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Copyright: the never-ending story January 12, 2008

Posted by Lupus in Uncategorized.
4 comments

Killl! Kill! Kill!

UPDATE: Shamus comments.

Let’s see. Omo writes a rather disjointed post talking peripherally about some issues relating to copyright. He ends with this:

Contrary to marketing studies, it is still just as relevant today as it was in 2002–the Lessig keynote flash presentation about free culture. Are you ready to fight for your right to watch fansubs? Do something.

Avatar responds. In short, his point is this: if you are granted the right to watch free fansubs, soon thereafter there won’t be any for you to watch because all the anime production companies will go out of business. Mangas can be produced by starving artists working alone, but animation cannot be. Even low budget animation requires a lot of money, because it has to be created by paid staff. If there’s no income, there’s no money, thus no staff, thus no animation.

And then he says, animation cannot be produced using an “open source” model.

Well! That gored Author’s ox. Author, whose RL name is “Pete”, is a big wheel in open source development and is, shall we say, rather invested in the movement, and not just emotionally. Speak ill of OS in his presence at your peril! He opens up a can of whoopass on Avatar — and, I think, completely misses the point.

Avatar wasn’t saying that open source is evil. He wasn’t saying that it was impossible for it to be profitable. He was saying that it isn’t the solution to all problems — and he’s right. It sure as hell isn’t a solution to this one.

Author says:

How is “copyleft” synonymous with “non-profit”? Red Hat and MySQL sell nothing but copylefted things and reap handsome profits for it. It simply is FUD to conflate these things.

But it is Author who is muddying the water here, not Avatar. Yeah, Red Hat sells OS software, though I’m not sure I’d call the result “handsome profits”. (According to their most recent 10-Q, they made net $18 million in the third quarter of 2006. That’s pleasant but not “handsome”. For a company as old as they are, competing in an industry as large as they are, that’s not too much. Microsoft makes about that much in five minutes.)

What’s important here is not that something being developed open source is being sold profitably. What’s important here is that Red Hat has never made a schedule and stuck with it, because it isn’t possible to do so except in the trivial sense of “We’ll be issuing a new release on thus-and-so a day, and when that day comes we’ll inform you of what we decided to include in it, because it’ll be whatever we happen to have ready.”

By its nature, open source cannot produce product to a tight schedule. It’s never happened and it never will. UNLESS…

UNLESS it is “open source” produced by paid professionals working in a professional environment. In other words, indistinguishable from non-OS except that it’s given away once finished instead of being sold. (Perhaps given away to Red Hat, who in turn sells it.)

A lot of that is going on in the OS movement. The mythology is that nearly all of the development is being done by volunteer hobbyists. The reality is that a large part of it is being done by engineers hired by, and paid by, private corporations who are releasing the software they create under OS licenses, because in the long run it is profitable for them to do so.

Read Joel’s article carefully, because the kicker is this: the reason that makes IBM pay people to develop OS software won’t apply to J.C. Staff.

That’s what Avatar is saying. He isn’t saying that it’s impossible for any company dealing in OS to make money. He’s saying it can’t be done in animation. And he’s right about that. And if Pete would just calm down, and stop with the “How dare you say that about my mother!” reaction, he’d realize it was true.

As to Omo, he responds to Avatar in comments — and he, too, misses the point. In Avatar’s comments, Omo wonders if they’re two freight trains on separate tracks. Yup, they sure are.

Omo is making an argument based on what he thinks is right. “This is how it should be. We should have the right to make and watch fansubs without paying for them, and without having to worry about legal peril!”

Avatar is making an argument based on economics: if, no matter how, such a right becomes codified into law, it will kill the industry. That has nothing to do with right and wrong. It’s simply a statement of fact: if fansubs are legally protected, and come out of the shadows much further than they are now, they will extinguish the revenue flow which makes creation of new anime possible — for as a practical matter it can only be created by paid staff working to stiff deadlines. Absent that, production will slow to a trickle.

Avatar is, perhaps unknowingly, arguing that this is a case of the tragedy of the commons. The great Adam Smith developed a lot of the theory behind capitalism, but he made the underlying assumption that if all independent operators in the system work to optimize their own results, the system overall will also be optimized. The tragedy of the commons was the proof that this was not so.

A lot of theoretical work has been done on this, and all of it yields the same conclusion: it is to the benefit of everyone that each of us yield some of our liberty in these cases. If we do not try to selfishly optimize our own result, we in fact all get more in the long run.

But in cases where the tragedy operates, selfish over-utilization eventually destroys the resource, leaving everyone the poorer.

Irrespective of whether it ought to be a right, the consequences of doing it are bad for everyone. And that’s what would happen if Omo succeeds in his quest to gain the legally protected right to produce fansubs: he’ll kill the industry off. He’ll have the right to fansub anime and distribute it freely, but no anime will be produced for him to fansub and distribute.

By yielding that right, by paying for something he thinks he should get for free, he will help make it so that anime continues to be produced.

That is Avatar’s argument. Omo’s claims about whether it ought to be like that don’t affect the expected result.

Low-to-moderate level fansubbing, more or less the current state of affairs, is an example of free riding. And one of the pernicious aspects of these kinds of situations is that they usually can tolerate a small amount of it. As long as there are a large enough number of people buying intellectual property, then others can take it for free without making the system collapse.

But Omo wants to go further than that. He wants everyone to ride free. He thinks it should be a right.

Perhaps so. That’s a moral judgment. But if that happens, who pays the fuel? Irrespective of the morality of it, economically it isn’t possible. The money has to come from somewhere. When free riders begin to see that as an entitlement, and to demand that it apply to everyone, the system collapses.

The money has to come from somewhere.

So: Omo says, “This is right. This is proper. This is how it should be!” Avatar responds, “Yes, but it isn’t economically possible. It has to be paid for; you can’t develop animation using open source models.” Author responds huffily, “How dare you speak ill of open source! Red Hat makes money off it, you know!”

And I say, “Yeah, but…” Yeah, but that has nothing to do with this situation. No one is going to pay their own animators to create animation to give away, because there’s no way for them to make money off it, unlike open source software, where doing so indirectly leads to more profit for them.

Original blog post open source release by Steven Den Beste of Chizumatic. Open source blogging, FUCK YEAH!