One of the prevailing views of ownership is “not a contract between myself and my property, but between myself and the world ABOUT my property.” The point of owning something is for everyone else to respect my relationship with a thing- be it a pen, a house, or trademark. Why, then, do we frequently fail to accept that piracy is a wanton and willful disrespect of an artist’s relationship with her property?
Perhaps we misunderstand property and ownership at the outset. As I have said before, a common rejection of copyright is that “copying is not theft, because it does not deprive the owner of their thing.” This apparently rests on the notion that to own something has weight insofar as it means I can have it. The competing view is that ownership has weight insofar as no one else can have what I have. This is the difference between understanding property as a contract with a widget vs. understanding property as a contract with the world about my widget.
Fundamentally, I trace this misunderstanding to a generation that internalized all too well the elementary school maxim to mind one’s own business. I think it likely that we became too adept at seeing the world in terms of single individuals, isolated and independent, alone in the world. Seeing the world like this, it makes more sense that an act cannot be wrong if it does not directly disturb others, or does not directly interact with them. I spoke to the broad implications of this kind of view in my post “A Head in the Sand is not an Ideal Source of Rights.” Applied here, attempting to see property claims as irrelevant to anyone neither an owner nor a piece of property can cause confusion over why copying might infringe on someone’s ownership. I think our views of piracy and copyright would be rather different if our relationship (or our view of our relationship) with the artist were closer (or felt closer). I wonder: are devoted fans of a band, game studio, actor, etc. less likely to pirate the works of their idols? If so, perhaps a good way to enforce copyright is to build a strong sense of community so that consumers feel that they are helping themselves and each other by abiding copyright, rather than taking free rides through piracy.
There are two common comments against copyright: 1) Copying is not theft, 2) All art is derivative. The most common responses are: 1) Copying is not wrong on the same basis of theft, 2) This is why expressions but not ideas are copyright-able. I will focus on the first, here.
Different sections of intellectual property are founded on different ideas, but all have in common the goal of promoting useful arts and sciences (US Constitution Article I, Section 8). This “promotion” is primarily in terms of economic incentive. One argument in favor of copyright goes that by freely copying the works of an author or artist, we effectively rob the author of the money we would have paid for the work we got for free. [This raises the question: what if I was unwilling to pay for the art, but I am willing to accept it for free? This might describe my attitude towards a lot of vacuous, unimaginative, stupid, yet catchy pop tunes. If I was not going to pay in the first place, did I actually deny money to the author (and publisher, distributor, etc.) by getting her work for free?] Most theft does not seem to be a concern purely because a single object cannot stolen and remain in place at the same time. Suppose I could steal an object from a store, and yet the object remained there. The store still has it, yet I also have an identical copy of it. My ownership of the copy means I have no need to buy from the store, and so the store is economically harmed.
The argument that “copying is not theft” and is therefore permissible assumes the falsehood that theft is wrong because it deprives someone of the object being stolen. In fact, theft can be wrong because it deprives someone of what the object represents or leads to (such as economic benefit).
A great metric of the appropriateness of a reformation of copyright for the 21st century is the extent to which fame can be separated from fortune. Throughout the 20th century, “fame and fortune” rolled off the tongues of English speakers as a sort of single concept as a duo of nouns. Yet YouTube allows enormous masses the opportunity to be viewed by hundreds of millions of people without earning a cent. The emergence of “meme pics” has resulted in the almost spontaneous celebrity of people, turning candid photos by friends into mascot-images of sentiments and situations. Warhol is famous for noting that we would all have 15 minutes of fame in the future. What he did not mention is that we might not have 15 minutes of wealth along with it.
The splitting of fame and fortune seems right to me, in the example of Jonas Salk. Society is better off when thinkers and inventors give their work freely to the public to use, improve, develop, and enjoy. I would be interested to see a world in which these two approaches are taken to the extremes because I would be interested to see who would win: the artist who carefully protects and charges for the enjoyment of his work, or the artist who freely circulates his work. My initial reaction is that the artists who charge are those who think their work merits profit (that is, the good stuff will cost the most). Yet I wonder: if artists create out of their passion for their craft, might we see at least as good art from those seeking some goal other than wealth? Greed motivates, certainly, but I do not think it is necessarily the greatest motivation nor am I convinced it is any assurance of superlative quality. There is a book on the subject of how ideas are transmitted in a digital age entitled If It Doesn’t Spread, It’s Dead. If the title is correct correct, fame and fortune are not only separable, but may be pitted against one another in cyberspace. To pursue fame is encourage the spread of the idea. To pursue fortune is to erect a barrier to the spreading of the idea.
I would like artists of all walks to face this “would you rather” question: Would you rather… have everyone listen to your music/watch your movie/ read your book but make only a modest paycheck, OR have your work enjoyed only by a few but make more money?
As Metric put it: “… Who would you rather be: The Beatles or The Rolling Stones?”