After Copyright: Pwning NFTs in a Clout Economy

Abstract

Copyright is a means to an end, not an end in itself. We created copyright because we wanted to encourage the creation and distribution of works of authorship, not because we wanted to enable copyright owners to control the use of the works they own. We stuck with copyright because it was the best tool we had, despite its flaws. Was copyright ever efficient? No. But marginal improvements matter.
 Technology has changed the copyright calculus. Distribution of works of authorship gradually got cheaper and cheaper. And then the Internet made it free. But creation remained costly, even though technology helped make it easier. For better or worse, copyright was still our best way of encouraging authors to create new works, by enabling them to claim some of the economic value of those works.
 Of course, copyright was always a compromise, with many flaws. First, it’s overbroad. While many authors rely on copyright, many others don’t—but copyright protects their works anyway, even if they don’t want it. Second, it’s overlong. Copyright protects works far longer than necessary to encourage their production, and keeps forgotten works out of print. Third, it’s inequitable. By design, copyright only benefits commercially successful authors. And finally, it’s inefficient. Most of the benefits of copyright go to publishers rather than to authors.
 There’s gotta be a better way. And maybe there is.
 The market for non-fungible tokens, or “NFTs,” enables authors to sell their works without relying on copyright at all. An NFT is a transferable cryptographic token. Authors can create NFTs that represent “ownership” of their works and sell those NFTs to collectors. The NFT market recognizes the owner of a “legitimate” NFT of a work as the “owner” of the work, even though NFTs typically don’t convey copyright ownership of the work. I call this “pwnership,” because it consists of “clout,” rather than control. NFT owners don’t need copyright, because pwnership depends on the endorsement of the author, rather than control of the use of the work. In fact, NFT owners encourage others to use the work, because popularity increases the value of pwnership.
 Essentially, NFTs allow authors to profit from creating works of authorship without having to control their use. If the potential profit from selling NFTs alone is large enough to encourage authors to create works, then authors don’t need copyright anymore. And if authors don’t need copyright, no one does. In theory, NFTs could finally make copyright obsolete.
 Works of authorship are inherently public goods. As Stewart Brand famously observed, “Information wants to be free.” And for most of human history, information was at least nominally free, albeit profoundly costly to obtain. While mechanical reproduction made information far less expensive, it also made the cost of creating and distributing information far more salient. Copyright was the kludge we invented to solve that welcome new problem. We had to destroy free culture in order to save it. Maybe NFTs will enable us to finally dispense with copyright and make information free again.

NFTs as skeuomorphs: Weaponized sameness and fascist utopias

“…This is an art form and subculture in which imitation signals both admiration and affiliation while replication (even when motivated by mockery) provides “free memetic labour” (sensu Goerzen 2017) crucial to enhancing the value of the NFT and the prestige of its purchaser. Following Frye (2022), when it comes to NFT art, “the reproduction is the original, and anyone can experience it for free. The only thing that's really scarce is the clout of ownership.”…”

Fables of scarcity in IP

“… 52 Appropriately referring to these as “Veblenesque bragging rights” (Steiner, 2022b , p. 4); see also Frye ( 2022 ) describing collectors who knowingly seek a form of “pwnership” rather than “ownership,” where the former refers to the right to exercise market clout and the latter refers to possessing exclusive rights of control. …”

“… 63 “NFTs have given graphic artists and content creators the chance to express themselves and earn money without getting involved with top galleries, auction houses, or other middlemen” (Frye, 2022 ). …”