intangible" property is false, because both result in a lost sale. You
> cannot sell what people take for free.

I know that publishers, record companies and so on would like us to
believe that "every copy represents a lost sale", but it simply doesn't
stack up with empirical observation. A reasonable summary of the
situation is that often people are taking a copy of something because it
is free; but that if they weren't able to do so, they wouldn't buy it.

That's why -- from a purely practical point of view -- the marketing and
reach aspects of free copying are worth bearing in mind. By permitting
copying, you get reach and access to individuals who otherwise would
likely not engage with your work.

Add to that statistics showing that the people who download the most
also often purchase the most, and you have a _practical_ situation which
is very different from the one painted by media companies.

As for "you cannot sell what people can get for free", perhaps you would
like to take this up with Red Hat Enterprise Linux, a copy of which I
can get for free, perfectly legally, rebranded under the name "CentOS",
but which nevertheless manages to sell copious numbers of licences in
its original form. :-)

> Even tangible objects can derive the majority of their value from intangible
> property. Take medicine, for example. The marginal cost to produce most
> drugs is close to zero - does this mean that all pills should be free? Who
> would pay for their development?

Perhaps you should take this up with the World Health Organization, who
not so long ago concluded that the existing patent systems for drugs
were failing to serve their intended purpose of encouraging innovation
and availability of drugs to those who need them:
http://www.msf.org/msfinternational/invoke.cfm?objectid=DA40FEBF-0FFE-7C62-A0B20D2B8DF1AF82&component=toolkit.pressrelease&method=full_html

The clear need for incentives and financial sustainability for
innovation is too often conflated with the _particular incentives_ that
are employed at present...

> There are other slices of intellectual property that fall into the same
> boat. A set of architectural plans for a house costs several thousand
> dollars. You can now download them over the internet in .pdf form. Does
> the fact that they can be transported by electrons make it OK to freely
> copy, just because I don't sell them?

The "just because I don't sell them" line is interesting, since I recall
that up until 1997 (when the No Electronic Theft Act was passed) there
were no grounds for criminal prosecution of copyright infringement
unless it was carried out for "commercial advantage or private financial
gain".

Whether it's "OK to freely copy" (from a moral and practical, rather
than legal point of view; the legal position is fairly clear) will
depend a lot on your assumptions about the situation. If you start from
the assumption that an architectural plan (that is, the information
contained within the plan) is property, then naturally you will arrive
at a conclusion that says that to copy them without paying is wrong.
However, if you examine copying from the point of view of whether
permitting it increases net public welfare, it's not so clear.
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