A reply to ‘Is efficient copyright a reasonable goal’

The Thesis

In essence, the article aspires to make a primary moral claim: that it is wrong to get less payment (in some comparative sense) from copyright. (And further, that more payment would be right.)

And the justification: that a reduction would not be ‘fair’. (Or, that an increase would be ‘fair’.)

“My concern is rooted in the very basic concept of ‘fairness’ that arises when, in the name of economic efficiency or social welfare maximization, a particular market would need to treat its labor component differently than other markets treat their labor components.”

“Elsewhere in the economy, we do not find government policies attempting to remove rents from labor. It does not, therefore, seem ‘right’ or ‘fair’ or ‘just’ to remove the rents for just one category of labor-workers in what are sometimes termed the ‘creative’ industries”

First problem

Merely that other people do something does not justify that thing as moral.

Fairness is widely considered as a requirement for something to be moral, but it is not sufficient to make something moral. Also, that something is done is no proof that we should do it – i.e. that it is moral.

Adding to the problem is that those moral requirements, in respect of the thesis, seem not merely unproved but disproved. The article admits, by the only framework of justification given – the economic one – that what these other people are doing is ‘wrong’. What they get are ‘rents’, and, to put it simply, economic rents are bad. And the article makes clear that the right thing to do – according to economic justification – is to tax rents.

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It is suggested that other professions' rents earned justly are allowed – with the implication that copyright holders are similar. For this to justify the thesis both the justness of those other rents, and that copyright holders match, must be proven. So let us first check that copyright holders fit this condition.

Yes, the payment is attributable to them, and yes they worked to get it – those seem just, and those are not in dispute. But the amount they get, that is set significantly by the parameters of the copyright protection. That part is not ‘earned’, it is chosen for them. And this is the thing in question – the part of their reward in question is the very part they are not ‘earning’, but being given.

To suggest copyright rents are ‘earned’ justly is to beg the question. So this fails to support the thesis.

Now we can ask whether that reference for copyright is itself just.

“Society does not attempt to bring about extra efficiency by limiting the payments to talented individuals.”

The whole market system is praised because its basic operation, through competition etc., limits payment: it is expected to tend toward setting prices ‘correctly’, in the sense of what will create efficiency. That is the intent, and so the moral force of it. Where a moral system falls short in actuality, we question it or tolerate it – we do not consider those instances as exemplars or virtues to be emulated – indeed, they are the exact opposite.

An example of what we fail to do is not an example of what we should want to do. So this too fails to support the thesis.

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To support the primary argument of ‘fairness’ some justification of what these other people do, and that copyright holders match, is needed. None is given. In fact the article provides much fuller and clearer justification of the very opposite of the claim than for the claim.

So the argument looks like nothing more than this: ‘Other people are getting away with it, therefore I should too.’. That cannot inspire moral respect.

Second problem

That something is good for some set of people does not mean it is moral for all.

The money to pay rightsholders more does not come from nowhere. It comes from everyone else. To give some set of people more is to take it away from others.

Is that right, or just? One can echo the article's own protest: we can assume these people got their money justly, and are engaging in the market and buying the rightsholders' products fairly. So why should they have more of their money taken away (by larger copyright terms)?

This is simply entirely passed over.

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“there is only a small share of creators who generate the economic profits that would be eliminated by efficient copyright law”

This condition almost instantly disqualifies the thesis as a moral rule. A moral rule must be universalisable – and we can assume that requirement is reasonable here since it is what the article's notion of ‘fairness’ is really based on. But as far as the beneficiaries are so, almost specifically, limited – yet those constrained by the rule are not – universalisation is explicitly contradicted. A rule to benefit only some is obviously not a rule to benefit all. And a rule that is not intended to benefit all is not a rule that all have interest in following.

When all concerned are taken into account, the thesis proposes not a moral rule, but an extended form of self-interest.

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The economic view, however, accounts for this, because its basic motivation – in contrast to the article – is gain overall. It sets the amounts paid according to weighing the individual and larger effects. Though some would lose in certain ways, all would (it is supposed) gain more than they otherwise would. Buyers suffer restrictions on their freedom of use of the goods, and increased prices, but everyone benefits from more goods being produced.

The article has no counter, or alternative – indeed nothing to say at all. The argument resembles: ‘I should get more, and no-one else counts, or even exists.’. Or: ‘I am on the winner's side, therefore it is right!’.

But this makes no sense morally, and is only shortsighted. One might well be the greatest writer of books, for example, and so benefit handsomely from increased copyright payments. But one will probably not also be the greatest music composer, and the greatest film-maker, and software developer, and so on. We are net consumers, in a sense. To pay producers more is to take more from ourselves. No-one is really on the ‘winner's side’.

Such an ultimately self-contradictory and self-destructive essence is somewhat the hallmark of an immoral guideline.

Ideological impetus

“Maximizing social welfare in copyright amounts to a government intrusion into labor incomes”

This is a puzzling statement. The whole of copyright is a government intrusion into labour outcomes. Copyright affects how much its rightsholders get, be it lesser or greater. Maximising welfare, and so here reducing rents, is no more or less an intrusion than the opposite.

This is a simple matter of fact. Is the copyright system a govermental construct? Yes. Does it change the commercial returns of producers? Yes. The laws are on the statute books, and their foundation in the US constitution. The government has already made the laws so it has already intruded.

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“I believe that if creators were considered to be as entitled to ownership of their works as are the owners of other more typical properties . . .”

This is the key arrière-pensée. And it begins to shed light on the previous puzzling statement.

The article is perhaps suffering from some form of unexamined privilege (by proxy). A privilege has been given – the artificial monopoly of copyright – and the recipients grown so accustomed to it that it is taken for granted: it is now expected – without question – as an entitlement and a right.

A justification is a very reasonable thing to ask for here, seeing that it is so germane, so where is it? The article “believes” – that seems to be the sum total. Why? No justification is given. “if creators were considered . . .” – since no reasoning is given for that conditional to hold, it does not, and the whole of the statement dependent on it is rationally empty for the sake of the thesis.

On the other hand, it is trivial to see why we cannot, and should not, simply treat abstract/intangible goods as physical property: one just looks at the basic facts of reality. Normal property reflects a physical scarcity, copyright invents a scarcity where there is none. If an object is taken, someone else loses it. If an object is copied, no-one loses anything: copying adds. If theft produced that, the best thing to do would be for each to ‘steal’ from the other – then both would end up with twice as much as they started with! Why restrict a basic activity – copying – that so obviously does good with the fundamental resources available, and necessitates no loss to anyone?

No pure moral account appears ever to have answered that question. But economics at least seeks to answer in the actual practical limitations and ramifications. The only known rational justification for copyright is the standard economic one. Again, it actually contradicts the thesis, and again the article has nothing in response.

Summary

The whole article seems to want to evoke the sense that it has some other kind of normative criterion, some other moral structure to judge copyright: something superior to the economic view. Yet nothing substantial is ever provided.

And what is wrong with the standard economic framework? It works reasonably as a normative, and is very appropriate here.

At root, economics is about the best distribution of resources. This gives it two essential features that qualify it well for normative use: first, it captures a fundamental concern we all very largely share – we all want or depend on physical stuff; second, it seeks to answer in general forms that apply to all – it has a character of universalisation.

Since our goals do overlap with that of economics, it works normatively: it can tell us something about what we should do to get that thing we want, and it tells us in general rather than individually. And economics is technically suited to the particular question here of work and payment.

And if we want to look deeper than the economic framework, what do we find? As far as a more unconditional a priori moral analysis of copyright, rather than supporting its extension, it seems quite solidly to oppose its existence at all. Copyright fails when examined with respect to personal freedom, need for prevention of harm, and the a priori structure of abstract/intangible goods. See: ‘Intellectual Property Ethics: Arguments Against’ http://www.hxa.name/articles/content/copyright-ethics-against_hxa7241_2010.html

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So, to sum up the article:

The only framework of justification given for copyright is the economic one: and that contradicts the thesis. It functions here merely rhetorically, to lend an authoritative quality-by-proximity.

The only remaining possible justification would be a more general or fundamental moral one: but nothing of any substance is given. All we are given is a naive notion of fairness that is quite defective.

It all amounts only to a quasi-intellectual superfice for what is nothing more than the self-interest of a few current rightsholders at the expense of everyone else.