Who's right? I'm not trying to duck by saying both are, and that these two passages are not necessarily in conflict. What I mean is that the purpose of copyright is (as Yglesias says) to encourage creation of works -- by (as Bunch says) "protect[ing] the intellectual property created by artists so they are rewarded for their efforts." But what's important isn't what I think; what really matters is what Justice Ginsburg, joined by six other members of the Supreme Court, said in footnote 18 of Eldred v. Ashcroft, 537 U.S. 186 (2003) about this very subject: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.
Yglesias responds:
The point of intellectual property law is to benefit consumers, not producers. I don’t really want to turn this into an ideological food fight, so I’m eager to note that libertarians like Julian Sanchez and Tim Lee have the right take on this. I note that this issue is specifically addressed in the Constitution, which says that patents and copyrights should be granted “for limited times”—i.e., not as a transcendent moral right—in order “to promote the progress of science and the useful arts,” again, not as a matter of transcendent moral right.
Justice Stevens’ characterization of reward to the author as “a secondary consideration” of copyright law, post, at 6, n. 4 (internal quotation marks omitted), understates the relationship between such rewards and the “Progress of Science.” As we have explained, “[t]he economic philosophy behind the [Copyright] [C]lause … is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.” Mazer v. Stein, 347 U.S. 201, 219 (1954). Accordingly, “copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge…. The profit motive is the engine that ensures the progress of science.” American Geophysical Union v. Texaco Inc., 802 F. Supp. 1, 27 (SDNY 1992), aff’d, 60 F.3d 913 (CA2 1994). Rewarding authors for their creative labor and “promot[ing] … Progress” are thus complementary; as James Madison observed, in copyright “[t]he public good fully coincides … with the claims of individuals.” The Federalist No. 43, p. 272 (C. Rossiter ed. 1961). Justice Breyer’s assertion that “copyright statutes must serve public, not private, ends” post, at 6, similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.
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I think you put this well--that both Bunch's and Yglesias's claims can be complementary.
ReplyDeleteWhat's most interesting/problematic for me is that these statements don't feel complementary--i.e., their rhetorical stances are extremely different. When Bunch starts talking about "punish[ing] people who steal that which isn't theirs," and when Yglesias accuses him of asserting a "transcendent moral right," our understandings of copyright are forced to respond to the extremity of these claims. Their rhetoric starts to sift into the minds of listeners, shaping how we think about the topic--which is, of course, exactly what it's designed to do.
So what am I saying? I'm not quite sure, but I find myself attracted to Yglesias's rhetorical coloring more than Bunch's; I find myself wanting to say, "Let's get away from all this talk of stealing and criminality and let's focus instead on the crucial need for a cultural commons, for exchange, for sharing!" But it's also hard for me to know when I need to return to the court's coloring, and when I should resist rhetorical flourishes on this topic--which are oh-so-common.
In any case, nice post! You've got me thinking.
The purpose of copyright is to promote the arts and sciences, as was stated. The fight over whether copyright as is benefits consumers or producers doesn't seem helpful. And while it's probably true that granting protection to an artist's works promotes the arts by incentivizing him to generate art, it seems that depends on the nature and scope of the protection given. Furthermore, it's not at all clear that such a system is the only way to promote the arts. The debate as you describe it seems myopic.
ReplyDeleteI think the relevant question is not about the relationship between incentives and the public good but whether the particular bundle of rights that copyright today confers on authors provide the most appropriate tools for creating a functioning market with today's technology. I would argue they do not, and thus incentives are frustrated.
ReplyDeleteBen, you're certainly right both the Art. I-8-8 language and the SCt's body of case law indicate that the securing of economic rights for authors complements the public interest, as Justice Ginsburg writes. I happen to think Justice Stevens' characterization of the economic award to authors as "secondary" is in fact, correct, and is not contradicted by Justice Ginsburg's statement that the two are complementary. "Complementary" does not necessarily mean "equal." (Compare the strains of Judeo-Christian theology that conceive of the origins of Adam and Eve. The two genders certainly complement one another, but in that tradition, one is deemed to have originated from, and be secondary to, the other. I don't subscribe to that view, but it illustrates the point.)
ReplyDeleteIt sounds liek you're saying these two interests are equal. But int hat case, you're not saying both SB and MY are right - you're saying they're both wrong.
There is also the secondary tier to consider. Developments in sound recording, for exmaple, aren't primarily for the guy at home to record himself reciting "Mary had a Lttle Lamb" but to those professional studios that are looking to invest in the art of selling recordings. What the freetards omit is that this wasn't possible we'd probably still be little further on from playing wax discs on the Edison Phonograph.
ReplyDelete"Copyright law serves public ends by providing individuals with an incentive to pursue private ones."
ReplyDeleteThus the focus ought not to be on whether to reward artists or benefit the public, but rather what is the correct incentive to create works. Unfortunately this debate is often lost in the argument of the purpose of copyright law. In theory we want to incentives all works where the social benefit outweighs the cost of production. How to do this is the question worth debating.
"There is also the secondary tier to consider. Developments in sound recording, for exmaple, aren't primarily for the guy at home to record himself reciting "Mary had a Lttle Lamb" but to those professional studios that are looking to invest in the art of selling recordings. What the freetards omit is that this wasn't possible we'd probably still be little further on from playing wax discs on the Edison Phonograph."
ReplyDeleteSo now copyright exists so that we'll have better sound recording equipment?
Hmmm, round about reasoning you have there.
Ben, I actually think there's more difference here than you argue. A moral rights / labor desert system of copyright would look quite different from one based upon utilitarian motives - for one thing, it would have greater protections for interests like attribution than the Copyright Act currently does, and it might well make certain aspects of protection inalienable. The Adam Smith move of aligning public and private interests is right, but I don't think that's the only set of considerations at work here.
ReplyDeleteThe founding fathers devoted little time to arguing in favor of the copyright and patent clause in the Federalist Papers, indicating that it's propriety was self-evident. They believed that, "[t]he public good fully coincides in both cases [copyright & patent] with the claims of individuals."
ReplyDeleteBut this debate has existed ever since the printing press first arrived in England in 1476, eventually prompting the Statute of Anne, off of which the United States based it's copyright law. Implicit in the Statute is both a natural rights theory that authors are entitled to the fruits and rewards of their labor without limit, and a utilitarian aspect that it is ultimately the public domain that should benefit from the knowledge and talent of those who need to be incentivized to disseminate their works rather than keep them hidden.
To somehow tease those two apart is a difficult, if not impossible, task. If one believes the preeminent goal of the law is to incentivize authors to bring their works out of hiding, then that equation necessarily involves a public who will consume those works. On the other hand, if one advocates that copyright law exists mainly to enrich the public domain after the monopoly period lapses, then one has to accept that, for that to happen, authors need an incentive to not keep their works secret.
Given the history of the copyright in England, and how it enriched the publishers at the expense of the authors, I'm going to side with the notion that providing incentive to authors is the thrust of the law, with the caveat that people create for an audience, without which they'd probably do something else. Afterall, "No man but a blockhead ever wrote, except for money." - Samuel Johnson
First off, the opinion of Supreme Court Justices (even if they are unanimous) most emphatically do NOT matter in a philosophical debate any more than the rest of us - even when it pertains to the philosophy of law. They only take on an increased importance if one is debating how court Justices personally choose to interpret the constitution (which is not at issue here).
ReplyDeleteSecondly, despite your attempts to split the baby by engaging in word play, you effectively concede Yglesias's point by stating that "the purpose of copyright is (as Yglesias says) to encourage creation of works". Those are the ENDS - which is what the core of the debate is about.
You quote Bunch as a way of discussing what you believe to be the best MEANS to that end. But if your question is "What's the point of copyright?", that is a question that asks about ultimate ENDS, not MEANS.
As to the question of what the best MEANS are, that is obviously part of the ongoing debate. People can disagree, but anyone who suggests that the current copyright regime is the MOST effective way of ensuring both the creation and distribution of works is simply living on another planet. The vast majority of society that has grown up in the digital age understands that any improvement needs to come in a loosening of copyright restrictions, rather than a further strengthening of it (or maintenance of the status quo).
You only need a cursory scan of the news on the Internet to discover a concrete myriad of creative works that have either been suppressed due to copyright, or exist only in an underground 'black market' that the restrictive IP regime has created. At the same time, I think you would be hard pressed to find a band, studio, writer or any other artist who has specifically indicated that they have failed to create a work they otherwise would have due to the notion that the copyright on it wouldn't be long enough to make it worth it for them.
One could certainly try to argue that the status quo is still better for the ENDS than a complete discarding of copyright altogether, but there is no reason to force people into that dichotomy. Though I should note that if you choose to force people into that dichotomy, more and more will choose the latter option, rather than the former. That is why file sharing has flourished.
The good news Ben is that, to the extent that you try to stand up for the status quo, there is no indication that you are making any real headway. The more people engage in the digital world, the more they see that you are on the wrong side on the issue. And ultimately, no amount of lawyering is going to change that. The ultimate outcome will either be an eventual loosening of IP laws, or a continued flourishing of the IP black market (call it 'piracy', or 'theft' or whatever you want - people will understand what the real moral stakes are and won't be swayed by attempts to shame them through false rhetoric).
@Anon 8:14:
ReplyDeleteFrankly, I'm a lot more interested in copyright law as it is actually practiced than with "philosophical debate," so the views of Supreme Court justices on this subject matter a lot to me.
And I think Justice Ginsburg's words are a valuable rejoinder to a kind of misguided argument I often see that goes something like this: In a debate about a particular case, say with an arguable fair use defense, partisans of the defense will say: "The purpose of copyright is to encourage the creation of more works. The defendant created a wonderful work, thereby fulfilling the purpose of copyright. Therefore, he should win." I think this mode of analysis is wrong; the question should be whether the defendant infringed the plaintiff's rights under the relevant statutes and case law, which, over the long run, and admittedly imperfectly, support the creation of creative works. Bill Patry discussed this very issue (responding to my arguments) in this post, especially with his citation to County of Suffolk v. First American Real Estate Solutions, 261 F.3d 179 (2d Cir. 2001):
http://moralpanicsandthecopyrightwars.blogspot.com/2009/09/is-there-any-copyright-clause.html
This is how I usually explain the point of patents and copyrights to people who are taking an interest for some reason:
ReplyDeletePatents and copyrights are monopolies. Our law generally doesn't like monopolies, but we've decided to make a deal with artists and inventors. The deal is, 'Share your work with us, and in return we will give you a monopoly on its use for a period of time. But in exchange for our using the legal system to protect you, when the period of time is over, the work belongs to everybody.'
I think that copyrights should be, if anything, stronger than they are now. However, I think they should be much smaller in *duration.* At the very most, they should be limited to the lifetime of the author or, say, twenty-five years, whichever is longer. We can argue about the exact time, but it should be SHORT. A generation at most, if the author is no longer alive to control the work. This perpetual copyright business which we have apparently entered into is *breaking the deal.* It's granting exclusive rights, protected on our dime, forever, with nothing in return.
Anon 8:14 -
ReplyDelete"The ultimate outcome will either be an eventual loosening of IP laws, or a continued flourishing of the IP black market"
Practically speaking, in the 500 or so years of copyright law in the world, the laws have never been loosened. To assume that there will be some reversal of the protections granted to authors merely because some internet kids grew up with a sense of entitlement to the works of others without paying is contrary to reason, precedent, and common sense.
And when the laws get restricted even further, or yours ISP begins to police your connection, or whatever is inevitably to result from the proliferation of this so-called IP black market, then the only people to blame for that will be people like yourself.
Marc -
ReplyDeleteWell-stated. But in order to get any reduction in the term of copyright, the US is going to have to stop harmonizing its laws with those of other countries, which also means relinquishing certain protections overseas.
Clearly, it is difficult to equate life + 70 years with "Limited Times," but somehow the Supreme Court shoehorned that justification into its decision in Eldred, despite studies showing that "Because the additional compensation occurs many decades in the future, its present value is small, very likely an improvement of less than
1% compared to the pre-CTEA term."
Therefore, if the design of copyright is to provide an incentive to create, it becomes difficult to presume the even longer periods provide that. If the term was reduced, but combined with strengthening of other rights, then we could achieve the same balance.
There is also the secondary tier to consider. Developments in sound recording, for example, aren't primarily for the guy at home to record himself reciting "Mary had a Little Lamb" but to those professional studios that are looking to invest in the art of selling recordings. What the freetards omit is that this wasn't possible we'd probably still be little further on from playing wax discs on the Edison Phonograph.
ReplyDeleteLet me get this straight. Only professionals are supposed to have recording equipment? Are you trying to say that I shouldn't be allowed to have my own recording studio in my basement?
Let's face it. If possible the RIAA member companies would love to make it illegal for operations like mine to exist. If they could do that, then they would be able to retain control over production of sound recordings. Instead they have to compete with me, and my costs are a lot lower than theirs.
The other consideration that everyone has missed, is that people like myself use the torrent sites/P2P networks as a distribution tool. Therefore anything that I've uploaded is a LEGAL download. The general assumption that everything on Torrent Sites and P2P networks is illegal is incorrect.
FYI - several years ago the Mozilla Foundation reported that they'd gotten an inquiry from the cops in the UK, about car boot sales of Firefox on compact disc. When the cops were told that this was legal, they complained that 'If you are giving it away for free how are we supposed to tell what is legal?'
"The general assumption that everything on Torrent Sites and P2P networks is illegal is incorrect."
ReplyDeleteThat's like one person saying, "Pi is 3.1415," and another calling him incorrect because it's "3.14159." The difference is in degree, not of kind.
Given the recent studies showing that 99% of torrents infringe copyright, and that 99+% if not 100% of the torrents in current demand infringe copyright, the general assumption is not only warranted, it's well-founded.
I stil believe the basic issue here is that people want free music and books and don't care that the artists and writers whose work they admire so much go uncompensated.
ReplyDelete