Copyfutures: One Man's Trek Through the Copyright Forest

April 2005

November 21, 2004

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One Man's Trek Through the Copyright Forest

With this class nearing its end, i'm tempted to try and grasp the big picture of copyright. Not so suprisingly, I find that my vision of it is blurred. And I think I know why, or at least, part of why this is so. Like any picture, the finer the pixels you start with, the clearer the picture taken as a whole. Thats why you've got so many people buying 4 megapixel cameras nowadays to take pictures of their dogs dressing up in little costumes. That and blatant consumerism gone mad...

While i've absorbed a great deal of insight regarding the present and future of copyright, i'm not sure how to digest water wells and musical socialism. And while INDUCE now has a most horrible connotation attached to it in my brain, Sony exemptions and CEA and BSA and DRM and...*trails off*... and DMCA and the Coase theorem- well, none of it really settles in yet. I've got the pieces, i'm just not sure where to start putting them in. I feel akin to a toddler trying to jam the blue triangle plastic piece into the red circle hole, certain that it will fit this time.

And by now youre probably asking "yeah but why do we care?" I dont know- really this post is just me struggling with conflicting ideas. But what really got me thinking again was this article-originally posted by Tommy O'Reardon. Its main theme is plagiarism- which is copyright related, though not on-point as much with the direction our seminar is headed (and if you want the lowdown on the article's significance, Tommy has it covered). Even so, plagiarism got me thinking about morality, and of course at the heart of copyright morality is what Professor Solum so cheerily refers to as copynorms. Yes, I know we've discussed these in class, and even here on the blog. However, when the topic came up, I grudgingly admit I was a bit dismissive of it. Not in the "oh it doesnt matter" sense, but more in the ridiculous obviousness of the idea. Except that maybe it isnt so obvious. Taking the most extreme example, killing someone is morally bad. We know this (well, the Dahmers and Bundys of the world aside). Stealing is also morally wrong. Its in the Bible. Its codified law in every imaginable country. And in the world of copyright, it seems as if copynorms have been generalized to give the same stark contrast. Is it morally wrong to copy someone elses work? In the p2p context, its called "stealing." In the literary world its plagiarism. The funny thing to me is- why does plagiarism feel like the worse evil? To put it a slightly different way, i'm much less offended by someone downloading copied songs online, than someone using a passage of a writing as their own. In fact, p2p sharing doesnt bother me at all.

Why is this? Why such disparaging levels of moral culpability within the confines of copyright? I think the problem is two-fold for me. The first has to deal with the nebulous nature of morality and copyright. As Malcolm Gladwell so astutely pointed out in Frozen:

"Intellectual-property doctrine isn’t a straightforward application of the ethical principle 'Thou shalt not steal.' At its core is the notion that there are certain situations where you can steal."

By and by, this is a true statement. Copyright protection is limited- copying itself is not illegal per se, but depends on what and how much. I can sample a 4 second clip from a song and put it in another song (for the most part-though courts nowadays are a bit confused on how much sampling is legal), but I cannot sample the distinctive intro/main riff to the "Rocky" theme and call it my own- that would be "stealing." A tangent of this "moral indistinctness" in copyright also surrounds the use of the word "steal." In IP terms, a person really isnt stealing anything tangible- its not as if i am taking your couch and thus depriving you of sitting in it. As Lawrence Lessig illuminated in Free Culture:

"The point instead is that in the ordinary case—indeed, in practically every case except for a narrow range of exceptions—ideas released to the world are free. I don’t take anything from you when I copy the way you dress—though I might seem weird if I do it every day. . . . Instead, as Thomas Jefferson said (and this is especially true when I copy the way someone dresses), “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."

So, to return into the virtual world of p2p, my act of downloading a song does not take that song from its owner, nor does it deprive someone of its use. And yes, we all know this. The real deprivation, in particular in a p2p context, is fiscal. An act of sharing is (at least the RIAA would like to argue) stealing the economic benefits that creators need for creative encouragement. This confusion is all a product of the "propertization" of ideas that has transformed Intellectual Property law into, well, Intellectual PROPERTY law. So not only do we have a body of law that one the one hand says its morally wrong to steal some things but not others, but we also have a different codification of the term "stealing." Its not stealing in a traditional sense. And that should affect our decisions on the morality of copyrights.

This ties in (albiet with a little circularity- sorry but my ideas on all this are just as tough to grasp and put in type as the topic itself) with my second problem. It appears to me that the reasoning behind copyright protection- the incentive to promote creativity and invention- has a lot to do with morality and copynorms. The ideal behind protection of creations can be looked at from two perspectives- an economic incentive and an "identity of authorship" incentive. Copyright protection at once does two things. One, it allows the creator to secure a limited monopoly financially in his/her creation. But it also attributes an authorship identity to the piece- for instance, when I write a song and copyright it, not only do I secure a financial stake in the music, but a personal one as well. My identity as the author of said piece is also protected to some degree- in the case of a novel, no one can copy a chapter of my book and put it in theirs, claiming it as their own.

Which one of these protection incentives is really the basis of our moral decisions? Are we more offended if someone copies a book digitally, reprints it and puts his name on it? Or someone who downloads a song, but doesnt claim it as his own? In other words, as the artist/creator, wouldn't you be more offended if someone claimed your work as theirs, rather than someone copying your work to enjoy it themselves? It appears to me, as a sometimes-aspiring oftimes-struggling artist myself, that identity of authorship is the protection that matters the most. It wouldnt stop me from creating music if I found out someone else was illegally sharing my music, robbing me of the economic benefits of selling my cds. However, if every time I created a piece, someone else took that and put their name on it and started selling it- well, that would definitely impinge upon my desire to create. And maybe i'm too idealistic in this, but I think the true drive in creating music, movie or book isnt money-based as much as it is personal-based. More vanity than greed I would say. To know that a piece is identified with me is a much deeper satisfaction than the economic gains derived (though those would be satisfying as well).

What does all this mean? Well, for me, it answers a tiny part of the question of why I have such a strong viewpoint on the moral wrongness of something like plagiarism, and yet see p2p sharing through rosy-colored glasses. I believe that the reason music, movie and art should be subjected to some sort of copyright protection is to protect the creators personal identity within that piece. Unfortunately, with the rise of art as a big commercial business, a lot of the copyright holders now (mostly big companies) dont see the same duck. A record company will hold the copyright to a song, but will have no care for any identity of authorship concept- they're just concerned with makin the bennies. p2p file sharing doesnt destroy my indentity in a piece- all it does is (maybe) affect my economic stake. I believe that identity of authorship does more to encourage and promote invention in copyright related arts (music book movie art), while perhaps economic incentive might be better used in patent law- where the costs of creation can be so great. As such, p2p seems like a small evil to me- a necessity in the exchange of free ideas. But of course the RIAA and MPAA think different.
If youve gone this far with me, kudos. My point in all this babbling was that I cant very well decide what legislation is best if I cant even decide whats wrong and right in the copyright world. The initial conflict in morality within copyright is whats causing such a blurred final picture. And I think thats part of why copyright law is in such a state of flux right now- p2p has got us looking at the individual pixels of copyright protection. And we're still questioning these initial building blocks.

Posted by Jon Wallace on November 21, 2004 at 08:37 PM in Copynorms | Permalink

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Copyfutures

The future of copyright.

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November 21, 2004

One Man's Trek Through the Copyright Forest

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