The Prelator

Weblog of Patrick McKay

Archive for December, 2008

The Injustice we call Copyright Law

Posted by darklordofdebate on December 16, 2008

It’s been way too long since I’ve posted on this blog, so I’m going to share a post I recently wrote on my favorite subject: copyright law. While I have held these opinions for a long time, this is the first time I have really attempted to write them out in a coherent manner. It is my contention that American copyright law is such a broken, outdated, immoral, and corrupt system that it has lost all moral legitimacy in the eyes of the public, and is desperately in need of reform. I will explain my reasons for this belief below.

First, we need to examine the reasons copyright exists and the primary argument in favor of tough copyright restrictions, namely that music “piracy” hurts artists and is killing the music industry. Regarding the impact of piracy on artists, most people act like this is a settled question, when in fact it is anything but that. Sure you have studies galore sponsored by Hollywood and the recording industry saying they’re losing billions to piracy, that it’s hurting artists, etc. And then you have other studies concluding that the effect of piracy on music sales is “not statistically distinguishable from zero.” Which one of these is right? I honestly don’t know. In some cases, the numbers cited are simply false, such as when the MPAA once admitted it blatantly lied about the figures in one of its studies and made the number up. Other studies are genuine though, and deserve to be evaluated fairly. Having studied the basics of social research design and read a great deal on this particular subject, I’ve concluded it really comes down to what assumptions a given study makes, which in turn depends on the biases of the researchers.

The music industry automatically assumes there is a direct 1:1 correlation between downloads and lost sales, so every song downloaded equals a lost sale. With that assumption, it’s little wonder they conclude the music industry is losing billions to piracy. Even then if you actually add up all the loses they claim you find it’s a miracle the music industry still exists at all, considering that the total loses their studies predict are greater than the entire gross revenues of the music industry in the last 10 years.

Other studies attempt to take into account effects such as downloads motivating future sales, helping people discover new artists, sampling and then buying, or the fact that many people who download would never have bought the music anyway if they could not get it for free. When you question the basic assumption of a 1:1 correlation, the impact on the music industry is significantly less. And while it’s true some of these studies are relatively old (2002) keep in mind that research studies like that take a long time to perform so newer studies are not yet available, and that 2002 was still during what many people consider the heyday of p2p when mass illegal downloading first really took off and when you would have seen the most dramatic affect on music sales if indeed there was one. From this, I think the only really safe thing we can conclude is that while there is some negative effect on music sales from downloading, it is almost certainly not a 1:1 correlation, and every download does not in fact equal a lost sale. Beyond that, the jury is still out.

Second, regarding the morality of music piracy, that also is a sticky question. People often try to simplify the debate by equating piracy with theft, which is simply an invalid comparison. There is a reason our laws classify piracy in a totally different category than actually theft, simply because when you make a copy of a digital file it has no effect on the original. The concept of theft inherently entails the idea that when one person steals something, the original owner no longer has it in his possession, which with intellectual property is obviously not true. When my actions do not deprive you of your property, it cannot be called theft. Thus I think it is wrong to classify copyright infringement in the same moral category of property theft.

At it’s core, copyright is an application of what economists call the Coase Theorem, which is designed to supply incentives for the creation of positive externalities (beneficial things which characterized by limitless supply and the near impossibly of restricting access to them). It does this by creating a regime of artificial property rights, granting the creator exclusive right to produce “copies” of his creative work, which in theory allows him to benefit from that work providing an incentive to create it. Modern copyright law is thus a very utilitarian policy. Rather than recognizing some kind of inherent right of mankind as physical property rights do, it is meant to achieve a policy objective of, in the words of the Constitution, promoting “the progress of science and the useful arts.” This makes copyright merely a legal convention with no inherent moral value in itslef. In terms of legal philosophy, violating copyright law would be considered mallum prohibitum (evil because it is prohibited) rather than mallum in se (evil in itself).

The question then becomes, is violating the law always immoral? The typical Christian answer is “yes” since God commands us to obey our authorities, but I’m not convinced of this. It is also a long held aspect of Christian legal philosophy that “an unjust law is no law at all” (Augustine), and after studying copyright law extensively over the last few years I have come to the conclusion that the entire system of American copyright law is so chaotic, confused, corrupt, and in many cases blatantly unjust that it has lost any claim to genuine moral legitimacy. This does NOT mean we should feel free to violate the law at will, just that it is not necessarily immoral to do so and in some cases could be morally justifiable.

Indeed, it is almost impossible to NOT violate copyright law on a daily if not hourly basis, with some studies concluding that the average person incurs thousands of dollars in copyright liabilities every day. Technically every time you view a website on the internet copyright law is invoked since the site’s content is temporarily copied to your hard drive, though it is doubtful that any court would actually declare this illegal. The RIAA has stated they consider it illegal to rip legally purchased CD’s to your own computer, which technically makes a copy of the music. The DMCA explicitly makes it illegal to break the copy protection on legally purchased digital songs, even for personal use. It is thus illegal for me to break the DRM on a song I purchased from Wall-Mart’s music service to allow it to be played on my iPod. Likewise it is illegal for me to break the copy protection on a DVD to rip it to my computer either for personal use or even things that would otherwise be protected fair use, such as using it for commentary or criticism. It is illegal for me to take video footage at debate tournament and post a music video of it using copyrighted songs to YouTube (which I frequently did while I was in NCFCA), even though that video has zero potential to impact the artist in any way. Documentary film makers spend thousands of dollars clearing the rights to every copyrighted image, video clip, or song in their film, even if it just appeared briefly in the background of a scene they filmed themselves; and if they don’t they risk hundreds of thousands of dollars in legal penalties.

In the related area of patent law, large successful corporations are frequently held hostage by tiny groups of “patent trolls” who can sue for millions merely because they own a patent on a vaguely similar idea to the company’s product. Even if it is totally bogus, these companies still have to spend thousands of dollars in legal fees to defend themselves, and usually settle out of court to avoid the legal hassle. A similar kind of extortion is seen with the RIAA music downloading lawsuits, which sues thousands of people every year based on extremely weak evidence, but still succeeds in extracting thousands of dollars in settlements from people who are unable to afford the high cost of defending themselves in court and unwilling to risk incurring penalties in excess of $100,000 if they fail to prove their innocence. Even when these cases do go to trial, the victims are given virtually no due process, but are presumed guilty unless proven innocent; and judges frequently award huge judgments to the recording industry based on murky legal principles and technology they admittedly do not understand.

All of these injustices are totally legitimate under modern American copyright law, and are in fact encouraged by it. While copyright started as a means to promote progress in art and science, today it is anything but that, and likely PREVENTS more creativity and innovation than it encourages. In principle it is a beautiful thing, but in practice it is nothing more than a corrupt regime of injustice and extortion, which in my mind deprives it of any real moral legitimacy.

However, even if I am wrong on this, I’ll leave you with a final thought. The whole issue of whether music piracy is morally right or wrong, whether it hurts artists or not, etc., is really irrelevant. This is because no matter what you think about things like illegal downloading, it is not going to go away. You cannot simply make the internet disappear. Digital technology and its effects on creative work are here to say. The only question is how we will respond to it. For the last 5 years, organizations like the RIAA have waged war on the youth of America for this thing they call “piracy.” Yet nothing they have done has had the slightest impact on illegal downloading or reduced it in the slightest. Recent studies estimate that approximately 80% of American youth still illegally download music. In short, the war was lost before it even begun. Attempts to deal with the problem of piracy have thus clearly failed. The only question is will we continue to criminalize an entire generation of kids who merely do what technology enables them to do, teaching them to live with the mindset of criminals and decreasing respect for the law as a whole; or will we take advantage of numerous proposals for alternate systems which still provide incentives for artists to create but do not make 80% of American kids into criminals?

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