Posted on July 15, 2010 at 7:33 pm

Those of you who are not totally bored of my rantings about copyright infringement may enjoy a piece I wrote for the NY Times theater blog. Click here to read it, and thanks to Eric Piepenburg for asking me to continue the conversation on such a large platform.

You will note many of the same annoying commenters from my first blog on this subject trolling about there, but I did get a very thoughtful and engaging email from an intellectual property lawyer at Stanford Law School, and I thought, in the interest of balance, that I would reprint it here.

I’ve edited Alex’s letter somewhat, primarily because it was really friggin’ long. But for the record, let me say once again that the examples I provided in my initial blog were really not as well thought out as I would have liked – had I known that 150,000 people were going to read that blog, I would have taken more time with it. There are far better examples that would not have invited such easy derision. I stand by the points I make, obviously, but I acknowledge that the metaphors I used are somewhat leaky boats.

Here’s Alex’s letter. Many thanks to him for allowing me to reprint it here:

Dear Jason,

I’m an intellectual property lawyer at Stanford Law School’s Center for Internet & Society (this is me).

First of all, thank you for the time you took to do this. There’s a real need for public education on our copyright system and you’ve brought much needed attention to the serious issues underlying intellectual property rights and the challenges now facing artists, musicians, writers and many other creators. It’s been fascinating to see a working artist make such a striking contribution to the debate and to watch the discussion play out in quasi-real time in the public sphere.

But I disagree with several of your points. To be clear, I am neither angry nor a Crusading Copyright Killer. I am not defending piracy or proposing that music should be costless or advocating a non-market system of funding art. I am fine with the idea of a copyright system that is balanced to promote creativity and allow people to fully use new technology. I want to address what I think are the important big picture issues: (1) our copyright system should be fundamentally based on promoting progress, (2) it should allow ample material to remain available for common use, and (3) it should be flexible enough to change with technology.

Story One: How songs are different than screwdrivers

Let me start with your first story, the parable of the screwdriver. Your analogy is illustrative in one way (don’t take something that’s not yours) but significantly misleading in another (songs aren’t screwdrivers because they are abstractions, not physical objects). I think this is an endlessly fascinating quality of intellectual property — we think of it as a thing, but in some key ways that we have gotten used to overlooking, it’s not.

People who have thought about intellectual property over the years have left us with some nice metaphors for this non-zero sum property of intellectual abstractions. Thomas Jefferson wrote in a much-quoted (by IP types at least) letter to Isaac Mcpherson that “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.” Some have pointed out that, fittingly, this idea can itself be seen as an adaptation of St. Augustine’s sentiment that, “All of you hear all of [my words], though each takes all individually. I have no worry that, by giving all to one, the others are deprived. I hope, instead, that everyone will consume everything; so that, denying no other ear or mind, you take all to yourselves, yet leave all to all others.”

In your email, you shift from this idea, the zero-sumness of a physical object, to the broader point that you deserve to be paid for your work (right around where you say “The way I support myself and my family. . .”). But these are two separate points, one correct and one not, that you have run together — (1) songs are like objects, when they are taken by one person, another person is deprived of their use. This is not accurate — you may have been deprived of money, but not use. You can keep playing your song. (2) You deserve to get paid for your work. I agree with this completely. But your story conflates using the song and paying you for your work. They are not the same thing. It’s not hard to imagine a world in which these are separate — e.g., you get a generous monthly stipend that you are happy with from a patron on the condition that anyone can play your music, trade your sheet music, etc.

These two issues – payment and ownership/control of copies should be conceptually separated. They are connected under our current system, but they are not naturally or necessarily connected. We can unfasten them and toggle them separately to see what happens. If we could imagine other ways for you to get paid for your work (maybe we can’t, but assume for argument’s sake we can) as an artist, then whether or not people “take” your song is beside the point. You only want to stop people from taking things because you need to get paid. If you got an acceptable income from your work, you would probably not care about who plays or doesn’t play your song. This is because, unlike a screwdriver, it is not bound by physical world zero-sumness. In fact, you’d probably prefer such a system because you’d get paid and at the same time a greater number of people would hear your song. I think your teen correspondent mentioned a similar point.

I see that in your column you went back to clarify your point based on the distinction between performance rights and the composition right to the sheet music. But this is not an accurate statement of the law. Performing rights also cost money. Even if someone learns your song by ear, they do not have the right to perform it in public for free. This may be an area that is not fully enforced. They may be able to get a relatively inexpensive mechanical license, depending on where and how they play it. But it is not free.

I interrupt here to point out that I didn’t intend to imply that a public performance was free; I merely meant you can sit in your living room and play or sing the song and you don’t need to pay for a license to do that. For that matter, the majority of public performances of my work are licensed not by the performer but rather by the venue – clubs and concert halls pay ASCAP a certain amount of money every year for a blanket license – and so for the performers, it is in fact free.

More on Story One: If you made your song, where did you get the raw materials

Another way of thinking about this tangibility issue is to ask: in what sense do you “own” your song? You don’t literally own your song; you own a set of rights in it, such as the right to exclude others from making and distributing copies of it. If you do believe you “own” your song, I think it is fair to ask where you got your raw materials from. I won’t presume to put words in your mouth, but I think common artistic raw materials would have to include — the sum of your personal experiences, all of the music you’ve heard, all of the sounds you’ve heard, all of the art in other media you’ve experienced, all of the music theory you’ve learned, and other intangible things, like notes, chords, common chord progressions, conventions of theater music, etc. And, of course, many hours of hard work. But you never had to pay for all these raw materials. You have doubtless paid tuition and for some performances and sheet music, but there are many inputs that you got for free. So, how can you claim to own something from materials that you didn’t buy? You took in notes, chords, melodies, theater conventions, made something out of them, and then claim to own the result. Why is it that you are not stealing? Why don’t you owe payment or royalties on the materials you used? I think the answer is that these artistic materials belong to all of us to use as we please. They are the common artistic resources of the community, like drinking from a stream. So you appropriated them and now believe you own the product. I’m not blaming you, but maybe you can accept that this is an odd asymmetry.

I’m going to pick on your metaphor here for the sheer pleasure of turnabout: if I find a bunch of abandoned wood in the street, and the law says I may take that wood, then I own the house I build with that wood. I think one could argue that these “common artistic resources” are raw building materials, and much as Coca-Cola can own the products it makes with locally owned water, so can artists own the creations they bring to life with the resources you describe above without having to “purchase” them.

John Locke’s labor theory of value addresses this. In Locke’s Second Treatise on Civil Government, Locke begins with the principle that a person has the right to his own body, which includes his labor and the work of his hands. Locke reasons that a person is entitled to the fruits of his labor, “at least where there is enough, and as good, left in common for others.” This principle — “enough, and as good” — underlies our claim to our products where we have taken the raw materials from the commons (along with the idea that you should not waste common resources). A musician like you takes certain things from the artistic commons and is entitled to your products IF what you have left for others is “enough, and as good.” In other words, you get what you made, but only if you leave enough for others. In order to use your song, you don’t need to deprive anyone from using it. If you can get paid (yes, a big if), then there is no need for you to prevent others from using your song. This is in line with Locke — you get the monetary fruits of your labor but have left material in the commons that is “enough, and as good” for others to use. In short, all artists take their raw materials from the commons so it is in their best interest, and it is their responsibility, to ensure that the artistic commons stays rich and healthy with resources for everyone to use in the future. You can take what you make, but only so much that what you have left in the commons is “enough, and as good.” You can prevent others from doing stuff with your song only to the extent that it leaves the commons healthy and that you don’t take more than you need. And, to return to the distinction I mentioned above, you may need a certain amount of money to survive, but you do not necessarily need to get paid based on fees for copies, in order to get paid.

Story Two: Estates Are Bad at Writing Novels

Another important distinction is that, unlike you and other working artists, the Estate of Thornton Wilder is not going to be writing any more books. You may believe that because Wilder’s books are so great, Wilder’s heirs are entitled to a lot of fruits. But this idea (money for the estate) is fundamentally different than your right to get compensated for your own artistic labor. I think a way to highlight this difference is to go back to the Constitution and the whole reason we have Copyright.

Under the Constitution, the bedrock principle that justifies copyright (and patent) law is progress. We want to promote progress in art and science. Article I, Section 8 of the Constitution: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” [Here, the word “science” is used for what we’d now call “art” and it refers to the “authors” and “writings” later in this sentence’s parallel construction.] This “Progress clause” underwrites our copyright law. Crucially, it does not name as its purpose the “moral rights” of artists to profit from or control their works. Some other countries, like France, base their copyright law on this idea. It’s an attractive idea in some ways, but it’s not the philosophy that powers US copyright law. Simply put, in the US, you don’t get to profit from your art because you have a moral right to your art and its profits. You get to profit from your art because and to the extent that it promotes artistic progress.

This is an important difference. At some level, these two interests are aligned — if you can spend your hours writing music instead of doing some other job you will probably write more and better music. That is good for artistic progress and the public benefits. So we pay you and are happy to do so, but we do this to make you able to focus your labor on art. So, although it may sound odd, it is not necessarily your right to get every possible penny from your work. Rather, our system is designed that you get enough to create, which promotes progress. But money that does not go toward promoting progress is not an entitlement.

This brings us back to Thornton Wilder’s estate. Continuing to channel profits to the estate does not promote progress. The man is dead. He’s not writing any more books. Enriching his estate does nothing to promote progress. Even if when alive Wilder had known that his heirs would some day make money from his works, that is almost certainly not the reason he wrote books. To be clear, this arrangement is legal under our current system. But I think it is a flawed implementation of the system provided for in our Constitution. You may believe intuitively that the estate is entitled to every cent it can get. But that would be because you really like these books and may intuitively embrace moral rights — i.e., the art is an outgrowth of the artist, so whatever profits it makes are secured to him or his heirs. But, as I said, that is not our system.

Actually, the fact that I like Wilder’s work has nothing to do with why I think the estate should get the money to which it is legally entitled. I also think Jim Morrison’s estate should get their money, and I fucking hate the Doors.

In the US, you should get enough to make you productive, and no more. By the way, this does not mean artists should not get rich. As your price of productivity goes up, you can command the price necessary for your continued productivity. But, no, you and your heirs don’t get every possible penny from your work. This surplus — the money you might be able to get but which will not allow you to be more productive and so promote progress – is surplus that goes to the public. Like many productive activities, you don’t get to capture every bit of goods you produce — some of these become public goods.

You write that the Thornton Wilder estate deserves its share of the profits. But why? You may think they are morally entitled to do so, but because our copyright system is not based on moral rights, this is not how the law should work. No progress, no copyright. To be clear, our law does allow estates to own copyrights and our Congress continues to extend the copyright term. I am giving you the opposing view, which is not simply that information should be free. It is that extending copyright so long violates the underlying Constitutional principle that copyrights are there to promote progress. When this indirectly enriches people or businesses, great. When it doesn’t, not great. Why do we need a copyright to last the author’s life plus 70 years? It’s hard for me to see how a creator is going to get much done in the 70 years after his death, and I don’t think the prospect that your heirs will make money on your creations provides any significant incentive to create. You tell me.

Of course my impulse to create is partly motivated by my need to support my family, now and after my death. I don’t create as a hobby; I did when I was 20, but continuing to be a creative artist requires strategy, planning, discipline and a lot of forethought. I’ve got bills to pay and I don’t pay them by working at a hedge fund. If I were to die tomorrow, the lifestyle that I have built up for my family would be severely endangered, but at least the continuing royalties from the performances of my shows might pay for my childrens’ college educations. Furthermore, I make more money on new shows than I do on old ones – the popularity of any given show inevitably fades. 13 will earn me the most money of any of my shows this year, followed by The Last Five Years, followed by Songs for a New World, with Parade running a distant fourth. If I don’t keep creating new work, I eventually have to find some other way to make a living. Life plus 70 years sounds excessive to me, but I think some posthumous protection for an artist’s work is necessary. One of the commenters made the point that “Yesterday”, for example, is no longer Lennon & McCartney’s, it sort of belongs to the world; I appreciate that and basically agree with it, but some of my emotions on that point are colored by the fact that the authors have already made so much money from the song that they can’t possibly need any more. What’s the limit on that? Should we deny “Yesterday” any royalties but allow “Why Don’t We Do It In The Road?”? What if someone just discovered a song written the same day as “Yesterday” by an unknown writer, and that song turns into a smash hit? Should we shut that writer out just because he didn’t write it at the right moment? Or because he’s dead? And yet I have no problem with someone discovering an obscure Sullivan operetta and mounting it without paying the Sullivan estate (to the extent one even exists) – surely that distance of time between something written in 1965 and something written in 1888 accounts for my inconsistency.

Finally: New Technology Threatens the Old Order, but it’s Better to Shape the Future Than Dig in Our Heels

As for the “free information” fight, I don’t want to get bogged down in this. But the short version is that unfortunately, a lot of serious and important conversations have been stalled before they really got going because of confusion over whether people mean information wants to be “free” as in “free speech” or as in “free beer.”

As for the “outmoded business model” talk, the angry young men, despite their rhetorical excesses, are on to something, which I’ll try to paraphrase with less vitriol. The fundamental question is — how can we ensure that artists make enough money from their art to devote their time to it rather than something else? If copyright as it exists is the best system, then that is fine. But, as technologies change, the answer to this question changes too. Until the twentieth century, only people with printing presses could make cheap copies, so it made sense to control them as we did. But, with the advent of photocopiers, it started to make less sense. And, now that we can send information digitally, the wheels are really starting to come off the wagon. The price of copying has plummeted. Overall, this is a good thing — people can make and transmit information and music and books much more cheaply. But, this profound shift in copying technology is also bound to disrupt a payment system based on regulating the act of copying.

Many of the things that music publishers and the entertainment infrastructure did, we may not need anymore. We don’t need printing presses to make physical sheet music or stores to stock it. We don’t need distribution networks for CDs. It looks like we may not need A&R people to scout and filter new talent, or at least not nearly as many as we did. Maybe we don’t need record companies as much to aggregate risk by fronting many bands advances for studio costs. I’m not saying get rid of them. I’m saying they should do the things that we still need them for and stop doing the things we don’t need them for anymore, like supervising copying technology. But, what we should not do is use the law to limit people’s use of new technologies in order to preserve the way things used to be done.

When technology changes it puts pressure on prevailing industries to change. It changes the competitive environment. Incumbents lose some of their old streams of revenue, on which they have come to rely, and which they may even have come to view as an entitlement. Incumbent industries will fight to preserve their market power. Lobbying for favorable laws is one of the best ways to do this, but the laws that result are not necessarily good for consumers, creators, or the public. They are good for the incumbent industries because it relieves competition from market upstarts. It’s important to recognize this when it happens because if an old industry prevents innovation in order to hold on to its power, everyone else loses. You are probably familiar with the old saw about buggy whip manufacturers doing everything they can to keep automobiles out of the transportation market — they would have lobbied Congress for regulation, told the public about how dangerous cars are (especially when driven by young people), and probably even believed that the proper moral order supports a relationship between human and horse that is mediated by a buggy and a whip. But, the point is not to keep buggy makers in business or get invested in the moral order that supported arrangements that worked to that point. The point is to get people from point A to point B as well as we can. Similarly, the point is not to make sure you own your songs. The point is to make sure that you make money from your work so you can create.

But that point lacks a very important shade which is unique to creative endeavor; if Paramount Pictures uses my song in a movie and that movie becomes an enormous success because of (for example) the emotional pull my song generates, why should I not be entitled to some portion of the substantial money that Paramount Pictures earns from making the movie? They used my raw material, shouldn’t they pay me for that raw material? This has nothing to do with me having enough to eat, it has to do with the value of my services to a specific enterprise. If a tiny independent film company wants to use one of my songs, I might let them use it for free if I like the movie and believe in their work; but if Warner Bros. wants to put one of my songs in the next Cats and Dogs movie, then they’re damned well going to have to pay me for it. The key here is that it’s my choice as to how my work gets exploited. I’m not some salaried employee of the state, I’m a business all unto myself, and I get no small satisfaction from making that business successful. I don’t want to be writing at the pleasure of the King; it would be nice if that option were available, but even if it were, I think I’d take my chance on the open marketplace. Now, however, the open marketplace isn’t operating fairly.

Look, everyone picked on my screwdriver metaphor, so let me put it right back in place: Let’s say I invent a self-replicating screwdriver. There’s a whole pile of them in my driveway – if you take one away, another one will appear in its place. Weirdly, my neighbor also invented a self-replicating screwdriver. I think mine is better, but that’s neither here nor there. On my driveway, there’s a sign saying “Screwdrivers $4.00”. On his driveway, there’s a sign saying “Free screwdrivers!” There is no legitimate defense of the idea that it’s okay to take my screwdriver for free just because there are an infinite number of them available. If you want a free screwdriver, go get the one from my neighbor; but if you want mine, the fruit of my labor, as Locke would have it, then you are obligated – in every sense of the word – to pay me the price I am asking. I don’t owe the commons a free screwdriver, nor do I owe them free sheet music to my songs. Nothing you’ve written above changes my mind on that matter.

I want to emphasize that I am not defending piracy as moral. What I am saying is: (1) piracy is a symptom of a historic shift in technology – people want to use information technology to its fullest but the system we have in place for paying composers demands that they refrain. They are not going to just stop so we enforce this limitation through law and other technology. (2) It is a waste to stop people from using new technology to the fullest. It is also a waste to spend money on enforcing these limits on technology through legal and still other technological means. I think it makes more sense to spend our resources on finding a way to get you paid for your work that at the same time allows people to fully use technology. Our current system is heading in the opposite direction — towards closed systems and limits on technology — and people inappropriately use piracy to justify this.

We agree on a fundamental principle — you should get paid enough to allow you to do your work. What we disagree about is whether the current copyright system is the best way to get there, especially in light of new technology. Our copyright system is based on the goal of promoting progress, it is not a natural right or a moral right (in France, yes; here, no, even though I can very much understand that this way of thinking would be intuitive for artists who often understand their relation to their labor as “pouring” a lot of themselves into their work). If we find a different way to get money to artists that also allows people to take advantage of technological advances, we should do that. As I said above, if you knew you’d make money for your work, you probably would not care about whether the payment system is implemented through copyright or some other means. And if keeping the old system means preventing people from using new technology to the fullest in order to keep paying artists the old way and preserve the incumbent middlemen, that would be a waste. Why would we not want to use new technologies to their fullest extent, if possible? So rather than prohibiting some uses and spending time and money enforcing that, let’s find fruitful ways to use the new technology to everyone’s benefit.

Of course, I do not have an answer to this question of the new better way. But that doesn’t mean it doesn’t exist, or that it isn’t worth trying to create. There is a community of people thinking seriously about how to get there. To be clear, I want to live in a world in which you can get paid to write music. But I don’t accept that paying for your sheet music is the only or the best way (anymore) to create that world. Getting there will require imagination from people thinking about technology, the creative process, law, economics, and how people want to consume art, all of this in order to foster the best possible artistic ecosystem for artists in all their roles — creators, performers, adapters, etc.

I have taken all this time to write to you because I truly believe the old ways of financing art are decaying rapidly, regardless of the temporary successes of rearguard enforcement measures, and we need to be thinking about where we go from here, or we risk having nothing new in place to sustain the next generation of artists. A community exists of people working to think about the best ways to make the arts flourish through sensible and balanced copyright laws that are in harmony with technological advances. This will not be easy — it will take the ability and willingness to contemplate and create a world that may look different than the one we live in now. And this is why promoting the progress of our intellectual property law, though less interesting to listen to than a good song, also needs creative people involved who believe it is worth doing. I may not have changed your mind on anything, but I hope you consider that some of your energy and insight into this topic, rather than going entirely into enforcing and defending the existing system, might also go towards helping envision and create the system we need for the future. Thanks again.


And thank you for such a thorough, well-argued, intelligent and respectful response to some very thorny issues. I’ve been saying for the last couple of weeks that I never intended to make this “my” fight; I’ve got too much writing to do to spend my time tilting at windmills. Nonetheless, the fight showed up at my doorstep, and I’m doing my best to keep my head above water while the sea rages around me. I do not remotely consider myself equal to the task of arguing these points with copyright lawyers, and I hope you understand that any frustration or unintended condescension on my part comes less from any desire to score rhetorical points than from a legitimate exhaustion and fear that I’m being out-argued on semantic grounds that I don’t have the tools to combat.

We’ll see where this skirmish leads; we may not be entirely on the same side, but I hope I can count on your support in trying to make a coherent whole out of what is now a chaotic jumble.