From within the libertarian camp, one of the stronger anti-copyright arguments is the point that it is hard to prove empirically that copyright in fact fosters creativity, especially as compared to some of the alternatives to copyright. How does one go about showing that in the absence of copyright, there would be fewer created works or fewer quality created works or a lesser range of types of created works? To show this conclusively, one would need to know what would have happened in the absence of a market. For the same reason, though, it is hard to show that copyright (or related laws) do any harm; one would need to know what would have happened in the the absence of copyright.
This difficulty of proving the empirical case one way or the other seems at first to by symmetrical. It is and it isn’t. If one starts with a general preference for free markets, the burden of proof is on anyone who wants to depart from free-market arrangements for things. Which way does this cut? Many libertarians tend to be heavy on beliefs about what a free market must be–a preference for concrete physical property and for rules derived from a state of nature–and for this subset copyright looks like a departure from that. For them, then, the problem of empirical proof is not symmetrical. The burden of proof is on the pro-copyright side; the only arguments that need be made about copyright are skeptical ones. No positive case for the workability of alternatives need be made. So I reasoned some years ago.
For this approach, though, reality is constantly throwing up red flags. Here is a large, waving flag right in our faces: That is the failure of “alternatives business models” to emerge except as experiments or exceptions. Suppose one dismisses the established “content industry” (hardly a homogeneous entity) as incompetent–surely a stretch. Let’s go outside their established territory to the developing world.
People of poorer nations have proven themselves astoundingly inventive when it comes to working around institutions that Westerners tend to believe are essential. Take Guatemala, for example. The public post office is dis-functional, so what has evolved is a remarkable network of private couriers, neatly disproving the case that universal postal service requires government funding. What we “ought” to see in developing countries, therefore, if copyright is really not necessary, is flourishing alternatives to copyright.
But we don’t. Instead we see filmmakers from Korea and China and musicians in Ghana, Mexico, and Uganda asking for the meaningful enforcement of traditional copyright. Within the confines of their more traditional culture, they could exclude free riders (sometimes using methods more cumbersome than any experiment in DRM–for example, at a country dance with live music I once attended in Mexico, ladies could dance for free–but any man had to pay and wear a conspicuous tag on his pocket–patrols circulated constantly and ejected untagged menfolk and enforced a wide “no trespassing” zone between dancers and onlookers to prevent free riders from sneaking in through the crowd). But in the new digital environment, the scope and scale of free-riding is such that they cannot support movement into a digital environment, global markets, and electronic recordings. If there were some really good alternatives, I suspect we will first see them in this inventive environment. So far, nothing. This gap makes a solid case for the view that copyright with meaningful enforcement is needed after all.
Where do the libertarian copy-skeptics go wrong? Perhaps the initial assumptions that even advanced economies can have only physical property and that our concept of justice must always refer back to standards appropriate to a state of nature. One may remain dedicated to free markets without claiming the need or ability to know in advance (given the difficulty of some of the philosophical and technological problems, and the complexity of the business and economic factors) what exact configuration the ground rules that support those markets need to take. Once one accepts that markets can and do adapt differently to different levels of economic and technological development, the assumption that most legal ground rules should be consistent with open markets cuts in favor of copyright, not against it.
Not that this is the end of the argument, of course. No knowing who reality will turn on next…
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