Caleb Crain’s Copyright Arguments Aren’t Worth A Dog’s Breakfast

“Why Matt Yglesias is wrong about copyright”, explains Mr. Caleb Crain, giving three very poor arguments for his position. I believe there may well be very strong arguments in opposition to Mr. Matthew Yglesias; these aren’t them.

Last week, for example, Yglesias belittled the damage of online piracy with this rationale:

Even when copyright infringement does lead to real loss of revenue to copyright owners, it’s not as if the money vanishes into a black hole. Suppose Joe Downloader uses Bit Torrent to get a free copy of Beggars Banquet …and then goes out to eat some pizza. In this case, the Rolling Stones’ loss is the pizzeria’s gain and Joe gets to listen to a classic album. It’s at least not obvious that we should regard this, on balance, as harmful.

This, I believe, is a slight misrepresentation. This was a tangential aspect to the issue in the original article that every download is necessarily a lost sale. If I read a book at a library, rather than buy it, is that necessarily a lost sale? Or is that a book I enjoyed mildly, but not enough to buy it? If I listen to a stream of an album and again, find it interesting but not compelling enough to listen to it again, is that a lost sale? The tangent that Mr. Crain addresses is not a justification for a piracy but an explanation that disposable income not spent on such an album is necessarily lost to the economy, but will still be spent on goods. Mr. Crain misses the point with his counter-example, confusing goods that are consumed entirely (no one else can eat that lunch now), versus those that might be enjoyed, or at least listened to, ad infinitum or nauseum, by many. If Mr. Crain eats Mr. Yglesias’ lunch, Mr. Yglesias cannot eat it, and he must purchase another lunch. If I buy a Ke$ha record, listen to it, think this is terrible, I am able to then give it to a friend with terrible taste of music, who may go on to use the disposable income they would have spent on terrible music on an extra snack. The distinction between these two products, I think, is trivial.

Mr. Crain then acknowledges that a lunch and a piece of music, but then, wrongly, claims “that this is a separate issue”. That a lunch, which can be consumed once, and a virtual piece of music are very different things does not imply that there cannot be property rights for both; that their very different qualities affect their property rights is very relevant, and not a separate issue at all. I may download a public domain book, and there is no possibility I am stealing. This is not the case of downloading a book whose copyright is extant. In contrast, if I steal a physical book from a book store or library, whether it be public domain, such as Jane Austen, or extant copyright, such as The Tiger’s Wife, by Tea Obreht, I am stealing. Again, I believe this is a simple, trivial, distinction.

Mr. Crain then shifts ground to the idea of a violation of moral integrity in the case of a virtual document being duplicated. He employs two analogies, both of which I consider poor:

Suppose I were to start claiming that I’d been awarded a Purple Heart. (The truth is that I
have never even served in the military.) I wouldn’t be taking anyone else’s Purple Heart away. The award is felt to be valuable, but it doesn’t have a clear price, and probably no one could prove that I had gained money by my false claim. Nonetheless most people would be likely to agree that by such a lie I would be harming soldiers who had rightfully earned the award. This example may seem too heavy, morally speaking, as I’m willing to admit, but I think it does prove at least this much: Whether it is right to take a thing from a person does not depend on whether it is abstract, and does not depend on whether the original owner is thereby deprived of his possession. A lighter example: sneaking into a half-empty movie theater through the exit. True, it’s not a felony, but it is wrong. If they catch you, they do call your parents.

The claim of a purple heart is not a claim of possession of an object, material or virtual, but a claim of a particular experience – great service to one’s nation. The signifier is irrelevant, and has no inherent value – it is the experience itself which is crucial. One is making a claim of false achievement, rather than possession – actual possession is irrelevant. It is of no concern if a soldier who served valiantly, is awarded a purple heart for righteous and truthful sacrifice is awarded a purple heart and then he somehow loses it in a house fire or a theft – it is the experience itself not the medal. A similar analogy would be a claim to authorship of a work, for which one had no part. In this case, it would make no difference if the works were in the private or public domain.

If I re-write small parts of Martin Chuzzlewit or Harry Potter, then submit them as my own work to a novel writing contest or a publisher, I am making a wrongful claim of achievement, whether copyright is extant or not. The half-empty movie theater is equally wrong as analogy. In the case of a movie theater, I am paying for rental of the seat for a period of time. Whether or not the rest of the theater is empty or not is irrelevant – the fees are assumed to go towards the upkeep and maintenance of the theater, as well as the projection of the films. I am in the wrong sneaking into a half empty theater without payment, just as I am for sneaking into a half empty parking lot without payment. The copyright of the film is irrelevant; there is no possible violation of law if I watch a public domain film on youtube. When I sneak into a theater, I am avoiding fees for rental of the theater seat, whether the film is public domain, such as Georges Melies’ Voyage to the Moon or Ghost Protocol.

Mr. Crain continues:

Yglesias notes that it isn’t correct to assume that every act of piracy “represents a lost sale.” But it doesn’t represent nothing, either. You pirated the work because you wanted it, so it did have some value to you.

The fact that I wish to listen to something does not necessarily imply that I wish to purchase it, or that we always provide funds at retail value of the product if we enjoyed it. According to this logic, if I listen to several songs on youtube to determine if I’d like to buy them on itunes, I must pay a fee for each trial listen, as this has some value. If I greatly enjoy a novel I bought used, or which is in the public domain and was downloaded from Gutenberg, I must now buy those products at full retail value to reflect my enjoyment.

Attacking from another angle, Yglesias suggests that illegal piracy reduces “deadwight loss,” an economic term of art for the value lost to the market when prices aren’t set merely by the intersection of supply and demand curves. If the government subsidizes corn, the resulting increase in corn-syrup-sweetened colas drunk is a deadweight loss…To say you approve of copyright infringement because it reduces deadweight loss, therefore, is a little like saying you approve of tax evasion because it reduces the market-distorting appropriation of citizens’ money by the government.

No, it isn’t. Your taxes pay for a wide variety of services, a fraction of which goes to agricultural subsidies, many of which you or your family employ or will employ at a future point. You are not paying fees, in other words, on products you fully consume on the grounds that you object to some of the products consumed by others. This analogy has nothing to do with deadweight loss; it is an argument for someone who refuses to pay full price for Lana Del Rey, even though they consider Lana Del Rey excellent and greatly enjoy her music, but because the money that the record company will get will partly go towards the record career of Rebecca Black.

Mr. Crain’s conclusion:

According to the Constitution, the purpose of copyright is “to promote the progress of Science and useful Arts.” For that purpose I’m willing to not only eat Yglesias’ lunch but cash his paycheck, too. Jeffrey Rosen of the New Republic recently suggested that “There is certainly a price below which authors and journalists won’t produce good work in the first place.” Sure, answered Yglesias, and “the price is almost certainly negative.” In other words, Yglesias thinks that writing, music, film, and television can prosper as hobbies—that in the copyright-free future, people might even pay for the privilege of writing and creating. Corporate bean counters of Slate! Did you read this?

Mr. Yglesias does not believe that the various cultural industries can prosper as hobbies. This is a mis-statement. I will give Mr. Yglesias’ statement a more honest airing:

[Let] me pick a new fight with Rosen’s dubious claim that “There is certainly a price below which authors and journalists won’t produce good work in the first place.”

There certainly is such a price, but the price is almost certainly negative. Obviously financial rewards are a factor in people’s activity. But in a world in which it was strictly impossible for law professors to earn extra living by offering opinions on newsworthy legal issues, plenty of them would continue to do so. People have strong feelings about things and want to share them with the world! If nobody had a full-time job as a writer, we’d presumably have less writing but not none.

As an example, I provide this post: it is an attempt at a refutation of Mr. Crain’s article, for which he was presumably paid, with a rigor and diligence which I hope at least equals Mr. Crain’s original. This would be an example of an attempt at uncompensated, quality work.

I do not, however, consider this as a possible substitute for content on Slate, and neither would Slate or Matthew Yglesias. A periodical, of whatever format, requires its writers to deliver content on some decided topic, or range of topics (Mr. Yglesias is expected to write on economics, he cannot hand in a review of The Grey instead) at a particular length, by a particular date and time. Most likely, there is demand for several such filings during a day. That Mr. Yglesias acknowledges that people will write, our of their own urgent desire, and sometimes produce very good work, would not give any relief to the tyrannical overlords of Slate, who do not simply require that there be good content somewhere out there, but good content on approved topics, by an approved time, in conformity with the style parameters of their publication. Again, I think this distinction is a simple one, and these points are not in contradiction.

A simple conclusion: I believe Mr. Crain did good, thorough work in “Fair and Balanced: On Copyright and Fair Use” and there is the possibility of his making a counter-argument to Mr. Yglesias, but not with these weak points.

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