Stealing, remixing, and the Constitution

Photographer John Harrington has a post criticizing Lawrence Lessig’s approach to copyright and urging photographers not to give up their rights, no matter what Lessig and others might recommend. The post represents a dangerous approach to intellectual property firmly at odds with the Constitution.

The Law is only The Law until we change it

“Call me a killjoy,” writes Harrington, “but stealing music is stealing from artists. Period.” But why? Presumably because he believes the appropriation he’s describing is against the law. But why is it against the law? What is the purpose of copyright? I’m glad I asked…

To promote the Progress of Science and useful Arts

The Constitution states clearly what the purpose of copyright is, and it’s not to infinitely preserve the natural rights of artists. Its aim is to further progress. Which means we have to ask: is copyright achieving that aim? Are terms too long or too short, by that criteria? Lessig and others have argued persuasively that they are far, far too long. I’m open to debating that as an empirical matter, so long as we agree upon the basic purpose of the law.

Nothing is derivative of nothing

My fear is that Harrington would object to the very criteria by which the Constitution insists we judge copyright. My fear is that he would claim artists simply have certain natural rights to their work, and regardless of what the law says, stealing is stealing. I could go on for a while about why I find this misguided, but it’s hard to have a productive argument about a philosophical tenet. Here’s just one reason: despite what Cadillac would have you believe, nothing is derivative of nothing. Ideas, art, culture all build on what has come before. When thinking about intellectual property we often focus on output without considering input. (Put another way, everything is a remix, as the video below argues.)

Against artistic rent-seeking

Artists and content creators will always be tempted to favor strong intellectual property regimes. But self-interest is no basis for a moral theory (sorry Ayn). As Lessig has also argued, control over intellectual property has never been easier to exert. Technological limits to near-perfect control are evaporating. If content creators give in to temptation and insist on advocating for an intellectual property regime justified by a conception of natural rights – despite the Constitution’s clear position to the contrary – our culture will suffer. The line between stealing and remixing needs to be considered on the basis of maximizing progress, not just protecting property.

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  1. I take for granted that copywrite law is, as Lessig argues, much too restrictive, but:

    Does art necessarily progress? If so, how do we qualify this progress? Also, what are “useful arts”? Is any art useful?

    The assumption that art is somehow useful and somehow progressive shouldn’t stand unquestioned.

  2. Andy – I agree that those questions have to be raised. And I don’t have good answers to them. It may be that the word “progress” is creating most of the difficulty. In any case, my major point is that copyright’s aim is to incent the creation of art/culture/what-have-you, not to protect the creator’s natural rights. It seems odd to mix the language of incentives with art, but copyright’s aim is clear. I think that point can stand despite the difficulty of all the questions you raise.

  3. Ok, so I started typing and just sort of went on for a bit…you should try to make it so that the textbox doesn’t accept an endless length of comment.

    It seems to me that the disagreement stems from two different perspectives which often get confused in the argument over the degree and scope of intellectual property protection.

    The first approach is grounded in legal theory and moral philosophy. In this approach the argument in favour of strict intellectual property regimes is that intellectual property is just like any other kind of property and therefore confers certain rights upon those who are able to legitimately claim ownership. Infringement of the rights of those who own property is called theft and it is wrong. Since intellectual property is just a class of property, using, enjoying or copying it without permission is just like theft. The “you wouldn’t shoplift from a store” types of anti-piracy campaigns are an attempt to arouse this kind of moral objection.

    Still within the legal/philosophical sphere there are arguments against strict intellectual property regimes. These come in many flavours but there are a few common themes. Perhaps the most overarching theme is that there is something peculiar about knowledge or information which precludes it from being private property. Therefore attempts to associate the creation of information or the discovery of knowledge with the ownership of property are logically unsound. Another theme is Walter’s argument above, “nothing is derivative of nothing”. So there are relatively arbitrary distinctions which say that Walt Disney’s Lion King is different enough from Shakespeare’s Hamlet to be considered original work and worthy of protection but that my use of the “Circle of Life” song as background to a YouTube video showing the birth of my daughter is not original and is actually copyright infringement.

    Personally, I think the “nothing is derivative of nothing” argument is wrong in the same way that the Marxian theory of capital is wrong. But really these types of arguments belong more properly in the realm of epistemology and in my opinion (though interesting in themselves) tend to distract from the more central practical question.

    The central problem with thinking about intellectual property from a legal/moral perspective is that it forces us to adopt extreme positions, either information can be property and so is subject to all the protections afforded property or it is not property and so is entirely free of these protections. In practice many of those arguing from the legal/moral perspective tend to hedge their opinions to avoid these somewhat extreme positions. Moreover approaching the question from a legal/moral perspective relies on convincing others of the superiority of your morals through rhetorical argument; there is little room for evidence in these debates.

    There is, I believe, a more fruitful approach to thinking about intellectual property. I like to think of this as the mechanism design method. The central question to me is not whether information or art or knowledge can be rightly viewed as property, but rather that given the role of information, art and knowledge in our society what is the best mechanism for deciding who gets to profit from it and use it. It is from this perspective that Walter rightly views the Copyright Clause. My view of the Copyright Clause is that it is suggesting a mechanism (time limited private ownership) for the optimal allocation of the rights to information. (I should point out here that I really don’t care what the intentions of the founders were or what the legal interpretation of the Copyright Clause is, but rather that we ought to view it as if it were suggesting a mechanism not making a philosophical argument about the ethical foundations of private property).

    From the mechanism design (and economic) perspective information is different from tangible goods. Information is non-rival in consumption; my use of Young’s Theorem for differentiable functions does not impede anyone else using it. In some sense information is also non-excludable, once I know Young’s Theorem it is practically impossible to stop me from using (or misusing) it. Obviously in practice though information is excludable, short of discovering it myself I have to buy a book to learn the theorem. This is quite different from most tangible goods which are both rival in consumption and very much excludable. There are also free rider goods which are rival in consumption but non excludable, public roads or communal waterways for example, and public goods which are neither rival in consumption or excludable, national defence for example.

    Given these differences it makes sense that we ought to have different mechanisms to allocate each kind of good. The mechanism for private (tangible) goods is the marketplace, for public goods the generally accepted mechanism is public taxation and centralised government purchase. Free rider goods and information goods are more problematic though, it doesn’t seem like we’ve struck upon generally accepted optimal mechanisms for these types. (This also is the problem with many kinds of market fundamentalist libertarianism; it has no convincing answer to the problem of these other types of goods.)

    Once we accept that different mechanisms are appropriate we are left with the question of what kind of mechanism is best suited to allocate information goods. To answer this problem we have to consider what our objective ought to be- I hope it is fairly uncontroversial to assume the same objective as in the Copyright Clause, “To promote the Progress of Science and useful Arts…” I tend to interpret this as meaning total factor productivity (this is the economist’s way of saying all the good stuff which we can’t capture in math but seems to be responsible for us getting richer over the long run). The discovery or invention of new ideas is entirely crucial to this process of long run economic growth.

    Some may quibble about whether we ought to include “art” in this definition but I think there is a fairly reasonable correlation between the progress of a society and progress of the arts. Whether this implies causation I cannot say, but I’d rather err on the side of caution and say that we shouldn’t stop making new art (also I enjoy movies and TV).

    In the most basic terms our objective then is to ensure that artists, scientists and people in general have the right incentives to carry on making new discoveries and painting new pictures. However this is not discovery for discovery’s sake, what we really want is to maximise the welfare of society as a whole. And this is the crux of the mechanism design problem. Granting inventors a monopoly on their ideas (patents/copyrights) seems like a good way to incentivize people to make new ideas, especially ones that will be popular. However, creating monopolies is also bad because it creates a deadweight social loss. In slightly more technical terms we want to maximise the social surplus (minimize the deadweight loss) associated with granting patents/copyrights while maintaining the incentive compatibility constraint of people to devote time and energy to coming up with new ideas.

    Clearly this will result in some sort of system of limited patent and copyright, so we have to ask ourselves is the system we have in place today the mechanism which maximises the social surplus while just meeting the incentive compatibility constraint. Much of the conventional answer to this lies in looking at whether we’ve maximised the social surplus but forgets entirely about the incentive compatibility (IC) constraint.

    When deciding just how broad a monopoly to grant the artist or inventor we ought to consider just what the opportunity cost of the artist or inventor is. For those innovators where the “outside option”, doing something other than coming up with new ideas, is relatively attractive we have to offer more generous copyright/patent terms, whereas for those where the “outside option” is limited we can get away with offering less generous terms.

    Viewed in this context the current system of copyright and patents seems almost perversely designed. In the United States the life of a patent is 20 years from filing, whereas the shortest term of copyright is the life of the artist plus 70 years. Moreover filing for a patent is a costly process and the inventor needs to disclose the precise method and workings of his invention, whereas copyright is created without application (although there are some relatively minor costs associated with registering a copyright).

    Consider the film Outbreak, which tells the story of a rare strain of Ebola threatening to kill millions of Americans. Released in 1995 the film should enjoy copyright until about 2090 (assuming a 95 year term from the date of publication). In the film the disaster is averted after the discovery of a secret Ebola vaccine. However, had an actual Ebola vaccine been invented in 1995, it would enjoy a patent only until 2015.

    Certainly comparing just the term of protection afforded by copyrights and patents is slightly misleading, a patent is likely to be much more valuable than a copyright, so we might expect that longer copyrights are needed. Although, perhaps the patent for an Ebola vaccine might not be quite as valuable as the rights to the film Outbreak (Ebola is a relatively rare disease found almost exclusively in the rather poor populations of Sub Saharan Africa). Either way though, we ought to ask ourselves what was the absolute minimum we need to offer those whom produced Outbreak and those who produced our hypothetical Ebola vaccine?

    I don’t really know the answer to this question. But I suspect we could begin by asking how much money the human capital in either endeavour got paid and what their next best alternative would have been. Certainly we’d need to consider non-monetary benefits as well, the actors in Outbreak enjoyed a fair share of fame as a result of being in the film and the hypothetical scientists certainly would have gained some smaller acclaim as well. Moreover, I suspect that both actors and scientists rather enjoy their work so there is a measure of satisfaction beyond the purely monetary compensation and celebrity status.

    Perhaps this is a symptom of my ignorance, but I find it difficult to believe that if a term of 20 years is sufficient to ensure that biologists, chemists and engineers have the incentives to continue producing novel new pharmaceuticals and microchips then a term of 20 years (maybe even 10 or 5 years) wouldn’t be sufficient to ensure that actors and singers have the incentives to continue producing novel new movies and songs. The most significant evidence of this to my mind is that since the widespread adoption of the internet, the digital piracy of music and songs (even books in some cases) has exploded- it’s been 12 years since Napster- yet I don’t detect a fall in the output of singers and actors, there seem to be just as many movies and songs as there were before, if not more.

  4. Ifti – spoken like a true economist. I basically agree with all you’ve said. Much of it is a lengthier treatment of my own views. Perhaps my only quibble would be to point out that you describe the former two extreme views as based in moral and legal arguments. I’d point out that the mechanistic approach also relies on both types of argument to justify itself. And they happen to be moral and legal arguments that I (and, it seems, you) find much more compelling. We’re not sidestepping moral concerns with the consequentialist approach.

  5. Thanks Walter- this stuff makes arouses me in ways which one ought not discuss too openly in polite society.

    I don’t quite follow what you mean when you say that the mechanism design method relies on the moral and legal arguments to justify itself.

    There is definately a different sort of ethical judgement that we make in choosing the objective we want the mechanism to fulfill. I’ve assumed that the objective is to maximise some sort of social welfare function not just for the present generation but for all future generations as well.

    But insofar as to the moral nature of property rights or the legal validity of ownership the mechanism designer is entirely agnostic.

  6. Ifti – my point (on which you’d surely agree) is that taking a welfare-maximizing approach to this issue is an inherently moral choice. It’s a different moral theory than the one that starts with private property as a first principle, but a moral theory nonetheless. I’d rather think of it that way, rather than one being moral and one being merely mechanistic. Two different moralities each taken to their conclusions.

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