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Copyright Holders Are Landlords and it's Not OK

Mike Overby
Mike Overby is a software developer looking for work, host of a law review podcast called Amicus Lectio, and a moderator of Programming Discussions (invite.progdisc.club). Follow me on Twitter!
・33 min read

In April, Brian L. Frye released "OK Landlord: Copyright Profits are Just Rent", an article I absolutely adore that expresses an idea I absolutely agree with. Brian insists that if copyright holders wish to treat their copyrighted works as real property and insist on their right to be paid for it as a use of their real property, then we should take them seriously. We should regard them as we do landlords. Nobody loves a landlord in a crisis, while everyone seems to love a copyright holder as long as we call them "artists" or "Authors." However, Brian closes the article with a paragraph that qualifies his assertion by saying he has nothing against landlords or copyright holders. His point is that they are the same, not that they are bad. My point is that they are the same and bad. The corollary of Brian's piece is clear: if you love copyright holders and hate landlords, then you contradict yourself.

Landlords

We can leave copyright holders to the side for the moment, because landlords are loathed far more broadly. The only people who like landlords are landlords or the people who can casually afford to have a landlord garnishing a third of their paycheck every month. Many law professors and people who read Jurist fall into at least one of these categories, it seems.

It has been infuriating to see responses to Brian's article that make the bald claim that there is nothing wrong with being a landlord. They say that it is the landlord's property, and so the landlord can do what they want with it. They have even insisted on a separation between landlord and the pejorative slumlord, which reminds me of a commonly-supposed moral distinction between copying and plagiarism. It is not a crime to copy or to plagiarize, and it is not a crime to be a landlord or a slumlord; they are, in fact, the same activity. If you hate slumlords or plagiarism, then you only like landlords and copyists because you perceive them as polite. Moreover, you are in a position where an impolite landlord cannot kill you.

Yes, life and death are essentially the stakes in landlord-tenant relationships. In the United States, everybody builds their lives around the fear of homelessness. You have to choose between food and your rent? You pay rent because you can deny your body the sustenance of life, but you can't live outside. You hate your job and want to leave? You'd better stick it out until you can find another one because that job pays for your house. Your friend has lost their home? You hesitate to invite them to stay with you because you're torn between knowing homelessness is a killer and knowing this favor violates your lease. Your home is destroyed? We have insurance set up to help you spring into another one because we know homelessness is a pain best to be avoided unless you're already homeless, in which case "you probably deserve it, somehow." Homelessness is the specter haunting every conversation with your boss, your cash-strapped friends, your siblings, your parents who refuse to die and bequeath their paid-off house to you. This day-to-day fear of homelessness is so significant that we call the people who've amassed enough resources to start neglecting it "the middle class," but this is merely a useful illusion.

Someone who reaches the middle class may or may not be able to reach the high class, but they are encouraged to no longer identify with the low class. As such, if the middle class individual had to work and scrape by for however long to experience illusory class elevation, then they are encouraged to believe it is only "right" that all low class people must struggle through the fear of living on the street. This veneer of meritocracy hides the reality of deliberate class-based exploitation where the low and middle classes are below the high class because the high class's wealth comes from extorting the lower classes multi-generationally. This is not to say landlords are the ruling class today—they've long-since been outclassed by the capitalists who were outclassed by the vectoralists. Nonetheless, the source of landlord profit is rent compelled from tenants on pain of the symbolic death that homelessness represents to the homed.

In exchange for not killing you through homelessness, what service does a landlord provide? They make tenants' money disappear. When a tenant pays a rent to a landlord, they receive nothing. Even the word rent has been stripped of its actual economic meaning, "any payment in excess of the cost of production," in order to justify and normalize the landlord's behavior. This is profit through exploitation of a class system, which is all the more obvious when you remember that the tenant would be accruing equity if they were of a higher class, like landlords. When a landlord pays a mortgage to a bank, they get equity in that home and eventually they may pay the mortgage off and be truly said to "own" their house. When the tenant pays rent, the landlord simply turns whatever equity the tenant should have earned into profit for themselves. This means that the landlord class accrues wealth through the mere fact that they own property, the passive income of which can be recyclically invested in more property.

Landlords love that the tenant class's wealth is generated through actual labor because labor cannot be cyclically invested. This greatly restricts tenants' opportunities to invest and compete with landlords, at least without a job that pays more than a slave wage or significant savings or simply having entered the housing market earlier via inheritance. That's why the average tenant might spend decades to get in the position to own one home while Sean Hannity owns 870 homes through a network of shell companies as of 2018. Being a Baby Boomer, Hannity could leverage many of those advantages to get his first property. Millennials and Gen Z are permanently behind in the housing market due to multiple economic catastrophes they had little to do with other than to be wiped out when the jobs disappeared. However, remember the class difference: people who are able to hold on to their houses through these crises remain landlords and are insulated from the devastation because their income is not tied to a job that can suddenly vanish. Rent is a wealth transfer from the young to the old. More than that, it's a wealth transfer from the cash poor to the investment rich, and the last housing crisis put Wall Street landlords of the investor class in position to buy up a bunch of property and start trading tenants' homes between themselves as "rent-backed securities," an eviction-accelerating practice that will only get worse amid the current crisis. These are relationships imposed by the system. The more normalized they become, the harder it is to examine them outside of the context of associating landlords with acceptable or justified. But the consequences of the system are not negligible; they are extremely harmful. The purpose of a system is what it does, and the purpose of this system is to provide a mechanism for the rich to get richer by exploiting the disenfranchised poor. This system has never worked well for the poor, who are the vast majority of people.

In a crisis, the landlord minority will always prioritize their own interests. When COVID-19 ravaged the United States and created the largest unemployment boom in American history by orders of magnitude, 69% of tenants paid April rent while government agencies passed various measures to protect homeowners from foreclosure. This is why I will not abide people pointing to one-off landlords who forgave rent to say "there are Good landlords and Bad landlords"—69% of tenants have Irredeemably Bad Landlords by default. They took the money because they could and they knew the system would back them up when it came time for evictions, excepting states where the government was "brave" enough to slow evictions without cancelling rent. On top of that, some property owners thought the government wasn't doing enough to help them. Other landlords jumped at the opportunity of "offering" to take sexual favors in lieu of rent, translating their everyday economic coercion into rape. Meanwhile, there were plans floating around that would have allowed tenants to not pay April rent, but turn it into something like a subprime student loan to be paid back later; that is, putting them further behind than ever. We have a dedication to "normalcy" and "institutions" so extensive that it seems reasonable to respond to complete systemic collapse by making tenants the landlords' outright debtor prisoners because that's what the normal institution was doing all along. Our conception of landlords' property is so completely twisted that this somehow makes more sense than just not paying rent while thousands of Americans are dying and millions cannot work.

Oh, but "think of how much the landlord would suffer and miss bills without their expected income?" Let's get this straight: if a landlord is underwater on a property and they need rent in order to keep it up, then the tenant is the one housing the landlord. The tenant is the one doing labor and providing. The landlord is the one unjustly withholding equity. Basically, the only reason we don't have a maximum rent is to satisfy landlords' vanity. We allow them to raise the cost of others' living to increase their own standard of living with that extra blood sucked from the tenants' veins. All you have to do to see the contempt landlords have for their tenants is to read tracts written by landlord associations, like this one from the Small Property Owners of America. They urge you to think of them as "small property owners" and not even "landlords" because they think the connotations of landlord are unfair. (It's also a way to quietly upgrade themselves to "small business owners" so they get to be viewed as higher-class capitalists, but that's not so important now.) The history they choose to share, which I was unable to corroborate the specifics of, includes the carefully-framed anecdote that American landlords continued to propagate a lie that tenancy is based on land (as in medieval serfs), not buildings, until 1863. Every single reform they point to as "progress" in the system was taken from landlords through gritted teeth.

Even reforms that we have been able to secure, such as non-discriminatory housing (redlining is still going on, but follow me here), are constantly endangered because of landlords' activism against tenants. The Trump Department of Housing and Urban Development wanted to raise the bar for housing discrimination claims to allow for more algorithmic (i.e., automatic, impossible-to-appeal) discrimination. HUD said the new rule "frees up parties to innovate, and to take risks to meet the needs of their customers, without the fear that their efforts will be second-guessed through statistics years down the line." Show me one person who has ever—in the history of the world—wanted it to be easier for their landlord to take a legal risk by denying them a home. When Washington State tried to stem the tide of a long-ongoing homelessness crisis by giving tenants more time to pay their rent, landlords retaliated with aggressive notices threatening law-abiding tenants with eviction. When Washington State closed the loophole that allowed that unprovoked, indefensible abuse, landlords were furious. Landlords have shown who they are during every significant crisis that has ever pitted their personal interests against a tenant.

It has always been this way and there has always been resistance. As long as there has been a relationship between land and class oppression, there have been calls for land reform. In the 1940s, a key part of Mao Zedong's Communist Revolution in China was the mass killings of landlords throughout the country. I'm no tankie, so I don't endorse the promiscuous killing of landlords. I do condemn the perceived need for coining the term classicide to describe this; even in death, the language bends to treat higher-class persons separately. In the 1850s, the Irish National Land League convinced Charles Cunningham Boycott's servants to stop working for him because he refused to lower rents, inspiring the term boycott. That was one slice of the conflict called the Land War, which resulted in major reforms to the system that incorporated the agitating tenants' demands. Following the privatization of previously public English land in the 1540s and 1550s, a movement called Enclosure, there were riots for decades. The most famous of these was Kett's Rebellion, which started after a landowner responded to rebels knocking down his fences by joining them. It was violently suppressed by the English military. All of the historical grassroots movements against aggression via land ownership resulted in unlanded people grievously threatened or outright executed, somehow. Most modern resistance is relegated to art like Langston Hughes's "Ballad of the Landlord" or Henry George's Progress and Poverty (free audiobook) rather than rent strikes or killings. The common people's entertainment is allowed to exist because literature calling for action poses no threat at all if the lower classes are starved of the resources to organize under the threat of homelessness anyway.

And yet, possibly due to innocent ignorance and possibly due to lifelong suggestions from their betters, most people neglect the history of resistance to landlords' exploitation. They subsume this within new definitions of words like property and rent. Without a serious and directed counterpoint, landlordism has been allowed to corrupt our very notion of what property means and make our mental models of it lies.

When I say I live in "my home," I am speaking of the same emotional and factual relationship that a homeowner would be. The difference is systemically imposed and enforced—it creates the conditions that dictate I pay into my house without gaining any equity because I belong to the tenant class. By carving anti-tenant/pro-landlord concepts like this into property, we create class disparity that's invisible to consciousness. Alternative labor and homeownership distributions are unthinkable without significant mental scaffolding built through dedicated research. Under this regime, refusing to pay to live becomes immoral. The tenant quitting their shitty job becomes unjust to the landlord. Welcoming people into your home when they're down on their luck becomes a breach of contract. We start to accept the idea that it is a legitimate government interest to force people out of their homes with police violence if they don't pay enough money to some other person. It begins to make economic sense to forego food in order to survive.

Enough is enough. We must all openly condemn landlords, and people in better positions than me must act to have them eliminated.

All Landlords Are Scum.

"But Copyright Holders Aren't Landlords."

There are many "first" things people will say when you accuse a copyright holder of landlordism. Though pertinent, they are a litany of wrinkles in search of a material difference. None are strictly necessary to the point I'm trying to make about the similarities of class conflicts. Here, I pause to dispense with two major ones upfront.

The first is that copyright holders do labor while landlords do not; this is nonsense. The fact that some labor had to be done in order for a copyright to exist is irrelevant to the person who controls that copyright. At this point in time, the work merely exists for them to collect rents upon, just as the house merely exists within the land for the landlord to collect rents upon. Neither the copyright holder nor the landlord does any labor when it comes time to collect their rents. The fact that the copyright holder continues to collect any money at all beyond the real cost of the work's production is what makes it rent in the first place. Besides, the most lucrative copyrights are held by combinations of businesses, not individuals (unless descended from deceased literati), and the individuals in control of those businesses extract rents independently of their cost of production. For example, if Sandman had been a commercial dud rather than a critical hit, we would not be arguing about how much Neil Gaiman deserved to be paid to recoup his production costs. We would assume his contract with DC Comics paid him enough to pay his landlord and a flop would have worked out fine on his end. However, he is not the copyright holder. DC Comics is. The real cost of Sandman's production (already paid when they gave Gaiman his rent and food money) is completely alienated from its subsequent popularity or lack thereof. Our system for paying copyright holders is one of lottery, not of justice. Unfortunately, those are not the same here.

Secondly, they'll say landlords have responsibilities to tenants while copyright holders owe nothing of the sort to the public. Usually, landlords are required to promise maintenance of the unit, for instance. But, remember, that responsibility to tenants came only after centuries of resistance from landlords who wanted nothing to do with their tenants' welfare. I have only ever had one nice landlady who never scammed me as far as I'm aware, although she has unforgivably forced me to pay rent in full throughout the COVID crisis. She is constantly threatening to evict parents over their children's misbehavior, even during the pandemic. Another of my landladies was quite nice, but I counted the money later and realized she was overcharging me every month. Another was fairly neutral most of the time, but she literally stole our rent money. (She was later arrested. We were never repaid.) Another was constantly at our throats even before she forced my roommates and me to mail a physical check from Washington State to New Jersey to Michigan in order to cover a charge. My current, mostly-nice landlord is also the only one who has ever responded promptly to maintenance requests, and that was only because my unit experienced catastrophic failures. Comparing notes, my experience seems fairly typical. Landlords might have these duties of care on paper, but is that really a point in favor of their existence if they shirk them at every opportunity?

Anyway, in truth, copyright holders are lying when they say they have no responsibilities to the public. The copyright system, established for the public's benefit, extends to the public rights of reuse and purposeful copying which are the law just as much as (and perhaps more than) the ability of a copyright holder to enjoin against selling exact copies of works. Copyright holders have a duty to not infringe these rights, and that's a problem for them because copyright holders vigorously oppose these rights. All over the world, copyright holders have lobbied against Fair Use provisions and sought to over-police their copyrights in order to establish new precedents to curtail previously acceptable copying. The only reason landlords have explicit duties to shirk and copyright holders have implicit duties to shirk is that copyright holders have been winning the same sort of legal-construction game that landlords took centuries to lose. This means, yes, copyright holders represent a more malicious threat than landlords while asserting control over property they are interested in.

I realize that is a pretty big bomb to just drop at the end of a paragraph and move on from. In the interest of linearity, we're going to be under-exploring a lot of similarly explosive ideas. (Authors aren't necessary for life? The copyright system is racist? Piracy is a rational option that does not endanger creators?) You have to understand: copyright maximalism and (modern, corporate) Author supremacy are fractically fucked-up concepts. The sheer amount of cognitive work that words like author and intellectual property do to hide troublesome implications of the system they represent is astounding. We have each been constantly bombarded with them for our entire lives, which means that to oppose them is to oppose every formative experience we've ever had with them because those experiences were motivated lies.

"Don't copy that floppy," "You wouldn't download a car," "Home taping is killing music." These disingenuous slogans are vintage and quaint, but the worldview they encapsulate is now a default to require permission where none previously existed. That was always the long game, one of changing what it means to live within our media environment. We learned to accept shackles on our creativity that our ancestors never had. We came to believe that businesses dictating the contours of our collective creativity was the best result of our free choices. If we are pliant to their demands, as they have conditioned us to be, then of course they would set it up to benefit themselves first, last, and only.

Copyright Holders

It is an inconsequential accident that we need the landlords' form of property to live and we don't need copyright property in the same way. In the absence of copyright holders' books or movies or records or whatever, you won't literally die. Perhaps that's part of the reason copyright holders object to the comparison. But, wait: the second that a disaster hits—a pandemic, say—what is the thing keeping you sane, according to the copyright holders? The works they supply, obviously. Works may not be necessary for us to live, but copyright holders do want you to understand that you'd be wishing you were dead if you didn't have them. That's pretty convenient framing for them, to be honest. And, if it were true, it would only be right for us to string them up for profiteering from human suffering when they could provide these infinitely-reproducible goods for free. Alas, it's just dishonest. There is no connection between copyright and having works to fill your days in emergency isolation.

The public domain exists, a font of all the world's culture before a certain arbitrary date that happens to cut out most mass media that's kind to black people. Thanks to the Internet, the public domain is freely distributed. So, for that matter, are most of the modern copyrighted works, too. Copyright holders have long tried to sell us all on the dangers of piracy to a healthy media ecosystem that's already been on the brink of collapse for years and decades and centuries. What's strange about that, though, is that the people at the top of media companies never seem to need to take pay cuts. Their companies still report increasing profits year over year. So we don't usually talk about this in terms of the corporations with real power. Disney and comparable entities make sure to always be talking in terms of their mythical capital-A Author instead: honest, indie creators that they would cannibalize without a second thought. We public lay-folk must only aspire to be Authors and are meant to believe we shouldn't expect to benefit from systems "supporting the Authors." Authors only take because they must, living in a state of permanent struggle. Always "pay attention to the prominent internet blogger who writes about how little they're paid per article" because they mirror your underclass background to an extent. Never "what of the popular fiction Authors raking it in?" because they represent the highest aspirations. Never "if the people they pay can't afford to eat, why come media executive multi-millionaires?" because they may as well not exist. Justifying it with mindgames like this, copyright holders permanently garnish the public's creative potential and they charge us for that "service."

Really, what "service" is that? What service does the copyright holder provide? It isn't "Creating." The fact that they hold the copyright only means that they are anointed to collect rents upon it. It does not imply that they were responsible for it. It gets less likely that they had anything to do with creating the work as time goes on or you ascend the org chart. At its all-too-common extremes, copyright rent is a wealth transfer from the living to the dead, represented willingly or not by parasites who claim a natural right to the dead creators' lingering royalties. Even with the long-lived creators, copyright becomes a siphon that redirects money away from artists currently working to artists who made some things which have happened to endure in popularity. These copyright holders merely make our money disappear, taking rent without giving the public equity in the stories that define their cultural generations and touch them deepest. To put a fine point on it, that's landlordism.

Beyond that economic waste, a copyright holder is completely unnecessary to obtain a copy of a copyrighted work. More often, copyright holders stand in the way of media reaching people, which they can do merely by existing and even if we don't know who they are and even if they're dead. There are plenty of groups who are willing to provide public domain resources at-cost, below-cost, or even free: the Internet Archive and Project Gutenberg work from donations and never charge their patrons. Their work is absolutely laudable, but it is inhibited by the copyright law.

Of course, this is where I'm going to turn to Internet piracy, the sharing of digital copies of copyrighted works by online peers. In order to discourage people from behaving illegally by sharing and doing the same thing as those non-profits do with public domain resources, copyright holders had to figure out a way to split the difference. It turns out, there is not much of one, which didn't end up being much of a problem because they mostly treat the pirates themselves as lost causes. They demonize pirates instead, and try to cultivate anti-piracy sentiment as an a priori moral doctrine before people encounter the benefits of piracy. It is curious that copyright holders rely on morality here when all of their other considerations are made in cold, hard, economically "rational" cash. That's their problem: the bottom has already fallen out of creative works as a market due to technological advance. Pirates have reduced the cost of reproduction to approximately free, and they are the only economically logical source for any content that can be distributed digitally. The market for works is already dead.

What we live with is largely vestigial, a grand game of pretend that admonishes us to only get our information through approved points of sale, ensuring publishers and bookstores get a cut of what we think of as "supporting the Author." At one point, these may have been connected, but they are no longer because points of sale are obsolete. We're meant to believe that it is bad to buck the copyright holder and wait until we've consumed the work to pay what it's worth to us. This assertion is immoral nonsense. How, exactly, are we supporting the Author in this media environment when we're not even allowed to appreciate what they've done before we pay them? If we haven't read the book already, we don't actually know what we're paying for. It could be anything. It could be the worst book we've ever read, worth less than the paper it's printed on. It could be blank. If we're not allowed to read the book beforehand, we're not even buying the book. We're buying the marketing of the book, which puts things back into the publisher's corner because that's a result of their labor, not the creator's. Similarly, the bookstore employee's labor directs us to where they think we want to go. So by buying the official release in some designated point of sale, we benefit from the labor of publishers and bookstores and the creator gets a completely free ride regardless of whatever they actually did and regardless of who holds the copyright. Why, then, must we "support the Author," even before "how?" A creator can't expect the audience's support before we've done our own labor of experiencing whatever they made.

Considerations like that are a little too practical for a market analysis, though. If copyright holders are to remain in business, they have to figure out ways to differentiate themselves or compete differently against pirates. That differentiation can be as simple as competing in a physical medium rather than a digital one; the ebook boom of the mid-00s has turned out to be a fad, so the market for physical books is pretty much guaranteed to at least remain. Another option is for content creators to strike out on their own, seeking donations and recurring payments from fans rather than a stipend from a publisher based on the number of copies they sold of the creator's nothing-special book from 5 years ago. This renders all objection to piracy moot because the proverbial paycheck is no longer tied to a random point-of-sale in a store. Another option is to push for some kind of Universal Basic Income, so that people wouldn't feel threatened with death whenever they stop pretending their vestigial business model is viable. But copyright holders never really wanted to compete anyway, hence the moralistic browbeating of the public into making economically irrational choices.

Whether copyright holders acknowledge it or not, piracy is already a part of the market and they already compete with pirates. Copyright holders know that free, equivalent goods are strictly better for customers. The history of publishing is replete with law-abiding pirates, they have always and continue to compete with pirates, and the copyright holder's real problem is that our digital society obviates every rational argument against piracy. The service copyright holders really provide in exchange for our rent is the production of propaganda and gaslighting in service of their system of make-believe.

Now, when I emphasize the dead market is "make-believe," I don't mean it isn't real. All systems are made-up in one way or another, making some sacrifices to the need for convention in the organization of people's behavior. Moreover, the dead market does still provide copyright holders rents to leech from. But this isn't just that. It is the invention of a class relationship where copyright holders hold the inherent moral authority because they decided that would be the convention. Convincing content creators to believe copyright means nobody should have to compete with pirates may delay the overthrow of this relationship. Content creators may choose to remain under copyright holders' thumbs. As long as it remains comfortable to depend on middlemen to live, it will remain hard for creators to consider a life benefitting from combinations of actual government support for all laborers and donations from people who actually benefit from their work. Middlemen are familiar, but they are not solutions.

The next step, after calling it a class relationship, is to figure out who are the haves and have-nots. Media mega-corporations that control the vast majority of copyrighted works have thus far succeeded in convincing small shops and individual creators that they are the same ruling class, the same "haves." In this system, they are those capital-A "Authors" united in opposition to the lower class called "consumers." A class relationship is nothing if it can't make an enemy of its "have-nots" because that must become the moral justification for exploiting the lower-class counterpart to extract profit. That's why we call this one "consumers," to conceive almost everyone on the planet as if they exist for no other reason than to buy works. If that's all they do, then that's all they're good for, and squeezing them for as much as they can give just makes sense. This strips the consumer of their agency and the fact that they also create, but objectification makes it easier to dismiss consumers to accomplish its goals. Ultimately, the lower class's labor generates the money that funnels into the system as the higher class's wealth, at least in the traditional, Author-supremacist conception of the dead market. Within that, there is no revenue stream without the audience's largesse in paying for things before they buy it. Not only that, the audience is the group most responsible for judging the work and passing it on to others if they are so inclined. It is, therefore, the audience's volunteer labor that builds subcultures around works, and the benefit of all of that unrecognized work flows to copyright rentiership when it could just as easily be done purely because fans enjoy it. Bizarrely enough, it could also be done for the financial benefit of those fans without being captured and co-opted by copyright holders. The Author-supremacist dead market relies on this activity, but ignores it entirely because acknowledging reality would interfere with getting creators, as Authors, to organize in opposition to "consumers"—the people in the audience that actually want to support creators.

Individual creators, presumed for a moment to hold their own copyrights, are not the ruling class. They are not, by analogy, the capitalists and vectoralists. These individual copyright holders are "just" landlords, which means they have power over those within their realm, but they are not the same class as the Disneys of this world. To believe so is to believe the person who owns two houses is in the same class as Sean Hannity. It's the myth of the middle class. Here it is repurposed to get average, just-scraping-by creators to side with entities that would thoughtlessly crush them, copyright holders who have abused the copyright system for decades to centralize vast cultural resources under the guise of capital and created monopolies at higher levels of abstraction. That is what it means to be of the ruling class. The average creator gains precisely no benefit from the victory of a corporation, but the seductive illusion that they belong to the same club grooms the creator to be a passive vassal. The dream is to work their entire lives to produce one hit that could propel them to Easy Street. In the meantime, they will scrape rents out of whoever they can, emulating the giants.

A lot of this relationship gets buried in appeals to the dependence creators have on the copyright system and how it is vital to them getting paid, but that's historically a bit of a twist. Before the copyright system (and after), the most secure artists were supported by others via patronage. After copyright, resistance to the copyright system began pretty much as soon as it came out in England. Various parties immediately began trying to manipulate it to increase its benefits to themselves. The Statute of Anne and America's Copyright Act of 1790, which plagiarized Anne, were arguably audience-centric documents first, publisher-preferenced second, creator-supporting only for the most popular books. They said the purpose of the system was to get more books printed for the education of the public. At the same time, they created an incentive structure that would, in theory, sometimes, maybe allow creators to collect rent on their works to recoup the cost of production. After that short period, the books would be free for any publisher to copy for any reason, or for any audience member to do anything with. Copyright was a significant imposition, but not a terribly objectionable one for most people because most people did not have the means of creative production anyway.

Many popular creators hated the hell out of this system. They accused publishers of profiteering. Noah Webster (of the dictionary) spent his entire fucking life advocating for strengthening copyright, before-then-after the 1790 Act passed, and with some success as of the Copyright Act of 1831. Somehow, poor creators still starved and rich Authors thrived. In 1878, Victor Hugo founded ALAI in order to transform copyright into an Author's rights regime rather than a commercial publishing arrangement, which succeeded with the Berne Convention in 1886. The Berne Convention rapidly spread throughout the world, although notably not to America because the so-called "moral rights" of Authors did not comport with the system of economic rights used here. Somehow, poor creators still starved and rich Authors thrived. Countless international Authors, before and after the Berne Convention, expressed exasperation at America's policy choice to only recognize copyright in works by Americans. Many law-abiding piratical publishers printed foreign works without paying rents. Some others decided to pay the Authors rent regardless and sold their "authorized editions" with supposed moral clout and a healthy price premium. Somehow, poor creators still starved and rich Authors thrived, often by doing American book tours where fans paid to hear them talk. This divide continued long after America started selectively recognizing bilateral copyright agreements in 1891, as a result of years of lobbying by famous artists like Mark Twain and Harriet Beecher Stowe. Major publishers stood against the Authors for many years because they wanted to continue benefiting from rent-free foreign works, and they only joined with the Authors in support of the 1891 Act because cheaper editions from start-up publishers were cutting into their library market profits. International Authors continued on as normal while cursing the Americans, but that's neither here nor there since America lied about recognizing moral rights to join the Berne Convention in 1986. Somehow, poor creators still starved and rich Authors thrived. Mark Twain, arguably the most influential copyright scholar of the 19th and 20th Century (competing with Hugo for the 19th), was a notorious copyright troll in his day, whose main concern with copyright was maintaining rents on what he had already written. On and off the record, he lobbied for the eventual Copyright Act of 1909 by actively excoriating publishers as leeches and the enemy of Authors. He briefly became a self-publisher in direct opposition to them. Somehow, poor creators still starved and rich Authors thrived. This was after more than a century of the same Authors-vs-publishers rhetoric, but now we're supposed to believe that authorial nobodies are benefiting from the same interests as media mega-corporations? Please.

The posture we're seeing now is a reaction by publishers against the increasing emphasis copyright places on Authors. Basically, "if you can't beat them, join them," if by "join them" we mean "subsume their identity." Maybe "Embrace, Extend, Extinguish." In modern times, we'll still see rich Authors like Smokey Robinson lobbying for stronger copyright on old stuff, ostensibly for the benefit of aged creators who could use an actual social safety net to eliminate poverty more. But we'll also see massive corporations pretending to be on their side, and that has always been a ploy to take over resistance to the copyright system. Copyright does not emancipate creators from corporations or force corporations to deal with them fairly, nor will it ever as long as this continues. All of the theoretical discussions of the contours of copyright law are confetti in a hurricane when it comes to corporate contracts stacked as much in the corporation's favor as possible. Taylor Swift found that out when some random music industry executive bought her back catalog and her old contracts prevented her from performing her own songs without his permission. Suddenly, we were back to acknowledging the differences between (extremely wealthy, quite bourgious) Authors and their publishers.

None of that beef addresses the needs and concerns of the third group in the equation, the public audience for works. Property arrangements are have-and-have-not ecosystems. Those-who-have exert authorty over those-who-have-not, and increasing the power of property further reduces the power of those-who-have-not. That's part of why works of authorship don't have to be as vital to life as land for copyright holders to act like landlords. Copyright holders have been largely successful at concentrating cultural mindshare in the most perennially-lucrative property to make the rest of us—the audience members, the public-at-large—their tenants.

Most copyright reform over the last 300 years has focused on increasing the powers creators could use against publishers, much of that benefitted the publishers as well, and all of that came at the expense of the public. At least, for most of that time, theoretically. Most folk creativity of that time ignored the copyright system because it wasn't created commercially and there were no means or reason to enforce copyright against works that weren't actually being produced in a meaningful sense. As technology and our media of expression changed, so did this relationship. Going into the 20th Century, the advance of recording technology meant that more and more kinds of art could be widely distributed, but by means which were inherently unavailable to members of the public who didn't have access to the means of production. You no longer played music yourself to liven up a party; you put on a record. This lead to the encouragement of a read-only sort of culture, a unique time in all of human history. It was a wet dream for copyright holders who wanted to extract rents on their monopoly properties—once they altered the copyright law to cut out new competitors like the law-abiding piano roll pirates.

Nonetheless, technology had changed again by the end of that century. Although physical media technology was encapsulated, digital media afforded by the computer lead us back to a participatory culture that eventually thrived when we connected those computers over networks. This time, it was even better because anyone could be a publisher of their own works, essentially for free. Anticipating this, copyright was preemptively reformed again in the 1970s and then the entirety of the 1990s, driven by copyright holders (that is, the lobbyists of publishers and famous creators) who were afraid of change that would emancipate the public from their predatory scheme. All of these changes to copyright policy were intended to preempt Internet culture before any of us, least of all people heavily invested in pre-Internet business models, really knew what this digital stuff would even become. It all happened before we realized, even in hindsight, the amazing thing it could have become if we had abandoned this protectionism of a ruling class.

Lest you think my characterization of them as "ruling" is extreme, copyright holders went beyond their radical changes to the law and they resolved to build copyright directly into our technology at any cost. Without our consent, they constantly surveil us under increasingly invasive terms. As far as our lives are lived in concert with computers, vicariously through them during a pandemic quarantine, our lives are now constantly filtered through copyright law. The technology that was supposed to emancipate us has further shackled us, increasingly so over time. Copyright holders continue to this day to lobby for new laws to make that omnipresent surveillance and filtering legally required going forward. None of this, by the way, came paired with actual losses in revenue or a mythical "value gap" that might justify any of it. The only thing threatened, perhaps, was the industry's theoretical growth, although their practical growth has only ever continued. As the value of work rises, more and more of the creative production will be enclosed—that is to say, people must give a greater and greater portion of their culture up to the service of the copyright landlords, until, finally, nothing is left them but the public domain. Whereas tenants were able to beat back landlords over centuries to obtain certain prescriptive rights, the public has repeatedly lost their battles with the copyright holders. The results is that we are restricted to whatever happened to be free to our grandparents. We've even lost our guarantee that, once something is in the public domain, it will remain so. The universe of things that we are allowed to do to participate with our own culture has been and will continue to be winnowed in the absence of an anti-systemic revolution.

I realize it may seem like a lofty pretense to be decrying how copyright impacts "culture" at large, but I am deadly serious. Copyright does more than merely restrict our participation in culture. The result of this system is the enclosure of who we are. It reconceives our culture as property and in so doing perverts our understanding of culture and property. After all, "intellectual property" is not actually property and a copyright on the work is not the work itself. Copyright is, generously, a "quasi-property" where certain exclusivity rights are awarded to someone on the theory that doing so is beneficial to society. The use of the word property by copyright holders is meant to constrain our thinking to the contours of our toxic relationship with real property. It is one where property has more rights than a person and where that property confers upon its owner more rights than a person without property. We imbue this intellectual property with personality and intangible yet manifest importance and the audience plays the role of a dependent, de-individualized mass. The perversion of our concept of property is bound up with the idea that it is desirable to have power over others, and to leverage that power to suit selfish goals. Copyright holders depend upon people accepting the existence of their "property" as a reason in and of itself to justify their rentiership. Our relationship with landlords and their transformation of the meaning of a "home" were crucial for this sort of property-centric notion to take root.

The language and use of metaphors that have evolved to describe our copyright law are designed to distance the speaker from the law's enforcement against real people. They have real feelings outside of their wallets and real needs to engage with the world creatively, especially through media created within their lifetime. It is the mindset that says extracting rent is justified because rent must be intrinsically good and other people deserve to be taxed. It is the mindset that says the copyright holder's demands, no matter how nonsensically onorous or restrictive, are reasonable because the copyright holder is defined to have a moral right to call the shots. It is the mindset that convinces others that they would never be able to have the ideas that their favorite Author had or even derivative ideas worthy of publication. It is the mindset that convinces copyright holders that they must continue this cycle of coercive abuse in order to be happy, that no punishment is too far in pursuit of their righteousness, that their comfort comes from others' mandated compliance. This is why they work to enlist us in their crusades against harmless copyists as children, before we have concrete ideas about our autonomy and when vague authority figures find us most impressionable. We grow up to believe we somehow defraud creators by sharing things we love with others in the hope that they will love it as much as we do. Any possibility that the copyright system could be about promoting "sharing" and "equity", or even the original "learning," is swept away in favor of conceiving works as capital and other human beings as mere consumers who must be forced to pay.

This is unnatural. Expressing ourselves through participating with culture that we enjoy is not optional; that is natural. Our own natural inclination and capacity to identify with these stories has been alienated from us, weaponized against us, and then sold back to us, mutilated. Copyright holders have us thinking of ourselves merely as consumers of media, rather than as active participants in the artistic journey of mankind, which strips away a major source of joy our ancestors freely took advantage of. This is landlordism.

In spite of this long and parallel history, I nonetheless anticipate ardent defenders of the copyright holder. "Maybe that Bad copyright holder went too far here, but that's no reason to keep the copyright away from Good copyright holders." This sycophancy misunderstands the system from a historical perspective, from a practical perspective, from a moral perspective. The attitude we are confronted with by landlords and copyright holders is one of entitlement to our labor and respect, and they are determined to earn neither. Well, they won't be in the position to demand anything if we stop lying down and letting them win the legal battle over our cultural future. The day of the copyright holder is done. They are a vestige of pre-digital days long past and an ongoing blight. Copyright holders can deny being landlords-in-name all they want, but to the extent that they act as landlords-in-deed:

    They are the same.

        They are both Bad.

            Copyright Holders Are Scum.

Discussion (6)

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pclundaahl profile image
Patrick Charles-Lundaahl

There's a lot to process in here, but my first take is that this is an absolutely stunning breakdown - thank you!

I feel like I have a mountain of research and digesting to do before I'll really grasp what you've posted here.

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lethargilistic profile image
Mike Overby Author • Edited

Aw, thanks! Let me know if you have any questions later! I recommend James Boyle's works very highly!

Brian L. Frye, too! (Though we've become friends.)

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codemouse92 profile image
Jason C. McDonald • Edited

I got about halfway through and couldn't take any more. While I can somewhat understand where you draw your conclusions about the so-called evils of copyright, I can guarantee you have never had to rely on your own intellectual property as a primary means of income, as your pseudolegal acrobatics clearly demonstrates. (And yes, I'm a supporter of open source, Creative Commons, and the Internet Archive.)

Yes, large copyright trolls like Disney and Sony can be a problem — as long as we're not talking about them trying to make back the multi-million dollar investment in terms of labor and resources on their own products. We need to deal with copyright trolls.

HOWEVER, when people complain about copyright to content creators like me, what they're saying literally always boils down to this:

"You, the content creator, put hundreds or thousands of hours of labor into creating content, with no initial remuneration for your efforts. I want to consume that content for free, instead of paying you for your work, although it is by no means necessary to my survival to consume that content. Therefore, you are being greedy by asking me to pay you a few dollars for something that cost you many hours of labor, not to mention any significant investment on your part."

It never amazes me the amount of effort people are willing to put in to cover up plain old fashioned entitled greed. You put nothing into creating my content. You have no stake. I put my own time and money in. The only one with something to lose is me. If you don't want to pay for the content I'm selling, don't buy it. You're not a renter; you're a disinterested third party demanding total access to my property for free. If you don't want to pay the pittance I'm asking for, stay off the property.

Be grateful you don't have to live off your intellectual property. It's a nightmare.

By the way, please don't waste your time replying to me. I will be ignoring this thread, as I have no more patience for people's excusing literally robbing me of income I can't afford to lose. I just had to respond to this wall of nonsense with a few words of reason in favor of the only real victims here: the hard-working content creators entitled pirates keep robbing!

If you care to learn more about the realities of content creation:

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lethargilistic profile image
Mike Overby Author

For the benefit of others who relate to this comment, I completely sympathize with it. However, instead of focusing on the artificial class conflict between Authors and consumers/pirates, I suggest focusing on advocating for reforms like a social safety net. Whatever "social safety net" means to you, working toward it will be a better use of your time than yelling at pirates. And it will help far more people.

Also, for the love of God: set up a Venmo or Kofi or Patreon or anything. Promote the fact that people can pay you directly and cut out the middleman. Suggest recurring payments while you're at it!

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codemouse92 profile image
Jason C. McDonald • Edited

I already have. That didn't help. I have gotten nothing on any of my Patron accounts.

By the way, most of my content is self-published.

Get off your high horse. Until you've walked a mile in my moccasins, you don't have the right to an opinion on this topic. Based on your own cited credentials, you are merely a disgruntled, entitled consumer.

...it will be a better use of your time than yelling at pirates.

But thanks for admitting to being a pirate. At least that clarifies the illegitimacy of your own rant.

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