Socially Optimal Copyright Infringement
Tim Lee argues that it’s appropriate that the burden of enforcing copyrights is on the rights-holder. I agree with what he says. As a further consideration, it’s also worth recalling that the socially optimal level of copyright enforcement is higher than zero. A rights-holder is going to price access to his works at the profit-maximizing level. But there will always be people for whom access to the work is worth more than $0 but less than the profit-maximizing price. When those people infringe they gain a real benefit, but the rights-holder incurs no real loss.
Yesterday, for example, I linked to what I take to be a pirate copy of Michael Dummett’s article “Bringing About the Past” and I’m fairly certain that none of the people who clinked the link and downloaded the paper yesterday (myself included) would have done so had there been no alternative to paying the copyright holder for the privilege. Completely eliminating copyright infringement in the digital age would not only be difficult, it would represent a massive loss of social welfare. Forcing the burdens of enforcement onto rightsholders has, among other things, the impact of ensuring that copyright enforcement remains imperfect. In particular, it makes it relatively likely that instances of infringement that aren’t really costing copyright owners significant revenue will go unpunished. This is a good thing.
I would note that one of several reasons to resist the effort to analogize copyright infringement to piracy is that it completely collapses this fact. The socially optimal level of robberies undertaken with violence and the threat of violence is zero. There are practical questions about the feasibility of perfectly enforcing laws against robbery, and also questions about enforcement costs. But in principle, the less robbery the better. This is not the case with copyright infringement. Some instances of infringement represent genuine losses to copyright owners and there’s a debate to be had about the extent to which such transactions are socially harmful. But over and above those instances, there are many instances of infringement such that non-infringement would represent deadweight loss rather than a benefit to the copyright owner.
87 Responses to “Socially Optimal Copyright Infringement”
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October 15th, 2009 at 1:09 pm
Sure.
But why make us break the law (thus underming respect for law as a norm) in order to do it?
October 15th, 2009 at 1:17 pm
I don’t buy this supposed distinction between copyright infringement and piracy. It’s as though, once the ship is plundered, the pirates claim that there really wasn’t any market for the chest of thneeds in hold C-3 at any price the thneed-weavers would be prepared to be paid, so distributing them freely in the pirate village is just a net gain to society. Well, it might be the case, but are we really going to let the pirates take the whole ship?
October 15th, 2009 at 1:18 pm
Is copyright/patents really the best way to go? Dean Baker seems to think that we should have a rewards system that makes knowledge free to use as soon as possible.
I can see some real benefits in breaking down barriers to information as Baker suggests and the reward could have fixed and variable components that both encouraged innovation and dealt with the variance of worth.
Conversely there are real costs to ownership of information such as duplicated, wasted efforts in the pursuit of new medications proven ineffective by other proprietary studies.
October 15th, 2009 at 1:21 pm
why not just allow people who create ‘intellectual property’ to print their own legal tender as well? then you could increase taxes. content creators would get paid, and the government would have money too.
October 15th, 2009 at 1:23 pm
One of the factors any business considers is the costs of enforcing their rights. If you’re opening a diamond shop, you need to consider the costs of locks, surveillance cameras, security guards, bars on the windows, and so forth.
As noted by Anthony Damiani above, the issue of law enters into it. Tim Lee’s contention (quoted above) is, in my opinion, the most obnoxious kind of Darwinian law-of-the-jungle reasoning there is: “if you can’t stop people from stealing your product, you shouldn’t be in business.” Great. Libertarians at least believe the state has a responsibility to enforce property rights—something Mr. Lee apparently feels should be the responsibility of the individual.
October 15th, 2009 at 1:27 pm
Maybe people would have respect for the law if everyone actually had to follow it. So long as the rich and/or powerful can get whatever self-serving laws they want passed and never have to face any kinf of punishment when they break the law, there just isn’t going to be any respect for the law. Enforcing it more against your average person won’t make people respect the law more, it will make them hate it even more than many of us already do.
You also might want to stop using rape as a punishment for crime. That might help people respect the law too. Kind of hard to respect the law when prison guards are immune to law-suits based on their lack of willingness to enforce it.
Like I said, the law isn’t respectable and so it shouldn’t be respected.
October 15th, 2009 at 1:31 pm
Intellectual property isn’t like physical property and shouldn’t be treated as such.
October 15th, 2009 at 1:32 pm
You’re missing a couple of very important points about copyright:
1. A rights-holder is going to price access to his works at the profit-maximizing level.
That’s demonstrably false, as the copyleft and open source phenomena clearly indicate. I’m not sure what it has to do with the rest of your post, but you’re not starting off well.
2. But there will always be people for whom access to the work is worth more than $0 but less than the profit-maximizing price. When those people infringe they gain a real benefit, but the rights-holder incurs no real loss.
Do you buy your groceries that way, too? Of *course* the rights-holder has incurred a loss, because now nobody will pay the profit-maximizing price. The horse has left the barn.
3. This is not the case with copyright infringement. Some instances of infringement represent genuine losses to copyright owners and there’s a debate to be had about the extent to which such transactions are socially harmful.
Which is why we have copyright laws to begin with! I’m sorry Matt, but you need to think this through a little bit more. There’s a huge difference between claiming that copyright laws are too restrictive (which they are) and making the self-serving claim that “I wasn’t going to buy it anyway so I’m not stealing.”
October 15th, 2009 at 1:32 pm
the socially optimal level of copyright enforcement is higher than zero.
It’s obvious from the rest of the post that you meant to say “copyright infringement”, and as far as that goes, I think you’re right.
But I wonder if the statement is even true as written. Once people start thinking of information as something they “own” you get people like Marshall conjuring up phantom ships to imagine that they are being stolen. An entitlement mentality sets in and it becomes a tough political fight to “take away” someone’s “right” to not share a non-rivalrous good. This is all hugely destructive and it’s not like art and science didn’t exist before copyright law anyway (to say nothing of the possibility of other approaches to rewarding content-creators).
October 15th, 2009 at 1:33 pm
Not sure there is value in legal copyright at all.
“it’s also worth recalling that the socially optimal level of copyright enforcement is higher than zero.”
Not convinced this has been established.
October 15th, 2009 at 1:34 pm
Great. Libertarians at least believe the state has a responsibility to enforce property rights—something Mr. Lee apparently feels should be the responsibility of the individual.
And yet, even libertarians do agree that it’s impractical to rely completely on the state to enforce property rights. No state in the world is going to recover your $20 bill if you’re careless and leave it in a public place. If your vision of a just society requires the government to go through everyone else’s wallet to get your money back, then you probably need a new vision.
October 15th, 2009 at 1:36 pm
For what it’s worth, there are some robberies that are good. If the Goldman assholes were getting regularly robbed at gunpoint by robbers specifically targeting Goldman, I’d have a hard time complaining about it.
October 15th, 2009 at 1:39 pm
Boy do you have this one wrong. Someone uses my photograph or a brilliantly revealing clip of hard-won video. They post it online. They use it in classrooms. I don’t notice. Under the law I eventually lose my rights to that material. It doesn’t matter what the “benefit” is to the user. What matters is the irretrievable and tragic loss to the artist/creator.
You are imagining that all copyrighted material comes from corporations or people who have minions to police this stuff. The onus MUST
October 15th, 2009 at 1:39 pm
be on the user of the material to clear the rights.
October 15th, 2009 at 1:40 pm
As noted by Anthony Damiani above, the issue of law enters into it.
In a democracy, the law is whatever we the people say it is, isn’t it?
Of course we like to limit democracy to the extent of, e.g., not allowing the majority to reenslave minorities or even discriminate against them. But it’s not at all clear that it would be a good idea to include copyright in that kind of immune-to-democracy super-protection. (All other forms of property — including the kinds that you don’t have anymore after someone else takes them — are subject to as much taxation as the majority sees fit to impose, as long as they do so evenly under the Equal Protection Clause.)
@8: Don’t be willfully stupid. Groceries eaten by one person cannot also be eaten by another. This is about the first point to be raised in *every* discussion of intellectual “property” so you’re not fooling anyone by pretending you don’t know about it.
October 15th, 2009 at 1:42 pm
Shorter Matt:If a poor man steals from a rich man to feed his family that is a great crime. If a bunch of yuppies don’t want to pay a few bucks to get something from the internet they shouldn’t have to!
October 15th, 2009 at 1:42 pm
Of course it is true that there is some level of copyright infringement which is net beneficial because the infringers would not have purchased the product at price in any case. This is true of all goods produced with high fixed cost and low marginal cost (its quite easy to see how theft of pharmaceuticals could also be net socially beneficial–contrasting copyright to violent robbery is unfair). The difficult question is how to discriminate between these groups such that those who value the good above price don’t use the same acquisition methods as the undervaluing infringers. I don’t see how lower general enforcement of copyright has this effect.
October 15th, 2009 at 1:44 pm
Under the law I eventually lose my rights to that material. It doesn’t matter what the “benefit” is to the user. What matters is the irretrievable and tragic loss to the artist/creator.
What’d you lose exactly?
October 15th, 2009 at 1:44 pm
Once people start thinking of information as something they “own” you get people like Marshall conjuring up phantom ships to imagine that they are being stolen.
Just to be clear, I realize that information and creative content are not the same as physical goods and establishing unlimited property rights over them is neither feasible nor socially desirable. I just also happen to think that copyright infringement IS a lot like piracy, notwithstanding that lots of hip young people don’t like to think of themselves as thieves. The point is that piracy in the traditional sense is just a part of the economy, not something odious and evil and threatening to whole idea of commerce.
Be that as it may, Matt’s idea that pirates unlock the deadweight loss inherent in monopoly pricing is just not a good basis on which to proceed, especially if what we have in mind is policy-making. If what we’re doing is coming up with rhetoric to put out there to justify the activities of tech-savvy people who would just rather not pay for what they consume, we can throw this argument in with the similar ones against congestion pricing, user fees for natural resources, and so on.
October 15th, 2009 at 1:46 pm
I just also happen to think that copyright infringement IS a lot like piracy, notwithstanding that lots of hip young people don’t like to think of themselves as thieves.
It is not a lot like piracy at all. It is more like a library. You didn’t pay for those books but you get to read them? THIEF THIEF THIEF!
October 15th, 2009 at 1:48 pm
@8: Don’t be willfully stupid. Groceries eaten by one person cannot also be eaten by another. This is about the first point to be raised in *every* discussion of intellectual “property” so you’re not fooling anyone by pretending you don’t know about it.
The issue here is the loss of revenue to the content creator, not tangibility. If people could somehow pirate copied groceries without removing them from the supermarket, supermarkets would still eventually disappear, having no incentive to stock the goods in the first place.
October 15th, 2009 at 1:49 pm
@8: Don’t be willfully stupid. Groceries eaten by one person cannot also be eaten by another. This is about the first point to be raised in *every* discussion of intellectual “property” so you’re not fooling anyone by pretending you don’t know about it.
@15. Don’t be an ass. Matt is throwing a dinner party for 20 people. Without the party, those people would be buying their own groceries at the price-maximization level, but now they don’t have to.
October 15th, 2009 at 1:50 pm
If people could somehow pirate copied groceries without removing them from the supermarket, supermarkets would still eventually disappear, having no incentive to stock the goods in the first place.
This is a very good point. Do you believe that in such a situation, it would be wise public policy to prevent grocery-copying in order to protect the supermarkets?
October 15th, 2009 at 1:52 pm
It is not a lot like piracy at all. It is more like a library.
Sure, a library that magically got all of its books for free from the Great Book Dispenser in the Sky.
October 15th, 2009 at 1:52 pm
It is not a lot like piracy at all. It is more like a library. You didn’t pay for those books but you get to read them? THIEF THIEF THIEF!
I’ve never written “dude, just shut the f*ck up” in response to a particularly moronic comment before, and I’m not going to now, either. But I am sorely tempted.
October 15th, 2009 at 1:56 pm
This is a very good point. Do you believe that in such a situation, it would be wise public policy to prevent grocery-copying in order to protect the supermarkets?
I sure don’t think it would be wise public policy to encourage grocery-copying on the intellectual grounds that groceries wanted to be free.
October 15th, 2009 at 1:58 pm
I’ve never written “dude, just shut the f*ck up” in response to a particularly moronic comment before, and I’m not going to now, either. But I am sorely tempted.
Because you don’t have anything smarter to say, obviously.
Sure, a library that magically got all of its books for free from the Great Book Dispenser in the Sky.
Way to completely miss the point. A library can buy one copy of a book and a thousand people can read it. How is that different from me buying a movie and letting a thousand people download it? Would you support banning libraries if there was an easy way to copy a book, or are libraries only OK because of the primitive nature of books?
October 15th, 2009 at 1:59 pm
The plain language in the Constitution makes it clear that the intent of copyrights, patents and the like is not to protect the rightsholders, but to benefit society at large:
Article 1, Section 8. The Congress shall have power….To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries
Which is to say that if a law protects intellectual property rights but clearly DOESN’T promote the progress of science and/or arts, it’s directly contrary to the wording of the Constitution.
Whether or not the Judiciary has held up this viewpoint or not, it’s pretty clear what the original intent was.
October 15th, 2009 at 2:00 pm
I sure don’t think it would be wise public policy to encourage grocery-copying on the intellectual grounds that groceries wanted to be free.
How would it benefit the public to deprive them of a technology that allows the production of free food? People need food and it would be deeply to deprive them of an unlimited, free source of it just to protect the profits of people who run a business that has become obsolete.
October 15th, 2009 at 2:03 pm
At the risk of starting a pro vs. anti-Zionist flame war, I will point out that Soullite’s argument @ 6 has been used by many a defender of Israel against the supposed mandates of “international law” (as well as by many a defender of various dictators who flaunt “international law”): international law is not respectable (given how it lets certain big powers get away with a lot yet is constantly sanctioning some countries for doing things that pretty much every country does) therefore nations needn’t respect it.
October 15th, 2009 at 2:05 pm
Deeply immoral, I meant to say.
October 15th, 2009 at 2:05 pm
In the broad sweep of history, technological advancement is directly related to the effective use of pre-existing knowledge. Yes, it is somewhat hyperbolic, but consider for a moment a world where Sir Isaac Newton is able to acquire Intellectual Property protections for calculus.
As humankind becomes increasingly specialized, and the media upon which to encode all the information in the world’s libraries costs pennies. Information represents economic power only to the degree that it can be monopolized.
October 15th, 2009 at 2:06 pm
Would you support banning libraries if there was an easy way to copy a book, or are libraries only OK because of the primitive nature of books?
Well, that’s the whole issue. I think the originator needs some protection from proliferation or else there will be no origination. Some kind of partial monopoly is necessary, so we have a supposedly limited-time copyright that leaks from all sorts of holes. The thing is, the owners exercise the greatest vigilance over the most profitable properties, so it’s not at all clear to me that the status quo is particularly problematic. It’s clearly second-best, but that might be just fine.
October 15th, 2009 at 2:12 pm
Except that there is no loss of revenue because I wasn’t going to buy it anyway. Even if there was loss of potential revenue, that’s not theft.
The whole concept of copyrights as intellectual “property” is suspect. They’re just (supposedly) temporary government-granted monopolies. By calling them property, you can push to call violators “thieves”.
October 15th, 2009 at 2:17 pm
Except that there is no loss of revenue because I wasn’t going to buy it anyway.
This argument has always struck me as off-key, but…
Even if there was loss of potential revenue, that’s not theft.
Exactly. Health insurance aside, nobody is required to buy anything. So what if I download a movie and it makes me less likely to buy a copy of the movie? That’s not ‘theft’ any more than if I read a bad review of the movie and decided not to buy it on that basis. It’s also not ‘theft’ to watch a movie you haven’t purchased a copy of, if libraries, video rental stores, and the ability to watch movies which belong to friends or family, demonstrate.
Of course, if IP laws were carried to their logical extremes, it would be illegal to rent or borrow a movie, or to screen a copy you purchased for anyone other than yourself. . (I think it is actually illegal to privately screen movies under certain circumstances.)
October 15th, 2009 at 2:19 pm
Those are the ‘holes’ that Marshall is talking about, I guess. One of my rules of thumb is that a law which is only tolerable when selectively enforced is a bad law.
October 15th, 2009 at 2:20 pm
Groceries stock perishable goods, like for example, grapes. They set the prices on a pound of grapes so as to maximize their profit. That price is not necessarily the same as the price necessary to sell all of their grapes.
So let’s say that it’s the last day before some of the grapes’ expiration date. It appears that some bunches of grapes are going to go unsold, spoil, and be thrown away. You aren’t willing to pay the posted price. Is it ok to steal those grapes, on the theory that you wouldn’t have bought them anyway, and the seller isn’t being deprived of any income?
October 15th, 2009 at 2:21 pm
Now I photocopy salads when I want to pirate food.
I used to photocopy steak and ice cream.
October 15th, 2009 at 2:26 pm
Anciently, real property could be lost due to inattention. That’s called adverse posession. Squatter’s rights. In the days when travel was largely by foot or on horse, the time was typically around 20 years. Now we have airplanes and automobiles. The time should shrink accordingly.
A similar shrinkage of time should apply to intellectual property in an era of 9 month product cycles. Instead, there’s been some fetishization of IP and the life span of IP keeps getting longer and longer and longer. There’s no real defense for 75 year (and longer) copyrights. And 7 year patents.
October 15th, 2009 at 2:26 pm
ck, if you steal those grapes, then you’re making it so that nobody can buy them. You have no way of knowing that nobody is going to buy them until they are actually thrown away (and at that point, you can take them — really, try it sometime).
The analogy between IP and physical property is almost never apt.
October 15th, 2009 at 2:29 pm
I think the originator needs some protection from proliferation or else there will be no origination. Some kind of partial monopoly is necessary, so we have a supposedly limited-time copyright that leaks from all sorts of holes.
There is no “limited-time” copyright anymore. No works have fallen out of copyright for years and you can bet your boots that before Steamboat Willie falls into the public domain there will be a big push for another extension the impetus being driven by the material benefit of the copyright holders.
October 15th, 2009 at 2:29 pm
You aren’t willing to pay the posted price. Is it ok to steal those grapes, on the theory that you wouldn’t have bought them anyway, and the seller isn’t being deprived of any income? – ck
In order to avoid that, many sellers will lower the price of such grapes. They have whole racks of fruit labeled “ripe! for eating now!” or even “overripe! for baking!”.
Certain food service establishments will do the same thing. For example, the quasi-Chinese place at the Busch Campus Student Center at Rutgers would sell off the day’s food really cheap after 10:00 PM. Was it morally right for us grad students to, if we were already not going to have time to eat until 9:45 PM, wait an extra 15 minutes to buy the food at 10:00 PM. In this case we were going to have bought the food anyway, but we waited until we knew the price was lower — so in a sense we did deprive the seller of income.
October 15th, 2009 at 2:31 pm
In some sense the same idea applies to the social value of libraries. Individuals who are unwilling to pay (much) for information or ideas get access to it, but the cost in terms of inconvenience is such that people who are willing to pay for it still buy it, and so it’s a win/win.
October 15th, 2009 at 2:35 pm
Fortunately, you can watch Steamboat Willie on YouTube. My guess is that Disney doesn’t care about that very much — they realize that people viewing their cartoons is good for them, even in the absence of direct monetary compensation. What they do care about, and the reason they try to get the copyright extended, is the value of the exclusive rights to sell the image of Mickey Mouse — it isn’t really about distribution at all.
October 15th, 2009 at 2:38 pm
I think you’re dodging the point of the analogy (cf. here). The premise is that you know some of the grapes are going to be left unsold (as they often are), and once they’re thrown away, they’re spoiled.
Or to make it explicit: if you steal the grapes, and no one else comes by to buy grapes that day, are you morally in the clear?
October 15th, 2009 at 2:39 pm
the cost in terms of inconvenience is such that people who are willing to pay for it still buy it
Any public policy that counts inconvenience as a positive is a bad thing. Libraries are as convenient as is possible (bookmobiles, for crissake!). There is no good reason to prevent them from being more convenient on the grounds that it might affect someone else’s profits. In particular, free market capitalism absolutely abhors this.
For what it’s worth, back in ye olde days before the printing press, how did libraries get stocked? Why, they’d have a scribe copy books from other libraries. With the benefit of hindsight, we now realize that this was a detriment to society because it deprived content creators of their rights.
Right?
October 15th, 2009 at 2:40 pm
if you steal the grapes, and no one else comes by to buy grapes that day, are you morally in the clear?
No, because the morality of an action doesn’t depend exclusively on the actual outcome. Duh.
October 15th, 2009 at 2:50 pm
I see people have mentioned libraries above me, and someone else talks about the inconvenience of a library not being a good thing.
I’m not sure though. I presume publishers take a very different attitude toward Google putting all their books online, verses a library making all their books available on loan. What’s the difference?
I would say the difference is the level of convenience. The extra hassle in obtaining a book from the library is equivalent to “selling” a defective good — it acts as a sort of price discrimination. Vendors like price discrimination because they’re happy to sell their goods for cheap to some people so long as others pay full price.
The difference with respect to digital media is as opposed to being inconvenient, it’s terribly convenient. Making such piracy illegal adds inconvenience, but clearly not enough for everyone to consider it effective.
October 15th, 2009 at 2:51 pm
I’m inclined to say Yes, it’s morally just fine, because having to wait an extra 15 minutes to eat is a cost to you, and reduces your utility. Plus you’re getting less-fresh food. But I might be overdoing the analogy, as I accused neil of doing above.
Anyway, if we’re testing out our moral intuitions here, clearly the difference between stealing grapes and waiting to buy your peking duck is that the seller explicitly doesn’t want you to do the former, and is ok with you doing the latter.
October 15th, 2009 at 2:55 pm
Except that there is no loss of revenue because I wasn’t going to buy it anyway.
You weren’t going to buy it because you found a way to get it for free. This is the reality of the argument and the reason the argument is intellectually worthless–because under that scenario you have the following contradictory assumptions:
1. The work has great benefit to the social welfare
2. But a benefit worth something less than the equivalent of a dinner date at Applebee’s
October 15th, 2009 at 2:57 pm
Re: libraries, the right of first sale is “a limitation on copyright that was recognized by the U.S. Supreme Court in 1908 and subsequently codified in the Copyright Act of 1976, 17 U.S.C. § 109. The doctrine allows the purchaser to transfer (i.e., sell or give away) a particular lawfully made copy of the copyrighted work without permission once it has been obtained. This means that the copyright holder’s rights to control the change of ownership of a particular copy end once that copy is sold, as long as no additional copies are made. This doctrine is also referred to as the “first sale rule” or “exhaustion rule.”"
http://en.wikipedia.org/wiki/First-sale_doctrine
October 15th, 2009 at 2:59 pm
I see people have mentioned libraries above me, and someone else talks about the inconvenience of a library not being a good thing.
Of course content producers think the added inconvenience a good thing, but they think libraries themselves are a bad thing.
The extra hassle in obtaining a book from the library is equivalent to “selling” a defective good
This was never a part of the idea of libraries, and it should absolutely not become part of their definition.
You weren’t going to buy it because you found a way to get it for free.
And that should be illegal? This also fails the library test.
October 15th, 2009 at 3:03 pm
Where did you get “exclusively” from? I feel like this conversation is not going to be productive, because you’re trying very hard to avoid the main point.
October 15th, 2009 at 3:12 pm
If we’re going to be arguing by analogy to real-world goods, the analogy is this:
You have made a machine that can copy grapes and the cost of copying is practically 0. Is it morally ok to limit the amount of grapes that can be copied and given to people, only selling grapes to people who can pay?
On the face of it, this is obviously immoral – you are depriving people of food which you now have in infinite quantities. The argument against that, is that the machine wouldn’t have been made if you couldn’t make some money off of it.
The best solution for society as a whole would be to both provide money to inventors, and make their creations fully available to everyone. This is of course what is already done for all basic scientific innovation – physics (which is what I do), chemistry, biology, etc. When you use an device that is based upon an understanding of electricity and hence Maxwell’s equations, you don’t pay a fee to the Maxwell estate, indeed no one ever payed Maxwell directly for using those equations.
Whether we can make a similiar system for music/movies/etc. is an open question.
October 15th, 2009 at 3:12 pm
There should be IP protection for a creator trying to sell his thoughts to a publisher or her invention to a manufacturer or their ideas to a financier for the purpose of converting the idea to useful form. Just enough so the publisher or whatnot can’t say “no thanks” and then publish your work anyway without paying. After that, it should be fair game and the ordinary rules of physical property should apply.
October 15th, 2009 at 3:13 pm
I feel like this conversation is not going to be productive, because you’re trying very hard to avoid the main point.
I really don’t know what you’re talking about. It’s not moral to take the grapes based on your belief that nobody will buy them, and an event can’t become moral after the fact due to the actual outcome. Although if you’re trying to lead me into saying that ‘I wasn’t going to buy it anyway’ is a bad argument, that’s a waste of time since I already believe that, on basically the same grounds. I do think ‘I didn’t buy it because I had a way to get it for free’ is valid, though.
But anyway, grapes are nothing like intellectual property.
October 15th, 2009 at 3:22 pm
Marshall: The thing is, the owners exercise the greatest vigilance over the most profitable properties, so it’s not at all clear to me that the status quo is particularly problematic. It’s clearly second-best, but that might be just fine.
neil: One of my rules of thumb is that a law which is only tolerable when selectively enforced is a bad law.
Okay, but what’s the alternative to this “bad law”? Speed limits are selectively enforced, and they would be intolerable if they were not. Should we get rid of speed limits? Sometimes the perfect law doesn’t exist, and so we have to make due with a suboptimal or “bad” law
October 15th, 2009 at 3:24 pm
While it should be obvious to anyone that intellectual property isn’t the exact same thing as physical property and shouldn’t be treated as such, it’s amazing the logical contortions and deliberate obtuseness people will indulge in because they want to enjoy what someone else has created without having to pay for it.
Mike
October 15th, 2009 at 3:58 pm
Whether we can make a similiar system for music/movies/etc. is an open question.
There’s no need. Lots of people make music and write books etc. just because they like it, and they always have. Commercializing the product was only necessary when distribution was enormously costly and nobody else could hear your music/read your book/etc. without the costly distribution apparatus. All that is as obsolete as buggy whips now, except for people who prefer hardcopy, and they aren’t threatened by the existence of electronic copies.
Which is not to say that they would just be abolished — the patronage, public patronage, and subscription models don’t depend on copyright, to name just a few.
If people could somehow pirate copied groceries without removing them from the supermarket, supermarkets would still eventually disappear, having no incentive to stock the goods in the first place.
So you’re suggesting that we not *abolish the scarcity of food* because then the right people wouldn’t be getting paid for it? That’s monstrous. I don’t care if it puts Bobby Flay on the street and reduces him to eating copies of meals he downloads from hobbyist sites (which it probably wouldn’t anyway; at worst he’d be reduced to performing live for an audience who preferred to eat originals rather than copies and could afford to indulge such a hobby), infinite free food for everyone is absolutely the better policy.
October 15th, 2009 at 4:06 pm
the subscription model doesn’t depend on copyright?
October 15th, 2009 at 4:17 pm
There’s no need. Lots of people make music and write books etc. just because they like it, and they always have. Commercializing the product was only necessary when distribution was enormously costly and nobody else could hear your music/read your book/etc. without the costly distribution apparatus. All that is as obsolete as buggy whips now, except for people who prefer hardcopy, and they aren’t threatened by the existence of electronic copies.
Annoyingly, that’s not actually true– at least when you extrapolate beyond the traditional small-group generated content of music and books.
I make computer games for a living. I’m working on a project with 200-plus people and years of development time. We’re creating something that absolutely would not exist as a hobbyist effort (though many worthy games have been made as labors of love), and could not be easily funded via patronage. Many films are of similar scope.
I hate copyrights and copyright law; the very concept of ownership over an idea is morally odious, to say nothing of creating material scarcity where none need exist. But I think it’s also reasonably clear that many things I dearly love simply would not exist if it weren’t for this set of economic conditions that makes these kinds of large-scale commercial endeavors viable.
This leaves me with no easy answers and great discontent.
October 15th, 2009 at 4:22 pm
Well not really chris. Sure, some people will do these things purely for fun as a hobby, but only those who are wealthy enough to have the time for it. Before the public financing of science the only people who could afford to do science were rich people who didn’t have to work for a living. That narrows the amount of people who do these things, and the scope of what they do, far too much.
So you end up having to have public financing – which then leads to someone having to decide what is worthwhile and should be funded and what isn’t. Within science those decisions are made by other scientists through peer review. A similiar thing could be done for the arts but I don’t think it would be a good idea. There are other ways you could think of doing it which I think are better but this gets us into alot of technical arguments.
October 15th, 2009 at 4:22 pm
Matt had a post a back in January on how he thought that when you have arguments based on analogies, all sorts of dissimilarities between the two things analogized emerge and you end up have an argument about the analogies rather than about what you were discussing in the first place. This is what has happened here.
Copyrighted works are non-rivalrous goods. Any analogy to rivalrous goods like grapes isn’t worth discussing.
Rivalrous goods cannot be magically made non-rivalrous. Declaring by fiat that they are for the sake of argument is unnecessary and wreaks havoc with our intuition.
Food is necessary for survival and denying it to someone starving is categorically immoral. Copyrighted works are generally consumed for pleasure or to further business or research or artistic interests. These interests are important for society, but not categorically immoral to impede.
October 15th, 2009 at 4:28 pm
So you end up having to have public financing – which then leads to someone having to decide what is worthwhile and should be funded and what isn’t. Within science those decisions are made by other scientists through peer review. A similiar thing could be done for the arts but I don’t think it would be a good idea.
Yeah, it’s not like EVERY OTHER INDUSTRIALIZED COUNTRY in the world does so. What a crazy idea! Next you’ll want the government to pay for health care.
October 15th, 2009 at 4:41 pm
DAS, so.. what’s your point? I’m pointing out that the social contract in America has been shattered on each and ever last point. Our kids can’t afford college. The police regularly torture citizens. Rape is used as a punishment. The media doesn’t cover protests unless they come from a right-wing vantage point. We elect politicians who refuse to even try to implement the proposals they ran on. The elite buy the right to break every law, and force draconian punishments on the rest of us.
I don’t really care what shitty, parabels you want to make between this an Israel. This is America, this is an American problem. What I’m pointing to isn’t some atrocity that happened 70 years ago. I’m talking about the ongoing reality. There is no such thing as the rule of law in America. There is only the tyranny of the wealthy.
October 15th, 2009 at 4:41 pm
DAS, so.. what’s your point? I’m pointing out that the social contract in America has been shattered on each and ever last point. Our kids can’t afford college. The police regularly torture citizens. Rape is used as a punishment. The media doesn’t cover protests unless they come from a right-wing vantage point. We elect politicians who refuse to even try to implement the proposals they ran on. The elite buy the right to break every law, and force draconian punishments on the rest of us.
I don’t really care what shitty, parabels you want to make between this an Israel. This is America, this is an American problem. What I’m pointing to isn’t some atrocity that happened 70 years ago. I’m talking about the ongoing reality. There is no such thing as the rule of law in America. There is only the tyranny of the wealthy.
October 15th, 2009 at 4:43 pm
What copyright defenders need to deal with, and generally refuse to, is the fact that copyrights now exist for infinite time. That was a predictable endpoint given how our society is organized and assuming the existence of copyright law. How you can fall on Disney’s side on this issue, I’ll never understand.
October 15th, 2009 at 4:45 pm
I don’t even know what you’re saying scythia. All major industrialized countries have some funding for the arts – US included. But the vast majority of arts funding is private everywhere. In contrast to basic science which is almost entirely public in every country. So your point is what exactly? Assuming of course, that you had one.
I am actually in favor of public funding for the arts, at least in the sense that I believe they should be funded through a tax-like mechanism and the work should be freely available. The question is how to distribute the money among the artists then, which is where I think things get alot harder and the model that works in science probably wouldn’t work.
October 15th, 2009 at 4:48 pm
There is no problem with copyright infringement except that it has the potential to eliminate any incentive to create. If people stopped creating that would be to the enormous detriment of society. There are a lot of great analogies wafting around this discussion, but most of them assume that content will continue to be created no matter what.
Ancient libraries had scribes copy books from other libraries, yes, but the author didn’t care because they were supported by patronage, not sales of their product.
I think the grocery store idea is a little silly, but let’s say it becomes possible to copy food. Eventually nobody will produce any original food for copying (farming is hard!) and we’ll all be praying for that one selfless farmer to produce the entire world’s food supply.
At this point there are very few people doing substantial long-form work (research, novels, movies) who would be able to commit the time necessary to do their work if they didn’t stand to gain anything from it aside from the high esteem of their peers. There are plenty of exceptions, including the near-patronage of non-profits or universities. As long as TP likes Matt’s writing, they’ll subsidize its production. If they fired Matt and he had to get a job at Staples to support himself, it’s a safe bet that he would produce a whole lot less content. Or he’d start charging for access to his content so he could write full time and still pay his rent.
Open access/copyright infringement is fine for Harvard’s researchers, because they get paid to do that research and publish their findings. If all content was free to anyone who wanted it, soon the majority of people producing new content would be on the staff of non-profit organizations or have some source of funding. Maybe anyone who wanted one could have a massive, indiscriminate grant from the National Endowment for the Arts, Humanities, or whomever. That would be fine.
October 15th, 2009 at 4:52 pm
That narrows the amount of people who do these things, and the scope of what they do, far too much.
I disagree with this statement. The percentage of artists who can afford to make a living strictly by selling their art objects is very small. And outside of the fine-art world (and maybe photography), it’s almost nil.
What happens in the world of popular culture (film, TV, music, literature, etc.) is that of all of the people creating art, a small percentage are selected by corporations to produce their work professionally. They’re not selected on aesthetic criteria, but economic: i.e., which works are most likely to be consumed by millions of people. They’re given a stipend upfront and resources to produce great and expensive works, but the copyright is held by the parent corporation, which exploits said rights for maximum profits.
Most artists I know (and I include myself in this) survive by 1) working unrelated day jobs or 2) commodifying our artistic skills and selling them on the open market (e.g., graphic designers, copywriters, commercial editors). Either way, any art we make we make in our spare time.
And you know what? It sucks like a motherfucker, but it works. Good art gets creates nonetheless. And it’s often better than art made under the auspices of the formalized entertainment industry. Look at the work that’s been done over the past couple of years by Passion Pit, Bon Iver, and Girl Talk, to use just three examples. You can take any of those albums and stack them up against Britney Spears or Soulja Boy any day.
And that’s not a coincidence. The logic of the entertainment industry dictates the support of mediocre, derivative work — no one wants to throw a ton of money at something that’s unproven. But the best art is always created at the fringes by people unafraid to take risks in search of the new.
October 15th, 2009 at 4:59 pm
Coriolis, my original point was that other countries have much deeper support for the arts than the US, and we should follow suit.
I am actually in favor of public funding for the arts, at least in the sense that I believe they should be funded through a tax-like mechanism and the work should be freely available. The question is how to distribute the money among the artists then, which is where I think things get alot harder and the model that works in science probably wouldn’t work.
Well, the work’s never going to be freely available — it’s just a question of the manner of distribution. Even broadcast TV (which is about as free as you can get) carries ads. Hell, even blogs carry ads!
I think as far as distribution goes, it’s less about gifting individual artists and more about creating the structural frameworks that allow artists to create and distribute their work with less cost. So….a grant to build a public recording studio, say. A production lab where filmmakers could rent equipment at below costs. The designation of more public space for murals and the like. And classes, classes, classes.
October 15th, 2009 at 5:01 pm
Oh I wouldn’t disagree with that at all. But wouldn’t it be better if artists with less of an audience had some way to make some money out of it? The question is how to do it – right now you have a system where most of that money goes purely towards massively popular artists.
On the other hand a system which is more like basic science funding would be one where the money is controlled by other artists – so the artists who get the most money/recognition would be ones who are popular amongst other artists, whether or not they are popular among people in general.
Personally I’d rather there was a middle ground between those ways – maybe by allocating some money purely based on general popularity and other based on achievement as seen by other artists, etc. But it’s a complicated problem I think.
October 15th, 2009 at 5:15 pm
Well, I think the solution is that you focus on building a community. If you’re a musician and you live in a town with no real live music scene, you’re SOL. If you live in a town with a thriving music scene, with multiple venues that are packed every night, you’re much more likely to eke out some cash. Likewise with gallery spaces. Not only are you more likely to make money for yourself with higher visibility and demand, but the possibilities for collaboration across media allow for further untapped earning potential.
But again, while we’d all like to be able to do whatever we like with no responsibilities, the world doesn’t work like that. And that’s not a bad thing. Artists with nothing to do generally don’t make good art. It’s the clash of worlds, the struggle between staying true to yourself and surviving in the 21st century, that sparks ideas…and I would argue, allows for the possibility of work that is relevant to people other than artists.
I’ve spent the last five years of my life trying to figure out how to make art and support my lifestyle at the same time. I’ve switched jobs and places a lot. I’ve gone through periods of high and low productivity. I’ve had friends drop out of the art world, and friends strike it rich. But that’s the game. Everybody’s got to play it. And ultimately, both my art and my life are richer for doing so.
Wooster Collective recently had a poll: What advice would you give young artists? One person responded, “If there’s anything else you could see yourself being happy doing, do it. Otherwise, welcome to the club.” That’s a widespread sentiment among my peers, and I endorse it. If you choose to be an artist, the responsibility is on you. We don’t want the dillentates or the slackers in search of a effort-free paycheck. We want the lifers.
October 15th, 2009 at 5:28 pm
the very concept of ownership over an idea is morally odious
Copyright does *not* protect ideas. Copyright protects original works of authorship and their derivatives. That’s *all.* Copyright law was established to protect authors and to encourage the creation and dissemination of these works, and the time limit was established in order to allow the further dissemination of those works.
What copyright defenders need to deal with, and generally refuse to, is the fact that copyrights now exist for infinite time. That was a predictable endpoint given how our society is organized and assuming the existence of copyright law. How you can fall on Disney’s side on this issue, I’ll never understand.
You are being entirely disingenuous. The fact that corporations have highjacked and twisted copyright law does nothing to invalidate the idea behind it. If you got rid of copyright entirely it would be a disaster for art and music and especially scholarship. If you don’t believe me do the research on what things were like before they had copyright law, and just imagine that 100x worse in the internet age.
October 15th, 2009 at 6:07 pm
If you got rid of copyright entirely it would be a disaster for art and music and especially scholarship. If you don’t believe me do the research on what things were like before they had copyright law, and just imagine that 100x worse in the internet age.
Talk about hyperbole. Art, music and scholarship would be just fine (scholarship, really??!!). Where you would undoubtedly have problems would be with casual literature and big budget movie production. I think you could basically scrap existing copyright law to make it extremely limited for only a few purposes and we’d be a lot better off. A major part of the political/image problem of where we are at is due to crazy talk like yours and the comparing of copyright violation to theft.
October 15th, 2009 at 6:22 pm
I think you could basically scrap existing copyright law to make it extremely limited for only a few purposes and we’d be a lot better off.
Essentially, the problem with current copyright law is the too-long coverage period which generates a ton of orphaned works. Too many works are in copyright but not allowed to be distributed. That’s a bad thing. Otherwise I fail to see any problem with the concept of copyright, except for “somebody wrote a book and I don’t want to pay for it but I want to read it anyway,” for which, as noted above, a solution already is incorporated into existing copyright law.
October 15th, 2009 at 6:57 pm
76: It’s not that the concept of copyright protection is wrong on principle, it’s that we live in a society where major corporations write most of our laws. So you have to be very careful about circumscribing their ability to do things like extend copyright protections indefinitely to the substantial detriment of actual artistic production. Critics of the critics of copyright law don’t seem to realize which side the heavy hitters are sitting on in this debate.
October 15th, 2009 at 7:05 pm
[...] Copyright Infringement I like what MattY has to say here: As a further consideration, it’s also worth recalling that the socially optimal level of [...]
October 15th, 2009 at 9:03 pm
74: The distinction between “ideas” and “original works of authorship and their derivatives” is meaningless(*). What copyright covers is not a thing, but an aspect of a thing. Owning the sequence of words on a page is fundamentally no different from owning the length of a piece of string.
If society benefits from having strings of unusual lengths, we don’t need to come up with a wacky scheme of assigning ownership of the lengths of strings. We just need to pay people for the actual labor involved in cutting strings. String cutters can advertise their services, and people who want strings cut can pay them to do it.
Likewise, if society benefits from having books written, we don’t need any scheme of assigning ownership of sequences of words. People who want books written can pool their money together to pay authors to write (whether through a private book club or a government arts endowment).
An author’s labor is scarce and subject to all the same economic laws that society has been built on for millennia. An author’s output is not, and schemes like copyright which attempt to fit a round peg into a square hole are doomed to fail.
(* Especially since in many cases, copyright protection extends beyond any particular expression. Just try publishing your own book about a boy wizard called Harry Potter. Even if you don’t copy a single phrase from J.K. Rowling’s work, you may still find yourself sued for infringement just for including the character — the idea of a certain imaginary person.)
October 15th, 2009 at 11:53 pm
Matt’s basic argument seems to extend from piracy of non-rivalrous goods to expropriation of goods whose cost of production at the margin is zero (such as prescription drugs, approximately).
Also, Neil@46: a great deal of the deterrent power of law enforcement boils down in some sense to “inconvenience.”
October 16th, 2009 at 2:19 am
All goods with high fixed and low variable costs are handled in a very suboptimum way when produced on an unregulated market. They would all profit from at least some public sector production to some extend. That ranges from things that are already public sector produced like museums to things the public sector hardly touches like computer games or theme Parks. Also often things already are produced in the public sector with huge subsidies, but the price is still set more in a minimice the amounth of subsidy way, not in a maximice public utility way (theater, public transport, museums…).
October 16th, 2009 at 6:48 am
“Intellectual property” really cannot be “pirated”, a term that came about because Jonathan Swift was railing against rogue printers duplicating his works without paying him. Copyright infringement is more akin to trespassing. The severity of the crime is more like me taking a shortcut across your yard. If it only happens intermittently, then the damage is minimal. If enough people do it, though, you’re going to see damage to the yard in the form of a worn trail.
I avoid the term “piracy”, and stick to “trespassing”. If you want some outlaw chic, then call it “bootlegging”.
October 16th, 2009 at 7:50 am
But it needs to be said again: Putting it on the rights holder means that infringements that don’t cost the holder money means those holders with money can infringe fair use while those infringements that do cost money mean those holders without alot of money don’t get protection!
Poor copyright holder -> Poor enforcement.
Rich copyright holder -> Overzealous enforcement.
This is what we have to live with?
October 16th, 2009 at 9:26 am
Copyright does *not* protect ideas. Copyright protects original works of authorship and their derivatives. That’s *all.* Copyright law was established to protect authors and to encourage the creation and dissemination of these works, and the time limit was established in order to allow the further dissemination of those works.
De juris, yes; de facto no.
October 16th, 2009 at 10:23 am
Aside from the moral aspect of taking away control over something into which someone has invested time and money. The economic aspects of abolishing copyright and patent protection are not obvious. In particular, I doubt that zero copyright would be socially efficient.
Firstly, it is not true that copyrights protect objects that can be produced at no cost. As has been pointed out by some, they often have considerable fixed cost while marginal costs are low. In other words these goods tend to be “natural monopolies”.
Secondly, enforcement of natural monopolies (by law or through controlling access in other ways) leads to an underprovision of the goods/services in question.
Thirdly, forced marginal cost pricing such as through the absence of copyrights makes the natural monopolist incur a loss as the fixed cost cannot be recovered, leading on average and the long run to an underprovision of the product.
These point, I think, cannot be argued with. What can be discussed is the magnitude of the welfare effect of points two and three. In the world of simple economic models, a world without the provision of a good is worse off than a world of underprovision. That is, the third scenario is worse than the second.
The only way in which the third scenario can be avoided is if producers in an environment characterized by natural monopolies either produce for free or if they are compensated in some other way.
Now, “compensation in some other way” is not an obvious solution and certainly not possible at the Pareto efficient level. Universities and research grants are useful, but I doubt that their model can be extended to every single type of natural monopoly. The open source community that is so often cited as an example is (as far as I know) more often than not employed in sectors that enjoy copyright or patent protection. In a sense copyright protected firms subsidize the effort of the open source community through wage payments. Take away the ability of the protected firms to make money, I doubt the open source commmunity would survive.
The book club example is equally problematic. First of all, there is a coordination problem. How do I get everyone willing to pay for something into one room. Secondly, it suffers from the free-rider problem…which leads to an underprovision of literature.
So, if someone offers a feasible method of compensating natural monopolists, I am willing to listen, but until then I see very little alternative to copyrights.
October 16th, 2009 at 1:17 pm
This is an issue that DJs and other musicians have to deal with every day. I feel that it’s unethical for me to perform somebody else’s song without paying for it – I am profiting off of their work. At the same time, music is meant to be heard, and most DJs would prosper from having their music heard in more places.
The compromise we’ve selected, by and large, is to encourage people to download music for free in the home, but to make the transition to paying for any songs they are going to perform in public. It is still technically illegal for ravers to download music without paying, but we let it slide (it’s also technically illegal for anyone to perform a record in public, but obviously we don’t enforce that right because it would kill the industry). I feel this is a very reasonable compromise for musicians at all but the highest levels of fame.
October 16th, 2009 at 4:24 pm
85: First, let’s talk about “the moral aspect of taking away control over something into which someone has invested time and money”. Investing time and money into something has never been a necessary or sufficient condition for gaining control over it.
If my grandfather dies and leaves me his mansion, I become the owner of that mansion, even if I’ve never been there before — I gain control even though I’ve invested no time or money into it.
On the flip side, if I break into your garage and find a chunk of marble, then spend several hours of my own time carving it into a sculpture and hundreds of my own dollars on tools and supplies to paint it, I do not gain control of that sculpture — you still own it, and in fact I owe you compensation for vandalizing your stone.
Ownership derives from contractual exchanges. I own the mansion because my grandfather gave it to me. You own the marble because you bought it from a quarry; I don’t own it, because you never agreed to give it to me. A farmhand doesn’t own the crops he plants or harvests unless the farmer agrees to give him those crops, and so on. Investment of time and money has nothing to do with it.
Now, let’s talk about natural monopolies. Copyright has nothing to do with natural monopolies!
A natural monopoly is what happens when the maximum efficiency of production and distribution is realized through a single supplier. For example, a water company has to build pipes to every home in town. Two competing water companies would have to build two parallel sets of pipes: not only is this a high barrier to entry, but it’s a terrible use of resources, since half of those pipes will go unused but they all need to be built.
But how does that apply to copies? There’s virtually no barrier to entry. If I want to compete with Disney to sell copies of “Snow White”, all I need is a DVD burner and a stack of blank discs — or maybe just a web site. And I only need as much blank media or bandwidth as it takes to serve my own customers; I don’t have to duplicate Disney’s entire operation. The overall system is no less efficient if other providers are competing to sell copies of the same work. In fact, competition will drive prices down. (Note: this assumes the creators have already been paid for their effort, which by now, the creators of “Snow White” certainly have.)
Finally, let’s talk about the “book club example”. You mention a coordination problem — but on a political blog like this, the solution is right under your nose! We’re all familiar with sites like ActBlue that coordinate thousands of small donations, adding up to big piles of money. The same setup can work to pay content producers. The same internet that makes peer-to-peer copying feasible on a large scale also makes coordination feasible on a large scale.
You also mention a free-rider problem, but I think this needs further explanation. Free riders aren’t a problem as long as the producer is getting paid a price he feels is fair. If I have to work X hours to produce a new work, and I think X hours of my time is worth $Y, then I’m getting a good deal as long as the club pays me at least $Y. It doesn’t matter to me how many people end up viewing the work, because I’m putting in a fixed amount of effort; the compensation I consider fair is a function of how much work I have to do.