It's the Ideas, Stupid

Who’s to say intellectual property law is the best way to foster innovation?

In the wake of last month’s terrifyingly effective internet lobbying effort by Google, Wikipedia and others to kill proposed anti-piracy legislation, the inevitable backlash has come. Sure, the contrarians say, the Stop Online Piracy Act and the PROTECT IP Act were terrible bills, but online piracy is a real problem. Jeffrey Rosen, the legal editor at The New Republic, argued for more aggressive enforcement of sites (like the recently shuttered MegaUpload) that host pirated content. Caleb Crain at Slate, channeling Immanuel Kant, insisted that musicians, authors, and other creators of content have a “moral right” to be compensated for it.

The idea that the absolute rights of artists mandate the enforcement of the particular copyright system the United States has adopted as of 2012 is an interesting one, but not particularly persuasive. Indeed, the analogy between digital property and physical property (and thus between digital and physical property rights) breaks down upon even cursory examination. If I go to Armageddon Record Shop and swipe a vinyl copy of the new Cloud Nothings album, no one else gets to use that copy. This is a concrete harm both to the store, which no longer has the copy to sell, as well as to other customers, who no longer have a chance to purchase it. An intervention from the criminal justice system, existing as it does to prevent private citizens from harming each other, is perfectly appropriate.

Pirating content doesn’t work like that. If I go to MediaFire or fire up a BitTorrent client to download the album, I’m not taking anything away from anybody. The MP3 files aren’t a scarce resource. My downloading them doesn’t prevent anyone else from having them. There isn’t a concrete harm the way there is with physical copy. Now, obviously, even though the per-unit cost of producing digital content is $0, there’s a big upfront cost. Cloud Nothings had to buy their instruments, hire producers and engineers, rent a studio, and so forth. If digital content creators never had any cash coming in, the only people making music, movies, software, etc. would be rich dilettantes with the cash and time to engage in those pursuits as a hobby. This may not be a catastrophic state of affairs for indie rock bands, but “The Dark Knight”-scale movies and TV shows aren’t going to be made by hobbyists in their spare time.

So the question is what should be done to encourage the creation of great digital content. The answer of the current policy regime is basically to establish a tax with all proceeds going to content creators (or, more commonly, the corporations that distribute their content), levied on a per-unit consumed (per song, per album, per movie, etc.) basis, with the tax collected by the creators and enforced through criminal and civil penalty. This may sound like a weird way to think about it, but it makes more sense than the analogy with private property. The government is not providing for the redress of harm, as it is when it enforces anti-theft laws; it is making a decision to subsidize a certain class of individuals in a certain way.

The current system has some things to recommend it. The analogy with private property, while conceptually inappropriate, makes the set-up readily understandable to most people, and the direct relationship between the size of the subsidy and the number of times a piece of content is consumed ensures fairness of at least some sort. But as we’re discovering, enforcing a tax of this kind is outrageously difficult. As Julian Sanchez has pointed out, it’s only going to get easier to share content across computers and mobile devices, and barring China-style authoritarian control of the internet by government, real enforcement of the current copyright regime will only grow harder and harder as technology improves.

So what else could we do? Well, we could directly subsidize the production of content by establishing BBC-like public institutions, or paying part of films’ budgets the way some European countries  (and the EU itself) do. We could disperse payments to content creators based on government estimates of their content’s popularity—in effect, keeping the current subsidy but financing it by means other than the de facto tax on consumers enforced through the courts. We could encourage work sharing and paid vacation time, or establish a guaranteed minimum income for all, so that more people have the time and money to create content as a hobby. I’m not sure if one of these is the best regime possible, but they all can be effectively implemented without shutting down the internet. The same can’t really be said for our current system.

Dylan R. Matthews ’12, a Crimson editorial writer, is a social studies concentrator in Kirkland House. His column appears on alternate Wednesdays.