August 16th, 2007

Pirates and other nonsense

Posted by John Carroll @ 9:34 am

Categories: DRM, Economic Policy

Tags: Cost, Copyright Law, Piracy, John Carroll

Digging through the “blog ideas” pile on my desktop, I found this article from earlier this week discussing Sweden’s “Pirate Party.” A US branch does exist, and so I decided to take at tour of its issues page to see what pirates truly stand for.

As shouldn’t surprise anyone, not very much, as is the norm with any party organized around so narrow a set of interests. This isn’t a party that aims to govern so much as make noise about one issue, which is, namely, that copyright laws are too severe, and that they must be loosened close to the point of non-existence in order to foster a global culture.

This is a summary from their site regarding their stance on copyright:

The basis of copyright law in the United States descends from Article One, Section Eight of our Constitution. Section Eight allows for exclusive rights to creative works in order to promote “progress of science and the useful arts.” The need for exclusive rights at the time was real; the costs of publishing a book or distributing a scientific journal were not insignificant, and a monetary incentive, to encourage publishers to print and distribute those works, was necessary. However, the Framers of the Constitution believed, as we do, that Free and Open distribution is the ideal; copyright law is an unfortunate compromise that was at one time necessary to provide an avenue to recoup costs. As such, the Framers instituted copyrights for “limited times” only; once an opportunity to recoup costs had passed, open distribution could once again be in an open manner.

The Pirate Party defines copyright as only being suitable to recoup costs. After that, companies and individuals should not be able to control the distribution of their intellectual work.

First, I think they misunderstand the intent of the founding fathers. Promoting “the progress of science and the useful arts” says nothing about the degree of incentive, which IS a problem. That has provided room for copyright-holding companies to push the copyright period to a whopping 70 years (90+ years with additional filings), which I have always considered to be a bit extreme. However, just as it provides no time limit, neither does it confine the incentive to cost reimbursement.

The issues page notes in a subsection that the first copyright law in the United States (which had to be defined as the Constitution punted the issue even as it established a legal foundation for them) provided protections of 14 years, with the option to extend protections for another 14. Even that yields profits far in excess of costs, however — even in the late 18th century – which shows costs are not the limiting factor.

Second, that “unfortunate compromise” is no more unfortunate than the legal fantasy that is physical ownership of property. This always drives me nuts in any discussions about the issue. Opponents like to pretend that intellectual property is less a fabrication of government than physical property rights. It isn’t. I have no more natural right to a piece of land to which THE STATE has granted me title than a baby born early this morning in Cedars-Sinai hospital down the street. The state defines such rights in order to incentivize efficient allocation and use of resources.

Physical property and intellectual property, in other words, are both legal fantasies, and though it can be argued that physical property laws often serve more basic needs (you don’t often NEED a CD, whereas you do need food), prices are left to the market to decide, which means those who really want access to physical property can get it for the right price. Creativity and enterpreneurship, in other words, is an important goal in physical property rights.

The question that should be asked is whether creativity is sufficiently encouraged by the laws as currently structured, and that’s where the Pirate Party’s “analysis” falls down. If costs are the primary consideration, then creation of an album using modern digital techniques would yield very little revenue, as costs are very low and shrinking by the day. Would that be enough to incentivize creation of content that enhances global culture?

For some, it might. Van Gogh painted in spite of the fact that his paintings couldn’t be given away while he was alive, and artists often create for the love of the art, a fact emphasized by Richard Stallman to assuage those frightened by the prospects of less compensation in a pure free software universe (a stance I always thought to be somewhat perverse, as those losing jobs are probably not concerned by a collapse in creativity). However, I think most would agree that there would be a LOT less creativity, as many are more inclined to do the creative work if there is some profit in it.

In other words, a cost-based standard doesn’t meet the demands of the US Constitution, as it doesn’t do a very good job of encouraging the “progress of science and the useful arts.” I think a strong argument can be made that current laws are so long and profit-generating that they serve to hinder progress, given the evolutionary nature of global culture as it builds on what went before. The Pirate Party, however, is not making that argument, which makes sense. As their name would imply, the Pirate Party really exists to provide moral cover for file traders who don’t want to stop violating copyright.

Humans can justify pretty much anything.