Wednesday, September 01, 2010

The Copyright Bargain

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.


  1. With respect to the "pristine" nature of digital media, this is only true so far as it goes. In many cases (though not all), digital media are mechanisms to deliver cultural consumption goods. Those goods are time sensitive! I might pay 60 dollars for Starcraft when it is "new" in a social sense but will probably not want to pay 60 dollars 5 years from now, even though the copy itself will be identical. Other games will have been released in the interim, my friends will have moved on to newer RTS games and the story will have been spoiled or superceded. Not to mention the degradation of compatibility. I can't play Star Wars Rebellion on my 64 bit windows 7 machine no matter how great the digital copy. Sure I can retain or emulate the environment, but there are costs associated with that decision.

    The distinction with respect to pristine digital information lands on copying. I can copy a copy and come out with an identical game or song, whereas analog copying is a dubious process. But that distinction concerns distribution and widespread copyright infringement. It doesn't actually speak to transfer of technical rights from one party to another.

  2. You're framed the argument correctly and identified the key issues from the creators' side.

    One highlight though; if you're buying a used game the only company that benefits is the store you bought it from. Creators don't get a cent.

    The key thing here is that it seems an evolutionary advantage to be efficient (derp); consumers using pirated material are very efficient in terms of dollars spent.

    The closer you get to normalising the efficiency gap between legitimate sales and piracy, the more consumers you get on board.

    iTunes is a great example - lots of content, easy to access, competitive prices. I personally haven't pirated music in the last 5 years and iTunes is a big part of that.

    Some people will always prefer to steal, because their assholes (they'll claim some morale high ground, but don't be fooled). That's where creators get creative (DERPADERP) and start tying retail sales to user accounts.

    This means that although buying used costs less, you also get less for your dollar (thereby skewing the efficiency curve).

    WoW has a great model (rental). Sure, there are private servers here and there, but realistically, piracy of WoW is quite insignificant.

    You can talk about the 'account black market', but in order for a sold account to hurt Blizzard, you have to assume that both the seller and buyer would have otherwise each paid a seperate subscription.

    Hence, I think you will see much more "forced" online integration in games - the disc you buy at the store will merely be a PORTAL to a SERVICE, rather than a game (just like World of Warcraft).

    Oh and LOL at suggesting that there could be a political solution. You live in the USA right? There are different countries with different laws... getting an internationally-recognised change to copyright is exponentially more difficult than fixing one screwy country...

  3. Not really following your line of reasoning. I can see where a change in the copyright laws may affect actual piracy, but I don't see how it applies to the used games market.

    The used games are no different to me than any other used product. Sure, the digital data won't degrade, but the physical media can. CD/DVDs can be scratched, manuals and cases missing or ruined. Any special swag that may have come with the original purchase is most likely gone, along with the current trend of in-game "perks" unclocked with a one-time use code.

    I personally don't bother with used games, and unless I feel really passionate about a particular title I don't purchase much in the way of them at all. Most of my purchases fall into the "Platinum Hits" $19.95 price point; which is where I feel the majority of games should be at to begin with.

  4. You state a difference between physical media and digital media comprises "Copying and manipulating digital media, in contrast, is trivial. That's pretty much the whole purpose of computers: to copy and manipulate data." I would like to point out that this can also be applied to the other side of the argument.

    Originally, publishing and distributing physical media required a large financial investment. Now, distribution cost are reduced because of the availability of computers. As such, a content provider does not need as much protection to recuperate their distribution costs.

    Just a thought.

  5. The issue at hand is that copyright and it's design have been warped, almost entirely by Disney. When copyright was originally envisioned, it was most definitely to produce the rights of producers and artists and allow them to collect sole income from the sale and distribution of arts. However, it also had a secondary function that was a direct byproduct of the expiration of copyright.

    It is this secondary function that Disney has used relentlessly in its building of a media empire and then abused horribly through the extension of copyright. That function is the furtherance of the arts and sciences.

    The reason that copyrights were intended to expire was to release the art or science into the mainstream for consumption by the masses. Copyright was not intended to provide a goose which lays golden eggs and provides eternal income to the artists, as the RIAA and MPAA would like it to. Nor was it to provide a monopoly over the arts as Disney has lobbied for it too. Expiration of copyright was meant to drive artists and scientists to continually strive to make improvements to their works, to invent new creative processes, new works of art to be appreciated by the public and provide income before ultimately being given to the public for supporting the artist.

    That aspect of copyright has been taken, abused, and ground into the mud by patent trolls, submarine patent groups, copyright extension and a great deal of other movements to provide copyright owners an impenetrable monopoly.

  6. I share a lot of JThelen frustrations.

    However, I think this currently is a short-term issue. I.e. software is licensed not sold; you can not resell or rent your software; you can not have a lending library of software. The laws are quite different than objects. So as games start being released as software, the ability to sell used ones will disappear. My complete and utter guess is that PS4/XB720 will have the majority of games not able to be sold used (or perhaps the $5 game can be resold. the $75 downloadable content can not.)

    Unfortunately, that is an ever-increasing issue for "books" - If Apple or Amazon go away, then your ability to read that digital download goes away. And trying to circumvent that is a DMCA felony.