No, Copyright Has Never Been About Protecting Labor

from the let's-get-rid-of-this-myth dept

Ugh. So, we recently wrote about Matthew Yglesias' quite accurate economic explanation for why the price of music was going to get pushed to zero, no matter what the industry said or what happened with copyright law. Andrew Sullivan spotted it, and also a response from a guy named Sonny Bunch who apparently has decided to totally reinterpret the history of copyright law in a post he entitled Piracy. Is. Stealing.:

No! False! The purpose of intellectual property law has very little to do with Matt Yglesias being able to enjoy a wide variety of new music. The purpose of intellectual property law is to protect the intellectual property created by artists so they are rewarded for their efforts. The purpose of intellectual property law is to punish people who steal that which isn't theirs.

Yes, copyright was created in part because there were concerns that authors wouldn't bother creating new work if they were consistently stolen from, leading to Yglesias's oddly solipsistic reading of intellectual property law. But, more importantly, copyright law evolved because we think that artists, writers, musicians, and others have a right to profit from their labors. It's a crazy idea, I know.

Also, Yglesias's cute little bit about the marginal distribution cost being zero ignores the fact that the production cost of music is far from zero -- leaving aside the artists (who Yglesias clearly doesn't care about being paid for their work), there are studio technicians who mix the music, producers who craft the songs, and all sorts of other people involved with the creation of music. I suppose they shouldn't be paid either? That we should just rob them of their labor too?

First, on the title, let's get serious. Every time someone claims "piracy is stealing" it suddenly becomes that much more difficult to take them seriously, because it shows they've put no thought into their argument and are parroting specious arguments that have nothing to do with reality. Stealing means taking something away. Making a copy of something means there's two such things, not one, and nothing is missing. It's not stealing, and even the Supreme Court knows this:

Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple "goods, wares, [or] merchandise," interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.

But that's old hat. What's really problematic is the claim that copyright law was designed to "protect" the creator. False. Copyright law has one purpose and one purpose only: and it's to promote the progress of science and the useful arts. Yes, the method for doing that included some limited protection but only for the sake of promoting the progress. If it is not promoting the progress, then the protection should not be allowed.

But Bunch goes on and makes a "sweat of the brow" argument or the "labor theory" of copyright that has been rejected over and over and over again. Not only has it been rejected, but it has been soundly rejected in clear language -- again, by the Supreme Court:

It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not "some unforeseen byproduct of a statutory scheme."... It is, rather, "the essence of copyright," ... and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but "to promote the Progress of Science and useful Arts."

And if the Supreme Court isn't enough for Bunch, how's about Congress:

"The enactment of copyright legislation by Congress under the terms of the Constitution is not based on any natural right that the author has in his writings... but on the grounds that the welfare of the public will be served and progress of science and useful arts will be promoted.... Not primarily for the benefit of the author, but primarily for the benefit of the public such rights are given."

Everyone is allowed to have their own opinion on copyright law. But not their own facts.

The next paragraph by Bunch is also wrong and misleading. In talking about basic economics, no one is saying that they don't want people to get paid. If you explained why telephone switching technology was going to make the everyday phone operator obsolete did that mean you didn't want operators to get paid? Of course not. You're just explaining the basic functioning of the market, and what it means. It's got nothing to do with what anyone wants. It's about what's happening.

Furthermore, the claim that any of this means people don't get paid is also pure folly. As we've described in great detail, plenty of business models that don't require copyright are working quite well in the industry.

I'm always quite amazed at people who clearly have no experience with copyright law or the history of copyright law insisting they know all about what it's about.

Filed Under: copyright, incentives, labor theory, promote the progress, sweat of the brow