Some stylized facts, two assertions, and one question about copyright and file sharing

It seems that one of my alt-rock heroes, David Lowery*, has managed to spark a debate over how musicians fare in the brave new world of digital distribution and file sharing. That’s a good thing because creators are all-too-often taken for granted in the copyright debate, although (as you’ll see below) I think that framing file sharing as an ethical issue is not a great way to move this debate forward.

Since his argument has already sparked tons of commentary, I’m going to take this opportunity to organize my own thoughts on the stylized facts that I use when thinking about copyright, which is the law that regulates file sharing. (I’m also preparing some lessons on copyright/IP for the courses I’ll be teaching this year, so this exercise counts as preparation, not procrastination.)

So much of the general copyright and file-sharing debates is plagued by people talking past each other in absolutist, moralizing language that it’s hard sometimes not to curl up, whimpering, under my desk. Part of the problem is that people are working from different assumptions, which means it’s really hard just to get past the “downloading is theft”/ “no, it’s infringement” tediousness.

So, here’s where I start from when I write and talk about copyright. I’m betting that at least one of these points will be controversial.

Some stylized facts:

  • The goals of copyright are twofold: to achieve an optimal level of creative production; and to maximize dissemination of creative works.
  • Copyright law assumes a) that monetary remuneration is required as an incentive to creative production; and b) that providing property rights in creative works is the best way to achieve this objective.
  • Property rights are never absolute – there are always some societally set limitations on an owner’s rights in her property. For example, police can enter your house with a search warrant.
  • We have different property regimes for different things. Some things are clearly private property (apples, oranges), others are held in common (public parks).
  • We can judge the effectiveness of specific property regimes based on empirical criteria (e.g., does copyright allow society to optimize the production and dissemination of creative works?).
  • Copyright is a policy designed to achieve a society-wide objective. It is not designed to improve the conditions of any one group.
  • Copyright is not designed to ensure artists’ remuneration, any more than laws protecting private property are designed to ensure that workers get paid. It is designed to ensure that an optimal level of creative production is reached, and that these works get distributed.
  • Different modes of production, like different types of copyright laws, always create winners and losers.
  • Both what can be copied and by whom are set in law as the result of a political process. Neither is set in stone.
  • Economic theory teaches us that we should only count something as a lost sale if the person who downloaded the work would have paid for it at or above the offered price. This is why you can’t translate the number of downloads of a song directly into a finding of lost revenue.
  • Copyright is only one possible tool we can use to regulate the market in creative works.

Two assertions:

  • Copyright, and the effects of file sharing, should be judged on whether they achieve specific societal objectives. This requires empirical evidence.
  • Discussing copyright in terms of ethics or morality is a sure way to guarantee an unproductive debate. Where do my rights end and yours begin? How do we judge who has the prior or best claim? Philosophers have been debating morality and ethics since the time of Socrates. If we haven’t come to an agreement on what’s moral by now, maybe we should move the argument onto more solid, evidence-based grounds. It’s my sneaking suspicion that debates about ethics are usually about something else.

One question:

  • If we had a livable guaranteed annual income in Canada (or the U.S., or wherever) (a policy promoted by Conservative Senator Hugh Segal, among others), would critics like David Lowery still be concerned about file sharing?

That’s my chain of reasoning. Thoughts, additions, critiques welcome…


* I’ve been following Lowery and his bands Cracker and Camper van Beethoven for, wow, almost 25 years now. (If you like either band, you should check out his recent, excellent solo album.) Back in my undergrad days, I interviewed him twice. He was always good for a quote, my favourite being when he asked me how I felt that Canadians were basically just sober Australians (I was too star struck to have a witty reply). It’s a line I used a lot during my time at Australian National University. As the arts editor at my university student paper, I commandeered the office tape deck (ask your parents) and played Kerosene Hat nonstop for a month and a half, and staged a mini-coup to have Cracker declared the paper’s official band. I don’t think our editor in chief ever forgave me for either incident.

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