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The Creator-Endorsed Mark as an Alternative to Copyright


I’m often asked by people who are interested in the criticisms of intellectual property how authors, for example, would be compensated in a copyright-free society. My answer is sometimes: “I’m not sure. They’d have to figure it out.” I say this not because I have no opinions but because I’m not a consequentialist and do not want to acknowledge that the criticism of IP law is contingent on some kind of view of what would happen in its absence. In this, I’m reminded of John Hasnas’s comments in his brilliant, classic article The Myth of the Rule of Law:


What would a free market in legal services be like?

I am always tempted to give the honest and accurate response to this challenge, which is that to ask the question is to miss the point. … It is possible to describe what a free market in shoes would be like because we have one. But such a description is merely an observation of the current state of a functioning market, not a projection of how human beings would organize themselves to supply a currently non-marketed good. To demand that an advocate of free market law (or Socrates of Monosizea, for that matter) describe in advance how markets would supply legal services (or shoes) is to issue an impossible challenge.

With the advent of state IP legislation, the state has interrupted and preempted whatever other customs, business arrangements, contractual regimes and practices, and so on, that would no doubt have arisen in its absence. So it’s natural for those new to the anti-IP idea to be a bit nervous about replacing the current flawed IP system with … a vacuum. It’s natural for them to wonder, well what would occur in its absence? As I noted, the reason we are not sure is the state has snuffed them out. This is similar to the FCC which preempted and monopolized the field of property rights in airwaves just as they were starting to develop in the common law; now people are used to the idea of the state regulating and parceling out airwave or spectrum rights and might imagine there would be chaos if the FCC were abolished (for more on this see David Kelley & Roger Donway‘s 1985 monograph Laissez Parler: Freedom in the Electronic Media, as discussed in my post Why Airwaves (Electromagnetic Spectra) Are (Arguably) Property).

So, because people are bound to ask the inevitable: we IP opponents try to come up with some predictions and solutions and answers. Thus, in the end we must agree with Hasnas:

Although I am tempted to give this response, I never do. This is because, although true, it never persuades. Instead, it is usually interpreted as an appeal for blind faith in the free market, and the failure to provide a specific explanation as to how such a market would provide legal services is interpreted as proof that it cannot. Therefore, despite the self-defeating nature of the attempt, I usually do try to suggest how a free market in law might work.

How would content creators be rewarded in an IP-free market? Some answers may be found in Boldrin and Levine’s Against Intellectual Monopoly (see Jeff Tucker’s A Book that Changes Everything). Inventors invent to be first to market. Academics publish articles or books to enhance their reputation and increase their employability. (As author Cory Doctorow observes, “For me — for pretty much every writer — the big problem isn’t piracy, it’s obscurity.”) Singers or musicians might give away recorded albums for free to gin up concert sales. Pharmaceutical companies, freed of enormous tax and regulatory (including the FDA) burdens would have much less need of a patent monopoly to help make up for these costs; and could profit from being first to market and reputation (notice that Tylenol still sells for about twice the price of the generics right next to it on the shelf?). Perfume and fashion thrive without IP. Open source software is plugging along. And so on. What about movies, or novels for profit? Various ideas have cropped up. Perhaps the author releases his first book for free to get a fan base; then withholds the sequel until a certain number of fans pledge to pay for the book. As for movies, perhaps they are released first in DRM format to elegant movie houses, before being released on DVD or digitally. (In Against Intellectual Property, n.67, I related the example of how drive in movie theaters, “faced with the prospect of free riders peering over the walls, installed—at considerable expense—individual speakers for each car, thus rendering the publicly available visual part of the movie of little interest.”) It is basically the task of entrepreneurship to figure out how to make a profit off of a given service, given the realities of costs of exclusion, ease of cheap substitutes, and so on.

At the Property and Freedom Society conference in Turkey last June, someone asked me just these questions after my IP talk. One thing I suggested–brainstorming in the lobby–was that a novelist could perhaps sell his “endorsement” and consulting to a given movie version of his novel. Why would the movie studio pay him? Well if there are two or three movie versions of a novel, the version on which the author consulted and gives his “seal of approval” would likely be more attractive to his fans. So everyone benefits: the fans have an indication of which movie to see; the movie studio makes more money; and the author gets a royalty and consulting fee. Maybe he sold the book for free simply to have a chance to consult on and endorse a movie version. Who knows?

I recently came across a similar and brilliant idea introduced to me by Nina Paley, a creative artist and anti-copyright innovator (see Interview: Nina Paley on Copyright; Nina Paley’s “All Creative Work is Derivative”). Her idea is the Creator-Endorsed Mark. As the CE page on the QuestionCopyright.org site explains,

The Creator-Endorsed Mark is a logo that a distributor can use to indicate that a work is distributed in a way that its creator endorses — typically, by the distributor sharing some of the profits with the creator. … For example, the creator might say that anyone who shares any profits at all with them can use the generic “proceeds support” version of the mark. … Furthermore, a creator might grant permission to anyone who shares a certain percentage of their profits to use a “percentage” version of the mark, as long as it does not exceed the actual percentage shared. For example, a distributor sharing 25% of profits could use this mark.

Because there is no copyright (or it’s disclaimed, say) someone could distribute the work without the author’s permission and without the CE mark, but presumably CE-endorsed works would sell better as fans and customers prefer to buy from distributors who support the artist.

What’s to prevent someone from faking the CE mark itself? The idea seems to be that the CE mark is subject to trademark, misuse of which is trademark infringement. Opponents of IP might wonder if this is just replacing copyright infringement with trademark infringement. However, as I discuss in Against Intellectual Property and my post Trademark versus Copyright and Patent, or: Is All IP Evil?, there is an aspect of trademark law that could be justified under libertarian principles: namely, some types of trademark infringement are really instances of the seller defrauding the consumer. So in a free market, distributors who sold not only bootleg copies of an artistic work but falsely marked it CE would be defrauding their customers, and thus would be restricted to marginal and fly by night operations, not much different than a garden-variety bootlegger. Would customers pay more for a CE-endorsed work? Probably so, if the author was still alive and if the premium were not unreasonable; after all, as noted, people pay about twice as much now for brand-name over-the-counter drugs (Advil instead of ibuprofen, etc.), just for the reputation. (And in fact maybe the opposite would happen in some cases: instead of buying a Michael Moore CE-endorsed version of his movie, one might prefer to buy the cheaper, bootlegged version instead to have a cleaner conscience.)

As for the origin of the Creator-Endorsed Mark idea, Nina Paley tells me that if this idea

has a creator, it would be Karl Fogel of QuestionCopyright.org. He wrote about the “Author-Endorsed Mark” well before I hit the Free Culture scene. When Fogel and I collaborated on the Free release of Sita Sings the Blues, we changed “Author-Endorsed” to “Creator-Endorsed” (… the thinking was “creator” includes visual artists, musicians, and others as well as authors of texts). I designed the logo, and we put the mark in action on “Sita” DVDs, CDs, and other merchandise.

I have to say that I like the CE approach much more than “copyleft” or similar approaches such as CC-Share Alike–as noted in Copyright is very sticky!, there are many problems with copyleft–not only that it is based on and requires copyright to exist (even Creative Commons doesn’t shy from admitting this reality: “Creative Commons licenses are copyright licenses – plain and simple. Period. CC licenses are legal tools that creators can use to offer certain usage rights to the public, while reserving other rights. Without copyright, these tools don’t work.” The CE approach works even better in the absence of copyright. It is a much cleaner, elegant, less statist, and libertarian approach, in my view, than copyleft. (For some other problems with the leftish approaches to IP, open source, and related matters, see my posts Eben Moglen and Leftist Opposition to Intellectual Property, Thick and Thin Libertarians on IP and Open Source, and An Open Letter to Leftist Opponents of Intellectual Property: On IP and the Support of the State.)

In any case, Fogel’s and Paley’s intellectual innovation here should be strongly considered by those seeking a moral way to profit off of creative content.

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers.

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