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If You're Arguing That Someone 'Deserves' Copyright, Your Argument Is Wrong

 

 

via Techdirt:

If You're Arguing That Someone 'Deserves' Copyright, Your Argument Is Wrong

By Mike Masnick

from the it's-not-about-what-anyone-deserves dept

For many years, we've explained why the debate about copyright is not a moral issue at all. Yet, whenever we get into discussions on it, sooner or later, someone makes an argument about how this or that creator "deserves to make a living" from their art. There are two things wrong with this statement. First, it assumes, incorrectly, that the way you make a living is from copyright. It is not. In fact, much of what we discuss on this blog are ways in which artists might be better off by not enforcing all of the privileges copyright grants them. But, more importantly, the use of the word "deserves" is especially problematic.

Julian Sanchez, who has been doing excellent work on copyright issues of late, has a nice post about how such arguments are totally irrelevant to copyright policy. He notes that it's no surprise that artistic and creative people want greater copyright privileges, and fewer exceptions such as fair use, but that's meaningless:

These will often be wonderful, likeable, creative people, and the correct policy response to these objections as such is: Cry me a fucking river; now piss off.

And the reasoning why is that copyright policy is not about what someone deserves or about rewarding people based on some moral grounding. Its purpose is and has always been clear: to provide incentive to promote progress. There are tradeoffs in these policies, and the end argument should never be about what someone deserves, but about what is the best net result for society on that progress bar. As Sanchez explains:

Wise assessment of copyright policy should have nothing to do with how you feel about the person or entity who holds the right at any particular time, because copyright policy is not about identifying wonderful and meritorious people and ensuring--certainly not as an end in itself, anyway--that their income is proportioned to their intrinsic moral desert--or lack thereof. We are all the massive beneficiaries of millennia of accumulated human scientific knowledge and cultural output, and not one of us did anything do deserve a jot of it. We're all just extremely lucky not to have been born cavemen. The greatest creative genius alive would be hard pressed to create a smiley faced smeared in dung on a tree trunk without that huge and completely undeserved inheritance.

So banish the word "deserve" from your mind when you think about copyright. Nobody "deserves" a goddamn thing. (I say this, for what it's worth, as someone who makes his living entirely through the production of "intellectual property.") The only--the only--relevant question is whether a marginal restriction on the general ability to use information incentivizes enough additional information production over the long run to justify denying that marginal use to every other human being on the planet, whether for simple consumption or further creation.

Exactly right. Yet, somehow, I get the feeling that people will continue to toss out moral arguments. They can't resist... and since they tend not to have the empirical data to support their position, it always gets reduced to irrelevant moral arguments.

Why "Copyright Will Make Better Artists" Is a Stupid Idea

Image Via

 

When I was an undergraduate and reading a lot of feminist theory and literature for the first time, there was one image repeatedly conjured to demonstrate the misogynist, wrongheaded attitude of the healthcare industry to childbirth: that of a pregnant woman in labor, on her back with her legs up in stirrups. The accompanying story decried the position as one that was devised not for the health and safety or ease of delivery for the mother and her child, but for its convenience to doctors. To wit:

 

For the last century, society’s relationship with normal childbearing has been tragically flawed because it was based on faulty assumptions. The central and erroneous belief was that childbearing in healthy women was fundamentally and inextricably dangerous. This false assumption was based on the notion that a woman’s reproductive biology is inherently defective, or as Freud would say, biology is woman's (unfortunate) destiny. [..] This notion gave rise to the idea that normal childbirth had to be made safe by the medical profession through the corrective use of powerful drugs and risky surgeries. The laboring woman would be saved by becoming a passive patient delivered by others. [link] 

What I meant was:

In the new century, society’s relationship with art has become tragically flawed because it is based on faulty assumptions. The central and erroneous belief is that anything made by unregulated artists is fundamentally and inextricably dangerous. This false assumption is based on the notion that an artist's ability to create is inherently defective.... [...] This notion gave rise to the idea that creativity had to be made safe by the legal profession through the corrective use of powerful licenses and preemptive laws. The laboring artist would be saved by enforcing a system of controlled environments where creative products can only be licensed and delivered by lawyers.

Saying that copyright will make better artists is like saying that forceps births makes for healthier babies. Looking to Patrick Cariou for wisdom about copyright is like looking to the RIAA for guidance on fair use. Glib articles that promote the forceps birth model of creativity only reinforce ignorant attitudes about art.

Toward a Fair Use Standard (just a reminder)

In 1990, The Hon. Judge Pierre Leval wrote the breakthrough article, "Toward a Fair Use Standard," 103 Harv. L. Rev. 1111 (1990), in which he proposed the term "transformative use" (emphasis mine):

 

"The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story's words, it would merely "supersede the objects" of the original. If, on the other hand, the secondary use adds value to the original -- if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings -- this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses."

Via

 

To be continued...