Tom W. Bell

The Morality of Unauthorized Copying

To say that copyright does not protect any natural right is not to say that it lacks any moral justification. We naturally frown on unauthorized and misattributed copying. A singer who claims authorship of a song written by another commits a sort of fraud on his listeners. Most of the time, that sort of fraud does not rise to the level of materiality, and thus does not justify litigation. We typically do not rely to any substantial detriment on the accuracy of an expressive work’s description, after all. If we like a work, we like it, regardless of its source. Misdescriptions of authorship can trick us into buying the wrong expressions, however. You might, for instance, buy tickets to a Djelimady Tounkara concert only to find another, lesser guitarist on stage. That would naturally rouse your indignation.

We don’t need copyrights to vindicate that sort of wrong, however; common law and various state and federal statutes already afford many remedies for it. Consumers of misleadingly labeled goods or services can plead fraud under tort law and breach or promissory estoppel under contract law. The licensee of a materially misdescribed work would enjoy a strong contract law defense, one voiding any agreement alleged by the licensor publisher. An author who sees her work sold under another’s name would, as a wronged competitor, have standing to sue for unfair competition under state or federal law. The publisher of such an author might likewise enjoy legal and equitable remedies for passing off. The Federal Trade Commission and its many state counterparts can protect consumers and competitors of falsely labeled expressive works, while various federal and state executive officers can fight such wrongs with the criminal sanctions levied against the many guises of fraud.

Those legal tools give us ample ways to discourage materially harmful misdescriptions of expressive works. We don’t need copyright to satisfy our moral intuitions on that front, and most people’s condemnations against unauthorized copying don’t go much beyond harmful lying.


If you make an unauthorized copy of a CD and give it as a gift to your friend, for instance, do you feel guilty of committing a moral wrong? Probably not—even though you would probably thereby have committed copyright infringement. You can admit to breaking the law in such a case without admitting to violating a natural right. Thus does a good driver on an empty road speed with a clear conscience. We recognize copying limits, like speed limits, as legislation designed to maximize social utility, created by statute for presumptively good reasons and thus, unless manifestly inefficient or inequitable, enjoying some claim to our obedience. We follow such laws out of habit, conformism, or fear—not because they protect natural rights.

So go the moral intuitions of most folks. Authors, admittedly, sometimes express profound outrage that unauthorized copying, even when it gives credit where due, equates to theft. Their understandable pique does not, however, establish a natural copyright right. The non-rivalrousness of expressive works means that copying does not hinder the use or enjoyment of anyone’s copy. A painter fully owns his canvas even if another photographs it without his permission, for instance. What authors care about in such instances is not the use and enjoyment of their works, but rather their lost copyright revenues.

Copyright can provide authors with revenue, a benefit that infringement threatens to reduce. Authors thus naturally feel disappointment and anger when their works suffer unauthorized use. But that hardly shows that copyright infringement violates a natural right. It only shows that authors, like almost everyone else, prefer more money to less. There can be no copyright infringement absent copyright protection. Only by circular reasoning, then, can the complaint that infringement reduces authors’ revenues justify copyright.

[NB: The above text comes from chapter 1.5, § C.3 of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. Please note that I will soon renumber it "Chapter 2," and adjust all subsequent chapters accordingly. You can find a PDF of the entire chapter, including footnotes, here. As always, I welcome your comments.]

[Crossposted to Intellectual Privilege and Agoraphilia]

December 15, 2007 | Comments |

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    "We naturally frown on unauthorized [copying]"

    No.

    "and misattributed copying."

    Yes.
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    its a good advice to people who are in this feild
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    Peter: Please note that I used a conjunction between those two phrases. To make the sentence as a whole true, therefore, both of those subsets would have to be true. You appear to have read my "and" as an "or".
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    My bad.

    I was wondering because it didn't seem to jive with the rest of the post. And all the while it was me not reading carefully.

    Thanks for pointing that out, Tom.
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    Authors have a problem that painters and musicians do not face: absent copyright protection, there may be no remuneration at all. In such a world, authors would have to have day jobs (a la James Joyce) or be independently wealthy (a la Leo Tolstoy). Certainly one can argue that these examples show that nothing would be lost, but then what about the merely good pleasant reads, the ones not born of such hunger, the ones we like to read on the beach?

    As you mentioned, painters still have the original that they can sell. But with paintings, it is the original that has the greatest market value. And most musicians have always (since before and including Mozart) made most of their money from performance and giving lessons. But with authors, it is the copy and the copy only that provides money for the work (unless they are to replace copy income with grants and professorships).

    Not that copyright doesn't have problems, but I do believe that authors should have a "natural right" to be able to earn a living from creating a successful work.
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    "[...] with authors, it is the copy and the copy only that provides money [...]"

    Is that so?
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    Noah: No denies that authors have a "natural right" to be able to earn a living through their work. Nevertheless, this is simply an empty Motherhood statement since the debate is how to define the extent/limits of this "natural right".

    From my perspective, a copyright holder should not be artificially protected by regulations that protect obsolete business models, the copyright holder does not have a right to limit the natural property right of the consumer, and copyright is a limited right, not a perpetual right.
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    Noah: No one denies ....
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    I've always had a problem with the "right to earn a living doing what you want" argument. Lots of people can't make a living doing what they want. Many people try to do so and fail because they don't find a business model that works.



    So while I agree that I want people to be able to make a living from writing, I'm far from convinced that they have some "natural right" to do so.




    I note that Noah does qualify it with "from creating a successful work", which is definitely better than what you frequently hear.




    Oh, and Noah should check out Baen books - where they've shown increases in book sales as a result of giving away free electronic copies of works.


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    Noah: I take your point, and share your concern that authors, especially, would find it difficult to recoup the costs of creation absent copyright. Big-budge movies and software likewise look likely to struggle under a pure common law regime. But I would not rule out the power of contract, tort, and property law, when combined with technological tools, to overcome market failure. Lets at least leave the book open on the question, and try to structure copyright policy to encourage authors to try living without their statutory privileges.
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    Noah: I take your point, and share your concern that authors, especially, would find it difficult to recoup the costs of creation absent copyright.

    I agree that authors relie on copyright, but it is notable that they do NOT rely on the DMCA the same way the music industry does. This is because an electronic copy of a book does not have many of the properties of a physical book.

    Thus, above it has been shown the artists, authors, musicians do not need the DMCA, and I would add to that list architects, as another producer of cultural goods that does not relie on DMCA.

    So just who does need the DMCA?

    The owners of these works, the big music companies, that's who.
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    With regard to Baen books, giving away free copies in order to generate buzz so that they can sell copies of those books is a fine strategy - it also worked well for a lot of tech books (I remember Thinking in Java being freely released on the web, chapter by chapter, and incorporating feedback in the finished work). But I think ultimately this strategy relies on copyright in order to generate income from the work being promoted in this way. How could contract or tort or property law protect the author or publisher from others selling a cheaper edition of the work?





    I don't claim to know all the different ways that authors could support their art. I identified a few: day job, inheritance, grants (from patrons or government), academia (I would include employment with groups like the Cato institute in this category, but perhaps it fits more with grants?). Income from selling copies is the only source that would directly correlate with success in the marketplace (i.e., what people will buy). What other sources of income have I overlooked? And what other sources would ensure that we can continue to have a world with plenty of works by Elmore Leonard, Jackie Collins, etc.? (I am assuming that no university would employ this type of author if it were not for their market success, which might present a problem of circularity in the absence of copyright.)

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    Enigma: I think you've pegged the current situation, but I'd add that I could imagine authors using automated rights management more frequently--or trying to--if they didn't have copyright to fall back on. That by no means requires the DMCA, though. Don't get me started on that piece of . . . legislation.

    Noah: I hesitate to predict what entrepreneurs would come up with in the absence of copyright. I'll note, though, that back in the day when English authors enjoyed no U.S. copyrights, they would make money by selling serialized versions of their novels to U.S. magazines, and by giving readings. Dickens fairly well killed himself touring the U.S., so greedy was he for the generous revenues he thereby earned. Also, as I noted to Enigma, ARM could prove useful.
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