Pay Per Use Society

Whenever I speak with librarians about fair use or the Copyright Act more generally, I inevitably hear them express concerns that we run the risk of becoming a pay per use society, one in which content is available only for a fee. I am concerned that the bookmobiles we all grew up with and their modern day equivalents will go the way of the eight track and the reel-to-reel, replaced by a world in which access to information will depend on the ability to pay and, worse, a world in which a payment gets you only a license to view or listen to something, not to actually own it. But I know it is said by some technologists and economists that this is the way it should be, if only because it is the most efficient means of allocating something in a market economy.

In thinking about the future of my information availability in our society, am I right to be concerned about the emergence of pay per use as the norm?

I am beginning a long-awaited weeklong break today, and I will be in a place which has no telephone access. Therefore, I will not be interacting with those who post responses during the course of today. I look forward to reading all of the postings in the blog archive upon my return.

This has been a most enjoyable and informative experience for me. I thank Larry Lessig for asking me to host this week. I have concluded that his brilliance is almost matched by that of his regular blog contributors. Each of you is invited to stop by my office for a visit when your travels bring you to the nation’s capital.

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72 Responses to Pay Per Use Society

  1. You may not be reading this, but I would like to thank you deeply for your willingness to listen. In politics, it is a precious thing to be heard.

  2. Rick Boucher says:

    Thank you, Seth. I am sure I learned far more from this experience than Larry’s regular bloggers learned 🙂

  3. I don’t see a problem with pay per use per se, as long as some (fair) uses are excempt. Pay per use may be the fairest way to recompense creators. Question is, though: how are you going to get that money from the readers to the authors?

  4. Joseph Pietro Riolo says:

    It is not the pay-per-use concept by itself that
    is problematic.

    It is the contract and license that has the ability
    to override the limits of copyright and other
    intellectual property rights. As an example,
    The New York Public Library imposes restrictions on
    the uses and reproductions of anything including
    the public domain works (see:
    http://www.nypl.org/permissions/terms.html).

    If a copyright holder or content holder provides
    only Hobson’s choice, what are people supposed to
    do? Nothing. That is the problem with pay-per-use
    concept. If there is no way for people to bypass
    the contract or license to access the content
    (copyrighted or public domain), it becomes a
    problem. On the other hand, if there are different
    ways to access the content and one of them does
    not require money (like being able to give my DVD
    movie that I lawfully purchased to my friend for free,
    i.e. birthday gift), pay-per-use concept is reduced
    to a nuisance.

    As for your question whether pay-per-use will become
    norm, that is hard to tell. From my perspective that
    is very subjective, the trend seems to be that contract
    and license are being used more often than in the past.
    However, I don’t have or see any quantitative measurements
    to see how much of our knowledge is limited by or is
    under contract and license. Librarians perhaps should
    start collecting data on how much is limited by pay-per-use,
    how much is restricted by contract or license, and how
    much is free of restrictions and so on.

    Joseph Pietro Riolo
    <[email protected]>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  5. Javier Perez says:

    I want to second Mr. Finkelstein comment. Thank you very much for your time, atention and willingness to learn, discuss and keep an open mind about these emotionally charged issues.
    Regarding the future and the “Pay per use society”, it will only come about if we allow it. By willfuly opening holes on the protective barrier that is essential to the creation of such PPU society we can preserve the open society we have come to know and cherish.
    Regarding economists and other that think that ppu is the most efficient method to allocate information goods, I think there is a fallacy in their reasoning. From the point of view of the individual creator, they may be right, but from the point of view of Society at large, they still have to prove their point. For many years, man was creative and new ideas came into the world without such harsh protections. USA itself flourished intellectually under a more liberal copyright regime during the 1800’s. With all the changes a digital society has brought about, what makes us think that PPU wilth its monopolistic nature will generate a creative, productive society?

  6. You are very much right to worry about this system. The original copyright system (not counting its recent and frequent extensions) struck a balance between producers and consumers of content, taking into account all of the norms and technology of the day. Copyright was a poor choice of words: it’s a compromise, not a right. The termination of a copyright along with the fair use clause helps maintain this balance.

    However, in a world of pay-per-use and purely digital content, the rules have changed so drastically that there is no longer any balance. Libraries may be able to provide paper books to read for free, but currently have no right to distribute DRM’d e-books. The same can be said of all content: newspapers, movies, etc. Assuming digital, pay-per-view content takes off, there is nothing to stop publishers from discontinuing the production of “hard-media” versions.

    So, the “simple” question is: what is the value to society of having a secondary, gray after-market of content (namely libraries, book mobiles, yard sales, etc)? My instincts (and history) tell me the value is VERY high. So, you and your colleagues have a very difficult task at hand: finding a new balance for the 21st century. No sweat, right?

  7. Ian says:

    I have only lurked the last week, learning a lot from the commentors as well as you Rep Boucher, I also thank you!
    I have only recently begun to realize what an EULA or shrink wrapped license entails, but from what I have learned it seems that content creators would love nothing more then a PPU society, because that would net them the most money.
    It seems to me that software licensing, which is making a habit of trancending the law, is to copyfighters, as P2P is to **AA. The solution might be to accept that there are strong forces in favor of said “evils” and work on balancing it.
    A far more learned person then I posted on this subject, that copyright law and EULAs should have rules on how they interact to avoid patent like protections for copyrighted material. This might help avoid a content-creator controlled society. Thanks again to you, and everyone here speaking with the clear voice of reason!
    -Ian

  8. Mike says:

    Rep. Boucher,

    I’ve enjoyed seeing your comments all week, but haven’t had the time to share my thoughts with you. As one of the few lawmakers who “gets” the current corporation-vs-consumer problems with copyright, you’ve gained enormous respect from me.

    That being said, here’s a few responses on some topics. Please if you have the chance, write me back.

    #1 – Regarding “pay per use”; I don’t think that pay per use is inherently evil. After all, video store rentals operate on just that premise.

    What is evil is when corporations sense a revenue “stream” and decide that pay-per-use is going to be the ONLY way that they will offer content to consumers. This removes our ability to own content, and harms the consumer in the long run.

    It also, as has been seen by the shrinking of the public domain and the loss of “unused” content that does nothing but sit in warehouses or movie storage vaults degrading to the point of worthlessness, harms us because less people are able to maintain collections of the content that we seek to use.

    #2 – With regard to the term of copyright, I really think that a single term for all media is incredibly problematic.

    Right now it’s 95 years or 95 years + life of author, until Disney buys another extension. However, consider the following different mediums:

    Music – still played hundreds or more years after it was written. Here, the copyright length (although perhaps not that extreme?) makes some sense. However, if a music publisher wants to keep the copyright, it also makes sense to make them RENEW their copyright every so often – that way, unused or “worthless” works that the publisher/writer no longer feels are profitable can be returned to the public domain.

    Books – some are still read hundreds of years after creation; many are not. With books, again, a key should be in making a renewal period – if a book is not “profitable” enough for the writer to care, then logically it ought to pass into the public domain to be preserved.

    Computer programs – here we start to see problems with the 95 year term. According to that theory, every single computer program in existence is still copyrighted.

    However, look at the dilemma created here; how much software exists for platforms that are breaking? How many old DOS programs, Apple II programs, Commodore 64 programs, and so on are inaccessible?

    How many old Atari or Nintendo titles can no longer be played except on half-failing machines, yet are hoarded by publishers who believe it is a “crime” when players who still love them transfer them to the medium of a computer to preserve them for posterity?

    Something needs to be done here; it’s just not balanced properly between consumer and corporation.

    #3 – Ultimately, the debate really is about consumers decrying the notion of “Thought Crime”

    I don’t say this lightly – look at the DMCA and the INDUCE Act. What do they do? They make it illegal to talk about things. They make it illegal to pass on information on how to do something. They establish whole rules of thought crime.

    They further make it illegal to modify one’s own possessions to add functionality. Think about that for a second – I can add bigger wheels to my bicycle if I want. I can put training wheels on, or completely replace the brake system. I can add a trailer hitch.

    But if I want to modify my game console to play games made in Europe or Japan, or my DVD player likewise… “ooh, that’s thought crime!” And why?

    Not because there ought to be something wrong with it – but because it’s detrimental (maybe, they have yet to prove it) to a movie company or game company’s monopolistic business model.

    Since when did the law become a tool to protect corporate profits over the rights of the consumer? Since when did the first-sale doctrine go out the window?

  9. Leibowitz says:

    There was a great comic about this at salon:
    http://www.salon.com/feb97/comics/comics1970210.html

    “Your freeloading days are over now, old timer! No bucks, no books — capiche ?”

  10. Jardinero1 says:

    The real solution is to reduce copyright terms to something reasonable, like eleven years, from creation date. That would solve a lot of problems that “induce” et al will never be able to do. If we don’t, then the consuming public will nullify all copyrights by stealing when they don’t feel like they are being treated fairly. The way things are going copyright terms are being reduced, EFFECTIVELY, to ZERO years.
    Personally, I don’t think that is such a bad thing. Ninetynine point nine nine nine per cent of our science, math and scholarship has been created without regard to copyright. In fact, it has prospered over the last three and a half centuries because thinkers were encouraged to attempt to reproduce, verify or add to what had come before.

  11. Jardinero1 says:

    Pay per view, as a business model, is not the pie in the sky bonanza for content marketers that many think it is.
    1) You have got to have quality material if you expect people to pay and perhaps pay again.
    2) You have got to give people lots of free looks before you can really expect the same people to pay and pay again.

    This is evidenced in the porno industry on the internet and every other medium they use. Porn site distributers give away way more content than they ever charge for and they go through so called “talent” like there is no tomorrow. It is a very tough way to do business(there is no easy way to do business, profitably). For that reason I doubt pay per view will ever come to be the only way content is distributed.

  12. I echo the comments of my brothers, and am grateful for the opportunity to speak with you on this matter.

    As I recall, nowhere in Section 106 can be found an exclusive right to “use” content. I do recall a significant body of common law addressing the question of exhaustion of rights with respect to particular copies after an initial authorized sale. Alas, section 109 has now been built with more holes than swiss-cheese, and i suppose it is a matter of time before i become the licensee of the stack of books in my “to read” box, unable even to loan them to you. The ultimate issue is that, while the owner of a copyright may not sue me for distributing a legitimate copy of a work that i purchases, i am not free to do so if i am not the owner of the copy.

    Many find it odd to suggest that when I go into a store and pay $1,000 for a box with a copy of software in it, that i do not own the copy. I agree. But this has pretty much been the law (at least as we assumed) for dozens and dozens of years. We are mere owners of the medium on which the copy is affixed, but licensees of the copy.

    Strange, because it sure looks and feels lie i am buying something tangible when i go into the store. And I must say that I am not all that excited at the idea of buying a CD for $1,000. What I think I am buying is a copy of a computer program.

    Strange, because I would be willing to bet that if I shoplifted the box that the store would expect to be able to prosecute me for theft of value at the full price on the sticker, and not for the $1.00 or so that the paper and disk are worth. After all, they don’t sell that stuff for $1,000 — they are selling an intangible license, which I can’t remove from the store.

    Even more interesting is that, after reading my license, I discover that I may not sell my copy to another, and that they will be subject to significant claims for infringement, even though they own the original token and paperwork and paid full value for it. And make no mistake — claims grounded in non-assignability of a license are common.

    At any rate, it is interesting to see courts beginning to turn on this question. At least in the context of distribution of software, courts are viewing things that look, feel and smell like sales as sales, notwithstanding the words on a shrink-wrap license.

    That said, we have some strange issues that need to be addressed in the twenty-first century. As much as I lament the strange dual-treatment of paper content vs. disk-stored content, there really is a difference in kind between the transmittal of an electronic copy of content, in that there is no tangible token associated with the work, such as a disk or a book.

    With tangible token-based copies, first sale makes sense and is fair and practical. When I exercise my first sale right, i am expected to destroy all copies of the work that i made under express or implied license, and must part with the token. My subsequent reproduction or distribution of a copy would be an infringement, and the person to whom i distributed may do what he will.

    Not so with a mere electronic transmission. This is not really a problem, at least technically, since we can electronically “mint” tokens using various techniques and provide for their transfer. The reason that first sale didn’t make it into the twenty-first century has nothing to do with legal notions not mapping new technology, or technological incapacity to do so. It has to do with the fact that nobody cared enough to create a legal regime requiring it, and to the contrary, modern tweaks to the law expressly blessed the idea of the publisher as a sole licensor.

    As to the economic issues, I don’t think they militate against first sale. Leave that form of economic efficiency to the legal principle best equipped to handle it: contract. Two parties are always free to contract away their first sale privileges to economic advantage. But in such a case, it seems to me that contract law and NOT copyright should govern the conduct from there on. The publisher should be able to sue ME for violating the contract, for such damages as he may prove, but perhaps not under the overly plaintiff-friendly laden remedies of the copyright act. As a pure aside, this is one provision, like no-fair-use provisions, that should not be enforceable by mere shrink-wrap agreement.

    The problem here is not the death of first-sale, but that it is done sub silentio, in the fine print of shrink-wrap and click-wrap agreements. This is just one of several examples, like the Bowers case and its enforceable “no-fair-use” shrink-wrap provision, where copyright is being drowned in a sea of contract.

  13. Yes, this is definitely the trend, and no, it’s not just you. There was quite a good book on the topic released in 2001 called The Age of Access: The New Culture of Hypercapitalism, Where all of Life is a Paid-For Experience. The interesting thing is that this book examines not only the world of digital goods, but also physical goods. It examines the trend that is transforming all products into services. For example: why buy a car when you can pay for the “service” of a car by leasing the car? This is happening in other areas, such as corporate physical plants and facilities: companies are selling their physical plants and then leasing them back, thereby gaining access to the “service” without actually having to be shackled to physical assets.

    On the one hand, there are some arguments for the trend – such as the increased flexibility this brings to people. Don’t need the car anymore? Great! Terminate the “service”! Don’t need that corporate facility anymore? Great! Terminate the “service”!

    Unfortunately, most of these positive outcomes are not applicable in the digital world. Turning digital content into a service fails to have any benefit from a consumer point of view – it doesn’t add functionality or flexibility, it only removes it.

  14. Pay-per-use has the potential for a very wide range of unforseen consequences.

    As a historian by training and a technologist by vocation, I worry about how we as a society will access our cultural heritage and history in the future should pay-per-use combined with ever evolving technologies (and business failues over time) result in a large amount of content inaccessible to future generations.

    Libraries serve both the present and importantly the future by serving to consolidate and preserve our history. The books on my shelves are there because I bought them to be read, but they are also available to me ad hoc at my whim to refer back to them, to share them with a friend, to pass them along in the future to a child who, like me, will be inspired by them.

    Pay-per-use content also assumes that I, prior to buying, have an idea of how I will use the content (before, you recall actually having access to it fully), for how long, and in what ways. Alternatively I will be asked to keep paying for access as I need it in the future – say to check my memory while preparing another work, or to show it to that child I mentioned above.

    As a writer I create my own content, but nothing I make is uninfluenced by that which has come before me, without access to that full body of work in a way that works with my creative process (which, not surprisingly can mean inspiration striking at 4:00am but then the silence of my muse for months) I risk something very precious and my own opportunity to add to the collective store of knowledge (or at least to amuse some people for a little while).

    I am a collector – I own over a thousand books, about one fifth of which are signed by the authors. I also own books now long (and clearly) in the public domain. One which was printed in 1687 making it older than the USA is currently in my closet. I, and anyone else who wants to, should be able to use that work in ways that enrich us all. Copies can be found in special collections around the country, a few more in speciality bookstores around the globe.

    But critically as well, a copy which was scanned in is not available for all who might want it, but rather is part of a collection from the University of Michigan of “early english printed books” which they sell for large sums of money and which they tightly restrict access to by the general public. You can, if you have the right university credentials, download an electronic version of the book (I did years ago), and now I think versions that are OCRed copies of the text), but these could (and I think may) fall under DRM access controls (in this case built into Adobe Reader).

    As a work quite clearly in the public domain, I would argue that it should never be part of pay-per-use or other DRM type domains. Yes, the organization that undertakes the effort to scan and process such data is worthy of being compensated but they should not gain other special rights as well.

    Consider not just books, which can and do last centuries (at least ones over 100 years old printed on acid free paper, more recent books typically discintegrate much more rapidly) but the ephemera of society since the printing press – pamphlets, newspapers, restaurant menues, advertisements, business cards, calling cards, posters.

    All of these will, over time, disappear and a piece of our collective past will go with them. New technologies such as scanning and high resolution digital photography may allow us to preserve it not the paper, at least the images from those papers for a future generation of scholars to use. However if this content were to therefore move from the public domain to the private and/or to be bound up by today’s pay-per-use technologies we may be prevented from having access to those works even just 30 years in the future.

    Part of the work of scholars is to take data and apply new techniques and approaches to analyzing that data. How we might look at content today should not be assumed to be all of the ways that the future may want to use that data. Consider the simple phonebook. We may regard it as a increasingly dimishingly useful artifact (as more people shift to cell phones that are not listed and/or turn to the web instead of the yellow pages when looking for a business) but future scholars might mine those same sets of data for the frequency of certain spellings, or to answer questions about corporate names (why some firms chose names such as AAAAA – i.e. to get first on a list). Or, who knows, to trace the genalogy of a future president of the US and answer questions about where her family lived when she was three.

    The point is that we in the present do not know how or why the future may want to look at our time and place – nor do we know what they will value and treasure, what ephemeral artifacts of our time will in the future be notable in some special manner – the first restaurant to serve a special dish, the poster for a movie that a future star was an uncredited extra in, who knows.

    (To take one current example – the rock album from the youthful days of a now candidate for President and potential future president of the USA)

    If 40-50 some years ago when newspaper archives around the country were turned into microfilm/microfiche a “pay-per-use” technology was applied to that data set as well, we might very easily now only have access to historical newspapers if we also had a working IBM vacumn tube mainframe running the software controlling the pay-per-use technology. Yes, it is possible that such technology can be continuously upgraded and maintained, but you only have to look at the past decade to see countless examples of orphaned technology – and within any major corporation there are numerous examples of software impossible to maintain due to the absense of anyone at the firm who knows (or in some cases has access to at all) how that software works.

    In short, I think pay-per-use is a very serious danger. In no small part because it requires us as a society to keep paying each time we want to use something onward into the future – which is contrary to centuries of precedent as to how we have maintained, accessed, and passed along knowledge and wisdom.

    Shannon

  15. PrivacyHound says:

    Video rental stores are not an example of �pay per use,� quite the opposite, actually. The only reason video rental stores exist today is because of the doctrine of first sale. Basically, if you buy a copyrighted book, CD or video the doctrine of first sale says you can do what you want with it, including sell it, lend it or rent it. This is why that warning that a home video is only for noncommercial home viewing is actually wrong. If it were true, video stores couldn�t use the videos for the commercial purpose of rental.*

    Without the doctrine of first sale libraries would not be able to loan books out, nor would video rental stores be able to rent movies, instead libraries and video rental stores would have to try to negotiate with the copyright holder to pay royalties for each loan or rental. Many, perhaps most, big copyrights holders would just outright refuse to permit loans or rentals in order to in sure more sales.

    Digital Rights Managed copyrighted material combined with the DMCA and ELUAs make the doctrine of first sale null. Try to sell, loan or rent a song you bought from the iTunes Music Store or an eBook you bought on Amazon. You can�t. We need to change this to make sure the doctrine of first sale is still the law of the land. All digital media need to be legally transferable and this right must take precedent over ELUAs which seek to take away our traditional rights as consumers.

    Finally, the doctrine of first sale is vital to democracy. That statement might seem a little overblown, but I think that it is true. You can�t have a democracy without an informed electorate and that electorate can�t be informed unless all citizens have free and unfettered access to information. Libraries are the one place where all citizens can access a full range of information for free, but without the doctrine of first sale Libraries can�t legally loan out new media to the public and we will allow technology and hypercaptialism to take precedence over the vital needs of democracy.

  16. Robert Young says:

    Rep. Boucher,

    As is clear by nearly everyone’s response to your question thus far, the implications of PPU are being viewed within the context of copyright’s ability to balance interests as well as the ability of private contracts to “override” certain copyright doctrines (e.g. “No First Sale” exception clauses in agreements between movie studios and video retailers). Such societal effects are, needless to say, of critical importance, yet, very little has been discussed about the effects from an economic, or “business”, perspective. At the end of the day, the viability of PPU will largely be determined by its potential profitability to rightsholders. With content and distribution going digital, DRM offers rightsholders not only the ability to protect their content, but also the unprecedented ability to maximize strategies for increased price discrimination and, thereby, allowing them the opportunity to squeeze out every penny they can from their markets. From the point of view of economists, there’s nothing inherently wrong with that; in fact, it’s capitalism at its finest.

    However, the statutory monopoly that copyright provides to content owners are unfairly benefiting the oligopolies that are now firmly in control of every aspect of the economic value chain. If PPU is to become the dominant business model, it will occur not as a result of technological advancements, entrepreneurial courage, or any minor modifications to existing IP laws, it will happen simply because the media giants can make more money (which, in turn, will further enhance their political might).

    I know I’ve been harping on this issue since the beginning so please accept my apologies for any distractions I may have caused, as well as my promise that I’ll end it here. Mirroring everyone else, thank you again for your participation and a most provacative, and surprisingly civil, exchange of ideas.

  17. raoul says:

    Rep. Boucher,

    Thank you for your time and your thoughtfulness.

    �I am concerned that the bookmobiles we all grew up with and their modern day equivalents will go the way of the eight track and the reel-to-reel, replaced by a world in which access to information will depend on the ability to pay and, worse, a world in which a payment gets you only a license to view or listen to something, not to actually own it.�

    Unfortunately, I believe that your fears will be fully realized before the pendulum swings back in the other direction. However, we are on the right side of history, win or loose. Our only hope is the kids. The truth lies in their reactions to the questions presented. Almost, to each and everyone of them, they disagree with the concept that a person, or an it, can own the expression of an idea as if it were physical property. And the value of their opinions is not diminished because they just want to steal music for free, as argued by the entrenched multinational media conglomerates, but rather their opinions transcend our corrupt and tired views because they flow from their innocence.

    Have a wonderful break from our plugged in world.

  18. PhilTR says:

    A quick comment as I’ve not read all comments yet. I’m currently a slave of the State till 5:00. Forgive if the issue has already been discussed.

    What about corporations? They can own copyrights (and patents) but, need not die any time in the forseeable future. Disney is a good exaple. I can’t compete with Disney as I’m longevity-challenged.

    Corporations, too, can eventually become ‘gatekeepers’ charging tolls threatening any who challeng them. Since copyright now is embued with real property charistics, the copyright owner no longers has to prove ownership, rather I have to prove that “I didn’t do it.”

    Finally, I can imagine a time where the few control the dissemination of all information and hense all knowledge as the many are not likely to have the resources to successfully argue their claims.

  19. WJM says:

    In reply to Mike:

    Music – still played hundreds or more years after it was written. Here, the copyright length (although perhaps not that extreme?) makes some sense.

    Whether it is a one-hit wonder or a classic for the ages, is, should be, and MUST be irrelevant to how long a copyright tem is or should be.

    Just because Mozart is still played, is no reason for all music since Mozart to still be under copyright. The opposite must be true: all music that is old enough should not be under copyright, EVEN IF it means Mozart etc. are no longer protected by copyright.

    Remember: All the owner of copyright at the time a work transitions to the public domain loses is his EXCLUSIVITY of rights. Not the rights themselves. If Mozart’s works still had a copyright owner, and those works were to PD at the end of this year, Mozart Inc. could still publish Mozart’s works. Just not exclusively.

    In the case of very obscure and limited-but-steady market works the incumbent owner, if they have kept the work in circulation, has an incumbent advantage that will persist even after PD. If the work is previously unpublished, and they retain physical control of the original, that advantage is multiplied.

    However, if a music publisher wants to keep the copyright, it also makes sense to make them RENEW their copyright every so often – that way, unused or �worthless� works that the publisher/writer no longer feels are profitable can be returned to the public domain.

    That is true, but it doesn’t mitigate the need to have a predictable and human-lifespan-scale time-limit for ALL copyrights. Not just the ones that will still be ticking centuries, decades from now.

    Books – some are still read hundreds of years after creation; many are not.

    As above, irrelevant.

    With books, again, a key should be in making a renewal period – if a book is not �profitable� enough for the writer to care, then logically it ought to pass into the public domain to be preserved.

    In the context of copyright term extension, “the writer” is in no position to care: THE WRITER IS ALWAYS LONG DEAD by the time the term is about to expire. Life + X is the formula under the general rule of term in just about every country.

    That point can’t be stressed enough: term issues are NOT as between the author of a work and the great unwashed. It is as between the non-author secondary owner of copyright and the great unwashed. In fact, living, breathing authors are HURT by term extension, by limiting their ability to recreate, re-present, re-order, re-contextualize, re-express, mythbust, iconoclast, quote, popularize, translate, and do any one of a million other things that all actors in the cultural economy should, AS OF RIGHT, be allowed to do to our collective past, once it’s old enough… and for whatever value you plug in for “our”; one nation, or one increasingly global world.

  20. xzilla says:

    One of the harms of transitioning to a PPU society is that it is counter to the ideals of the �American Dream�. That is, it really limits peoples exposure to different cultures and new experiences solely based on their economic status. Anyone who believes that one of the things that makes America a great country is the ability for people to �transcend their class�, must also realize that the acquisition of knowledge is a fundemental key to that process. Of course there are multiple ways to counter this, and one of the ways that has worked well in the past is by moving information into the public domain, but without that check, PPU is far more detrimental long term.

  21. WJM says:

    xzilla:
    one of the ways that has worked well in the past is by moving information into the public domain, but without that check, PPU is far more detrimental long term.

    This is a very important point.

    Circumscribe exemptions as they like, use the Copyright Act as barratry all they want, the one leveller that should always, in the end, overcome Big Copyright and its vested interest in and power over a given work, is the public domain.

    That’s why they — Big Copyright — hate it.

  22. Brent Royal-Gordon says:

    The problem I see with this is that there’s no way to control use of information. I have only read Programming Perl a couple of times, but I use the information learned from it daily. I use it every time I write code in Perl. The knowledge I derive from writing in Perl–which is thus indirectly derived from Programming Perl–is applied to my work in other languages. And the knowledge I learn from programming in general is applied to everything I do.

    So, should Larry Wall get a few cents every time I write a Perl program? How about when I write in another language? How about when I play poker? After all, these are all uses of information from Programming Perl, aren’t they?

    If you try to control the viewing of information, people will merely minimize the number of times they view it. Perhaps they’ll copy the pages down verbatim–surely they should be charged to view those copies, right? But what if they write it in shorthand? What if they take notes on key points? Do those count as viewings?

    Ultimately, I don’t think pay-per-view or pay-per-use of IP is tenable. There are easy (if time-consuming) ways to get around pay-per-view, and pay-per-use is impossible to enforce. Perhaps it would be best if content providers simply accepted that there is no perfect way to charge for their product, and pay-per-copy is a decent approximation that’s very easy on their customers.

  23. JD Lasica says:

    Brandeis University professor Jordan Pollack told Edge magazine :

    The idea we hear of the big Internet in the sky with all the music we want to listen to, all the books and movies we want to read and watch on demand, all the software games and apps we want to use, sounds real nice, until you realize it isn�t a public library, it is a private jukebox. � The Celestial Jukebox is [the media companies�] ultimate wish�no fair use, no expiration date, no secondary market, no libraries. A perfectly efficient scheme to collect rent forever, leaving peasants with no possessions but our wages and clothing.

    Yes, pay per use is very much a concern, and I know of many media company executives — but few technologists — who favor such a future.

  24. Alexander Wehr says:

    The problem surrounding the abandonment of first sale and fair use doctrines (and therefore the proliferation of pay per use) is the fact that the laws protecting measures designed to strip consumers of those rights are based on the assumption of guilt rather than innocence with respect to consumer behavior.

    The establishment of personal property rights with respect to digital content should be of paramount importance if our government is to protect society from the unfair practice of selling “individual uses” of a product.

    When i speak of “individual uses” this does not necessarily mean number of plays or copies, but the types of uses which can now be selectively restricted/enabled by DRM measures.

    I feel simple balancing measures such as H. R. 107 will return just enough consumer rights to prevent this artificial segmentation of uses by allowing consumers to govern their own digital property.

    As for the issue addressed regarding the right to resell or give away digital copyrighted works in the traditional “you take and i delete or no longer have” sense, I do not consider it impossible to craft laws to assure that parity.

    I too would like to thank you for your time here on this blog.

  25. Matt says:

    Do you really believe that putting an ever-tighter chokehold on the flow of information is the most efficient means of allocating those resources? Would we be better off everyone had to get an IP license before they could, say, use a shovel to dig with, or use a towel to wipe down a table in a restaraunt? Reductio ad absurdum may be useful here.

    With physical property, there is an inherent problem in how it is allocated, because there is necessarily a limited amount of it. Markets are good at getting those scarce resources to their highest valued uses. But information is different: once created, there’s an effectively infinite amount of any particular piece of it. In terms of efficient *utilization* of information, it’s best for it to be completely free in price. We want information to be used for any positively valued purpose, not just those that can pay an arbitrary cover charge.

    There may be a need to protect incentives to *produce* new information in the first place. But that should be the goal of any IP protections. Creating IP landlords is only useful insofar as it spurs on the creation of new useful ideas.

  26. Chris says:

    If pay-per-use is so great, why does nobody ever pay for sugar for their coffee? Shouldn’t black coffee cost less?

    I come at this from the payments side, the economics of which are much tougher than most people realize. You don’t pay for sugar, because you would be horrified at the price — most of which would be used up in tracking who had sugar and who didn’t, and most of the rest in paying the cost of the payments system.

    The counter to this, it is argued, that we already pay for information today. However, today, we almost invariably pay for aggregations. You buy the whole book, not just three pages. You buy the whole newspaper to read, not just a few classified ads. There is no individual tracking, nor can you buy subsections at a discount. The economics simply would not work out.

    Another example is trying to buy all the parts for a car individually. At some point – quite quickly, actually – it becomes far more cost effective to buy the whole car.

    There will always be a minimum transaction cost in order to pay for the system that manages the transactions. This minimum cost puts a lower limit on the value of a “per use”. Public libraries get around this problem by aggregating many small “per use” instances by loaning out the book for free, while the author gets the royalty from the book purchase. There is even some market balancing in this case, since libraries will typically buy multiple copies of popular works. So there you have it – a system where small uses are free, but a rise in demand still generates more income for the authors. Menawhile, the library is paid via public funds – many small public services are agreagated into single, efficient, tax payments.

    Clearly, although the systems we have today still have a few problems, they are already remarkably effective. We should think long and hard before tinkering too much with them.

  27. Speaking of bookmobiles, Congressmen, you should see what we are doing with the public domain in the developing world: http://www.anywherebooks.org. (You may recall I interviewed for O’Reilly Network sometime back.)

    Best regards

    Richard Koman

  28. WJM says:

    Creating IP landlords is only useful insofar as it spurs on the creation of new useful ideas.

    More to the point: IP law that creates IP absentee landlords by the millions not only ceases to be useful, it puts the brakes on the spurring-on of creation.

  29. I dislike the terms “pay per use” and “pay per view” since they emphasize money, whereas I see control as the bigger issue. Therefore, I coined an alternative term, “the peep show model,” in the context of some remarks I delivered at the inauguration of my college’s new president. Although very brief, due to a tight time constraint, those remarks summarize what I see as important issues.

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