It ain’t kosher to steal and resell my pizza

TechDirt founder Mike Masnick had his heart in the right place when he wrote the blog post titled, “It’s time to wean ourselves off an unhealthy addiction to copyright.” (link)

But instead of using one of the many good arguments against the abuse and extension of copyright by corporate media, Mike makes a wrong-headed metaphor. To wit, he writes:

“If I opened up a restaurant selling pizzas for $10/pizza, that would be how I make my living. Now, let’s assume that someone else sees how successful my pizza place is and decides to ‘copy’ it and open his own pizza place down the street — selling identical pizzas for $7. Suddenly, I go out of business because ‘how I make my living’ is no longer sustainable.”

Wait a minute. That’s not what the piracy and copyright debates are all about. Copyright holders object when a consumer downloads their stuff without paying, just like the pizza maker would call the cops if the kids came by after school and grabbed some slices off the counter without paying. That would be a misdemeanor.

It would be a felony if the new pizza maker went over to the first shop and stole cheese to lower his or her unit costs so as to put out the $7 pie. This would be analogous to using printed or multimedia material in a resale product without royalty or commission.

But that is not, I think, the predominant problem facing print and broadcast information media. Let me use Mike’s pizza metaphor to explain. Web 2.0 media firms like Google are slaughtering old media firms like the one I work for (Hearst Corp.) in an entirely legal way. These Web 2.0 guys are scraping all the pizzas in the world — or at least the headline and iconic representation of the pizza under the “fair use” codicil of copyright law — and then selling advertisement around these fair use pages. That has turned out to be an enormously profitable and perfectly legal way to make a new information business because it accomplishes something that was never before possible in the world of pizza — the search engines, in particular, put all the pizzas in the world in one nice little row, so you can sniff ’em, poke, em, filch a little cheese off the top or whatever, before you decide which one to read or view. The advertising fee collected in this example is a legal and fair payment for the convenience of that comparison.

What Mike did when he cooked up his pizza metaphor was to confuse several conundrums in the copyright debate:

what is a fair price for a digital copy of “Honky Tonk Women,” now that the Stones have fully amortized their upfront creative costs (though I do worry about the recurring expense of silicone injections for Mick’s lips);

should mashup folks be allowed to use video or audio in the making of new creative works that are derivative or include some ‘cheese’ made elsewhere and under what terms and conditions, because the system already knows how to let one artist re-perform another’s song and put it on an album, or remake a movie; but how do we extend those legal arrangements when thousands and ultimately millions of people wanna become part-time or full-time pizza makers;

and finally the issue closest to my heart, which is the failure of current copyright law, as foolish and extreme as it is in some regards, to protect at all the work of paid newsgatherers, for instance, who can spend weeks and months and millions putting together stories — when then get legally scraped onto a website where attention, the most valuable good in a media-saturated world, is extracted by a search firm that paid nothing to acquire that information and, so far as I am aware, broke no law and followed fair use custom in the creation of this convenient new service called aggregation. (I have written about this before in the posting, Tin Cup.)