"The End Of Copyright"

Ernest Adams
Gamasutra

I think we are witnessing the beginning of the end of a major era in world
history. It may take fifty years, it may take a hundred, but the age of copyright
is drawing to a close. I don't know if this is a good thing or a bad thing, but
it's inevitable. And I say this as the author of two books and over 75 columns
like this one, all copyrighted.
Just 550 years ago this year, a guy named Johann Gutenberg figured out how to make
large quantities of metal type in a hurry. He didn't invent printing — the
Chinese had been doing that with wooden blocks for centuries — but he did find a
way to make it fast and efficient. Gutenberg changed the world and helped to bring
on the Renaissance.

There were no copyright laws at that point. Before the printing press, books in
Europe were copied by hand, and having someone go to the trouble of copying your
book was about the highest praise an author could get. But with the printing
press, the concept of intellectual property was born. Over the next two centuries
or so, copying books went from being high praise to being a crime. As printing
presses were large and heavy — i.e. difficult to conceal and difficult to move —
it wasn't all that hard to prosecute the offenders. The smaller and faster they
got, though, the tougher it became.

I'm old enough to remember when photocopiers became commonplace. At first, there
used to be signs in libraries, warning the users against duplicating copyrighted
material — any copyrighted material, ever. But people did it anyway. They didn't
think they were doing any harm, and they weren't planning to sell the copy, they
just needed it for their own use.

When enough people feel that it's OK to do a thing, that thing ceases to be wrong
in their own cultural context. You can complain about moral relativism all you
like, but the facts are inescapable: that's how people behave. When the
photocopier came along, people simply didn't think it was wrong to copy a few
pages out of a book, even though it was against the law and the authors would have
preferred that they buy the whole book. So eventually, the Fair Use doctrine
evolved with respect to copyright materials. The law changed. It's now OK to
photocopy parts of books for educational, non-commercial use. In effect, the
authors and book publishers had to give some ground in the face of the
overwhelming tide of public opinion.

You can see where this is going, can't you?

On June 27, 2005, the US Supreme Court decided to hold companies that make
file-sharing software responsible for copyright infringements perpetrated by the
software's users. Everyone expected that they would rule as they did when
Universal City Studios sued Sony over the Betamax in 1984: there were legitimate
uses of the technology, and it shouldn't be held responsible simply because it can
be used unlawfully. Instead, however, they ruled that file-sharing software
actively encourages piracy and the makers should be held accountable.

The Supreme Court's action has done the exact opposite of what MGM and the other
content distributors who brought the suit hoped it would. File-sharing software
will become open-source and public domain. File-sharing will continue to grow
ever more popular, but now there will be no one to sue. The Supreme Court's ruling
hasn't even delayed the inevitable; it has actually brought it closer.

There's no intrinsic reason why someone should continue to get paid for something
long, long after the labor they expended on it is complete. Architects don't get
paid every time someone steps into one of their buildings. They're paid to design
the building, and that's that. The ostensible reason we have patent and copyright
law is, as the US Constitution says, "to promote the Progress of Science and
useful Arts." But travesties like the Digital Millennium Copyright Act don't
promote the progress of science; they actively discourage it. So do software and
biotechnology patents. The patent system was intended to allow inventors to profit
for a limited time on particular inventions, not to allow huge technology
companies to put a stranglehold on innovation by patenting every tiny advance they
make.

Right now, the music and movie industries are howling and beating their breasts
and doing their best to go after anybody who violates their copyrights on a large
scale. The fury with which they€™re doing it is a measure of their desperation.
The Sony rootkit debacle is a perfect example: in an effort to prevent piracy,
they secretly installed dangerous spyware into people€™s PCs, which itself may
have been a criminal act. This was about the dumbest public-relations move since
Take-Two lied about the Hot Coffee content, and as with Take-Two, it will cost
them vastly more than they could hope to gain from it. Did they really think
nobody would find out?

The lawsuits, the spyware, the DMCA: these are the death struggles of an outdated
business model. It€™s the modern-day equivalent of throwing the Christians to
the lions in an effort to discourage Christianity. It didn€™t work for the
ancient Romans and it won€™t work now.

Part of the issue is related to the question of how much money it took to create a
copyrighted work in the first place. With books and music, the answer is simply,
€œnot that much.€? Forget notions of what their rights may be in law; the
idea that a band or an author should be paid millions upon millions over the next
several decades for something that it cost them at most a few thousand dollars to
make, just feels silly to most people. You€™ll notice that it€™s the
megastars who are fighting the hardest over this in music€”Madonna, Metallica,
and so on. They€™re the ones who stand to lose the most. But the smaller, less
well-known groups are embracing new business models for distributing their music.
They€™re like authors back before the printing press: €œCopy my music and
listen to it! Please!€?

Movies and video games are more problematic. They take millions to make in the
first place and a good many of them don't earn back their investment, even with
full copyright protection in place. If we're going to go on making video games,
the publishers have to find a way to make them pay for themselves. One approach is
an advertising model, although I'm reluctant to say it because I hate the idea of
ads in games. Another is to treat games as a service rather than a product. With
broadband distribution, I think this is increasingly likely: you won't ever have a
durable copy of a game, you'll download it every time you play it. Each
instantiation will be unique, personalized for a particular machine and Internet
address; encrypted to discourage hacking; and expires after a few hours. After
that you'll have to download a new copy.

Yet another model is the donor model: somebody who is known for creating great
work can collect up donations in advance; when he has collected enough to fund the
work, he builds it, and releases the game copyright-free when it's finished. The
donors will have paid and everyone else gets it for nothing, but they get it first
and perhaps some special recognition for their contribution. I€™d be happy to
put down $40 two years in advance for a new Sid Meier game, particularly if I knew
it would be released copyright-free when it came out. And I bet a lot of other
fans of Sid's work would say the same.

The donors have to trust that the developer will finish it, of course; but this is
effectively how freeware development works now. Somebody makes a name for
themselves with a piece of freeware; they ask for donations; the donations help to
fund further work on a new version. So far it has only been tried on a small
scale, but — as the mobile and casual games are showing us — there's still
plenty of demand for small scale games in the world.

(A variant of this system, pioneered by cyberspace engineer Crosbie Fitch, is
already in place for music, except that people give pledges rather than donations.
When the musician releases the work, she collects all the pledges made towards it.
See www.quidmusic.com for details. Credit where it's due: I first heard about
this whole idea from Crosbie.)

In short, there are a heck of a lot of ways to recover the development and
marketing costs of video games besides trying to sell individual physical copies
and prevent their duplication. That system is awkward, wasteful, and theft-prone.
It supports too many middlemen and, like Prohibition, puts money in the pockets of
some very nasty gangsters.

Of course, some alternative distribution models still rely on copyright, and
publishers will still be trying to prevent people from redistributing their
content. But sooner or later that model is doomed. The perceived value of a thing
is inversely proportional to the ease with which it can be duplicated. If the
public simply refuse to acknowledge that copying books or movies or software is
wrong, then in a democracy, it will eventually cease to be wrong. People elect the
legislators, and legislators make the laws.

Does the end of copyright mean that books or music or movies or games will die? Of
course not. The urge to create is too strong in all of us, and consumers will
always be willing to pay for novelty and for excellence. It may mean that nobody
gets mega-wealthy any more. What it does mean for sure is that the giant dinosaurs
that currently dominate the distribution channels had better learn to adapt or
die. There are a lot of fast-moving little mammals in the underbrush eating the
dinosaurs' eggs.

And fifty years from now, kids will be asking, "What does that © symbol mean
in this old book, Grandpa?"