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Copyright: A Legal Fairytale

Josh Kuhn

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In the United States today, as a result of decades of very successful lobbying by large media corporations,

we have extremely strong copyright law. Legally, copyright law in the US is derived from Article 1, Section

8 of the Constitution, which gives Congress the power to grant authors and inventors limited monopolies

over the distribution of their work as a reward to promote progress. There are numerous legal arguments

that could be made as to whether that section of the Constitution has been interpreted correctly by current

laws, but from a purely ethical standpoint simply appealing to the Constitution begs the question of whether

that clause is justi ed. With the hindsight of the intervening 223 years, is granting these limited monopolies

justi ed? I would argue that it is not.

The legal conception of copyright began innocently enough as a way to squelch the dissemination of

dissenting political opinion following the invention of the printing press. In the 1500's the British monarchy

restricted the right to print to members of a guild they created called the Stationer's Company [3]. Books

and pamphlets critical of the Crown or going against the Roman Catholic Church's teachings simply were

not allowed to be printed. This turned out to be a good thing because this agrant abuse of power led the

enlightened minds of the day to turn their attention to clarifying their ideas about what types of things

the government should and shouldn't restrict the populace from doing. Before the printing press, widely

distributing written material was nearly impossible (and very expensive) because copying was such a laborious

and error-prone process. Now, the power to a ect the minds of thousands was available, but the Crown was

arti cially restricting the ability to do so. The creation of licenses to print threw a spotlight on the issue

and led to the formulation of the concepts of valuing free speech and free religion which were incorporated

into our own Constitution.

Today, a new spotlight has been thrown on a previously unimportant issue. It is now cheap and e ective

to transmit almost any kind of information to anyone in the world, but we are arti cially restricted from

doing so by the government. True, the reasoning behind these restrictions is not as patently self-serving

as the British Crown's restriction on printing, but we must critically examine the reasoning for these laws

since there is such a mismatch between what the population is capable of doing (and clearly willing to do)

and what is legal. Is it ethically permissible to violate copyrights? Conversely, is it ethically permissible to

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enforce copyrights? As Kinsella notes[1], enforcing a law is tacitly threatening the use of force if it is not

obeyed. Are we justi ed as a society to use force against those who do not respect an arti cial monopoly?

Before continuing, it may be illuminating to go over some of the \obvious" facts of information economies.

First, the reason pro ered that intellectual property requires legal protection is that the marginal cost of

information products approaches zero in the limit. The creation of the product (e.g. writing a book or song,

or lming a movie) may require some initial layout of resources, but subsequent copying in the modern age

has an insigni cant cost, especially as physical media become less and less prevalent. Because of this, we

say that information is not a \scarce" resource. We can create as much of it as we want, and with digital

information we can produce copies with e ectively perfect delity. The solution copyright provides to this

situation is to arti cially create scarcity where it doesn't exist by restricting the ability to copy to authorized

entities. This is an intellectually vacuous and ultimately futile strategy, as we will see, but for now it's

important to note what problem copyright is trying to solve at its core. Because information is not scarce,

it quali es as what economists call an \non-rival" good, meaning that one person's use of the good does not

prevent its use by anyone else. As obvious as it seems, this is an important distinction to make in light of

the constant attempts to con ate copyright infringement with theft. The two are separate concepts.

As a nal interesting note on the economics of information, economists call non-rival, non-excludable

goods \public goods" [4]. Examples of other public goods are air, national security, and street lights. In

other words, public goods are goods that can't e ectively be charged for per use, and are just as useful

whether one person or a billion people make use of them. Because of this they are not subject to market

forces that dictate the prices of rivalrous or excludable goods. Copyright exists to push information out of

the public good category (by making it excludable) so that it can be traded on the market as if it were any

other kind of property. We will see that this abstraction is a leaky one.

We can break the issue of the ethics of copyright into two broad categories. The rst is whether strong

copyright permissible and useful, and the second is whether copyright is ever permissible or useful. Strong

copyright is the situation as it exists in the United States at the present. It is characterized by in ated

copyright terms (currently the lifetime of the author plus seventy years for works created after 1978), and

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by severely curtailed fair use provisions. Strong copyright is not a sustainable situation in the long run. If

current trends in copyright term extension persist, copyrights will last e ectively forever, leaving us with

an anemic public domain from which to create new works. In a world where all concepts and art are non-

remixable and protected by copyright with no possibility of derivative works, it becomes very dicult if

not impossible to create new works. It is essentially impossible to create an intellectual product without

drawing on existing experiences that one was given access to for free by virtue of them not being protected

by copyright. If all of these ideas become copyrighted, paying royalties to the rights-holders of all precursors

to your work will become the dominant activity of the human race. In such a sti ing atmosphere, it's dicult

to see an upside for anyone but lawyers. In addition, the Sonny Bono Copyright Act of 1998 extended the

copyright term retroactively for works registered after 1978[2]. This doesn't have even the ostensible bene t

of encouraging content producers to create because they couldn't have possibly known the copyright term

would be extended at the time the work was actually created!

Even if strong copyright doesn't have a good defense, it would seem to be a large leap to conclude that

copyright as a concept is completely awed. Perhaps when carried to the extreme it doesn't work, but

surely a more moderate copyright policy is justi ed? It's hard to produce some ethical framework in which

a copyright term of 10 years is justi ed, but 9 years is too few to reward authors and 11 is overly restrictive;

in the end, any copyright term and fair use doctrine is going to rely on some arbitrarily decided variables

[1]. This only makes us uneasy about the theoretical purity of a copyright policy, however. In practice some

compromise might be struck which both rights-holders and the public nd tolerable. Unfortunately, this is

far from the only diculty the concept of copyright faces.

Copyright is often discussed in terms of \intellectual property". That is, the proponents of copyright wish

to draw a parallel between the well understood and intuitive concepts of physical property ownership and

the less tangible idea that information can be owned. We've already discussed a fairly immediate problem

with this abstraction which is that information is easily copied whereas copying physical property requires

both human labor and capital. But the problems go even deeper because the way we use information is

fundamentally di erent from how we use physical property: copying and modifying is the only way we can

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interact with information.

Data remaining in digital form is not useful to anyone. Nor is data in a format that cannot be read. In

order to \consume" information, we have to convert it from its original representation (say as a series of

pits on a compact disc) to a representation we can comprehend (to sound waves we can hear). This process

requires both copying and transforming the information. In addition, when we hear it, we make a mental

copy of the information (albeit a lossy copy). We also transform the information again from sound waves

to electrical signals from our ears to our brains. Conceivably, the information is copied from synapse to

synapse as it propagates in our brain. But what is really being transformed here? Certainly there is some

underlying pattern whose state is being replicated in di erent mediums (CD,sound waves, electrical impulses,

neuron potentials) but ultimately all of these mediums are either free to use by the consumer (such as the

air) or are owned by the consumer (such as the CD, his brain and ears). He's purchased the CD from the

content producer, but it is well understood that the plastic CD is simply a delivery mechanism, the product

is actually the patterns encoded on the CD itself. This is problematic because the content producer is now

in the awkward position of condoning certain types of copying and prohibiting other kinds of copying.

Generally, the idea put forward is that copying for \personal use" is ethically permissible, but distributing

copies is unethical. This patch up is, again, an inadequate solution because it prevents communication.

Certain types of communication are prevented by law (such as espionage), but in general free speech is

considered a fundamental human right; however, since information is simply a pattern that can only be

represented by changing the state of some physical medium, preventing distribution of copies of certain

information is akin to creating a set of illegal states for the physical media you already own. If you purchase

a harddrive, there are certain things you know you cannot do with that harddrive: break someone's window

with it, hit someone in the head with it, (somehow) use it to commit fraud. These are restrictions on your

physical property that are known to you at the time you purchase it and are unlikely to change. Copyright,

conversely, is an ever-expanding list of illegal states that your harddrive cannot be in. And since digital

information always involves choosing some encoding of the data, the list of illegal states has to include all

possible encodings of copyrighted content as well.

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Every time a new work is created, it is as if a new law has been created that further limits the use of

the physical property you've already purchased. With physical property, it would be absurd if the number

of products a store sells a ected your ability to use the products you have in your home, but that is exactly

what happens when we treat information like property. The more intellectual property there exists, the

more physical property rights are restricted. Physical property rights and intellectual property rights are a

zero sum game [1]. So here we can see clearly the ultimate result of maximum intellectual property rights: if

every state your physical property can be in is copyrighted, there is nothing you can do with your physical

property.

Copyright restricts the ways we can communicate, and restricts the ways we can use the physical property

we own. But that property we own presumably includes our own minds. Carried to its logical conclusion,

hearing a song or watching a movie at a friend's house could be considered illegal copying. This isn't

considered much of an issue at the moment because humans have imperfect memories. If we didn't there

would be no reason to hear a song again or watch a movie again because we could instantly recall the original

experience perfectly. We are handicapped in this way, and being humans we naturally want to overcome our

handicaps. If we are unable to keep warm, we make clothes. If we are unable to see the details of the moon,

we build a telescope. Computers can be seen as a tool to overcome some of our limitations in cognition and

memory. Building tools to overcome our natural limitations is part of why we are successful as a species.

By the same token, our tools can be (and should be) considered an extension of ourselves. If a lmmaker

requires that everyone who watches his movie cannot watch it with contact lenses, he would be ridiculed.

But essentially, this arbitrary distinction between the tools we use and the people using them has been made

between a person and his computer. If a person watches a movie and happens to have a perfect memory, no

one will accuse him of copyright infringement, but if he uses a recording device and a computer to aide his

imperfect memory, suddenly he is a criminal.

But perhaps the communication to others is an issue? Actually, describing the plot of a movie, even

scene by scene and in great detail, is considered perfectly acceptable. With the aid of computers we can

enhance our ability to tell that story by simply showing them the movie in its entirety. Apparently, what is

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\acceptable use" is predicated on the inherent handicaps of the human race, which is essentially an arbitrary

distinction. Does scale have a fundamental e ect on ethics? Is it ethical to steal one piece of candy, but

stealing more than some n candies becomes unethical?

So what about the poor starving artists argument? How will artists make money if everything is free?

Surely less art will be made if there is no monetary incentive? Actually, it turns out humans created art

long before the invention of copyright. In fact, hundreds of thousands of people create art and release it

under permissive licenses from Creative Commons, which e ectively uses copyright law to create the state

that would exist if copyright were not present. And even in the heyday of copyright (before Napster) where

multi-billion dollar companies could e ectively enforce their copyrights, thousands of artists were making

art and not making any money. It has never been the case that being an artist, author or lmmaker is a

guaranteed path to nancial security. Without charging for copies, content creators can sell merchandise

(selling physical property), or they can perform live (selling their time as a service). Both time and physical

products cannot (right now) be duplicated for free, and while these are not guarantees of income, they're no

better or worse options than are o ered to artists under the current copyright regime.

Going forward, as technology improves our ability to bring our ideas into a form we can share with

others, more art will be created and more people will want to share it. Instead of creating the legal ction

that information and ideas are the same as physical property, we should be embracing the progress we have

made, and making the fullest use of it. The abstraction that information can be owned and its ow restricted

seemed reasonable when our ability to communicate was a mere trickle, but in the face of the breaking dam

of the information age, copyright's central idea simply doesn't hold water.

References
[1] N. Stephan Kinsella. Against Intellectual Property. Ludwig von Mises Institute, 2008.

[2] Lawrence Lessig. Copyright's First Amendment. In 48 UCLA Law Review, pages 1057{1065, 2001.

[3] I.S. Pool. Technologies of Freedom. Belknap Press Series. Belknap Press, 1983.

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[4] The Linux Information Project. Public Goods: A Brief Introduction. http://www.linfo.org/public_

good.html, February 2006.

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