The Infamous Underpants Analogy

Recently I blogged that copyright violations are analogous to borrowing your neighbor’s underpants without asking, then laundering and returning them before he returns home. I was immediately attacked for my analogy. Critics said my borrowed underpants analogy was flawed for several reasons:

1. Unlike copyrighted material, underpants are physical objects. So in my analogy, the owner of the underpants would be unable to simultaneously wear the underpants he already has on plus the underpants he intentionally left at home in his drawer.  Apparently this is a problem for some people.

2. At a microscopic level, the borrowed underpants would be slightly degraded by this one additional wearing. This is important for people who wear their underpants until the last fiber gives out and the material disintegrates and trickles out the pant legs.

And those were the GOOD criticisms. If you think I’m making this up, check out one of my more eloquent critics:

http://techdirt.com/articles/20070412/183135.shtml

Let me explain something about analogies. Analogies are not supposed to be identical to the thing you are making the analogy about. Imperfection is necessary. Otherwise an analogy would be, for example, “Downloading music without paying is like downloading music without paying.” It doesn’t add much to your understanding.

The underpants analogy, in its original context, addressed the question of whether copyright violations are a victimless act. This is separate from the legal question. The point of the analogy is that the artist who loses legal control over his creation feels violated, just as you would if someone borrowed your underpants. I dare say it was one of my finest analogies, although admittedly the bar is set low.

In addition, as I previously argued, when an artist loses the ability to control when, and where, his art is distributed, it can be a real economic loss, depending on his marketing plan. This led to the following brilliant criticism:

1. Adams thinks artists have the legal right to prevent you from reading a book on the toilet. Artists never had that right!

Seriously. That was the criticism. I was hoping people would understand that I meant the artist would lose control of, for example, whether his book appears on the Internet before it’s published on paper.

I also heard the argument that any idiot knows copyright violations are good publicity, and as such, they lead to more sales. I tested this theory last year by making my book, God’s Debris, available for a free download. About a million people downloaded it. Based on my e-mail, a large percentage of them loved it. (It’s probably my most loved work, even though a good chunk of people felt it did a bad job of being what it wasn’t intended to be.) The total number who actually went out and bought that book, or the sequel that’s not available for free, is about 1,000. The free download did little but to make the economic value of my sequel appear to be zero.

If giving away your work for free is such a good strategy, you have to wonder why all the major artists aren’t doing it. Don’t the big record companies have any economists working for them? Or is it possible that the people with advanced degrees in business and economics know more about business and economics than the people downloading music with one hand, while masturbating furiously with the other, and wishing they had a tail to hold the bong?

Yes, yes, I can see how an unknown band might become popular by making its music available for free. That makes perfect sense. Luckily, every artist has that option. But as my experience with God’s Debris shows, every situation is unique. If the artist loses his right to decide when, and if, his creation is available to the world for free, he loses something of potential value, even in the unlikely event that the loss leads to more sales in the long run. I can’t steal a jacket from JC Penney and hope they understand that it’s good publicity, thus causing several people to buy the same jacket. It isn’t my right to make that decision, even if I happen to be correct.

There’s an argument that the world would be better if copyrighted works were available for free to anyone who wants them. I can only speak for myself, but I can say with certainty that I wouldn’t have pursued creating Dilbert comics without the potential for getting rich while working at home. That was my entire motivation. I worked for about ten years, without a day off, to make Dilbert a success. There’s no way I would have done that much work just to earn an average income. That would have been irrational. I had easier options.

I think a reasonable person can dislike capitalism and wish for a more socialist world where art is free for all takers. But a reasonable person can’t expect that a socialist world would produce nearly as much art. That’s bat shit thinking.

I invite all bat shit thinkers to reiterate my point that free downloads might help unknown bands, and act as if I didn’t already address that exception. You are also invited to point out the fact that some middle men and some artists make more money than you do, and should be punished. (Bonus points for inserting “WA-WA-WA!!”)

Go.

Comments

[Johnny Rod]

First, on a general note, you've undoubtedly learned by now in dealing with people anonymously through the internet, that one can never, ever make a point that is so compelling, so clearly enunciated, so self-evident, that no one will stand up and tell you what a hypocritical jerk one is for having asserted such a thing.

The concept of intellectual property (and the ownership thereof) cannot be up to serious debate by intelligent people. Most of the developments of the last 200 years that have greatly enhanced the quality of our lives were developed with such legal reassurances in mind; from disease-curing drugs to methods of heating and insulating homes to the dissemination of information, and to all manner of technologies, methodologies, and underpantsologies, leading to longer, healthier, and less itchy lives.

I have not seen a single sensible argument that works of "art" should have less protection than pharmaceutical or technology or any other type of business venture where time, energy, and/or money is spent in order to create something new and valuable.

The closest I've seen is "art" being compared to a scientific venture (good of mankind kind of thing) rather than to a business venture, and as such, should have a different set of values surrounding its use. And yet, can anyone really make a case that "Dilbert" is more like a scientific venture than a business venture?

You create something as part of your livelihood, you're allowed to own it, and someone taking and using it without permission is stealing it. So many of these posts deal with extraneous nonsense. You don't have to show or quantify your damages; you don't have to prove that you are somehow lessened because someone else has a "copy" of it; you don't have to enter into an argument that letting people use it for free might even be GOOD for you financially.... NONE OF THE ABOVE! You OWN it, and nobody should be allowed to use it without your permission... PERIOD! This argument exists only because people ARE using such things without permission, because the means to do so is readily available and the means to control it, isn't, and so millions and millions of people wish to rationalize their behavior.

Still, I believe that the "underpants" analogy wasn't one of your best (sorry to differ).

[ma718zda]

c24t

[Mike]

Let's see if I've got this right: you gave away one book, and it had miserable sales. It's sequel also had miserable sales. From this, you conclude that giving away the work didn't help your sales. Probably true. On the other hand, another equally valid conclusion would be that giving away your work didn't hurt your sales, either - as both versions didn't sell enough to mention. Basically, you've got a sample size of two and no control. Any conclusions you reach based on that would be highly dubious.

Better would be to check something with more data. How about a publisher - Baen Books - whose running a free Library (http://www.baen.com/library/home.htm), which gives away *lots* of books. And also sells lots of books. They've been doing it for something like 9 years. Baen hasn't shut it down, and hasn't gone broke. Sure looks like it's working for them.

You also ask why major artists don't give away their work. Could it be because they can't? The music industry treats them pretty badly, and generally own the rights to their music - even if they haven't written it yet (see http://www.usatoday.com/life/music/news/2002-09-15-artists-rights_x.htm). On the other hand, a few can give their music away, and do, Prince, for instance (http://www.time.com/time/arts/article/0,8599,1644427,00.html).

You also talk about highly-trained economists. Most of the ones I know of bashing downloading work for members of the RIAA and similar (the MPAA is going the same way, but hasn't gotten as far so we'll ignore it). The RIAA is a group of companies that make money by distributing music. Their grasp of the market for downloaded music is made obvious by the fact that the downloaded music industry is dominated by a single company - and it isn't any of them. It's a company whose president publicly disses them for their treatment of their customers (http://www.apple.com/hotnews/thoughtsonmusic/).

Of course, the folks at the RIAA are right - they're losing money to downloaded music. In the two years since I set up a Mac in my stereo system, I've downloaded hundreds of songs. All legally, mind you, from artists web sites and places like cdbaby.com. And it's changed my record buying habits. I still buy the same number of records - one or two a month - but most of them are by artists whose music I've already downloaded and listened to. A couple of older cds, and one (1) purchased download - of a record that was 10 years old, very cheap, that I couldn't find new are the exceptions. Those all represent lost sales to the RIAA.

I'm no stranger to buying things over the internet. I purchased a new benz over the net in '97. I've been downloading both free and purchased) ebooks since then as well. However, the book publishers treat me like a customer. The books are generally in open formats with no DRM, so I can use them on whatever platform I want. Since most of those I put on a PDA or cell phone, that's important to me.

Music, on the other hand - well, the industry treats me like a thief. Most of it has DRM so I can only use it in a limited fashion, and most of that is proprietary so I can only use it on the platforms they support. Screw that. I'll by the CD, which doesn't have those problems. Given the way the members of the RIAA treat their artists, I have to wonder whether they treat their customers the way they do because they expect their customers to do what they would do.

[Mike]

Let's see if I've got this right: you gave away one book, and it had miserable sales. It's sequel also had miserable sales. From this, you conclude that giving away the work didn't help your sales. Probably true. On the other hand, another equally valid conclusion would be that giving away your work didn't hurt your sales, either - as both versions didn't sell enough to mention. Basically, you've got a sample size of two and no control. Any conclusions you reach based on that would be highly dubious.

Better would be to check something with more data. How about a publisher - Baen Books - whose running a free Library (http://www.baen.com/library/home.htm), which gives away *lots* of books. And also sells lots of books. They've been doing it for something like 9 years. Baen hasn't shut it down, and hasn't gone broke. Sure looks like it's working for them.

You also ask why major artists don't give away their work. Could it be because they can't? The music industry treats them pretty badly, and generally own the rights to their music - even if they haven't written it yet (see http://www.usatoday.com/life/music/news/2002-09-15-artists-rights_x.htm). On the other hand, a few can give their music away, and do, Prince, for instance (http://www.time.com/time/arts/article/0,8599,1644427,00.html).

You also talk about highly-trained economists. Most of the ones I know of bashing downloading work for members of the RIAA and similar (the MPAA is going the same way, but hasn't gotten as far so we'll ignore it). The RIAA is a group of companies that make money by distributing music. Their grasp of the market for downloaded music is made obvious by the fact that the downloaded music industry is dominated by a single company - and it isn't any of them. It's a company whose president publicly disses them for their treatment of their customers (http://www.apple.com/hotnews/thoughtsonmusic/).

Of course, the folks at the RIAA are right - they're losing money to downloaded music. In the two years since I set up a Mac in my stereo system, I've downloaded hundreds of songs. All legally, mind you, from artists web sites and places like cdbaby.com. And it's changed my record buying habits. I still buy the same number of records - one or two a month - but most of them are by artists whose music I've already downloaded and listened to. A couple of older cds, and one (1) purchased download - of a record that was 10 years old, very cheap, that I couldn't find new are the exceptions. Those all represent lost sales to the RIAA.

I'm no stranger to buying things over the internet. I purchased a new benz over the net in '97. I've been downloading both free and purchased) ebooks since then as well. However, the book publishers treat me like a customer. The books are generally in open formats with no DRM, so I can use them on whatever platform I want. Since most of those I put on a PDA or cell phone, that's important to me.

Music, on the other hand - well, the industry treats me like a thief. Most of it has DRM so I can only use it in a limited fashion, and most of that is proprietary so I can only use it on the platforms they support. Screw that. I'll by the CD, which doesn't have those problems. Given the way the members of the RIAA treat their artists, I have to wonder whether they treat their customers the way they do because they expect their customers to do what they would do.

[Karl Fogel]

The question is not whether you could make as much money without copyright as you do with it. The answer is clearly "no", in your case. The question is whether your making money is a good justification for preventing everyone else from sharing and from making derivative works.

Your answer is "Yes, because if I didn't make money, I wouldn't be able to create as much (or as good) art." This may be true, for you. But it's not like there's a shortage of art in the world. You ask:

"If giving away your work for free is such a good strategy, you have to wonder why all the major artists aren’t doing it."

Well, that's silly: there's a selection bias the size of Montana in that question! You're apparently defining "major artist" as someone who has succeeded in making their fortune in the copyright-based economic world. Of course they don't choose to give away their works for free; they'd have the most to lose by doing so. But would we really be without art if those few people didn't have a government-granted monopoly on the distribution of their works? I highly doubt it. Copyright does not fund the majority of art created in the world, or even in this country. (It is a matter of opinion whether it funds the stuff that tends to be of higher quality, but personally I don't see a strong correlation there.) That's not "bat-shit thinking", that's taking a cold, hard look at the economic reality of most artists' lives, and realizing that copyright doesn't play much of a role.

Which isn't surprising, since copyright was not, in fact, invented to support artists, but to support the distributors -- that is, the printers, back in the early eighteenth century, when the economics of running a printing press were highly precarious. Of course, today we have a world-wide, zero-cost copying machine (the Internet), and so people are starting to question whether the old, printing-press-based copyright model still makes sense.

Having a government-granted monopoly to support your business model is a wonderful thing, *for you*. It's not necessarily a great deal for all the people on the outside of the monopoly, though.

http://QuestionCopyright.org/.

-Karl

[The artist formerly known as DogbertRocks...]

Well, with all the critisism you got, it's time somebody apologized.

You see, I may be the very reason why the video sharing website YouTube suddenly got cramped with thousands of clips from the Dilbert - The Animated Series. I might even have helped spreading clips on and off the internet without me even knowing about it.

And all because of one clip...

I'm not sure though if my actions are the root of it all, and I certainly hope not. But there is a slight possibility I am. I have closed my YouTube account, and therefore the videos I had uploaded are gone since about two weeks ago. I found out there were ways to download the clips via an online service, so I removed the videos at one. And that's how I might have helped spreading the clips.

But either way,
I'm sorry for being a naive moron.

I would also like to report that http://www.youtube.com and http://www.dailymotion.com has several full episodes uploaded. I suggest you look into that.

[JJ]

I realize this is an old blog entry. I had your underpants analogy simmering in my head since months. I just thought of another perhaps better analogy: house keys. You could make the following argument:

"There is no harm in letting me copy your house keys, right? Because you still have the original keys. Nobody has been wronged at all, until I actually use the keys. To assume that I will use them in a bad way is unreasonable. Give me the benefit of the doubt. I just want to have them around."

Or even better, login passwords for email etc. Anyone who thinks copying intellectual property is OK, should clearly agree that someone in Hong Kong copying their login credentials is OK too, if they don't use it. After all, they still have the original copy of their password!

My otherwise standard analogy is currency. I'll just make a copy of this $100 bill for you.. I still have the original, so no obvious harm has been done. Etc.

Counterfeiting money is rather similar to copyright infringement, the only difference is that agencies issuing national currency have a lot bigger sticks than you or I..

[Bret]

Here's what I find ironic: of all of Scott Adams' works, the only thing I ever read is his blog (which I enjoy very much), which I don't have to violate copyright law to read for free. There's so much enjoyable free writing, music, and visual art that I wouldn't miss it at all if "professional" producers of such things stopped because copyrights were eliminated.

[making money]

thanksssssssss

[Michal Malkowski]

BTW - check out the Atom car.
Altought you've probably already heard about it.

[guanhua88]

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[guanhua88]

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[guanhua88]

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[R0b]

Talking about the "God's debris": I downloaded it some day last year. I'm sure it's still laying somewhere in some murky corner of my HDD. Still I haven't come around to reading it past the first page (the book cover, that is). Do I count among that million happy readers who also downloaded this book?

[Wolfger]

I downloaded God's Debris when you offered it for free. I had actually looked at buying it prior to then, but when I learned it wasn't Dilbert, I decided against taking the risk. After getting it for free, I read it and enjoyed it, and sent a copy to a couple friends of mine (or sent them the link and made them download it, I don't remember). I have no idea if they ever bought your second book or not, but I've been intending to. I'm just poor right now. But it is on my wish list, so that's a future sale you'll have made.
As for the overall poor sales you've experienced, I think that's more likely due to the book not really being most people's cup of tea, rather than any fault in the logic that giving stuff away is good promotion. When giving stuff away is your promotional tool, you have to be extra sure that what you're giving away is worth paying for.

[David Coble]

Oscar Wilde thought art would do pretty well under socialism.

Try "The Soul of Man Under Socialism".

http://www.online-literature.com/wilde/1309/

Of course, he was a bat-shit thinker.

[Wolfger]

"The point of the analogy is that the artist who loses legal control over his creation feels violated, just as you would if someone borrowed your underpants."
Hey, Scott! I'm wearing your underpants right now!

[Paul]

I don't know if you're aware who Todd Goldman is, but he's a popular artist/t-shirt designer/pop culture guy. A recent uproar has surfaced in the web comics community over how he's apparently just been freely ripping people off for years by essentially copying other people's stuff and selling it as his own. Most of the anger revolves around how difficult it is for anyone to do anything about it legally. A sample of his work compared to source material is here: http://www.miketyndall.com/todd_goldman/

Just thought you might be interested, what with your recent posts.

[ac]

The analogy doesn't work. Information is not a physical object and cannot logically be thought of or treated the same way.

Anyone who experiences information creates a copy in their brain. The only way to prevent this is to keep the information a secret. Once information is no longer secret then copyright owners can only whine to the government to use its guns against the big bad pirates.

Maybe a better solution would be for content creators to use their creative abilities to come up a business model that doesn't rely on the archaic concept of information scarcity?

[JP]

I have to agree with John's post of April 19. I found God's Debris interesting enough, but I don't collect and re-read philosophy books. I like to have hard copies of Humor books, especially humorous books with enough depth that you can get more out of going back to them later. I have some collections of Johnny Hart's BC comics from the sixties that still have bits that make me laugh. And Calvin and Hobbes did philosophy in an entertaining and visually engaging way, so I collected all of those books for my library.

God's Debris just wasn't the kind of book most people want.

[Thmz]

Yay! I'm one in a thousand. I went to the bookstore, had someone find me God's debris and paid the $5 or whatever it sells for! I wonder if it'll increase in value over time, since so few were actually sold.. My motivation was that I don't like to stare at a computer screen for too long, and printing it out would be ugly and probably cost me more than $5 in ink and paper.

Good book, by the way. I recommend it. I'll have to go find the sequel. Is it out yet?

[Paul C]

One person posting here praised your namesake Douglas Adams for the brilliant h2g2 five -volume "trilogy".

It might be worth noting for the record that Adams (Douglas Neil, not Scott)had his problems with copyright issues... on the original cast recording of h2g2 (released on record circa 1980)he has the ill-assorted band of spacefarers crouched behind a computer deck which is bweing blasted by two trigger-happy space cops, singing their ethnic death-anthems on the very sensible grounds that they are about to die. While Arthur Dent, being English and pompous, opts for "Land of Hope and Glory", Trillian sings a resigned verse or two of the Beatles' "A Day in the Life".

This was a throwaway joke on the LP, but it was followed through with a swingeing bill for several thousand pounds in performance royalties from Paul McCartney's lawyers.

Adams paid up (it doesn't matter that McCartney is a multi-millionaire, he was still in the right to demand a payment for use of his intellectual property, however little of his song was used)

However, he gained revenge by throwing in a string of acid jokes about McCartney's perceived money-grubbing in the next book in the series

("He was humming an air so beautiful that, had Paul McCartney written it, he could have bought the whole of Hampshire and put in a fair bid for Sussex")

That's style...

[Erik]

If anyone is still wondering if you can give something a way for free and still make lots of money, look at the creater of bit torrent this guy is a guinious and totaly broke, but his creation acounts for more than half of all internet trafic.
Humm and I can't even remember his name. The ultimate irony is I used the lime wire free version to downlode (steal) the pro version. humm they had it coming.

IF SCOTT WANTED TO MAKE MONEY ON HIS BOOK HE NEED TO GIVE AWAY HALF OF HIS BOOK SO YOU COULD HAVE TRIED IT OUT AND BOUGHT THE REST IF THEY LIKED IT.

[Simone]

I'm not sure. I think that some copyright laws are completely out of time. The world is getting faster and smaller, copyright laws are just getting longer expiring terms to avoid Mikey Mouse entering public domain. I also can't understand why if I buy a DVD I can't watch that in another continent. Or why I can't take 2 min of that to make my home video more interesting. That doesn't mean that getting pirated stuff is ok. Don't know about free publicity, still I firmly believe Microsoft couldn't EVER have become such a strong cash machine if it wasn't for millions of people being able to learn its stuff illegally. When I was a kid a strange thing was happening: my friend had some CD and I didn't. I just couldn't listen to that music. This is not the case anymore. I think today's kid are going to be better men than me, because they can get more music. As you can see I have no answers here, I'm still trying to get some more informations. Txs for your thoughts, I'll add to the pile. Simone

[Paul Morris]

"The big entertainment companies profit from their gatekeeper role, made possible by their sucking off special priveleges provided by the state. Hell, yeah, the parasites know they're making more money sucking at the government tit than they could make in a free market."

Bullshit. Since the invention of this new internet thing, there is nothing to stop bands bypassing these 3vil 'gatekeepers'. This myth that all record companies are evil mafia types in league with beelzebub is just farcical. Has it ever occured to anyone that musicians *might* actually prefer to concentrate on writing songs, rehearsing and practicing their instruments, rather that spending their days staring at spreadsheets, accounts, and negotiating contracts with venues, distributors, lawyers, marketing departments, magazines and radio stations?

Record companies exist because there is a lot of work associated with promoting and managing a large succesful band that is not creative work, and which most creative people would rather not do. I make video games for a living, which partially I sell direct, but I also have a deal with an 'agent' to help sell the games. They are not an '3vil gatek33per', but a business partner, with whom I have entered a business relationship for mutual gain.
Stop characterising all record companies as evil. Thats just the groupthink thats spun around by those who would rather get evrything for free, and need an excuse.