Indistinguishable from Theft

Submitted to the US Department of Commerce in response to their call for comments on Copyright Policy, Creativity, and Innovation in the Information Economy.

Let's allow musicians to choose to give up their monopoly on distribution rights. In return, let's give them money in proportion to the popularity of their works, starting with money the government and ISPs would have spent on copyright enforcement.

Copyright is a poor mechanism for encouraging creation

The premise of copyright is that the monopoly rent of a work is a good proxy for the benefit to society of the work's existence. This is no longer the case, at least for recorded music.

Copyright limits the societal benefit of the work's existence, because:

• People who can't afford recorded music don't get to enjoy it.
• People often can't listen to songs before purchasing them, so they purchase too few songs or the wrong songs.
• People are denied the joy of sharing music with their friends.

The portion of the societal benefit that is apparent in the monopoly rent is very low, because:

• Transaction costs form a large portion of the purchase price.
• Promotion costs are high in order to overcome consumer reluctance to spend money on an unknown.

Because of copyright, most of the potential societal benefit of a new song goes to deadweight loss and transaction costs. Only a tiny portion makes it to the musician.

Copyright harms society

Since the rise of the Internet, copyright has begun to have negative externalities that go beyond musicians and listeners:

• Government resources are spent on copyright enforcement.
• A hidden tax is levied on internet connections as ISPs are forced to filter, forward notices of infringement, and respond to subpoenas.
• User-generated content is at risk from fraudulent takedown notices.
• Popular infringement, combined with sporadic-but-harsh enforcement of copyright laws, diminishes respect for all laws.

Attempts to enforce copyright through DRM software create additional problems:

• DRM conflicts with fair use.
• DRM disadvantages open-source software.
• DRM anti-circumvention laws conflict with free speech among software developers.
• DRM legitimizes infringement in the minds of users who find they cannot listen to purchased music on a new device.

Copyright is becoming increasingly inefficient and harmful. Let's try an alternative, and let musicians experiment with a wider range of promotion models.

Galactic Civilizations fan "The Wicked Flea" on game copy-protection:

Call me inane or foolhardy if you wish, but the harder you squeeze, the more slips through your fingers. You can prove this scientifically by attempting to squeeze jello and keeping it all in your hands at the same time.

Cory Doctorow gave a keynote at ToorCon about DRM. During the Q&A, an audience member asked him to give additional comments on the infinite copyright situation. Cory's answer focused not on the effects on the general public, but on the effects on artists.

It's bad news because for most of us, 45 years after our work is created, a hundred years after our work is created ... figuring out who you need to talk to before you can re-use that work -- before you can bring it back, archive it, or put it back in the stream of commerce, make a new work from it -- is almost impossible, and certainly costs more than you'll ever hope to earn from those works. As a result, the works languish. You might have a piece that would be interesting to use in your new transformative work, but figuring out who you need to pay, let alone paying them, costs more than you'll ever be able to earn back from it.

What that means is that the library is burning in slow motion. All that film ... is turning to slime and we can't bring it back. [As long the early Mickey Mouse shorts] remain in copyright, all those other works disappear. It's a kind of radical denuding of the marketplace.

There are a lot of bad things you can do to artists: you can plagiarize us, you can rip us off, you can leave us to die in penury, you can write nasty things about our books on Amazon. But of all the things that you can do to artists that horrify artists, I think that the one for which we reserve a special creeping horror is the spectacle of the mountain of books on fire. It's being removed from the public eye ... it's being forgotten by history.

Proper use of the Photoshop trademark (via Alex Utter)

INCORRECT: The image was photoshopped.
CORRECT: The image was enhanced using Adobe® Photoshop® software.

INCORRECT: A photoshopper sees his hobby as an art form.
CORRECT: Those who use Adobe® Photoshop® software to manipulate images as a hobby see their work as an art form.

There seems to be a continuum of how much meaning a trademark has lost in colloquial speech:

1. Used only as an adjective or noun to refer to the correct product.
   • "You should eat something healthier than Goldfish crackers and Oreos."
2. Used in a non-traditional manner, but only when referring to the correct product.
   • "I googled her".
   • "Yes, the protestor's sign is photoshopped. The original photo is..."
3. Used when it a competitor's product might be used instead.
   • "It doesn't exist, it's photoshopped... Sorry."
   • "Letters you send should be xeroxed after you sign them"
   • "You should have some kleenex handy before loading this site."
4. Used even when you know a competitor's product will be used.
   • "Can you go downstairs and xerox this for me?"
5. Used in the same sentence as a competitor's trademark.
   • "my rollerblades: k2 backyard bobs"
   • "I used the HP multifunction printer to xerox it."
6. Used as a noun modified by a competitor's trademark. (At this point, you're screwed.)
   • "Today Zack and I bought new K2 rollerblades."

Trademarks incorrectly used as verbs and trademarks incorrectly used as generic nouns can both lose their meaning over time. US trademark law is less friendly to trademarks that get used as verbs, but I don't know whether trademarks used as verbs naturally lose their meaning faster.

If Adobe isn't worried about its Photoshop trademark becoming more and more generic, it should continue doing the legal minimum to discourage its use as a verb, and the world will continue to make fun of Adobe. (After all, every "That image must have been photoshopped!" is free advertising.) But if Abode is worried about its trademark losing its meaning, it should start by rewriting its trademark-use guidelines to have better motivation and less awkward suggestions. For example:

The use of "photoshop" as a verb worries us because history has shown that verbed trademarks often lose their meaning over time. For example, "to xerox" was once fun shorthand for "to photocopy using a Xerox photocopier", but it has taken on a life of its own as a colloquial verb meaning simply "to photocopy", costing Xerox Corporation $... to protect its trademark and putting the company at risk of losing trademark protection.

When writing articles, always use a generic verb, such as "enhanced", "manipulated", "edited", or "altered", adding "using Adobe Photoshop" if appropriate. In informal speech, use the verb "to photoshop" only to mean "to alter using Adobe Photoshop", and consider saying "altered" or "shopped" rather than "photoshopped" when a competing product might have been used.

Our trademark lawyers think you should say "Adobe Photoshop software" rather than "Adobe Photoshop", but in the real world, most trademarks are nouns in addition to adjectives, so don't listen to them. But most trademarks are not used as verbs, and trademarks that are used as verbs are at high risk for losing their meaning.

(Disclaimer: I am neither an IP lawyer nor a linguist, so I don't know what I'm talking about.)

• Media Literacy Review: Trademark Battles
• Techwr-l: Trademarks as adjectives vs trademarks as nouns
• Xerox's ad in Writer's Digest (also on Techwr-l)
• Slashdot: Verbing Weirds Google
• Berkeley Intellectual Property Weblog: Google is Sending C&D Letters About Saying "To Google"