Conversation with an author about copyright and publishing in a free society

Nina Paley sent me this from “a friend who publishes eBooks,” and asked for my take on how to reply. Here is the question and my response (edited):

Author:

Here is a scenario I have a hard time getting past. Suppose there were no legal protection against anyone copying anything, and suppose there were a bunch of people trying to sell ebooks or apps or whatever in a nice convenient store. Within weeks of any ebook/app being released for sale, a company set up for the purpose of doing exactly this would have released a copy of it for free, framed with a small ad at the bottom. A few people would think this is despicable and always seek out and buy the one put up by the creator, but most people most of the time would go for the free one. Maybe not the people you hang out with in New York, but the people I hang out with in Longview would consider it laughably stupid to pay when they can get it for free with just a little ad at the bottom. They would not care *one iota* about who made it, they simply do not think that way.

Shouldn’t there be some way for me to prevent someone from taking my ebook and reposting it with an ad? I know you’ve heard this all before, but humor me, talk me out of it….

Me:

First I would refer to John Hasnas’s comments in his classic The Myth of the Rule of Law.
After arguing against the state and for anarchy, he says:

I am aware that this explanation probably appears as initially unconvincing as was my earlier contention that the law is inherently political. Even if you found my Monosizea parable entertaining, it is likely that you regard it as irrelevant. You probably believe that the analogy fails because shoes are qualitatively different from legal services. After all, law is a public good which, unlike shoes, really is crucial to public welfare. It is easy to see how the free market can adequately supply the public with shoes. But how can it possibly provide the order-generating and maintaining processes necessary for the peaceful coexistence of human beings in society? What would a free market in legal services be like?

I am always tempted to give the honest and accurate response to this challenge, which is that to ask the question is to miss the point. If human beings had the wisdom and knowledge-generating capacity to be able to describe how a free market would work, that would be the strongest possible argument for central planning. One advocates a free market not because of some moral imprimatur written across the heavens, but because it is impossible for human beings to amass the knowledge of local conditions and the predictive capacity necessary to effectively organize economic relationships among millions of individuals. It is possible to describe what a free market in shoes would be like because we have one. But such a description is merely an observation of the current state of a functioning market, not a projection of how human beings would organize themselves to supply a currently non-marketed good. To demand that an advocate of free market law (or Socrates of Monosizea, for that matter) describe in advance how markets would supply legal services (or shoes) is to issue an impossible challenge. Further, for an advocate of free market law (or Socrates) to even accept this challenge would be to engage in self-defeating activity since the more successfully he or she could describe how the law (or shoe) market would function, the more he or she would prove that it could be run by state planners. Free markets supply human wants better than state monopolies precisely because they allow an unlimited number of suppliers to attempt to do so. By patronizing those who most effectively meet their particular needs and causing those who do not to fail, consumers determine the optimal method of supply. If it were possible to specify in advance what the outcome of this process of selection would be, there would be no need for the process itself.

Although I am tempted to give this response, I never do. This is because, although true, it never persuades. Instead, it is usually interpreted as an appeal for blind faith in the free market, and the failure to provide a specific explanation as to how such a market would provide legal services is interpreted as proof that it cannot. Therefore, despite the self-defeating nature of the attempt, I usually do try to suggest how a free market in law might work.

So, what would a free market in legal services be like? ….

then Hasnas proceeds to make some ejumacated guesses.

See also Leonard Read’s classic I Don’t Know, which makes some related points.

So: on to my reply.

It’s hard to answer such questions, because you are right away agreeing with their background assumption which is that the law and policy ought to be designed around a certain result, and, in this case, the result being the perpetuation of the model people have been used to that developed because of copyright. It’s almost like if you can’t find an answer, then the assumption is that your normative theory is wrong. That if you can’t predict the future that would happen in a world that followed your recommendation to abolish copyright, then you have no right to abolish it.

Still, we have to sometime try to talk their language, on their level. I guess one approach would be to note that there are a variety of principles reasons to oppose copyright, even if we can’t predict what the world will look like in such a — more free — society. Some Russians under communism would have asked you who would make toothpaste and how many brands there would be, if you abolished the state toothpaste agency. If you don’t know the answer does that mean communism should continue?

Also, note in her example the fact of the ad is irrelevant, yet she is bothered by this. She is bothered by the “pirate” making money, when in fact the real problem she points at is her loss of revenue. If the other site was free and had no ad she’d be even worse off. So her concern is someone copying her and putting it up for free. NOt the ad.

I would also note that they are not literally “taking” her ebook. She still has hers. What they are “taking” from her, in her view, is the money in the hands of customers that they “would have” otherwise spent on her. But she has no property right in the money in prospective customers’ wallets, does she? If they want to refrain from buying her ebook that is their right.

As for the ad she has somewhat of a point: the main reason someone else would bother to put her ebook up is for some gain. So they sell it–which is hard to do… why would someone buy it from a pirate instead of from the author? or they put up ads. But of course the more obtrusive the ads are, the more irritating they are to buyers which will drive some away.

Also: many people who get it for free, are not people who “would have” bought it anyway. I would imagine 90% of them would not have bought it at all–they can’t afford it, or they were not willing to buy it. For those free downloads, she is not worse off at all; in fact she is better off as she now may have more fame or fans etc.

But I think she is wrong that most people would not prefer to get it from the author. If it’s for a reasonble price, I think many would. Louis CK sold a million dollars of his recent video on his own site for $5 a pop, in 2 weeks, even though people could pirate it elsewhere. One reason, I think–is if I get an ebook from the author for $1 say, I know it’s the latest version, authorized, etc. How can I be sure the one I am pirating is the latest, or not messed with by the pirate or someone else?

Consider also: either this is a popular book/author, or not. If it’s not, they don’t make much money anyway in today’s world, and they might not in a copyright free world either. This is not the fault of no-copyright. If the book is popular, then the author has to find a way to make money even though there are pirated copies out there. But this is the case NOW. Right? The author knows pirated copies will be available. The author really only needs to make sufficient money from paying customers. In a copyright free world, imagine someone like JK Rowling. She writes a Harry Potter novel. She sells copies on her site and makes a bit of money, but then it gets popular so pirated copies start circulating too. She then becomes wildly popular, in part due to piracy. And probably 90% of the people who got bootleg copies would not have bought the book anyway. So she loses some sales, but now she is very popular.

So she has book 2 written. She posts a note on her site to her fans saying that she has book 2 ready to go, and she’ll release it as soon as she gets a million pre-orders for $5 each. iN a month she has $5M in the bank and so she releases the book. And then she makes another couple million more, and then sales taper off because of piracy and normal attenuation. Then she repeats this with the next 5 books. Soon she is worth $100M.

Meanwhile three different movie studios begin making a movie version of her first novel–without her permission. She gets no payment but on the other hand this drives more sales of her earlier and upcoming books–it acts as advertising for her. But one of the three movie studios, realizing it has competition from the other two, seeks a way to distinguish its movie. It approaches Rowling and asks her to consult on the movie and to promote the movie as the “best” and “authorized” version. They pay her $1M plus 2% of box office receipts, and she consults, helps improve it, and makes sure they don’t adulterate her plot too much etc. Or maybe she helps with the screenplay. In any case the “authorized” movie does way better at the box office than the unauthorized versions–if you were a Harry Potter fan which of the 3 would you want to see? Maybe all 3. but if you could only see one…. the one the author authorized of course.

And let’s say all this was on a lower scale. The money might not be as much, … but maybe the author is famous enough to get a job offer teaching in an English literature department. Or writing or polishing screenplays. Or copyediting others’ draft novels for a fee.

So in my view, if you write a book that people like, then there are a number of ways you can find to profit from it.

See also: Examples of Ways Content Creators Can Profit Without Intellectual Property; The Creator-Endorsed Mark as an Alternative to Copyright