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Stealing the Throne

by Derek Bambauer · February 22, 2012

Ever-brilliant Web comic The Oatmeal has a great piece about piracy and its alternatives. (The language at the end is a bit much, but it is the character’s evil Jiminy Cricket talking.) It mirrors my opinion about Major League Baseball’s unwillingness to offer any Internet access to the postseason, which is hard on those of us who don’t own TVs (or subscribe to cable). Even if you don’t agree with my moral claims, it’s obvious that as the price of lawful access diverges from the price of unlawful access (which is either zero, or the expected present value of a copyright suit, which is darn near zero), infringement goes up.

So, if you want to see Game of Thrones (and I do), your options are: subscribe to cable plus HBO, or pirate. I think the series rocks, but I’m not paying $100 a month for it. If HBO expects me to do so, it weakens their moral claim against piracy.

Unconvinced? Imagine instead that HBO offers to let you watch Game of Thrones for free – but the only place on Earth you can view the series is in the Kodak Theater in Hollywood. You’re located in rural Iowa? Well, you’ve no cause for complaint! Fly to LA! I suspect that translating costs into physical costs makes the argument clearer: HBO charges not only for the content, but bundles it with one particular delivery medium. If that medium is unavailable to you, or unaffordable, you’re out of luck.

Unless, of course, you have broadband, and can BitTorrent.

As a minimum, I plan not to support any SOPA-like legislation until the content industries begin to offer viable Internet-based delivery mechanisms that at least begin to compete with piracy…

Cross-posted at Info/Law.

Seth Finkelstein says:

February 23, 2012 at 9:37 pm

@Joe – I’m thinking of trying to publicize the following as an aphorism:

“Copyright is a technology restriction” – Seth Finkelstein

That is, it’s simply untrue that “for first time in its entire existence …”. The whole point of copyright was, roughly, restricting what could be done with printing presses. Books were NOT priced at their unrestricted technological cost of production plus marketing. There was a legal barrier put in place, a requirement on permission to create them.

Now, this problem has intensified greatly, as the reproduction cost has decreased dramatically (it’s not zero though – the huge cost of running YouTube is proof that). But it’s not utterly without parallel in human history either.
Derek Bambauer says:

February 24, 2012 at 8:45 am

@Orin: my instinct is that most of IP law falls into the second of your categories. In fact, I’d argue this should be a strong default assumption. Both sides of the debate likely hate that. IP producers see infringement as wrongful in the ways that trespass and trespass to chattels are wrongful: the infringer deprives them of the quiet enjoyment and benefit of that which is theirs. IP consumers feel they have some entitlement (right?) to access the work at a price they consider reasonable or just.

I think it would simplify the debate considerably to treat infringement as a technical violation. What we’re really dealing with here is economic regulation: we want our economy to produce certain outputs. That doesn’t mean we should excuse infringement, but rather, we shouldn’t respond to it with either moral opprobrium or indignation.

In fairness, the producers started the morality talk. Infringement is not “content theft.” (I’ve argued we should just go all out and call it “property terrorism.”)

The area of IP law that most closely fits the first of your categories is misattribution or lack of attribution. I think that identification of the work with its creators is important for both moral reasons and economic ones. Weirdly, though, that’s mostly a trademark concern (though there are copyright-like state statutes dealing with labeling). My moral intuition here is more Hegelian – it’s about the connection to the work, not the labor required to produce it. But: that means sitting through the credits at the end of the motion picture. Not fun unless you get a Samuel L. Jackson cameo at the end.
Derek Bambauer says:

February 24, 2012 at 8:46 am

@Seth: I agree. There’s no way for copyright law, which is a set of political bargains ratified by Congress, to reflect any coherent intuition of any sort, and certainly not a moral theory.
Orin Kerr says:

February 24, 2012 at 4:01 pm

Derek,

I tend to agree that we’re in category 2, although I ‘m much less troubled by the use of the word “theft” to describe a lot of infringement. You might not like the connotation of the word “theft,” as it connotes something bad. But I think the word is reasonably accurate given the existing state of the law. If the law says that one party has an exclusive right, and that it is a civil wrong and a crime for someone else to take a way that exclusive right without consent, then I think the act of taking away that exclusive right without consent is the kind of thing fairly described in a colloquial sense as a theft. There are of course lots of theories as to why a theft is good in some cases, and that’s fine. But it doesn’t stop it from being in the nature of a theft.

Similarly, I think it’s fine to use the word “sharing” to describe infringement If I have something and I copy it and give it to you, I am indeed sharing it. Some object to the word sharing because it has a positive connotation — it suggests an act of generosity. But whatever the connotation, the actual act is in fact a kind of sharing. As I see it, the fact that it is sharing doesn’t make it good — it’s just that the word reasonably fits, even if one doesn’t like the connotation.
Derek Bambauer says:

February 26, 2012 at 8:02 pm

Orin: you’re right, I don’t like the connotation of either word. This is partly because it feels tactical to use them (hence my joke about “property terrorism”), and partly because I think it obscures rather than clarifies. Let me talk a bit about theft. We have strong moral intuitions about theft. The law (at least, according to my inexpert understanding) seems to track these intuitions reasonably well.

Copyright, on the other hand, does not track our intuitions at all. It is not clear why you can reproduce chunks of my work in a book that criticizes it, but not to include it in a book of favorite writings. Or, why composers get public performance rights, but the groups that create sound recordings based on them do not. Or, why one can create a cover of any musical composition that has been released, merely by paying a statutorily set fee (liability rule rather than the usual property rule protection). We operate in a world where our lay understanding of how copyright functions is completely at odds from how it does function. (Favorite example: people who upload clips of shows to Youtube and put, in the comments, “No infringement is intended.” Innocence won’t save you!)

It’s a technical area that is hard for lawyers to understand. And that’s why I don’t like dropping semantically loaded terms into the fray. My thought is that the analogy is closer to the Sarbanes-Oxley requirement that a CEO attest to the sufficiency of a publicly-traded company’s internal controls. Should the CEO fail to do so, he/she could be subject to prosecution. Yet, I don’t see that there is much moral opprobrium that would attach to such a violation / failure – it’s a difficult, technical area. (Perhaps I am simply tracking your malum in se line of thinking…)

Not to mention that there really are no angels here. “Sharing” is often a cover from straightforward infringement of the reproduction right by people who do not wish to pay. “Theft” is often deployed by record labels who routinely defraud the artists they purport to represent, and who had a stooge insert language into a technical amendments bill that would have transferred those artists’ termination rights to the labels by altering the works for hire doctrine. Words are weapons in this fight.