Talk:Criticism of Free Culture
I'm not quite sure where this should go, but this just came out and may go against at least the spirit of your books (unless I am misunderstanding Miller's conclusions, which is quite possible):
Arthur R. Miller: Common law protection for products of the mind: and "idea" whose time has come. 119 Harv. L. Rev. 703 (2006) 
ka9dgx: Oh... my... god... is that a long document... how do you folks ever sit through such things? It should be a BOOK!
No-one seems to dare criticise your work, so here goes.
For some time now, I've had nagging doubts about your vision of copyright term - that once copyright expires, everything will be hunky-dory; thanks to peer-to-peer systems, and a growing volume of books, music and films will be available to all, forever free. Copyright, you argue, merely pays the birthing costs of content.
It's a seductive vision, and many believe it completely. I used to.
I don't know if you noticed, but I also run a small website for fans of traditional Scottish / Irish music: <http://www.piob.info> and as you see I've put a fair amount of out-of-copyright stuff online from 18th century manuscripts to early 20th century recordings. This exercise has convinced me that your basic assumption is simplistic. If anything, out-of-copyright stuff is harder to deal with, as legal rights get replaced by access controls.
I'm already aware of the common complaint that out-of-copyright literature is often poorly typeset, edited, and distributed. This is about something else - curation rather than production.
Museum curators jealously hoard their collections: they don't have the money to put them online but (with honourable exceptions) are damned if they'll let anyone else do so. Museums are like universities (but with a longer time constant): it's a gift economy, and if you want to see my manuscript, then you have to let me see yours / buy me lunch / listen to my tale of woe / ...
In effect, copyright becomes trade secret.
There is also a grey-market trade in copies of old stuff, whether photocopies of old manuscripts or tapes of old wax cylinders. Having put my collection online I now find that people won't trade: they reckon anything they share will end up published and thus worthless. Not everyone behaves this way but enough do for it to be a problem.
The next bunch of issues have to do with maintenance. Although my day job means that server space and bandwidth are free, running such a page - however small - is a service. Whenever our sysadmin tightens security by doing reverse DNS lookup on download, I get agitated email. At present the site is enough fun that I'll carry these costs, but I would not run, pro bono publico, a site two orders of magnitude bigger (say `all folk music' rather than `all old pipe music').
I was therefore coming, sadly, to the conclusion that the market failiure we created copyright law to fix extends not just to the original creation of the work, but also to its subsequent curation. That's why we've got tons of content from recent years, but it falls off sharply past the nineteenth century and we have no real idea what music the Romans played.
So what can be done?
Hollywood might argue that copyright term should be extended forever. Then you or I will point out that all Disney's money will go to the Andersen and Grimm estates, and they will trim a bit.
And if enclosing the commons won't work for very old stuff, then maybe it's not the only solution for new stuff either. The RSA, and economists like Suzanne Scotchmer, will argue that the government should have a system of prizes.
A constitutionalist like you might argue for tightened mandatory deposit laws: Library of Congress, and the new European digital archive, make stuff freely available after copyright expires. "You can have a temporary monopoly, after which the work must be available to the public".
I took this line myself. I argued, in the EDRI submission to the EU on copyright law, that we should create a European digital archive (see http://www.edri.org/campaigns/copyright for our document). The idea was that as national deposit-library systems can't cope with digital material, for various institutional reasons I won't bore you with here, we needed something new, with a director who could play the political game in Brussels to make his department bigger and fatter. This is now being worked on, and to be honest it's at least as much due to fear of google as to our advocacy. As a small-government guy I felt slightly bad about that, but certainly one way to get things done is to show bureaucrats how they can hire more bureaucrats.
Now, the world seems to be changing. The race between google, Microsoft and others to scan and index stuff seems to have provided the incentive to get the archiving problem fixed. But what's the long-term implication for old content? Is the market a natural monopoly, in which google or MS will emerge top dog and extract a tax from everyone else, with eventual regulation as if they were an electricity utility? Will it be an oligopoly, as the entry costs are sort of manageable and the network effects don't seem too strong? Will there be a subcompetitive core plus constellation of specialists (like me) maybe supported by ad revenue from a central core player (i.e., the old music biz will look just like the new music biz but with different players)?
There has been some fascinating stuff going on in Europe this year. In January, Hal Varian predicted to an audience of music folks at the berlin DRM conference that stronger DRM would benefit the computer industry rather than the music industry - oligopoly theory shows that when you link two industries, the more concentrated one ends up being able to appropriate most of the surplus. People scoffed but within six months the music majors were howling that Apple was stealing their lunch. By the end of the year the indies were howling that the artists had been screwed too: a CD that cost 2.99 in 2004 yielding the singer 34p had been replaced by a 79p download that paid 3p.
So will it be copyright law that causes the long-term problem, or the monopolistic nature of the software and online services industries? What will the information supply chain look like in twenty years, and who will have the power?