If draconian measures are needed to enforce a law, we should ask whether the public benefit justifies the penalties. A copyright bill is being introduced in the Senate that would make it a federal felony punishable by five years in prison to use a camcorder to make a copy of a film in a movie theater. The bill would also make it punishable by three years in prison and a fine of $250,000 to put a copy of a not-yet-released movie in a folder accessible to a public computer network.
The problem is that words, sounds and images have become a huge business, and the advances in technology that have made them a big business have also made it difficult to maintain control. If electronics can put The Titanic in every living room they can take the same digital stream and copy it to every hard drive. It’s not easy to do anything about it.
The choices are to threaten extreme penalties, as in the proposed bill, or to tie up the whole process of data communication and storage in the interests of the pop culture companies. That’s being attempted as well. Both are things we shouldn’t have government do without very good reason.
The ownership of information, ideas, words and images is an artifice. Congress has the power “[t]o 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.” Congress, mindful of the public interest and campaign contributions, has evidently decided that it promotes progress to give the culture industry ownership of each addition to culture for 95 years or more. Now they’re deciding what combination of threats and restrictions will be needed to back that up.
But why bother? Serious literature doesn’t make money. The vast majority of good musicians don’t get recording contracts. So it seems the practical issue is whether it’s good for our public life to have a big-money entertainment industry, or whether we’d be better off to have people making their own entertainment out of love for what they’re doing. It seems to me the question answers itself.
The notion that ideas are
The notion that ideas are property and copying is theft is peculiarly modern, as far as I know.
Some primitive tribes thought that taking a picture of someone was tantamount to stealing his soul. The modern soul is money.
Perhaps file-sharing in lieu of purchasing entertainment is a civic duty rather than a moral wrong.
I believe the phonograph
I believe the phonograph greatly changed the way our civilization viewed music, and the arts in general.
Prior to the invention of the phonograph, music consisted variously of hymns; folk songs; drinking songs; operas and other classical music compositions commissioned by wealthy benefactors. Hence, it was never thought of as a commodity to be bought and sold and, more to the point, owned, in the sense that it has become, since the invention of the phonograph.
Of course, the invention of the phonograph coincides, roughly, with the development of new musical technologies such as the electric guitar (which would have a revolutionary impact) and this time period also corresponds roughly to the development of radio. So I doubt one can examine the impact of one element in isolation. Suffice to say, the democratization of music in terms of an explosion of new styles and forms, and commercial popularity, and private ownership of recordings, changed the nature of the relationship between humanity and music fundamentally, from what it had been before. And this is true for the rest of arts and entertainment, as well.
It’s interesting to
It’s interesting to speculate what effect the practical abolition of copyright would have on music. I think it would improve it—live performance would become more important, since that would be the way to make money in music, and there would be less marketing, so relations between musician and audience would become more direct and natural. Recorded music would be no less available, although the technical finish of recordings would not doubt decline. And there would be at least as much diversity and room for inventiveness.
With respect, I have to
With respect, I have to disagree here. Copyright doesn’t protect ideas, it protects ideas reduced to a fixed form. A pair of shoes is also an idea reduced to a fixed form. The differences aren’t fundamental, so if society tolerates the stealing of one kind of property, it will likely end in tolerating other kinds as well. “The ownership of information, ideas, words and images is an artifice”? So is all property; it doesn’t exist in a state of nature. “Serious literature doesn’t make money”. Maybe not big money, but to authors who derive part of their income from writing and part from other sources, even a couple of thousand dollars a year can make a real difference. Why shouldn’t they have the reward of their labours, as opposed to rewarding some freeloader? Why are these particular labourers unworthy of their hire? (For that matter, what about literature that isn’t “serious” but which is good, decent, workmanlike entertainment? Say, a light comedy being acted in some local playhouse—should the audience be able to shoulder its way in without paying? If not, why should I be allowed to photocopy the script without paying?)
“The practical issue is whether it’s good for our public life to have a big-money entertainment industry, or whether we’d be better off to have people making their own entertainment out of love for what they’re doing”. Well, many people do make their own entertainment. Some of them give it away; some sell it and give away the royalties. (Yes, I know people who do this). Copyright doesn’t prevent that. But what’s the basis for denying authors any prospect of making or augmenting their livings? You may be right that if we could loot the entertainment industry, more people would be thrown on their own resources, the artist-audience relationship would improve, and so on. But we’re prohibited from “doing evil that good may come of it”. The big-money entertainment industry does some pretty reprehensible things, but perhaps the answer is to summon the courage to enforce obscenity laws, not to wink at expropriation by people who want something for nothing.
The really sad thing that’s underscored by the unauthorized-copying controversy is the ample evidence that many people will steal, so long as there’s no prospect of being caught. Surely that’s not something we should condone?
There was a time when I would make taped copies of films, but today I either pony up the money or do without. I haven’t found doing without especially onerous.
I disagree with
I disagree with Paul.
Copyright is a contract between producers of copyrighted material and the rest of society. We say, in effect, “in order to provide incentive for you to create, we grant you such and such exclusive rights over the distribution of copies of the material you create for a limited period of time.” The rights we grant are similar to rights over property—hence the term “intellectual property”—but there are important differences. The most important difference is between the nature of “theft” and “copyright violation.” Theft deprives an owner of a physical good. Copyright violation is not always an act of deprivation: namely it is not actual deprivation whenever the violator would not have paid money to the creator if means of violation had not been possible.
The other problem with treating intellectual property as real property is that copyright terms expire. Although the desire for control of what one considers one’s property is a universal, there are other components to the human makeup. The desire that one’s ideas make a lasting impression is a universal among creators. For this reason, the terms of copyright take into account both the technological playing field and the economic structure of creation. Because the distributors of copyrighted material cannot know the true value of a copyrighted work to the public, they pay artists a certain small amount and make the same gamble that insurance companies make. For this reason, a large extension in copyright is usually a great benefit to a distributor, but a harm to a creator. The distributor benefits because he gets to keep control of the miniscule number of works that stay popular for decades. The creators do not benefit much because the distributor has no way of knowing which works will stay popular, and the ratio of works that stay popular to creators is extremely low. Moreover, the creators are actively harmed because the universal desire which I mentioned earlier is harmed—the extension of copyright reduces their chance for lasting fame.
Fame is not a motivation that can safely be neglected. All of the great works of literature up until a few hundred years ago were made without the benefit of copyright. When Paul mentions “a light comedy being acted in some local playhouse,” the greatest playwright of all time—Shakespeare—comes to mind. It is hard to deny the creative vitality of playwrights of the Elizabethan period, all acting with the benefit of copyright. Among creators, desire for fame—or at least fame for one’s work—wins out over desire for profits often enough.
When considering the desirable period of copyright, it is therefore best to treat it from the contract angle that I mentioned—what contract has the most beneficial terms for both parties? It should be obvious that extending copyright terms has severely diminishing returns for both creator and society. I would personally suggest a copyright period of 15 years or less. For one thing, it is a rare work that is popular for longer than that period. (In fact, the period of 15 years, which was the original copyright term in America, I believe, is possibly too long. Technology has increased the rapidity of distribution by a great deal.) The greatest objection made to such a term is that someone else will enjoy the fruits of a creator’s labor while that creator still lives. To this I would reply that the artist will only rarely experience such a state of affairs due to the quickly fading popularity of most works. Moreover, he will still reap the fruit of his labor to some degree as long as he continues producing new works. This is because his public domain material will make him more popular with an audience, and audiences generally prefer new work to old. Again, this serves two interests, society benefits as more creators are forced to remain creatively active, and more material enters the public domain, enriching both society and future creators who wish to use the material.
And when technology makes copyright less useful in some fields, the contract idea can still guide us. What is the correct tradeoff between expanding legal structures to punish copyright violators (hurting society) and protecting copyrighted work (helping creators)? For certain terms of media, it appears that any legal structure that is effective is also undesirable from the tradeoff viewpoint. The copy rights on music, for example, must probably be adjusted for new, mutually beneficial terms (though they may not be so beneficial as before). Books will remain safe as long as electronic screens continue to lose out to paper. Movies are anyone’s guess, but the golden age ushered in with the VCR may be fading. And indeed, the movie theatre itself may be left weakened by home video equipment. But with the decline of the movie, live performing arts will no doubt rebound. I see no reason to prevent this.
Intellectual property seems
Intellectual property seems different from other forms of property. If I copy a movie on which you hold the copyright on and watch it myself it doesn’t interfere with the ability of you or anyone else to watch it as much as you like. The situation is very different if I take your pair of shoes and wear them or I walk into your theater against your will and use it for my own purposes. If it were all the same, how could people have gotten along for all those years without copyright when property rights in things like shoes and theaters are absolutely necessary for a civilized existence?
I think the “contract” analogy is a useful one—society at large agrees with an author, inventor or whoever to give him certain rights in as an inducement to production. The analogy explains why copyright might be a good idea in many cases, and what’s dishonest about violating a legitimately-held copyright. It also shows why there’s no moral compulsion for copyright to exist at all. If copyright protection is in the public interest then Congress or whoever should establish it. If it’s not then Congress shouldn’t.
In addition to the arguments
In addition to the arguments Mr. Kalb made above in comparing “property rights” and “intellectual property rights”, I’ve read libertarian arguments with which I also concur, which basically state, if I purchase a copy of your song or movie, etc., then make copies for myself or others, on what basis does your “intellectual property rights” trump my “property rights” to do what I wish with my property (which the movie, song, or whatever, now is, since I paid for it), including giving it or selling it to someone else? How can one own an electromagnetic pattern or combination of sound waves, etc.; how can rights to such ethereal concepts trump the property rights I possess in having purchased copy of said creation, which I now physically own – why can’t I now do whatever I wish with what is now my property? I have yet to hear a compelling argument against this.
Especially if one considers a scenario such as this: I hear a song on the radio, like it, memorize it eventually; why should I not be able to record it myself and distribute it as I please? What gives the songwriter the property rights to a combination of words and sounds which are in my head, esp. since they were obtained in a perfectly legal manner? Are my thoughts – even if they originated with someone else – not my own, to do with, as I please?
I may not be a libertarian, but I see much logic in this libertarian line of argument, and not much valid against it.
In regart to the libertarian
In regart to the libertarian argument, I wonder how much could be done with contract law? I buy a CD but when I do I have to agree that I won’t copy it and will impose the same condition on anyone I sell or lend it to.
I suppose it would be hard to make the system apply to radio signals. Also, I don’t know how it would apply to someone downloading a song from Kazaa that he knows—because it’s digital and so wasn’t recorded from a radio broadcast—was originally copied in violation of a well-known contractual provision. I’m not up enough on libertarian theory to say what the answer would be.
Maybe Will S.’s point would apply that there’s something very odd about the idea of owning an abstract pattern, like a particular sequence of 1s and 0s—which is what a digital soundtrack is. Could someone own the number 1,286,012? If not, how could he own some much longer digital string?
I think some people become libertarians because they like to argue this kind of issue.
As a minor point, many songs
As a minor point, many songs available on file-sharing networks _were_ copied from radio broadcasts. I have an inexpensive analog capture peripheral that I use to digitize my old 8mm video tapes. The device costs less than $100, and it can also digitize broadcast TV and radio. Nobody knows how much of the content on file-sharing networks was originally digitized from analog, but I do know for a fact that some of it is. What is telling about that is that it seems more than a little odd to say that running a recording through a sub-$100 piece of equipment (which still results in a reasonably high-quality digital copy) makes an act of copying morally licit when it would otherwise be morally illicit.
I think that morally, theft and copying are utterly different things even though the word “property” is used as shorthand; and I agree that the contract view is more useful when looking at copyright. Phasing out copyright entirely would not be an obvious moral step backward, and it may well be a moral step forward.
I’ve reviewed this string
I’ve reviewed this string again to draw together the arguments in favour of abolishing copyright, and I have to say that they’re not very impressive. To wit:
we wouldn’t need draconian, and increasingly unenforceable laws to enforce copyright (the “Prohibition” argument—probably the strongest; though surely no one would argue passionately for the abolition of copyright if it were wholly unenforceable?);
we’d destroy “the big money entertainment industry”;
having destroyed it, we might see a renaissance of live theatre and musical performance;
a creator’s chances of lasting fame would increase (I confess I find this argument baffling);
all works would enter the public domain (under copyright, they do anyway, once the term of copyright is expired); and
artists would be happier because their works would be more widely distributed (well, if artists think so, there’s nothing to stop them from choosing this route now—odd that libertarians would deprive them of any choice in the matter).
Against this, however,
we would destroy authorship as a trade—those who don’t depend on their writing for income wouldn’t care, but others would suffer, and consequently:
we would be deprived of many books (admittedly a mixed blessing, but along with loads of tripe we’d lose some good ones);
by enabling people to acquire the fruit of others’ labours for nothing (not a self-evidently good thing), we’d give further encouragement to the erosion of property rights generally (most of the downloaders and copyists don’t make the kind of nice distinctions between varieties of property that have appeared on this thread; mostly they argue as good Jacobins for “the people’s right to free information and free culture”; counterrevolutionaries should think carefully before giving aid and comfort to such people).
Certainly the argument that what is euphemistically called “file-sharing” (if you don’t have permission, it’s not sharing) is a “civic duty” has not been made out.
I’m glad to see Thrasymachus willing to consider a fifteen-year term of copyright, and Jim ready to entertain the idea of “legitimately-held copyright”, at least where the public interest favours it. So perhaps most of our differences here aren’t unbridgeable.
In reply to Paul, I would
In reply to Paul, I would say that file sharing will not affect authors of the printed word until the electronic screen can compete with paper for ease of reading. Because paper books are generally preferred, some publishers actually feel that they have a lot to gain from having their books freely distributed on the web. The results seem to indicate that like libraries, electronic versions of texts free on the web serve as good advertising.
I admit that the advertising effect is probably not present so much for music—at least not enough to balance lost sales as it does with books. Small independent bands do report it, however.
I have the opposite worry from Paul about the erosion of property rights. I agree that violating a copyright is a gateway to violations in other areas. To me, that means that we may wish to scale back those copyright provisions that are no longer easily enforced (through non-totalitarian methods). The 20th century saw a huge expansion of copyright provisions driven mainly by technology; if the 21st sees a contraction, I see no great harm done to society.
Actually, I *would* argue
Actually, I *would* argue passionately for the abolition of copyright if it were wholly unenforceable. The law’s not a moral requirement or natural right, so I don’t see the symbolic advantage of having it, and to keep a regulatory law that everyone ignores with impunity *does* promote contempt for the law.
I agree there’s some sort of natural right to be compensated in some way when someone makes use of something you’ve made, but that’s not the same as a natural right to own—say—a melody. If the two were the same why wouldn’t it be unjust to have any time limit at all on copyright? Copyright seems justifiable as an attempt to approximate a quantum meruit principle, but the approximation seems to me rough enough that it isn’t a moral obligation for government to make the attempt beyond what the public interest calls for.
One problem with copyright as ownership of cultural goods is that cultural goods are integrated with culture and thus become constituents of the complex of things that particularize our humanity. Suppose a poem or song strikes a chord and I walk down the street whistling the song or I quote the poem in a letter. Does the composer have the natural right to tell me I can’t do that if he doesn’t want me to?
I think the “authorship as a trade” argument is weaker than it appears. There have been a number of quite interesting discussions at http://www.2blowhards.com/ about how rare it is for anyone actually to make a living as a serious artist or writer. I think the estimate was that there might be a couple hundred people in the U.S. who actually make a living writing books. Those people deserve concern, of course, but if the test as to copyright law is the public interest then it seems that the nature of the culture industry as a whole should be more the issue. Is it good for there to be a culture industry of the kind we have?
Maybe the issue comes down to one’s notion of property rights and their origin. It seems to me that there’s a natural right to property, because otherwise any degree of mutual independence and devolution of responsibility would be impossible. Besides, we’d all starve to death. So private property is part of the natural constitution of society. The form and extent of property rights though have to be heavily influenced by the nature of the thing owned and the general circumstances of the society. In the case of physical objects rights should be close to absolute (although I don’t think that the owner of the Parthenon, if it had a private owner, would have a natural right to destroy it). Otherwise there is no good way to resolve immediate conflicts over how the object is to be used. In the case of infinitely reproducible patterns like CD soundtracks I think different considerations apply.
A side point—there does seem to be a moral problem with downloading soundtracks and whatnot from Kazaa, at least unless the existence of copyright is moral nonsense. If you download the track then it seems you’re saying it was a good thing to produce it. If it was a good thing to produce it though then you ought to be willing to cooperate with the accepted scheme for compensating the producer for the benefit he’s conferred.