Copyright and Patterned Theories of Justice

by on October 15, 2007 · 0 comments

I was very interested to read Solveig’s recent discussion of copyright issues and the justice of file sharing. It seems to me that her line of arguments runs contrary to a core insight of libertarian theory, best articulated by Robert Nozick, that a just outcome is one that emerges from a series of just transactions. Nozick endorsed what he called historical theories of justice, contrasting them with patterned theories such Rawls’s Difference Principle. Libertarians have always been wary of starting with a desired social result (i.e. “everyone should have affordable health care”) and then reasoning backwards to derive a set of legal rules we think will achieve that outcome (i.e. Every employer shall provide health insurance to his employees,” “no hospital shall turn away an emergency room patient due to inability to pay”). That’s partly because we have an instinctive aversion to telling other people how they should live their lives, but just as importantly it’s because we we’re aware that these sorts of cause-and-effect predictions are extraordinarily difficult to make. Libertarians are constantly explaining the various clever and non-coercive mechanisms people develop to solve collective action problems that economic theory says can only be solved by government action.

For example, in the Abigail Alliance case, libertarians’ sympathies were with the plaintiffs, who assert that terminally ill patients have an inalienable right to experiment with unapproved but potentially life-saving drugs. FDA bureaucrats countered that, in essence, they needed the power to condemn certain people to death to ensure the integrity of their clinical testing program. Now, despite the prejudicial way I just described it, the FDA’s argument isn’t completely crazy. It really is easier to design statistically rigorous clinical trials if they can be assured that anyone they reject will not be able to get access to experimental drugs through other channels. And it’s at least possible that in the long run, ensuring the integrity of the current system of clinical trials will save lives on net.

But as libertarians, we recoil at this sort of bureaucratic arrogance. We don’t regard people as the property of the government, to be disposed of at the whims of government bureaucrats. More to the point, we’re skeptical of the claim that denying terminally ill patients access to unapproved drugs is the only way to get the data we need. People are clever, and it’s likely that with a little ingenuity, the FDA could collect a lot of information about the efficacy of new drugs without denying anyone potentially life-saving medication.

Which brings us to the copyright issue. Solveig contends that if the copyright system is not strictly enforced, “we are likely to shut down investment in content that we would rather have than not.” Like the FDA’s response to the Abigail Alliance, this argument relies on a relatively tenuous chain of reasoning: Society requires a certain quantity of music to be produced; that quantity of music will only be produced if artists receive a certain level of financial rewards for making that music; artists will be unable to recoup the required rewards without strict enforcement of copyright law; and so forth.

One can (and Mike Masnick and David Levine have) dispute any one of these factual claims. But the broader point to make is that this is precisely the sort of argument that libertarians spend their time debunking in other contexts. We generally aren’t willing to countenance infringements on peoples’ freedom merely because someone claims that the long-term economic consequences will be positive.

I’m in favor of copyright law as it was enforced for most of the 20th century largely because it had little to no direct effect on ordinary Americans. Only large, capital-intensive firms had to worry about violating copyright law, and those firms could afford to hire lawyers to make sure they didn’t accidentally run afoul of the law. But as the price of copying technologies continued to plummet, we reached the point where everyone can be a publisher. And that now means that copyright law affects a lot more people in a much more invasive way. A single mother in Duluth in 1987 would never have had to worry about whether she was breaking copyright law, because she wouldn’t have owned the necessary equipment to become a serious copyright infringer.

As copyright law gradually comes to regulate more and more aspects of ordinary peoples’ lives, the libertarian presumption of liberty ought to carry more weight. And at some point, it has to outweigh mere speculation about the dire economic consequences of a less-intrusive copyright policies. We don’t know how the market would react to a more permissive copyright regime, but there’s little reason to believe it would result in catastrophe. And therefore, I think libertarians should err on the side of liberty, even if we fear the results could be sub-optimal in certain respects.

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