It might be good to try a little harder on copyright

by on February 15, 2012 · 20 comments

Kevin Drum and Tim Lee have been having an [interesting]( [exchange]( about whether those of us who oppose granting copyright holders stronger enforcement powers feel this way because we are ideologically opposed to IP protection. Tim points out that copyright owners have, as a matter of fact, received greater and greater enforcement powers–almost on an annual basis. As a result, Tim says, “most of us are not anti-copyright; we just think enough is enough, and that the menu of enforcement tools Congress has already given to copyright holders is more than sufficient.”

Sufficient for what, though? Sufficient to significantly reduce piracy online? That’s certainly not the case. Piracy is rampant on the net. Some would say, though, that the only meaningful ways left to enforce copyright would (dare I say it?) break the Internet as we know it.

So I think that when Tim says that the powers copyright holders now have are “more than sufficient,” I think he means sufficient to provide an incentive to create. After all, the purpose of copyright is to “promote the progress of science,” not to protect some Lockean notion of property. It may be the case that while owners’ rights are no doubt being violated, a further reduction in piracy won’t affect the incentive to create.

This is why many, including [Julian Sanchez](, [Tim O’Reilly](, [Mike Masnick]( and [Jonathan Coulton](, question whether piracy is really a problem at all. That is, they don’t believe it may be the case that the present level of piracy doesn’t hurt content owners’ bottom lines because it’s clear that not every infringement would have otherwise been a sale. If that’s the case, then the costs of new enforcement powers would outweigh any benefits. So, the argument goes, we should do nothing.

Another argument might be that even if there is some harm on the margin to content owners from piracy–some reduction in the incentive to create–the toll a bill like SOPA would take on free speech and innovation are just not worth the reduction in piracy. So, again, we should do nothing.

Two observations about this. First, many folks, including many policymakers, do in fact take a Lockean view of copyright. I think this is why many persons believe that opponents of new legislation are secretly IP anarchists. We need to do a better job of explaining the utilitarian purpose of Copyright. (I like to tell my friends on the Right that I’m for the “originalist vision of copyright” that the Founding Fathers intended.)

Second, it’s practically impossible to figure out the exact effect of online piracy on the economy, let alone creators’ incentives. In my view the truth is much closer to the “there’s no problem” end of the spectrum than to the inflated estimates put forth by the content industry. But, it’s certainly possible that there is too much piracy. If that’s the case, and we do believe in copyright, then I think it’s incumbent upon us to try to develop alternatives to reduce piracy without breaking the Internet. I’m not saying we should advocate for these, just that we should think about what those are.

If nothing else, we’ll be able to point to these alternatives when the next SOPA is portrayed as the only possible solution. Otherwise, people like RIAA President Cary Sherman will get away with [saying that we have no “constructive alternatives”]( or that we’re IP anarchists.

Kevin Drum thinks that we may yet see a technical solution emerge that reduces piracy while preserving an open Internet. That may be, but [color me skeptical]( I think it will have to be a legislative solution. What that should be, I don’t know. The [OPEN Act]( is one alternative. [Compulsory licensing](, however unpopular, is another way to tackle the issue. I’m sure there are others.

It’s a hard problem, and there are no easy answers. But if we do believe in copyright, then I think the intellectually honest thing to do is to spend some time thinking about how to reduce piracy, on the margin, without breaking the Internet. We can do this at the same time we fight for greater recognition of fair use, to protect the public domain, and to roll back terms and other over-reaching in copyright.

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