Every once in a while I run across someone very smart who has become completely lost by intellectualizing out of all proportion to the issue at hand. In some cases this is intentional: the objective is to display dizzying mental agility, then perform some sleight of logical mind that allows the smart person to convince others that up is down. At other times the smart person has actually deceived themselves, losing the forest of reality for a theoretical tree that some other intellectual lifted a leg on.
I don’t think there’s anybody who has a higher ratio of smarts to brain cramps than Christopher Hitchens. I could read Hitchens all day, just to enjoy the flow of his language and the logic of his ideas, even as he launches many of those diatribes from premises I consider invalid, destined for conclusions I deem absurd. In the more duplicitous camp I think of none other than George Will, the humorless columnist who enjoys nothing more than turning his megawatt mind to the subjects of both politics and baseball, with equally dubious results.
I mention all this as preface to a post* a couple of days ago by Matthew Yglesias, who is a smart person. Regarding the effect of free (stolen/pirated) content on the record industry, Yeglesias writes:
But under conditions of perfect competition, the price of a song ought to be equal to the marginal cost of distributing a new copy of a song. Which is to say that the marginal cost ought to be $0.
It’s of course amazing to me that someone could write something like that and not recognize the obvious problem, which is that this paradigm allows for no costs associated with the creation of the music that is being distributed, nor any opportunity to recoup those costs — let alone turn a profit. Then again, this is what happens when smart people talk about things like intellectual property as if it simply exists inside the walls of a black corporate castle, rather than as something that someone — an artist or craftsperson — makes.
Obliquely recognizing the potential problem, Yglesias adds:
It is, of course, possible that at some point the digital music situation will start imperiling the ability of consumers to enjoy music. The purpose of intellectual property law is to prevent that from happening, and if it does come to pass we’ll need to think seriously about rejiggering things.
In reply, Sonny Bunch makes the obvious point in a post titled 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.
Yglesias, in his reply to Bunch, again ignores the question of authorship, or even the existence of the artists and craftspeople who create content:
He’s being sarcastic, but that is, in fact, an absolutely insane idea. The point of intellectual property law is to benefit consumers, not producers.
Note that last word: “producers”. That’s not the same as: artists.
To the Matthew Yglesias’ of the world, no human being with a passion or a vision actually makes music or tells stories that they hope to sell as a product. That’s all done by corporations and copyright holders, who are just looking to make a buck. Admitting as much, Yglesias reaches for an analogy and comes up with…the pharmaceutical industry.
Does Bunch think it’s a terrible affront to the moral rights of pharma researchers that there are generically available drugs? Does he want to see ibuprofen and penicillin and measles vaccines taken off the market? That’s crazy.
The only thing crazy here is the inability of a very smart person like Matt Yglesias to wrap his mind around the idea that without copyright protection, there exists no object — no ibuprofen pill — for artists to sell. That’s how complicated it isn’t.
*Links from Andrew Sullivan’s blog yesterday. Additional comments today from Sulivan’s readers here. The Ditchwalk take on this issue, also posted three days ago, and reader comments, here.
— Mark Barrett
Zoe Winters says
All I hope is that Matthew never stumbles upon my work. A world in which the artist just doesn’t exist except as some slave class meant to entertain them for a pat on the head isn’t a world I wish to live in, thanks.
The purpose of copyright law wasn’t to constantly expand it such to protect an industry because they feel like being protected. Yet this is exactly what has happened.
This isn’t about artists, or grips or studio musicians or any such thing. This is about the music industry protecting its assets and trying to get the public to buy their wares how & when the industry wants. The industry does not care about the artists interests.
If they had their way you’d be buying it for every device you own. Fair? Hardly.
GlobalMind (if that is your real name*),
I don’t disagree with your sentiment, but I also cannot agree with your premise. As noted in the comments to an earlier thread (What You Steal), I agree that the major extension of copyright protection was bad law designed not to help artists, but to help copyright owners, and would not protest its repeal. The original copyright law, however, is critical to the life of anyone who creates, and I support it fully, including opposing the Google/Authors Guild end-run around its provisions.
If corporations have co-opted copyright law and shaped it in their own image, that only separates copyright law by one degree from the people who create the works that are copyrighted. You can say you don’t want businesses to be able to create works on a work-for-hire basis, but even that I think is fair. What I cannot abide is the idea that we have to void copyright protections for writers and artists because the big faceless companies in our lives are pushing us around.
Push back. Don’t steal. Don’t pirate. Buy your content directly from artists. Spend your art/entertainment dollars on direct experiences, rather than corporate experiences.
As an aside, and not directed at you personally, I would find the anti-corporate angle in the anti-copyright argument much more persuasive if it wasn’t also protecting the consumer’s right to get whatever they want for free. You don’t see people who argue for fair trade coffee also arguing that it should be free to the consumer. Yet somehow content is deemed to be like the air we breathe, or the water we use to be able to drink without buying it in plastic bottles that clearly pollute the planet and may or may leech carcinogens.
* An old joke from Dr. Strangelove, and no comment on your chosen name.
Levi Montgomery says
I think the reference to “perfect competition” is a hint to where Mr Yglesias is coming from. To paraphrase: “But under conditions of perfect competition, the price of X ought to be equal to the marginal cost of creating X.” Fine, as far as it goes, but the claim of “perfect competition” introduces some constraints to the market in question:
* Infinite Buyers/Infinite Sellers – Infinite consumers with the willingness and ability to buy the product at a certain price, Infinite producers with the willingness and ability to supply the product at a certain price.
* Zero Entry/Exit Barriers – It is relatively easy to enter or exit as a business in a perfectly competitive market.
* Perfect Information – Prices and quality of products are assumed to be known to all consumers and producers.
* Transactions are Costless – Buyers and sellers incur no costs in making an exchange.
* Firms Aim to Maximize Profits – Firms aim to sell where marginal costs meet marginal revenue, where they generate the most profit.
* Homogeneous Products – The characteristics of any given market good or service do not vary across suppliers.
I’m not going to bother, in the limited span I think a comment on a blog should cover, to list the ways in which this does NOT describe the marketplace for any kind of artistic endeavor. I’m going to assume your readers are smart enought to get their heads around that on their own.
One of the things that goes wrong when smart people lose the forest for the trees is that they get stuck at the wrong level of abstraction. Yes, it’s incredibly useful to be able to zoom in and out from a concrete, real-world specific to a global, theoretical overview, but that doesn’t mean all points on that continuum are equally valid or important.
Economics is an intellectual black hole in this way, and more than one person has been crushed by gravity while trying to map economic theory to the way the world works. I don’t blame Yglesias, but I do say he has a responsibility not to fall prey to this kind of mistake — particularly when many of his readers use his opinions as the basis of their own.
Interesting take, but the fact is U.S. copyright never really has been about protecting creators (or authors, or artists). In theory, this is supposed to be the case. In actuality (and throughout its history, including much of its English roots), copyright has existed to protect distributing intermediaries.
By law, copyright begins in the hands of the creator, but the creator rarely continues to keep that work when it comes to copyright ownership — which, in the U.S. system, is the ultimate barometer that governs rights and limitations. For example, all employees (and most contractors) cede their copyright ownership rights to their employers (or hirers) under the work made for hire doctrine, or pursuant to contract. (It is possible for a creator to reclaim ownership rights after certain periods of time under a doctrine called copyright termination, but doing this properly is extremely difficult. This is the issue in the fight over Marvel Comics.)
If you look at the legal regimes in 15th through 18th century England — ultimately, the source of and model for U.S. copyright law — may of those regimes were about protecting printers and printing privileges from the Crown. Authors — creators — had little to do with it. In fact, the Statute of Anne in 1710 (widely acknowledged the world’s first copyright statute, and the model upon which the U.S. based its first copyright statute) actually was the first piece of legislation that specifically went away from the printer protection model.
Of course, one of the theories for having copyright is the incentive theory: copyright is necessary so that creators will have the economic motivation to produce creative works, and without such motivation, people would not create. There are various debates about this, including its applicability to scholarship (per Steven Shavell) and the networked economy in general (per Yochai Benkler). Is it possible that creators create merely for money? Yes. Is it increasingly possible, now that the tools of creation are more widely accessible to the public, that people create just for the sake of it? Yes. If the latter is true, then the incentive theory of copyright — which long has been the only theory why copyright exists — begins to fall on its face.
Of course, artists want to get paid, and since there are many among us (and since we mind the business interests of a few more), we look for a variety of ways to make that happen. Having copyright protection — which now is automatic under U.S. law once something is creative and fixed (or recorded) — is one tool we use to make that happen. But it would be folly for us or any of the artists we assist to think copyright solely (or even mainly) will help us get paid. There are a lot of good artists who have existing, legitimate, and even registered copyrighted works who are not getting paid.
As for Yglesias’ comment about the public being the purpose (or beneficiary) of copyright, that should not be controversial, as that is embedded in the U.S. Constitution: “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
I don’t disagree with the sentiment behind many of your points. But again, I do have concerns that the intent of copyright law is being summarily dismissed simply because its been abused by big business. For example, when you say this –
– I feel as if you’ve countered your own argument in two sentences. U.S. copyright law was always about protecting creators, both in theory and in practice, both as to incentivize creation and to protect those who created from having their creations appropriated.
In practice copyright law has become a mainstay of businesses which seek to perpetuate copyrights as a revenue stream, and I’m on the record as being against that practice. But I don’t see getting rid of copyright law or voiding it with regard to digital content as doing anything but eviscerating the rights of artists and craftspeople — whatever else it might do to the good, depending on your views.
I also cannot agree with this:
Or rather I might agree with it, but I would still insist that copyright law be upheld. Why? Because today we stand at the historical moment when your practical concerns about a theoretical good are being turned on their ear. Now, for the first time in history, I as a writer can be my own distributing intermediary — which is to say that I can omit any intermediary in distributing the content I create.
So here I am, ready and willing, and yet I’m being told again and again that A) the issues are super complicated and B) we have to get rid of copyright because somebody else spoiled the law for me.
No, and no. The issue is not complicated. We do not have to get rid of copyright law.
You presuppose mutual exclusivity where it does not apply. Almost by definition there are amateurs and professionals in every business and walk of life. Professionals need copyright law in order to make a living — even if they exercise copyright protection by proxy as an employee of a company that owns the copyright to the material they create. Amateurs also profit from copyright protection, but a veritable flood of amateurs does not void the needs of those people who choose to make content creation their profession.
In theory, U.S. copyright law is only about incentivizing creation. It’s right there in the copyright clause: “To promote the Progress of Science and useful Arts”. Providing exclusive rights to creators is only a means to that end.
In practice, those words have been ignored for years, until they were finally effectively written out of the constitution in Eldred v. Ashcroft.
I do understand what you’re saying. But I also think the premise that people who create intangible intellectual property should have some right to that property remains. I also think it’s interesting that the idea of intangible intellectual property predates and anticipates the digital age. Courts could have limited protection to realized works (books), rather than the ideas contained therein. They didn’t, and I think that’s a good thing.