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Copyright, Fraud and Window Taxes (No, not that Windows)

Hanging around IP lawyers quickly teaches you that no matter how complex and mind-binding you thought your model of copyright law was,  the real thing is always sixteen times more so.

Regardless of that, I continue to be interested in real human’s naive beliefs about how copyright is supposed to work. Even when they’re wrong about the letter of the law – especially when they’re wrong about the law I think these attitudes illuminate the modern problems the public wants solved with copyright; and why sometimes it is not the best tool.

One behaviour I see a lot is a general tolerance towards copying, mixed with an absolute moral fury at passing-off. The fact that both activities are seen as straightforward violations of IP law both by the general public and by the legal system I think is confusing for everybody.

Let me give an example. I have a friend who is a reasonably successful DJ. Her continuing success comes from the distribution of her mixes, which she lets be passed around online and off. She’ll regularly get gigs from people who’ve heard her tracks, and want her to perform at their event.

A few years ago, she discovered that a Spanish DJ was using her mixes to promote his own career, passing them off as his own. Naturally, my friend was furious, and railed against pirates and all those Internet scum who shamelessly copy her tracks. I pointed out that she had actually encouraged them to do that, that it seemed to be an important part of her marketing, and, anyway, there was a good chance that her entire body of work would be impossible had the artists she worked with demanded the same controls as she was now envisaging.

I think a lot of people would view my friend as either confused, or hypocritical, in her apparent divisions of what is right and wrong in IP. Moreover, where you stand on the IP front determines how you think she should adjust her thinking to be consistent. If you’re for minimalist IP, you’ll conceivably feel that she should continue her art, and not sweat too much the Spanish DJ. If you’re a maximalist, you’ll feel the other way: its her fine comeuppance to be mistreated in the same way as she has flouted copyright law in the past.

I think, actually, that her confusion comes from two very separate matters that get blurred in the idea of “intellectual property”: copying as the tapping point for revenue redistribution, and correct attribution and sourcing as a side-effect of that.

Copying is important in the process of creative remuneration, I feel, because it used to be an excellent tapping point from which to extract value and distribute it back to the creator. Copying cost money, and the only reason you’d do it would be to sell the produced copy for cash. Therefore, it was a perfect statutory location to place a money-pipe back to the artist. Matters blurred when radio broadcasts and performance rights came along, but fortunately the term “copying” could still be stretched to cover these events without anyone feeling too uncomfortable. It always took money and effort to make a copy: costs that you’d almost always only pursue for commercial gain.

In a digital world, many people don’t see the act of copying as a particularly momentous or profitable event. Copying isn’t what we do as an act of purchasing; copying is a thing we do to our valuable artifacts. People are scandalised when its suggested that you should pay for a copy copied to backup drives, or iPods; they’re amazed when vested interests demand that cached copies or transitory files should count as extra purchases. Copying is no longer a good proxy for incoming revenue; which means it is no longer a good place to extract remuneration.

I think of it a little in terms of window taxes. From 1696-1851, Britain had a tax on windows on buildings, not because windows themselves had any particular significance, but because, absent reliable income records, windows served as an excellent proxy for how rich you were. One window: lower middle class. Forty windows: stinking rich.

As time went on, the proxy began to fail. Smart rich people blocked up their windows, flashy ostentacious people built buildings with lots of windows, and windows themselves became cheaper. Rather than acting as a successful measure, it did nothing but warp the revenue system and distort the nature of architecture.

Copyright is a similar tax, imposed for the benefit of artists, and collected at the act of copying. But it has also had another effect: by imposing a charge on copying, we also managed to limit fraudulent representation. If you wanted to claim some work as your own, you would probably have to copy it. If someone was claiming to have created your work, they probably made a copy to sell.

And so the legal management of fraudulent representation became tied up with the basket of legal concepts we now know as IP. Nowadays, copying isn’t always the core part of remunerative creative business. But accurate accreditation very much is.

I feel that the problem with the Internet isn’t that it creates so many damn copies: if it was, then we would have a nigh-infinite universal disaster, unsolvable except by closing the whole damn digital thing down. At least one societal problem we have is far more minor than that: that the opportunity and instruments for fraudulent behaviour have changed, and we need legal tools to deal with that which don’t obsess about who copied what bits and when.

I’ve often felt that if we could strengthen the pursuit of fraudulent claims in other parts of the law, then we could satisfy what many ordinary people want from IP, without pandering to pipe dreams of centrally controlling and taxing every act of copying in the digital world.

Of course, there’s also the remunerating problem, which is perhaps far harder to crack. But we mustn’t confuse the two, as IP has done for so long.

15 Responses to “Copyright, Fraud and Window Taxes (No, not that Windows)”

  1. Bill Thompson Says:

    Nice piece, Danny, and I think your identification of the ‘tapping point’ is spot on. Main problem I can see is that the current preferred option for ensuring attribution is to use DRM and watermarking to track copying, and it will be hard indeed to persuade rights holders that the technology should not then be used to limit playback/copying too. Back in 1995 the EU funded IMPRIMATUR ( and IPR-management system that could have solved some of these problems…

  2. Constant Flux › Pirating Is OK, But Plagiarism Is Truly Evil Says:

    […] Danny O’Brien made the point that copying isn’t such a big deal any more, but that plagiarism is almost universally condemned. […]

  3. Ian Betteridge Says:

    “Copyright is a similar tax, imposed for the benefit of artists…”

    I think that, if you want to change copyright law for the better, this isn’t a good way to frame the argument.

    By stating that it exists to benefit artists, you’re framing the debate in the same way that Cliff Richard does when he argues that “my songs are my pension plan” – ie that the argument is all about the actual group that benefits financially, and to what extent they benefit. And that’s an argument that, actually, you’ll never win – because not only are you taking on existing rich artists, but you’re taking a lot of aspiring ones too. Think of every band that’s ever wanted to be famous, every actor who wanted to be a film star, every street kid who wanted to be a rapper. Or think of your friend, who, as soon as they’re directly hurt by copying, becomes vehement about the fact that copying is bad.

    The key question shouldn’t be “does copyright benefit artists?” Instead, in order to get copyright laws which aren’t the current insane mess, we need to return to the idea that copyright must be framed so that it benefits society as a whole, by encouraging and rewarding original work – or as the statute of Queen Anne put it, “for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned.”

    In other words, we should always remember that copyright is a artificial monopoly granted because it has a beneficial effect for society as a whole, not simply to benefit a particular class or profession (and that word “artificial” is really important here).

    So the real question is “what would a modern copyright work look like if it was written from the perspective of encouraging original work for the benefit of society as a whole?” And the answer to that is “very different from what we currently have”. It certainly wouldn’t last longer than the author’s life (and 20 years from time of completion seems to me to be more justifiable – artists who can’t rely on work made in their 20’s forever will be far more productive in their 50’s than ones who can).

    It would codify and extend the rights of readers to copy for personal use under a much wider range of circumstances than is currently permitted, because the wide distribution of original work is beneficial for society; and it would constantly remind authors that this is an artificial monopoly, granted to them for the benefit of all, not a favour granted because we like their hairstyles.

  4. sabik Says:

    Is there a remuneration problem?

    After all, it seems that plenty of music is being made for free. Plenty of software. There’s even the beginnings of plenty of video, though the net is still a little slow for it. For various reasons, including those of your friend (publicity for live performance).

    If there is plenty without it, what advantage remuneration?


  5. thenna Says:

    can i know how to hack……… i hear about hacking… i want to just know how they do… just want to know..

  6. sabik Says:

    @thenna, perhaps ESR’s “How To Become A Hacker” can help?

    (One of the lesser points is that one should learn to write one’s native language well; but given the poetry of your query, I’m guessing you’ll have no trouble on that account.)


  7. Danny O'Brien Says:

    Ian, Sabik —

    I’m sympathetic to your points, but I didn’t want them to drown out the main discussion. Artistic remuneration may not be the widest, truest expression of the aims of copyright, but it’s definitely what people see as its naive function. In this discussion, I’m more concerned with accurately describing how I think most people think copyright works, rather than how they should think it works…

  8. EFF’s Dany O’Brien on Copying and Attribution in a Digital Age - Creative Commons Says:

    […] us to a great post by EFF’s International Outreach Coordinator Danny O’Brien on the cultural difference between ‘attribution’ and ‘copying’ on the Internet. O’Brien makes the astute point that while copying is relatively uncontroversial to most […]

  9. Linkpile 8/8/8 · DragonFly BSD Digest Says:

    […] article titled “Copyright, Fraud and Window Taxes (No, not that Windows)” talks about how people generally don’t mind copying; what makes them mad is […]

  10. Rocknerd » Blog Archive » Just spell my name right. Says:

    […] the new world, the general public just refuse to see copying as morally wrong. But attribution is another matter. Look what happens when you STEAL a LiveJournal icon from the original […]

  11. troll on a moose Says:

    As with windows and the right to copy, this sort of problem (along with a, sadly, seemingly unobvious host of others) always occurs when you actually do trust the intellectual capacity of your betters when they say “I’ll just measure the shadow, on the floor at my feet, rather than get off my throne, to measure the actual thing that’s casting it” (special dispensation granted for all you quantum physicists, with dreams of world dominion, who insist that it can’t always be done).

    If the point is compensating creators, for the value added to objects sold at a (presumed) premium because of the addition of their “Intangible Property”, then we need only look to The Godless Commie Red Threat for the solution: collect a portion of every such copy sold, to be redistributed to the creators.

    Of course, that was “The Old Way”, whose destruction was a condition of entry into the modern, international, monetary systems.

    Why object to such a simple solution: Because it solves the problem, without creating “opportunities” for adjunct “tasks” (like controlling who can actually create those copies, how much they can be sold for, etc.). It’s very UNIXian, very unWindowsian (’nuff said).

  12. In An Age Of Abundance, Attribution Is More Important Than Copying | Technology | Daily Blog & News Says:

    […] Danny O’Brien points out that what might actually matter most to content creators is not limiting copies, but attaining proper attribution — even though that was not the intended purpose of copyright […]

  13. In An Age Of Abundance, Attribution Is More Important Than Copying | Technology Update News Says:

    […] Now, the EFF’s Danny O’Brien points out that what might actually matter most to content creators is not limiting copies, but attaining proper attribution — even though that was not the intended purpose of copyright law. Because copying used to be […]

  14. The Aust Gate » Blog Archive » Sourcing the attribution Says:

    […] on BoingBoing, Cory Doctorow has an excellent link to Danny O’Brien’s post on attribution for re-using works on the […]

  15. Controlling copies isn’t necessarily part of an artist’s livelihood, but getting them accurately attributed is | MashTopic Says:

    […] Copyright, Fraud and Window Taxes (No, not that Windows) Read the source » Share and Enjoy: […]


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