Re: the best justice money can buy --Lessig (fwd)

[bill.stewart@pobox.com]

At 10:34 AM 2/5/98 -0600, Jim Choate wrote:
>If there were no copyright nobody would have any reason to market 
>software or much else for that matter. I would predict that much of 
>the technology and infrastructure we have now wouldn't exist. 
>It would also stiffle [sic] creativity and new methodologies because 
>there would be no profit in it to recoup development costs.

If there were no copyright, markets for information and entertainment
would definitely have evolved differently than they have in the US
and Europe, and would use much different mechanisms for getting money
to the producers of information, such as standard sale contracts.*
On the other hand, if there were no colonialism, markets for sheep in
New Zealand would have evolved much differently than they did,
a problem they're now gradually working their way out of.

The music business, for example, handles paying authors when their works
are performed by performers through mechanisms other than just
charging big bucks for sheet music.  The Free Software Foundation found
that with a bit of academic and military socialism to jump start it,
there are a lot of reasons for people to create value and beauty,
and you can even talk corporations into paying money for support.
Van Gogh found good reasons to paint, in spite of being broke.
Michaelangelo found good reasons to paint, and Gutenberg found
good reasons to print, in spite of not having copyright protection.
Newspapers eveolved in an environment where copyright wasn't a big deal;
if your competitors ripped off your stories, they were a day late,
and you could rag them about it in your own paper.
Mainframe software evolved in an environment where contracts
covered use of the software, and copyright was seldom relevant;
that has gradually changed with mass-market computers, but
it took a while for courts to accept the idea of copyrighting
software, and the industry didn't refrain from writing the stuff.

Copyright is certainly a major market convenience, because it means
that individual authors, middlemen, and readers don't have to
negotiate contracts each time they trade information for money,
or having to read the annoying shrink-wrap licenses on books
the way they did for a while on packaged software.  It also
makes it more difficult for alternative mechanisms to evolve,
because it's got an 800-pound well-armed gorilla subsidizing it.


>Those who would survive in such a market would be
>the 800-lb gorillas because only they would have the resources 
>to squash the smaller companies.
If I read Mark's note correctly, the gorilla he was talking about
wasn't MicroSloth, it was the government.  We may joke about Gates
being the Evil Empire, but it's clearly a joke; we've seen the real thing.

>Free markets monopolize.
and in a following note, Jim says that that's true mainly for the
long run, not necessarily for the short run.  It's not only incorrect,
especially as expanded upon, it's irrelevant to the moral question.
If your alternatives are free markets, where you and I can 
offer to buy or sell products without anybody beating us up for it,
versus non-free markets, where some gang can beat us up for
not going along with the program (whether the gang is the Mafia,
the Pinkertons, the KGB, or "your neighbors in a democracy"),
there's no question which is morally acceptable - even if the
violence-based market is often more convenient for some goods.

But morality aside,  monopoly, in the sense of a single player
or small group of players domination the sales of a commodity,
is something that can certainly happen in the short run but is
unstable in the long run unless the competition can be prevented
by threats of violence (whether by the monopoly or the government.)
If people are free to offer competing products, maintaining market
share is difficult, and the market leader not only has to contend
with the other big dogs, but with being nipped to death by Chihuahuas,
and with being made obsolete by better technologies.
Who monopolizes tabletop radios these days?  (Who cares?)
Who monopolizes Video Cassette Recorders?  They're both relatively 
free markets, in spite of the FCC's attempts to enforce standards,
and Sony's attempts to monopolize the BetaMax market.
On the other hand, radio and TV broadcasting are near-monopolies,
because the Feds have been "helping" protect our public airwaves.

------------
* Some Libertarians and some Libertarian-bashers will argue that using
government courts to enforce contracts is still hiring the 800-pound 
well-armed gorilla to carry out your private business activities....
				Thanks! 
					Bill
Bill Stewart, bill.stewart@pobox.com
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