The Economist Debate On Copyright Needs Your Input

from the go-to-it dept

As plenty of people have sent in, the Economist is running an online debate about copyright this week, kicked off with the opening statement "This house believes that existing copyright laws do more harm than good" and then allowing debaters to make the case both for and against the proposition. Defending the motion is Harvard Law professor William Fisher, who has long been a proponent of reforming copyright law to make it much more reasonable. Against the motion, and trying to make the case that copyright law does more good than harm is Cardozo Law professor Justin Hughes. To be honest, I'm a bit disappointed that they chose law professors for the debate, rather than economists, because you would think economists would be better situated to determine good and harm, rather than law professors.

Fisher does a decent job with the opening statement, though I think he could make the points more clear and much more forcefully by highlighting the value over time of the public domain on creativity. Hughes' opening statement, however, is a mess. Let's start with this:
Those of us who think copyright law is a good idea--that it does more good than harm--believe that free market economic incentives are needed for the production (and often distribution) of all kinds of valuable expression and information, whether we are discussing educational value, civic value, or entertainment value. There is no question that much expression would be produced without copyright: the landed gentry was writing poetry before copyright. But to get both the desired amount and mix of expression, properly calibrated copyright is the best tool. The words "properly calibrated" are important, because once the new expression or information is created, social welfare is usually increased by its widespread distribution.
This paragraph makes no sense to me. It claims the free market is best, but then suggests the only way to get a free market is to grant gov't-backed monopolies, which are the exact opposite of a free market. As if to drive home that contradiction, he goes on about "properly calibrating" this gov't system. Again, that's not a free market. If you're talking about properly calibrating, then you're talking about a government system. Now, it's perfectly reasonable to make a defense that one needs a gov't program -- but it's disingenuous to claim that we need a free market, and then discuss the gov't program as if that is a free market. It's not. If you want a gov't program, then explain why we need a gov't program and defend that. Don't claim it's a free market.

He then goes on to claim that content that is paid for is somehow of higher quality than content produced under some other model. But, the problem is he gets the details wrong and confuses correlation with causation. He insists that a creative class can only exist with copyright, but that's simply not true. We've seen business model after business model after business model that supports a "creative class" without relying on copyright to make money. Yes, having a creative class is important. And making sure they can earn money is important. But that doesn't require copyright. The fact that people like professionally produced content doesn't prove his point. It just shows that people like professionally produced content. It doesn't mean that you need copyright to produce it.

Next, he claims that copyright is not hindering free expression, because we've seen this "absolute explosion of expressive production and dissemination with little or no hindrance from copyright law" and then brushes off the "horror stories" of limitations, by claiming that these horror stories need to "be weighed against the enormous flourishing of non-commercial expression that has coexisted with the copyright system." That's totally missing the point. The fact that lots of content does get produced doesn't mean that copyright doesn't create massive limitations on more creativity. Again, he's confusing correlation with causation.

He then concludes with another mistake:
In truth, what we have now is a mixed economy for expression in which some expression is produced under a patronage model (foundation grants, universities), some expression is produced under the open source model (Linux, blogs), and some expression is produced under a profit/incentive model of copyright.
See what he did there? He claims that open source models are different than "profit/incentive" models. That's simply untrue. Plenty of people producing content under non-copyright models are doing it for profit. And that's the key point that many of us have been raising. There are plenty of other models to compensate creative professionals that don't rely on copyright. Hughes' entire argument seems to be based on the idea that the only model of compensation is copyright, and everything else is "open source" or "non-profit" or "amateur." He's wrong.

The debate site is allowing comments from the public (and votes on the motion, which have been trending in the wrong direction), so it would be good for more people to join in and express how copyright has done more harm than good, and how Professor Hughes seems to be basing his arguments on a faulty premise.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Ima Fish, May 7th, 2009 @ 1:23pm

    "This paragraph makes no sense to me"

    Me neither. I'll stick with his first sentence. He thinks that government granted monopolies are somehow related to a free market. They are not. In fact his phrase "free market economic incentives" is self-contradictory. The minute the government starts giving incentives, the market is no longer free.

     

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  2.  
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    Michael Long, May 7th, 2009 @ 2:09pm

    Free Market... NST

    "Again, that's not a free market. If you're talking about properly calibrating, then you're talking about a government system."

    Sorry, but entirely free markets only exist in economy textbooks or as TechDirt thought experiments.

    Name practically any area of commerce, and it will be overseen, regulated, and otherwise managed by the government. Markets require stable economic systems. The government provides them. Markets require rules and laws under which they can operate. The government provides them. Markets require oversight to ensure the rules and laws are enforced. So the government makes sure everyone plays by the rules, and steps in when they don't. And so on.

    And the government attempts to juggle things so that the government benefits, the businesses benefit, and the people benefit. Doesn't always happen, but things eventually (usually) work out. Hence the phrase about "properly calibrating" the market.

    Which brings us back around to the fact that there is no such thing as a totally free market. And, besides, you wouldn't want one if there were.

     

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  3.  
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    Stephen Downes (profile), May 7th, 2009 @ 2:17pm

    Why do we care what the shills hired by the Economist to generate publicity have to say? The much more interesting - and free - debate is happening elsewhere.

     

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  4.  
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    Adam_v1, May 7th, 2009 @ 2:22pm

    Re:

    How about the ending sentence

    "The words "properly calibrated" are important, because once the new expression or information is created, social welfare is usually increased by its widespread distribution."

    So he admits that widespread distribution increases social welfare but we should then put limits on who can do what with it?

     

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  5.  
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    Anonymous Coward, May 7th, 2009 @ 2:27pm

    Re: Free Market... NST

    Copyright law is not for the benifit of the government or businesses. It's for the benefit of the people. Now, obviously if copyright law is written in such a way that makes it impossible to earn a profit (whether through direct or ancillary methods), then we would see a decrease in copyrighted works, which would not be a benefit for the people.

     

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  6.  
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    NullOp, May 7th, 2009 @ 2:29pm

    Copyright

    Here is all you need to know: copyrights should last 20 years, period. They should not be renewable. If you haven't milked after 20 years then tough-on-ya!

     

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  7.  
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    Mike (profile), May 7th, 2009 @ 2:30pm

    Re: Free Market... NST

    Sorry, but entirely free markets only exist in economy textbooks or as TechDirt thought experiments.

    Actually, we agree that truly free markets are rare. But that's rather meaningless to the issue. Professor Hughes insisted he wanted a free market, and then explained why gov't protectionism would create it. That makes no sense.

    Michael, you've posted here for a long time, I'm surprised that this is the second time this week we've caught you posting "troll-like" posts that don't actually discuss the issue, but set up some weird strawman to derail the conversation. I thought better of you.

    Markets require oversight to ensure the rules and laws are enforced. So the government makes sure everyone plays by the rules, and steps in when they don't. And so on.

    Uh. Require? Don't think so. Is that usually the way it's done? Yes, but that's not a *free* market.

    Again, there's nothing wrong with claiming that we need a government system. Just don't call it a free market.

     

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  8.  
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    kirillian (profile), May 7th, 2009 @ 2:48pm

    Debate

    Man, this takes me back to the days when I was judging debate tournaments...He's just asking for it...he assumes that we all accept his 'value' of the free market, but then completely contradicts himself and discards the value. By the time he is finished, the closest thing that I can find in his statements as to what he is actually valuing is copyright itself!! WTF?!?! Any high school debater can construct a more cohesive argument.

     

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  9.  
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    Jerry Leichter, May 7th, 2009 @ 4:07pm

    Re: Re: Free Market... NST

    This misses the point. The fundamental issue isn't about free markets here; it's about what constitutes property. It may seem obvious, but it's not. Any notion of property starts off with monopoly: I have the right to exclude anyone else from using what is my property. But *how* do I exclude others? I can do it with a gun, but then we're not talking about the rule of law and further debate is meaningless. No, a property right is exactly something that I have a *court enforced monopoly* over.

    What constitutes property? That's entirely up to the legal system to decide. Sure, physical objects are easy cases. But consider land. I can keep you from trespassing on my property - but I can't keep you from looking at it. (Again, sure, I can build a wall - but that's not using the court system to enforce a property right.) I can't keep you from listening to sounds produced on my property. I can't keep you from producing sound or light or radio waves that traverse my property. (There are limits on these things, but they have to do with disturbing me or others personally, not with my property.) Even my right to keep you physically off my property has limits - you can fly a plane over my property.

    Copyright is a legally-created notion of property - but then *all* notions of property are legally created. Some are more closely tied to our primitive ideas of what can be considered "mine" than others, but that doesn't change the fundamental issue: Property (a) is defined by a monopoly; (b) exists exactly to the extent that the legal system enforces that monopoly.

     

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  10.  
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    Mike (profile), May 7th, 2009 @ 5:25pm

    Re: Re: Re: Free Market... NST

    but that doesn't change the fundamental issue: Property (a) is defined by a monopoly; (b) exists exactly to the extent that the legal system enforces that monopoly.

    It's really not that hard actually. The entire purpose of property is simple: to manage the efficient allocation of scarce resources.

    Once you understand that, you'll recognize that it makes no sense whatsoever (and, frankly, seems downright ridiculous) to offer up any kind of "property rights" on a non-scarce good. There's no efficient allocation question needed. Thus there is no property rights needed.

     

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  11.  
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    Jerry Leichter, May 7th, 2009 @ 9:00pm

    Re: Re: Re: Re: Free Market... NST

    Property rights serve to efficiently allocate value, not scarcity. There are plenty of scarce things that have no economic value, so we simply never think about whether there should be property rights assigned to them. It makes no difference.

    Copyright isn't about copying; regulation of copying is a means to an end. The purpose of copyright is to efficiently allocate *creativity*. It's the creativity that has value - there's little *inherent* value in the copies of some text. The value is in the creative input that went into that text. (In fact, that creative input is also a scarce resource!)

    Now, we can certainly question whether, in this day and age with the technologies now available, copyright can actually play the role it's intended to play. Even if it can't, that doesn't make copyright wrong in any fundamental sense. Certainly its goals are correct. It worked for centuries. But it may by now just be so ineffective at achieving those goals that it must be abandoned.

    I will agree with the argument that the lack of a plausible alternative is not a valid argument for retaining a no-longer-useful mechanism. But that doesn't mean we should simply ignore the issue. If some mechanism for playing the same role that copyright used to play - providing a way to allocate creativity by ensuring that a market for creativity exists - then there will be costs that society as a whole will pay: Costs in reduced creativity, in creativity that is kept locked away from the public to preserve its value and so on. So it's perhaps worth considering whether anything can be salvaged from the old copyright ideas.

     

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  12.  
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    Mike (profile), May 7th, 2009 @ 10:45pm

    Re: Re: Re: Re: Re: Free Market... NST

    Property rights serve to efficiently allocate value, not scarcity

    Not true. Value can be allocated entirely without property rights.

    There are plenty of scarce things that have no economic value, so we simply never think about whether there should be property rights assigned to them.

    And, thus, the system works. There is no need to allocate property rights to them. Just as there is no need to allocate property rights to infinite goods.

    The purpose of copyright is to efficiently allocate *creativity*.

    No. It is not. It was designed to be an incentive for creation.

    Even if it can't, that doesn't make copyright wrong in any fundamental sense. Certainly its goals are correct. It worked for centuries. But it may by now just be so ineffective at achieving those goals that it must be abandoned.

    I would challenge that claim that it's "been effective for centuries." The historical record suggests otherwise.

     

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  13.  
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    Andy, May 8th, 2009 @ 12:34am

    I shudder!

    "But to get both the desired amount and mix of expression, properly calibrated copyright is the best tool."

    The code buried here is in the phrase "desired amount" and is standard usage among the social engineering crowd. It sends a shiver down my spine when I wonder who defines what is desirable. Anything that pre-supposes what is desirable and then seeks to force it is about as far from a free market as it is possible to get.

    Furthermore, even if we accept the idea of what is desirable, it is then a huge leap to state categorically that anything is the "best" tool. Where is the evidence for this?

     

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  14.  
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    Xanthir, FCD, May 8th, 2009 @ 5:42am

    Re: Re: Re: Free Market... NST

    This misses the point. The fundamental issue isn't about free markets here; it's about what constitutes property. It may seem obvious, but it's not. Any notion of property starts off with monopoly: I have the right to exclude anyone else from using what is my property. But *how* do I exclude others? I can do it with a gun, but then we're not talking about the rule of law and further debate is meaningless. No, a property right is exactly something that I have a *court enforced monopoly* over.

    You're right! It is about property. The problem is that copyright is totally confused about just what the property is.

    It tries to treat the idea/artistic expression/etc. itself as property in the sense that the creator 'owns' it, but then it throws that out the window when it states that, even when someone else 'buys' it, then don't 'own' it.

    Let's be consistent here. Property is property. If I own something, and I sell it to you, it's yours now. You can do with it what you want. That's a basic right covered by the First Sale Doctrine. Digital goods are in a very unique situation because I can sell you something but still keep owning it as well. Note the "as well" there.

    If we go with this, though, it means that you actually *can* 'steal' intellectual property! Taking some IP from someone without their permission (say, by leaking an album) is then stealing their property. However, having someone else who legally owns it as well share it with you is not, any more than it's illegal to split a cookie you've bought with a friend.

    In short, Mike's right. Property law is about scarcities. When you apply property law to creative expression, you find that the infinite part of it is mostly meaningless to treat as property. In order to get something useful that property law can sink its teeth into, you have to find something that is scarce (like a secret).

     

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  15.  
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    Killer_Tofu (profile), May 8th, 2009 @ 6:29am

    Re: Re: Re: Re: Re: Re: Free Market... NST

    I would further add on to your argument Mike, if you don't mind.

    Jerry, value varies from person to person. No law can set value to anything specific. You may be confusing price with value. I will use the example of a fancy restaurant. A meal there would cost say 20$. Some people may find that the food tastes great. So they value the meal as worth the price. Other people may not like the food. So they value it much lower, and would not spend their money at the establishment.

    You, have zero right to tell me what I value something at. You can set a price at whatever you want, but you have no ability to dictate its value to anyone. Some people will value it at or above that, and be willing to buy, and others will value it lower and will not.
    Clear?

     

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  16.  
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    Moralist, May 8th, 2009 @ 9:11am

    Moral rights

    What about the "droit moral" or "moral rights" or "Urheberpersönlichkeitsrecht" of the authors/creators? It might be that the current copyright regime is only working in favor of huge media companies and the publishers, but wouldn't everyone agree that it is a kind of "human right" to be in charge and control your "own" creation? Not under US law, granted, but in Europe.... you might argue that creativity is always based on prior creative works, but even then your own creation is part of your personality, and maybe for that reason the legal order is obliged to protect your creations via copyright. Food for thought?

     

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  17.  
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    Killer_Tofu (profile), May 8th, 2009 @ 10:15am

    Re: Moral rights

    No.
    Mankind survived and flourished for thousands of years without them. Saying that they are absolutely needed seems to neglect human nature itself.
    We share things. That is just how it is. If they don't want it shared, but it can be infinitely available, then they need to NEVER release it to anyone. That is all. They can be obscure and not known forever. I don't care. Once it is shared, if it can be shared infinitely, then they have already relinquished control by showing that they want it shared. They don't get to choose who shares and who doesn't.

    The internet is here, adapt or die.

     

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  18.  
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    Mike (profile), May 8th, 2009 @ 4:08pm

    Re: Moral rights

    What about the "droit moral" or "moral rights" or "Urheberpersönlichkeitsrecht" of the authors/creators?

    As you note, US law does not include any droit moral, and I think there's a good reason for it. It has nothing to do with the purpose of copyright law, and I think the moral issue is totally overblown as I explain here:

    http://www.techdirt.com/articles/20061115/020157.shtml

     

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  19.  
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    Michael Long, May 9th, 2009 @ 5:30pm

    Re: Re: Free Market... NST

    Considering that the beginning of your original post pretty much hinged on debating the semantics of a "free market", I just thought I'd return the favor.

    And you actually latched onto the free market phrase pretty much to the exclusion of the rest of the argument. Drop it and you get "Those of us who think copyright law is a good idea--that it does more good than harm--believe that economic incentives are needed for the production..."

    Which makes perfect sense, and ought to clear up much of the "confusion" someone may be having with the argument.

    And nice ad hominem attack, btw. Personally, I thought better of you. (grin)

     

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  20.  
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    Michael Long, May 9th, 2009 @ 5:35pm

    Re: Re: Moral rights

    Mankind survived and flourished for thousands of years without laws protecting his rights. Should we do away with protections against assault and property and free speech and so on?

    Or shall we recognize that over the centuries we've learned that some higher principle is needed than, "Every man for himself."

     

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  21.  
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    Michael Long, May 9th, 2009 @ 5:45pm

    Re: Re: Re: Re: Re: Re: Re: Free Market... NST

    You're correct. They set the price. You determine the value.

    You said, "Some people will value it at or above that, and be willing to buy, and others will value it lower and will not."

    And that's fine as far as it goes. The problem is when someone, for whatever reason, decides that they're not willing to pay the price and they ALSO decide that they're entitled to it anyway.

     

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  22.  
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    Anonymous Coward, May 9th, 2009 @ 10:41pm

    "The debate site is allowing comments from the public"

    No, it is not. At least, not for free. You can't just click through and vote; it says "login or register".

    Please be more careful, in the future, about implying that anyone can vote/comment/do whatever at some link when it's not actually the case because you need a CC/there are geographic restrictions/whatever.

     

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  23.  
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    Moralist, May 12th, 2009 @ 9:30am

    Re: Re: Moral rights

    Killer_Tofu:
    Well, if the copyright laws are enforced to a high degree within the Internet (and they are, in some areas, notable when it comes to books), then an author would not lose control, even though he or she shared their content. You are just begging the question. But maybe I am begging it as well by mentionion moral rights as human rights. Human nature can be used to justified almost anything, if you are clever...

    I believe and fear that the Internet will eventually be totally and effectively subjugated by censorship laws and extremely overprotective coypright laws, seems inevitable....the commons were alwas taken away sooner or later...

     

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  24.  
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    Random Comment, Jun 13th, 2009 @ 2:45pm

    I liked this comment on the forums...

    I'll just quote mick here. He's one of the top-recommended forum posters:

    "As a content provider, I need recognition for my work, first and foremost, and I need that in perpetuity. I need paying for my work immediately and in full, in order that I can continue to produce more content. Payment in perpetuity (vis. existant copyright) is a nice idea, but in truth it serves only the lazy, talentless profiteer, provides little additional reward and not only discourages new customers, it turns them into crimials. Likewise, recognition in brief (vis. Flickr, YouTube, personal webspace) is also nice, but it's worthless to anyone trying to build a reputation. At very least, I'm obliged to use other means to finance my online content and forced to be over-protective of it. Copyright law obliges me to work this way, to the detriment of the quality of my online content."

    Speaking of law, if someone violates your copyright, you may eventually have to see them in court. No points if you can guess who has deeper pockets, then, to enforce their copyright: A lone creator, or a corporation.

    And I'm probably confusing copyrights with trademarks, but one or the other mandates enforcement by the owner. Otherwise, it slips into public domain. Now, *there's* pain.

     

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