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AnilMotwaniFirstPaper 4 - 14 Nov 2011 - Main.EbenMoglen
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 let's debunk (or at least inject nuance into) a thesis: for non-functional goods with zero marginal costs, property rights are bad as they lead to inefficient distribution. disregard of traditional property-based exclusion rights thus leads to superior distribution.
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That's not my thesis, that's your thesis. I never said anything about disregarding existing rights, I said that goods produced for anarchist distribution, in which no one is excluded from distributing, will attain superior distribution. Already you appear to be debunking or adding nuance to something you made up, which is fine with me, but doesn't contribute to the conversation you are supposedly keen on.
 my paper will argue for a reexamination of the word "efficient." surely, it doesn't just mean "reaching the most people possible." surely not.
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No. The phrase "efficient distribution" means in my argument the most widespread distribution in the shortest time using the least resources. But if the phrase "efficient distribution" is to be redefined, which it certainly can be, it should be redefined in such a way as to have something to do with distribution, which the phrase as used below does not.
 non-functional goods are rich, wonderful things. we can poeticize endlessly about their power to lay raw emotion to an unbound medium (music, film, etc.) and thereby enable brilliant minds to engage in sensual CONVERSATION - that is, a CONVERSATION among the senses, unencumbered by the limits of human-invented language. to be sure, terry gilliam and igor stravinsky aren't speaking english; they're speaking art. accordingly, we shouldn't measure efficiency based on the volume of their voices and the number of minds their voices consequently reach (quantified via viewer/listener #s), especially where downstream distortion perverts, dilutes or otherwise mispackages their communicated emotions and thusly produces a disjointed CONVERSATION. we should instead measure efficiency based on the clarity and technical precision with which (in this example) gilliam's and stravinsky's voices are transmitted, following their hopes and intentions. to illustrate: if gilliam declared that 'brazil' needed to be watched on acid, that should be respected (in order to achieve harmonious CONVERSATION between gilliam and his audience - an optimal producer-consumer efficiency); likewise, if stravinsky declared that the 'rites of spring' should have no attachment to cartoonized rodents, that wish too should be accorded respect. after all, the producer (music composer, film director, etc.) is the best judge of his senses. these senses belong to and are uniquely accessible by him; producer-generated art is merely a best though imperfect means of sensual articulation.
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Could we have, please, capitalization and grammatical clarity?
 remember, these are non-functional goods. if i yell out "the british are coming" in heaping exclamation, it might get transformed to a hushed "i hear the british are on their way" as word makes it way - but the message nevertheless conveys, and we can all adequately prepare for british invasion. nevermind the fact that a hushed "i hear the british are on their way" is neither eminently quotable nor viscerally poignant.
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This paragraph appears to me to be nonsense. Would you put a sentence in front (usually known as a "topic sentence" conveying succinctly the idea the paragraph is supposed to convey?
 by contrast, non-functional goods are not primarily designed to relay a functional message (e.g., caution regarding the brits). some minor tweaking in the producer-designated means of transmission means the producer's senses are thus not accurately conveyed, which thereafter means that any resulting CONVERSATION is disjointed. and.. moreover, inefficient, under the framework i've laid out.
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No framework has in fact been laid out, or at any rate, none that I could understand. One confusion that is clear through the confusion is between the property rights that restrict distribution and the property rights that restrict modification. As I tried to point out at some length, perhaps inadequately for your purposes, though sometimes contained in the same copyright, they're always analytically distinct.
 examples follow:

in the realm of music:

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 - there are musicians who might like their songs to be heard start to finish (pink floyd's the wall, the beatle's sgt. pepper's, radiohead's ok computer), as this would give the work a particular conceptual unity. chopping up songs into mp3s and encouraging their piracy seems to undermine this wish. perhaps this means the musician's vision isn't "efficiently" distributed, although deconstituted fragments of it are
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No one has advocated pirating anybody's music. But it seems obvious, doesn't it, that anyone with any form of player playing any form of medium from vinyl on could have stopped playing any particular Pink Floyd song in the middle? If you are making an argument at all, which I am not sure I can see you doing, what would that have implied about the record distribution system that put the vinyl record someone once stopped playing in the middle into his hands?
 

accidental leakage

- consider perpetually in-production albums (like dre's detox). clips have been leaking to the interwebs for nearly ten years. if listeners know they are getting unfinished, often purely experimental cuts, that'd be okay; but certainly some users think they're getting 'the real thing.' as such, fans throughout the globe often receive and package together drastically different variations on a single album - and form drastically different impressions. this whole arrangement seems anarchic rather than efficient

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Again, the purpose seems to be to turn "efficient" into a word implying qualitative integrity, and we would agree that a distribution system is not efficient unless it preserves the things it distributes. But from here the point seems to be that any distribution system that does not also control the way in which the goods are used at the other end interferes with "artistic integrity." This is also true, of course, of the distribution of physical artifacts considered beautiful by their producer, which may be rendered ugly in her view by subsequent intentional modification. Why this is an inefficiency in the system of distributing the object is neither evident nor discussed.
 

in the realm of film:

watching 5d cinema.. on an iphone

- certain films are firework-heavy and therefore are best appreciated in proper theatres (i'm defining "best" subjectively, as in, most in accordance with the producer's intentions). it seems, however, that with the easy of file-sharing, many would-be theatre-goers stay at home and watch (summer blockbusters) on their laptops. "avatar" is now the most heavily pirated movie, despite the great concern james cameron gave to tying his film around the latest technology in theatrical display. i feel that "film" is more than just sounds and images - and i'd argue that film-going is a rich communal experience. much of that is lost via piracy, and this loss perhaps represents a distributional inefficiency

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This argues too much, of course, because the distribution of these masterpieces for playing in suboptimal non-dark anti-communal circumstances is done primarily by the "owners" not the "pirates."
 

AMITABBBBHHH (or, bollywood's cultural identification)

- bollywood is all song-and-dance. mumbai theatres are designed with this in mind. the audiovisual systems are crazy advanced; the bass literally thumps through your skin, and the screens reach wall-to-wall, floor-to-ceiling. the architecture itself is a sight - a gorgeously gothic reminder of india's history under the brits. all this for $4 or so. moreso than in america, piracy is a huge concern in india. and as it gets easier to obtain watchable-quality copies of bollywood films, i fear that less indians will find the strength to get out and see a film in a theatre. as this occurs, bollywood's crucial distinctive feature of flashy song-and-dance numbers will go uncommunicated - even if these films technically reach a bigger, broader audience

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Umm, are you sure you understand the economics of the Indian film industry? Are you worried about piracy, here or flatscreen TVs at home?
 

concluding thoughts

it would be glib to read this paper and dismiss it as overly preoccupied with "semantics." i've given significant attention to frameworking what "effiency" means within the context of distributing non-functional goods in the (perhaps naive) hope of preempting this concern. nevertheless, let me reiterate: art is our way of accessing the genius of a gilliam or stravinsky (or a john lennon, dr. dre, james cameron, karan johar), who might otherwise have difficulty channeling their genius through human language. after accessing that genius, we may critically engage with it - we may engender lovely CONVERSATION. but our goal in this effort is not to grab at the cheapest and earliest available scraps and project them worldwide; that's reappropriation, not CONVERSATION, and it forgoes a lot.

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 all that's left now is a bit of poeticizing (weighing pros/cons), but that's best left for a follow-on post. the end!
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This is a poorly-framed and slovenly argument, once the bullshit is removed, that piracy (by which you mean intentional sharing in violation of copyright) is sometimes destructive of artistic integrity. Descriptively this is evident, and requires little argument. Normatively this is also easy to agree with. There are arguments on the other side, having to do with the concept of "artistic integrity" in relation to the concept of "authorship," but you don't make any contact with those arguments, because you assume without further discussion (though accompanied by a great deal of ungrammatical rhetoric without capitalization) the normative primacy of "authorial intent."

Somewhat inappropriately, the argument is presented as though in response to an argument of mine in favor of intentional copyright infringement that I never made. The ideas I have presented are tendentiously mischaracterized, but whether for the purpose of deliberately misunderstanding them, or merely in order to permit an argument about the substantive importance of property rights to the preservation of artistic integrity to be made under the guise of an argument about efficiency of distribution is unclear.

If the latter, why bother? The distortion necessary to turn a simple idea ("Propertization of distribution plays a role in protecting artistic integrity") into this complex farrago is unnecessary. It's also destructive of the very form of dialogue you overtly advocate. Put simply, this is a meaningful objection to ideas critical of copyright. "Because propertization of distribution plays a role in protecting artistic integrity, doesn't integrity protection for creative works suffer from the decline of copyright?" Some might choose to respond, as I've indicated above, by asking whether "integrity protection" is important. More likely, however, the objection will be met by reference to the general jurisprudential principle, often associated with Guido Calabresi, that property rules are structual alternatives to liability rules, and that the role played by property restrictions on distribution (which are actually secondary in this function of protecting artistic integrity to property restrictions on production by modification) can be played instead, in a system without property rights, by specific liability rules.

Two different steps need to be taken here. Substantively, the argument needs to be simplified and the excess machinery done away. From an execution point of view, a return to the ordinary rules of grammar, including efforts at shorter sentences, along with formatting changes designed to make reading easier, including punctuation and capitalization, should be adopted. Nothing useful makes expressivity the enemy of clarity and accessibility.

 -- By AnilMotwani - 4 Nov 2011

Revision 4r4 - 14 Nov 2011 - 16:18:42 - EbenMoglen
Revision 3r3 - 05 Nov 2011 - 02:25:51 - AnilMotwani
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