The Original Bargain
THQ and Penny Arcade kicked off a debate last week on used games. Tycho compared used games to straight-out piracy, and got a lot of heat for that view. Here is my perspective on the issue.
Our society created a bargain called copyright between creators and consumers. Creators got certain rights, such as the sole ability to make and distribute copies and derivate works for a set period of time. Consumers got certain rights, such as the right to sell or lend their copy to another person, and to quote snippets of the work in other works, such as essays.
By and large, this bargain worked pretty decently up until the end of the last century. Creators got enough rights that they could make a living selling their work. Consumers did not get penalized for using works in a normal manner. Aside from maybe Disney's efforts to extend the term of copyright for far longer than originally set, the copyright bargain was fair to both sides.
But this bargain was forged when all creative works were physical media. Digital media, on the other hand, differs from physical media in subtle ways. That difference may be enough that the old bargain is no longer fair to one of the sides.
Differences Between Physical and Digital Media
There are two major differences between physical media and digital media.
First, physical media can degrade. Why buy a new book instead of a used book? Well, for one thing, the new copy is pristine. A used book might have water stains, or torn or dog-eared pages. Some barbarous philistine may have underlined or highlighted sections.
That concept of pristine doesn't really apply to digital media. Pardon the pun, but digital media is rather binary: it either works or it doesn't. Your game either installs and runs, or it doesn't.
Second, copying physical media is expensive. Copying a paper book is an arduous process for an individual consumer. There's no concept of making a backup copy of a book, or a transformative copy to a different format.
Copying and manipulating digital media, in contrast, is trivial. That's pretty much the whole purpose of computers: to copy and manipulate data.
Because copying physical media is so expensive, copyright's restrictions on copying really only affected the corporations and not the end consumer. But digital media changed all that.
These two differences have put more pressure on the creator side of the bargain. It is important that the bargain is fair to both sides. The harder it is for creators to make money, the fewer works that will be created. There is such a thing as "killing the goose which laid the golden eggs." At the same time though, making end consumers jump through hoops is just going to annoy everyone.
I think that the differences between physical and digital media are strong enough that the copyright bargain may need to be adjusted. For example, maybe we could ban resale and lending, but cut the copyright term to 5 or 10 years. So the creators can make more money, but only for a shorter time.
If we had a political class worth a damn, maybe they would look at this issue and hammer out a reasonable compromise. But we don't, so we'll just muddle along, trying to force the old bargain to apply in a world that it is not suited to.