Wednesday, September 16, 2009

The Nature of Property - Copyright #2:

Some months ago, I spoke about two books I read on copyright. The book Digital Barbarism by Mark Helprin makes the strongly pro-copyright case andRemix by Lawrence Lessig makes the case in favor of loosening copyright laws. I intended to quickly get back to the topic of very different view of intellectual property presented by these two authors, but it took a bit longer than I anticipate. Still, better late than never, and it's given me the further chance to read Free: The Future of a Radical Price by Chris Anderson, which adds further dimension to the discussion.

In the Helprin book, he makes a comparison to when he was a teenager and stole an ear of corn from a cornfield, because he was hungry. He was (rightly, as he says) harangued by the farmer for having stolen his ear of corn and the point is made that if everyone came along and took corn, the farmer would have none to sell and would go destitute.

The analogy is that many young people (and some older ones) today consider it perfectly fine to get music, videos, or even books online for free, often in ways that are not legitimately authorized by the creators of the content and from which they do not profit. When they argue that it's only a minor theft, he invokes his analogy with the ear of corn.

However, the fundamental problem with this is that it's a false analogy, and there are logical flaws on both the supply and demand side of the equation when equating it to modern publishing.

First, on the supply side:
The farmer clearly has a finite quantity of corn. The author, however, does not have any limit on how many times he can replicate his written work (especially in the digital age - obviously, logistical limitations exist on how many hardcopies can be printed). So for the analogy to work, we have to modify the situation so that the farmer has worked hard to create a field of corn, but that field now contains an infinite amount of corn. Taking a single ear of corn does not actually diminish the amount of corn remaining in the field to be potentially sold at some later date.

Next, on the demand side:
The farmer in the story invokes a "slippery slope" argument to condemn Helprin for the theft of the corn. If Helprin were the only person to ever take an ear of corn, there'd obviously be no problem. The concern is that other people will pick up on this trend and begin stealing as well, and the farmer will lose all his corn and be destitute.

However, the problem in both Helprin's argument and the farmer's is that they assume that this trend will continue ad nauseum, and in the case of online digital content it's clear that not everyone is going to just take. Some people are going to give back to the content creator, if the opportunity exists.

Put them both together...
Now, if you remove both of the logical flaws, then here' s the new correct analogy:

A farmer works hard to create a field which contains an infinite amount of corn, and he asks people to pay for the corn.

In this case, if someone comes along and takes an ear of corn, it's not nearly as clear that the farmer has lost anything of value, nor is it clear that the theft has left him any closer to bankruptcy than he was earlier. The guy probably wouldn't have paid for it anyway, he just would have kept on walking. You can feel moral outrage that the person didn't pay for the corn, but the farmer's future prospects are exactly the same as they were prior to the person taking the ear of corn.

The other side of the argument:
Obviously, though, if people are stealing his corn, then the farmer can begin implementing strategies to benefit from this theft. He can build a fence and walk the perimeter with a gun, but this might alienate some of the legitimate customers, who don't want a lot of hassle in accessing their corn.

So, we have to consider the analogy instead to be a case where the farmer puts up signs that say things like, "If you're going to take some corn, please donate what you can" or "Get free corn if you sign up for my monthly newsletter ALL ABOUT CORN!" Some people will take free corn, but his farm will be incredibly popular, and many of those people would (presumably) pay for the corn ... or he'd end up with a very large database of corn enthusiasts, which he could leverage to the authors of a corn recipe book or something.

The point of all of this is that the fact that the farmer's supply of corn is, once the initial work has been created, now infinite changes the dynamics of the situation. This isn't true of corn, but it is precisely true of written works.

Helprin is right that intellectual property is a form of property, but he is wrong in equating it precisely with physical property, because it doesn't have the same limiting features. He can argue all day about the importance of copyright (which is important), but he should do so with a full awareness that any argument which doesn't recognize the distinction will be dismissed entirely by the other side (rightly) as largely irrelevant to the case at hand.
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