In his typical fashion, his argument is well written and well researched, complete with footnotes. I must commend him for having so much time to write such scholarly blogposts.
His argument revolves around disproving a trivial misconception (that copyright isn't about the copy, but the act of copying). In his odds and ends section, he proves that copying isn't infinite. While he provides an interesting and useful idea, this doesn't imply that something is equally scarce to something else because quantitatively they are both countable values. If I there exists 1 widget of type X, and there exists 1,000,000 widgets of type Y. It is safe to say because X < Y, X is more scarce than Y.
He explains that copyright is does not cause scarcity largely based on the premise that copying itself is scarce. I wondered, how does this make sense? For most of his post, he discusses X ("the rights associated with copyright") and Y ("property rights on the work itself"). Terry spends a lot of time focusing on proving X != Y and Scarcity(X) != ∞, to come up with the conclusion Scarcity(X) = 0. To elaborate:
- If X != Y, it doesn't automatically follow that Y is a property of scarcity, ie. Scarcity(X, Y). He makes no any effort to prove the existence of a casual relationship, just inequality, X != Y. That is, his conclusion Scarcity(X) = 0 seems sort of tangential to his point.
- If Scarcity(X) != ∞, it doesn't imply Scarcity(X) = 0, because Scarcity can be N where N != ∞.
Copyright produces scarcity because it enforces limits. In fact, that is literally what copyright is, a limitation on the public sans-copyright-holder to engage in various activities, included but not limited to copying. Any such argument about how copyright encourages creative activity, even if they are perfectly valid and reasonable, simply build on this fact.
In fact, copyright is a specific kind of artificial scarcity. (M: some pro-copyright'ers take offense to this idea, because the "artificial scarcity" seems to have some kind of negative connotation. But I would argue that it's copyright that gives artificial scarcity a negative connotation, not the other way around.) Natural scarcity is scarcity that exists given our understanding of nature and the limitations it imposes on us. The fact that there only exists a certain acreage of land on this planet implies that land is scarce (and ideally habitable land even more more scarce). Scarce, but naturally so. That doesn't make natural scarcity good or intuitively acceptable though.
Artificial scarcity is scarcity that only exists in the laws of man. Copyright is artificial scarcity because it exists only in the laws of man. Without copyright law, the limitations enumerated in copyright law wouldn't exist naturally. This isn't even making an argument, it's stating the obvious.
As Terry points out, the upper bound of copying is a natural finite scarcity, that is, Scarcity(X) != ∞. If you have a printing press, eventually you'd run out of trees to make paper from. Even Internet bandwidth is limited. So there is a natural scarcity in making copies... this is true.
But, technology exists to push the boundaries of scarcity. When we develop new farming techniques for instance, food becomes less scarce. More people can eat. This is good, especially for people who otherwise couldn't eat.
But the key thing for copyright is that technology has also made the the act of copying and distribution substantially easier and cheaper. No longer do you need an expensive printing press or media press to make large numbers of copies. Any old computer will do. Technology has pushed the natural scarcity inherent in copying to the stratosphere. While copyright has always been an artificial scarcity, it was never noticeable until the natural scarcity surrounding it was lifted as it was during the rise of computer networks.
It's like if you had a law preventing people from visiting Mars without the NASA's concurrence. This wouldn't be very controversial today. Who can go to Mars anyway, besides NASA (with a ton of funding)? But it would be controversial in a world where going to Mars was as easy and safe as going to the supermarket. Suddenly such a law would be an intolerable restriction on humanity's freedom of movement. Technology changes perspectives on the law.
Likewise, in the world of the printing press: who cares if they can not make copies of works? Who even owns a printing press? Only specialized companies.
This is no longer the case. We now live in a world where the technology exists to provide the sum of published human knowledge and culture to all the world's people. In such a world as it stands, copyright and specifically the scarcity it brings is an intolerable restriction. It's unfortunate Terry can't see this.
All this talk always seems to ignore all the BitTorrent advancements over the last few years, especially the move to distributed hash table-based coordination systems, which are fully P2P. P2P by definition is not centralized, that is, P2P file sharing can’t be shut down by going to some central authority. You'd have to shut down all the peers (in the case of BitTorrent DHT, the millions of people around the world using it). Of course, mass monitoring of people’s communications would be a prerequisite to this copyright enforcement activity.
Some sites like The Pirate Bay assist in finding content, but they aren’t strictly necessary. The new BT sites are designed to be trivially mirrored. Even if you find where in the world TPB’s servers are (and they change perhaps multiple times per day, and are located in many dozens of places redundantly), TPB has designed itself such that anyone can trivially pick up and run a mirror without much money involved, because there is very little to host. In fact, the entire TPB can fit in a single cheap $10 USB stick. In practice, there are thousands of such mirrors currently active on the Internet in any given moment. In the end of the day, they know that powerful interests want them gone, and have already taken many actions all over the world to try to shut them down. So they’ve in turn taken many countermeasures to make that difficult.
All this technology means that it’s not impossible to to fight piracy. It does however, make it harder. Improving copying technology forces the enforcers methods to become increasingly intrusive and draconian. Which is exactly what has (and will) continue to make copyright itself controversial. This was pretty much my original point – copyright itself hasn’t changed much, but as technology makes copying even more easier, convenient and private, it forces copyright holders to do even more disagreeable things to counter. They don’t want to do it, but they have to if copyright will have any sort of enforcement anymore. Because of this it’s the copyright enforcers themselves that are chipping away at the concept of copyright.
The biggest allies of anti-copyright advocates are the copyright enforcers themselves. The actions they do to enforce their copyright are often useful triggers to change the public’s perceptions on copyright. This is what helps the bigger fish in the fight write articles that generate the outrage that causes anti-copyright protests. I like the latest one where some copyright group sued a 9-year old girl and stole her Winne the Pooh laptop. Even the artist who’s copyright there were apparently protecting condemned their actions as draconian and cruel. Copyright is in a way, self defeating.
I’ll just add that while this is one of many independent ways modern copyright is self-defeating, it’s not the certainly not greatest flaw. The ultimate copyright killer is that it represents a defect on potential inherit in what it is protecting. I could write a dissertation on that topic in particular that would fill many pages. But I’ll spare this because Lessigs and Stallmans of the world have written better treatises on that sort of thing.