Revisiting The Question Of Who Deserves Copyright

from the no-one-deserves-it dept

Our final post last Friday was to point out that if your argument in favor of copyright (or stronger copyright) is that an artist "deserves" it, that argument is wrong. The basic point was that copyright discussions are not about the moral issues. Copyright was established in the US not because artists "deserved" it. In fact, the first copyright law really didn't protect "artists." It was for the sake of knowledge and learning, and only covered maps, charts and books -- but not things like music, news or plays. The key point, however, was that copyright was designed to advance such knowledge, and more specifically to "promote the progress of science."

That post kicked off quite the discussion. Last I looked, there were close to 800 comments on that article, which may set a record. What struck me as interesting was that many critics of the post jumped to the conclusion that if you say it is wrong that anyone "deserves" copyright, it means that there should be no copyright at all. But that wasn't what the post said at all. It was pretty explicit (I thought!), that it was merely saying that any debate over copyright needs to focus on that question of whether or not it promotes the progress, and not on the moral argument that anyone "deserves" such a government granted monopoly. It was nice to see that much of the discussion in the comments was reasoned and well thought out (as always, there were a few exceptions to that), but so much of the debate simply seemed to assume that by arguing against using moral arguments, it was the equivalent of arguing against the entire system.

It may very well be that we'd be better off with no copyright system at all. I've seen arguments to that effect, but I don't think we have nearly enough data to support that position. I do think it's clear that if we had only two options: what we have today or no copyright at all, that no copyright would likely lead to greater societal benefit. But that's just an indication of how bad copyright law is today, not necessarily a total condemnation of copyright law itself. So, I'd like to restart this discussion, by making the point of that earlier post clear: by saying that the moral argument for copyright isn't valid, it's not saying that copyright itself is not necessarily valid. I'm just saying that the debate over copyright should be on the key factor: does it promote the progress or not, and are there better ways to promote the progress?

So, can we focus the next 800 or so comments on that?

Filed Under: copyright, deserve, moral argument

If You're Arguing That Someone 'Deserves' Copyright, Your Argument Is Wrong

from the it's-not-about-what-anyone-deserves dept

For many years, we've explained why the debate about copyright is not a moral issue at all. Yet, whenever we get into discussions on it, sooner or later, someone makes an argument about how this or that creator "deserves to make a living" from their art. There are two things wrong with this statement. First, it assumes, incorrectly, that the way you make a living is from copyright. It is not. In fact, much of what we discuss on this blog are ways in which artists might be better off by not enforcing all of the privileges copyright grants them. But, more importantly, the use of the word "deserves" is especially problematic.

Julian Sanchez, who has been doing excellent work on copyright issues of late, has a nice post about how such arguments are totally irrelevant to copyright policy. He notes that it's no surprise that artistic and creative people want greater copyright privileges, and fewer exceptions such as fair use, but that's meaningless:

These will often be wonderful, likeable, creative people, and the correct policy response to these objections as such is: Cry me a fucking river; now piss off.

And the reasoning why is that copyright policy is not about what someone deserves or about rewarding people based on some moral grounding. Its purpose is and has always been clear: to provide incentive to promote progress. There are tradeoffs in these policies, and the end argument should never be about what someone deserves, but about what is the best net result for society on that progress bar. As Sanchez explains:

Wise assessment of copyright policy should have nothing to do with how you feel about the person or entity who holds the right at any particular time, because copyright policy is not about identifying wonderful and meritorious people and ensuring--certainly not as an end in itself, anyway--that their income is proportioned to their intrinsic moral desert--or lack thereof. We are all the massive beneficiaries of millennia of accumulated human scientific knowledge and cultural output, and not one of us did anything do deserve a jot of it. We're all just extremely lucky not to have been born cavemen. The greatest creative genius alive would be hard pressed to create a smiley faced smeared in dung on a tree trunk without that huge and completely undeserved inheritance.

So banish the word "deserve" from your mind when you think about copyright. Nobody "deserves" a goddamn thing. (I say this, for what it's worth, as someone who makes his living entirely through the production of "intellectual property.") The only--the only--relevant question is whether a marginal restriction on the general ability to use information incentivizes enough additional information production over the long run to justify denying that marginal use to every other human being on the planet, whether for simple consumption or further creation.

Exactly right. Yet, somehow, I get the feeling that people will continue to toss out moral arguments. They can't resist... and since they tend not to have the empirical data to support their position, it always gets reduced to irrelevant moral arguments.

Filed Under: copyright, deserve, moral argument