Why Debates Over Copyright Get Bogged Down: Conflating Use With Payment

from the separate-them-out dept

A few weeks back, we covered the "debate" that composer Jason Robert Brown had with a young fan of his, concerning the reasonableness of sharing digital copies of his sheet music online. For some reason, Brown keeps appearing in the press over this issue, which is a bit unfortunate, as there are plenty of folks who understand the issues at a deeper, more nuanced level than he does, and could do a better job presenting his case. However, the latest appearance of the story was at NPR. There's really not much new there, as it rehashes the basics that you're probably already familiar with.

However, what I did find interesting, was that the NPR piece mentioned an email that Alex Feerst, from Stanford Law School, sent Brown, suggesting that Brown was mistaken about some of his arguments. Brown got permission to publish the email a few weeks ago (though I just found out about it via the NPR story), and it's well worth reading. Much of it will sound familiar to regular Techdirt readers, as it covers much of the same ground, such as pointing out that copyright is designed to promote the progress, not to protect an artist's moral rights. It also does a nice job pointing out how copyright is regularly abused by industries trying to hold onto an obsolete business model, and that we shouldn't confuse promoting the progress with propping up obsolete business models or middlemen. As I said, the whole thing is well worth reading.

One part, early in the email, stood out to me, because it helped crystallize why so many of these discussions about copyright break down, which is that defenders of today's copyright system often conflate two very separate issues, which makes it difficult to move the debate forward: that is, they inherently link together the "this is how I get paid" part with the idea that "this is my right." As Feerst eloquently explains:

In your email, you shift from this idea, the zero-sumness of a physical object, to the broader point that you deserve to be paid for your work (right around where you say "The way I support myself and my family. . ."). But these are two separate points, one correct and one not, that you have run together -- (1) songs are like objects, when they are taken by one person, another person is deprived of their use. This is not accurate -- you may have been deprived of money, but not use. You can keep playing your song. (2) You deserve to get paid for your work. I agree with this completely. But your story conflates using the song and paying you for your work. They are not the same thing. It's not hard to imagine a world in which these are separate -- e.g., you get a generous monthly stipend that you are happy with from a patron on the condition that anyone can play your music, trade your sheet music, etc.

These two issues -- payment and ownership/control of copies should be conceptually separated. They are connected under our current system, but they are not naturally or necessarily connected. We can unfasten them and toggle them separately to see what happens. If we could imagine other ways for you to get paid for your work (maybe we can't, but assume for argument's sake we can) as an artist, then whether or not people "take" your song is beside the point. You only want to stop people from taking things because you need to get paid. If you got an acceptable income from your work, you would probably not care about who plays or doesn't play your song. This is because, unlike a screwdriver, it is not bound by physical world zero-sumness. In fact, you'd probably prefer such a system because you'd get paid and at the same time a greater number of people would hear your song. I think your teen correspondent mentioned a similar point.

This sort of thing comes up, quite frequently, in statements from people along the lines of "this is how I make my living," or "I have a right to be paid," both of which implicitly make this conflation error. Copyright grants you a right to exclude, not a right to get paid -- and there is no guarantee that "how you make your living" must always stay the same. At one point, most people made their living farming. Now they don't. The world changes, and people change how they make their living. So I think it really is important, when people make these arguments, to point out how conflating those two issues is a major flaw.

Further on this point, reading the comments on Brown's post, a lot of people take offense at one of the comments Feerst states, specifically:

So, although it may sound odd, it is not necessarily your right to get every possible penny from your work. Rather, our system is designed that you get enough to create, which promotes progress. But money that does not go toward promoting progress is not an entitlement.

I think that many people are misunderstanding what Feerst is actually stating here. It is not that artists should only get "just enough" money and then everything else must be free. Instead, he is arguing (quite correctly, from a Constitutional standpoint) that copyright is only supposed to help you get to that point. That is the very basis of copyright. But, creators are free to make use of other business models to make more money beyond that. The problem here comes in where too many seem to think that the only way to make money is to rely on copyright.

As such, it often feels like copyright has become a crutch. Because content creators use it to earn some part of their living, they start relying on it for all of their earnings, and fail to flex their "creative business models" muscle and let those atrophy, as they increasingly rely on the gov't granted monopoly privilege of copyright to act as a de facto business model.

Unfortunately, Brown's responses to Feerst's carefully argued points suggest he does not actually understand these points. He goes back to "but this is how I feed my family" multiple times, even in defending copyright lasting well past death. What he ignores, is that if he were working a 9-to-5 job as a banker or a construction worker, if he died, his family does not get to keep collecting his salary. Now, it is entirely possible to make an argument that content creators deserve special treatment that keeps their estates making their money after they die (a belief I do not agree with). However, Brown doesn't even try to make that argument. He just says:

"I've got bills to pay and I don't pay them by working at a hedge fund. If I were to die tomorrow, the lifestyle that I have built up for my family would be severely endangered, but at least the continuing royalties from the performances of my shows might pay for my childrens' college educations."

Yes, but if you did work at a hedge fund, well, then your family wouldn't continue to get your salary. That's the point that Feerst is making, and Brown totally ignores it with an incredible sense of entitlement that for some reason, because this is how he feeds his family, it has to continue.

Brown also brushes off Feerst's point about how Brown's own musical talent and creations are built off of "raw materials" that he "received" from others for which he does not pay royalties. Brown explains this away by pretending that those "raw materials" are "abandoned in the street," so it was okay for him to take them without paying. Yet, later on, he complains about the idea that anyone could ever use his raw materials for their own works without paying. It's quite a double standard.

Either way, Feerst's contribution here is definitely a good one, in highlighting that conflation of "getting paid," vs. "use" -- and pointing out that the two may be connected, but often are not, and certainly do not need to be connected.

Filed Under: alex feerst, business models, copyright, file sharing, jason robert brown, morality, music, sheet music