Vermillion on Copyfights
Richard Vermillion writes re my copyfights post:
I wanted to comment on your recent debate with C. E. Petit about
copyrights. Like many discussions about copyrights, yours quickly turned
to a discussion of the "property" question. Encouraged by the
"intellectual property" label, advocates on both sides start listing their
reasons that IP is a special kind of property, and, if so, what kind. But
I would argue that property is the wrong metaphor all together, for several
First, as you rightly brought up, ideas are non-rivalrous. Without an
impending "tragedy of the commons" there is no justification for perpetual
property rights. Rather than non-rivalrous property, why should that which
"no one possesses the less because everyone possesses the whole of it" be
called property at all? The founders felt the need to justify the
Copyright Clause (and limit it) precisely because there is no natural
Second, it obscures exactly what is "owned". It's certainly not, as
Petit seems to think, the idea itself. The copyright owner cannot (prior
to the DMCA at least) control the use or future sale of the content. She
cannot demand that I stop thinking the thought or humming the tune or
envisioning the blueprint or, even, reciting the source code in my head.
The "owner" simply has an alienable right to control copying of the work
for a period of time. And even this right is constrained by fair use.
This right to copy, perhaps, should itself be treated as property in the
sense that it can be bought or sold, contracted out, and cannot be taken
without due process. But the "intellectual property" metaphor
(intentionally?) confuses the issue, by making it seem that the idea itself
is the property (see the first point above). (Caveat: I'm obviously
talking specifically about copyright here -- I understand the situation is
a bit different with trade secrets, which are treated more as intangible
property and hence allow the owner to limit the use, not just the
replication, of the idea, and patents, which exist to encourage the
disclosure of trade secrets).
Third, the metaphor focuses the public debate around the "owners". When
you think of property, you immediately see the owner as the center of the
universe. As Jessica Litman argues, a more proper metaphor would highlight
the balance between the interests of the creator and those of the public.
As an example, your discussion of bias immediately centered on creator's
(and hence "owner's") bias. An equally legitimate argument would be to
consider whether academics or practitioners are biased because of their
consumption of content. One might argue that academics are especially
attuned to the public side of the balance because they consume (and build
upon) the work of others. My point is not that this is correct, or should
even matter in the bias discussion (though I would certainly agree that it
is more plausible than Petit's "topsy turvy" bias accusation), but that
this line of thinking is often overlooked because the entire public side of
the equation is often overlooked -- partially because of the property
Finally, it contributes to the discourse of those with a financial stake
in the system -- the copyright owners. The use of the terms "property",
"theft", "piracy" is an attempt to equate two unequal things, two unequal
actions -- to equate copying with violence in order to bring to bear (or
establish) social norms against acts that people are otherwise all too
comfortable engaging in.
posted by Lawrence Solum 12:18 PM
Enslow on Copyfights
Reader Eric Enslow comments on my post here:
The actual nature of the good that is copyright (e.g. whether more than one consumer can consume it without depleteing the good for others) is an empirical issue. Accordingly, it is not determined by the a priori concepts or catergorizations of economics. Rather, we must look to law (and perhaps sociology, psychology or ethics) to determine such facts about copyright.
The focus of my complaint about your description of copyright was that "multiple people cannot both "consume" the latter exclusive right to make copies without destroying the exclusivity right of others." Because of my ignorance of the apaprently commonplace economic distinction between "excludability" and "rivalrousness," this sounded like a foolish category mistake to you, i.e. that I was claiming that the mere fact of excludability demonstrated a lack of rivalrousness when, in fact, these economic categories do not conflict. Certainly, it was an unclear expression that exposed my ignorance of a common economic distinction.
But what I was intending to point out is a concrete factual issue, which has nothing to do with economics. I believe (and the law does too) that authors should have a right to control the use of their creation. For example, when Thomas Carlyle labors 15 years in absolute penury to create his masterpiece The French Revolution, truimphing over the destruction of one completed manuscript to rewrite the mammoth book from notes and memory, he doesn't just have a property right in the original manuscript itself nor just a right to make copies of it (shared with others) but a right to control the creative work itself. (I am speaking here of a moral claim as well) The "good" protected by copyright law is not just the right to make copies -- it is the right to recognition, credit, glory; it is also the right to protect, if one chooses, the integrity of a work that revolutionized historiography and historical narrative. The control of one's work is, I believe, really earned by creation; it is a real moral right. I think that the law recognizes that right in copyright. If so, it is just not true empirically that the "good" protected by copyright in law is only the right to make copies -- it is also the right to control what is one's own. We encourage authors to beggar themselves writing French Revolutions, not just by providing subsequent means for them to make money, but also by recognizing their moral rights in the work, whatever the commercial reception, by recognizing that it is theirs to control.
To return to the grounds for your distinction between real estate and copyright -- i.e. that one is susceptible to the tragedy of the commons and the other is not -- I believe that it is less tenable if you accept my description of the goods involved. It is simply not true that more than one person can share the glory of authorship nor wield the right of control. I believe that I now understand your distinction between excludability and rivalrousness -- but I also believe that my disagreement with you focuses on the actual nature of the goods involved, not the logical relation between the categories of rivalrousness and excludability.
posted by Lawrence Solum 11:58 AM