1. Anon Reader - February 22, 2012 at 12:33 pm

   Your argument seems to be that if somebody only wants to sell you something one way for a particular price, and you think it’s too expensive, you’re entitled to take it without paying.

   I’m annoyed that my favorite deli won’t deliver to my neighborhood without charging a $15 delivery fee and increasing prices 20% off the menu price. It’s already an overpriced deli. No way my sandwich is worth $30. I’m going to order dinner to be delivered to my neighbor’s house and will just mug the delivery guy out front before he rings the doorbell. Hey – what are my other options?

2. kormal - February 22, 2012 at 12:42 pm

   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.

   I don’t see how this follows at all. Nor is your Kodak Theater example of much help. Movie studios do this all the time — Oscar contenders will premiere on a few screens for a few weeks to qualify for awards, with a wide release schedule only following months later. Is your argument that the moral argument against pirating is weaker prior to wide release, and stronger after?

   Game of Thrones is out on DVD in 13 days. Does that strengthen HBO’s moral argument? What threshold of accessibility is needed for arguments against piracy to carry significant moral weight?

3. Joe - February 22, 2012 at 12:44 pm

   Economics is the study of how to best allocate *scarce* resources. When a resource becomes non-scarce economics is interested only in how best to deliver the non-scarce resource most efficiently to everyone who wants it.

   Digital goods are effectively infinite in supply and can be delivered worldwide at effectively no cost (and this is only becoming more true as technology progresses). This means — to maximize utility — they should be delivered freely to everyone who wants them. Price becomes irrelevant as a tool to allocate between competing demands because the supply is infinite. (In other words, we aren’t forced to make a hard choice of determining who gets the resource and so rely on who is willing the pay the most as an indicator of who will be most happy with it).

   The only argument left as to why prices should be still be forced upon the consumer is the common worry: “But without profit producers will have no incentive to produce, so the digital goods you like so much will become non-existent.”

   I think this is false. Removing the price attached to the digital good does not remove all profit or incentive to create. Take for example Justin Bieber. Justin Bieber earned his fame by releasing his music free on YouTube. After attaining celebrity status he can profit by charging for real-world shows, advertising, and can now more easily segue into other career paths (acting, hosting ceremonies, etc.).

   By making digital goods free producers will profit *less* but they will not stop making any profit at all.

   I met the exact same problem as the Oatmeal author with regards to Game of Thrones. I had no cable service at all, but I do not pirate media. I have since purchased cable with HBO, but I do not think the producers are doing themselves any favors.

   The future should be free digital media. The more goods and services we can digitize as a society the closer we get to a utopia.

4. Michael Risch - February 22, 2012 at 12:48 pm

   Yeah, I’m not buying it either. In a world of perfect price discrimination, everyone would get what they want efficiently at the price they are willing to pay. But not everything is delivered the way we want it, and it may be profit maximizing for HBO to hold off on DVD and streaming in order to get more people to pay for access to the full package. It’s not even an IP problem, but an access problem, and those with something to offer and an ability to limit access will do it. Bundling is a bummer for consumers sometimes, but so what?

   If vendors couldn’t bundle, then maybe some things wouldn’t get made in the first place. I know a lot of people say that creation will happen anyway, but I don’t see a lot of original programming of HBO series quality popping up on YouTube.

   That said, it would be great if programs were available faster and cheaper. But maybe your loss is the gain of others who are willing to pay more for the full service (and would have to pay even more if HBO lost subscribers in order to have cheaper, faster streaming), and it turns out that there is actually consumer surplus because there is no price discrimination.

5. Bruce Boyden - February 22, 2012 at 12:49 pm

   “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.” OK. So what? Either they have the right to sell their content on the terms provided to them under the law or they don’t. Unless you’re arguing that HBO has some sort of countervailing moral obligation to publish as widely as possible (which I expressed skepticism about here: http://www.concurringopinions.com/archives/2008/01/is_there_a_mora.html ) then I don’t see why it would matter that it’s expensive, or available only in limited fora, etc. There are always *some* restrictions on the availability of copyrighted content, at least where the copyright owner is attempting to sell the work; that’s what it means to have a copyright system.

6. Michael Risch - February 22, 2012 at 12:51 pm

   In response to Joe – quality programming is, in fact, scarce.

7. Joe - February 22, 2012 at 12:52 pm

   Professor Risch,

   If I create a song, convert it to digital format, and then upload it for download creating an infinite supply of the song to whoever wants it. What is the basis for applying a price to the good if the supply is infinite? It seems it must lie outside of economic theory and rests in politics.

   Perhaps I am overlooking something.

8. Bruce Boyden - February 22, 2012 at 12:54 pm

   Hmm, refresh page next time before typing.

9. Joe - February 22, 2012 at 12:57 pm

   It is true that quality program is limited, but it seems to me to not be scarce. In the same way there is a limited number of chemical elements in the universe. But while gold is found among a limited number of metals it is also scarce. There is a scarce amount of gold in the universe.

   While HBO programming is found among a limited number of quality programming it is non-scarce. Once discovered it can be allocated to infinite.

10. Bruce Boyden - February 22, 2012 at 12:59 pm

    Joe, your time and money are finite. What’s buying your food while you are devoting 100% of your time to song creation and distribution? If you’re devoting less than 100% of your time, and you’re really good at creating songs, then it seems like you are giving us a suboptimal level of music and a supra-optimal level of table-waiting services, or whatever your day job is in this hypo.

11. Joe - February 22, 2012 at 1:05 pm

    I agree that time and money are finite, but I don’t see how that is relevant to whether digital goods are not a nigh post-scarce good.

    While in the hypo digital goods may be free due to their non-scarce nature, a producer may hope to profit from future fame. This gives incentive to create. This expectation of future fame and earnings may also give others like loaning institutions incentive to fund.

12. Derek Bambauer - February 22, 2012 at 1:25 pm

    @Michael: “Bundling is a bummer for consumers sometimes, but so what?” So, I presume you think the patent misuse doctrine should be interred?

13. Orin Kerr - February 22, 2012 at 1:29 pm

    Derek, I’d be very interested in your responses to the comment thread, and especially that of “anon reader” in the comment. Like “anon reader,” I interpret your view as suggesting that you have an underlying moral right to get whatever you want — by buying it if you personally feel the price is sufficiently low or convenient to you, or by obtaining it without consent in violation of federal civil and criminal law if you don’t. Is that your view, or am I misunderstanding it?

14. Michael Risch - February 22, 2012 at 1:29 pm

    I agree that once the song it is made, it is not scarce (technically). The marginal cost of distributing it is zero. In other words, it is a public good, and so we impose scarcity through IP laws so that we can drive the marginal cost up enough so that someone will provide the public good (not including Justin Bieber, whose public-goodness remains debated).

    The primary disagreement in economics is whether people will, in fact, create in the absence of this imposed scarcity. You say no, because people will do it for fame. I think that’s true for a lot of stuff, and maybe even for a fair chunk of music, but not true for most high quality television and movies. Yes, some will get made, but there will be less of it, and of less quality.

15. Michael Risch - February 22, 2012 at 1:33 pm

    @Derek – yes, in some cases patent misuse should be scaled back. But patent misuse is about unprotected staples that are tied in. The bundling of content is not the same thing. If the DVD for game of thrones requires you to buy a DVD player of HBO’s choosing, I might have a problem.

    There is plenty of patent bundling. I get all sorts of patented features on my phone that I don’t want but pay extra for because the provider is aiming for the middle. Indeed, I use an app to disable slide to unlock, and yet I suspect the cost of my phone will go up ever so slightly if Samsung settles and pays Apple on that patent. And I don’t even want that patent!

16. Bruce Boyden - February 22, 2012 at 1:40 pm

    The law makes copyrighted works more scarce, by operation of law. That’s the point. It makes them more scarce (in addition to whatever physical constraints there are on the particular method of delivery, but those are waning, although still extant) precisely so that you, and anyone you sell your rights to, will have an incentive to invest more time and money into the creation and distribution of such works than you otherwise would. At least that’s the theory. You may very well disagree with the theory, but there is a theory.

    It’s clear that there are all sorts of other motivations that go into the creation of works beyond monetary reward. Future fame is one of them, and a preeminent reason for some people, such as academics, whose works are not very financially lucrative anyway. But I don’t think the justification for a copyright system depends on the *absence* of other motives. It depends on the awarding of exclusive rights producing some net benefits for society (e.g., in the creation and distribution of more works than we would have otherwise), after the costs of the system are subtracted.

17. Bruce Boyden - February 22, 2012 at 1:45 pm

    OK, Michael is obviously quicker on the draw than I am.

18. Derek Bambauer - February 22, 2012 at 2:08 pm

    @Michael: “If the DVD for game of thrones requires you to buy a DVD player of HBO’s choosing, I might have a problem.” Um, how is this different from HBO’s practice of requiring you to purchase the cable service of their choosing?

19. Derek Bambauer - February 22, 2012 at 2:15 pm

    @Anon Reader: http://lmgtfy.com/?q=public+good

    @Orin: the incentives logic in this thread leads to a perfect market form of copyright: if you can pay for a use – if there is a market for it – then there is no moral claim to unauthorized use. Given that we as scholars live off fair use – the AP, for one, is willing to let us pay for things that we would consider “fair” – this seems a little hypocritical. My argument is that we think there’s a point where there is a moral claim to unauthorized use. As I argued in the post on Cary Sherman, the view I’ve set out above regarding the morality of piracy is one that’s widely held, particularly among younger users. And, if we’re going to take seriously the IP arguments here, we need to think hard about what happens in a context where IP incentives matter far more profoundly, where we’re dealing with physical goods (so, less of a public goods problem), and yet where arguments for unauthorized access are far more stringent: pharmaceutical products, especially in developing countries.

    So: what moral claim, if any, do HIV+ people in, say, sub-Saharan Africa have to access anti-retrovirals if they cannot reasonably afford them? And how does one draw a principled distinction between that and the arguments above?

20. Orin Kerr - February 22, 2012 at 2:33 pm

    Derek, thanks for the response. At the same time, I don’t understand your moral claim.

    Let’s take you and HBO. You can pay for HBO trivially easily. You’re a Harvard/Harvard Law grad with a six-figure income: You probably won’t even notice if the $100 per month is missing. Further, it’s not like you need to watch Game of Thrones to live. It’s just one of thousands of possible sources of entertainment, and one that apparently you think you would like.

    Is it really hard to draw a line between you wanting to see Game of Thrones, having the money to easily pay for it but preferring it for free, and HIV+ people in sub-Saharan Africa needing access to anti-retrovirals to live? If the moral claim is based on necessity, then the distinction seems obvious to me: There is no necessity in the case of you wanting free HBO. Having a mild preference is not the same as a necessity. What am I missing?

21. kormal - February 22, 2012 at 2:39 pm

    My argument is that we think there’s a point where there is a moral claim to unauthorized use.

    I still don’t understand your argument. We need to be careful about how we govern access Game of Thrones because the answer might implicate a sick person’s access to HIV drugs in Africa? Isn’t the better question the following: what moral claim does a Brooklyn Law School professor have to stealing work from MLB and HBO, when he can reasonably afford to pay for access to the content legally?

22. kormal - February 22, 2012 at 2:40 pm

    Or what Orin said.

23. Michael Risch - February 22, 2012 at 2:44 pm

    Derek – the misuse argument comes down to rule of reason and market power for me – fuzzy, I know, and a bit circular. I’m sure antitrust folks would have more to say.

24. Joe - February 22, 2012 at 2:53 pm

    What if we turn the question around and ask: What moral claim is there to justify rent-seeking by putting a price on a non-scarce good?

    If I have a magic box that produces an infinite number of HIV medicine, and I have a magic way to teleport them into the hands of everyone who needs the medicine — what moral claim do I have to charge a price?

    Does it change anything if I had to spend Y units of [time, labor, money] to make the infinite-magic-medicine box?

    The utility to be gained from entertainment goods are far less compared to the utility to be gained by a person who needs lifesaving medicine, but that is just a degree of quantity.

25. Bruce Boyden - February 22, 2012 at 3:08 pm

    “Does it change anything if I had to spend Y units of [time, labor, money] to make the infinite-magic-medicine box?”

    Yes.

26. Joe - February 22, 2012 at 3:12 pm

    One of my law professors is fond of exhorting his students to answer with: “Yes or no followed by a because.”

27. Joe - February 22, 2012 at 3:18 pm

    I mean to say: I am learning a lot from this dialogue and I appreciate hearing the opinions and views — but especially the reasons — for those views from people much more knowledgeable about IP and copyright law than me.

28. Derek Bambauer - February 22, 2012 at 3:49 pm

    @Orin: you’re quite right. It’s not hard to see the ends of the spectrum. But that’s a pragmatic argument, maybe even a utilitarian one. I’m trying to figure out the moral claims. I am quite serious about the descriptive piece (more expensive = more piracy), and about a quarter serious about the normative piece (I am really mad at MLB, but realize that is idiosyncratic). If the difference is simply ability to pay, then I don’t understand why we don’t send the AP a tiny check when we quote their columns. And if it’s not ability to pay, but something else (even multiple somethings-else) that we balance, what is it?

    As a side note, I do not have HBO because I hate my local cable company so much that I will give up Game of Thrones not to pay them. I would pay HBO directly if I could.

29. Orin Kerr - February 22, 2012 at 4:01 pm

    Derek, thanks for the response and continued dialogue.

    Your descriptive claim that more expensive = more piracy is no doubt true, but strikes me as true only in a trivial way. People like to get cool stuff for free. The cooler the stuff is, or the more expensive it is, the more people will want to take it for free in violation of the law. But so what? Should we say that piracy is HBO’s fault because they made such a desirable product?

    As for why we don’t send the AP a tiny check when we quote their columns, one reason is that the law doesn’t require it. You’re free to do so if you’d like, but most people want to keep their money, so they do unless the law says that they can’t. It’s not a question of morality or of balancing. It’s just a question of law.

30. James Grimmelmann - February 22, 2012 at 5:18 pm

    As usual, I think this is partly about the actual economics and partly about the perception of a fair deal. For some people, bundling Game of Thrones with everything else on standard cable and HBO makes the deal better because they get access to other shows they like. For others, the take it or leave it bundle makes it worse, because it’s hard to retain your faith in humanity when you’re being reminded of the existence of Cake Wreckers and America’s Next Top Panhandler. I wonder whether there are people who would think $100 to watch the immediately past season of Game of Thrones was MORE fair if it didn’t come bundled with an HBO and cable subscription that you then have to cancel after a month.

31. Derek Bambauer - February 22, 2012 at 7:03 pm

    I should note that I am curious about the moral calculus behind IP here, and I framed it up in the negative: when do we feel morally justified in disregarding IP rights? Perhaps I should have been explicit about this in the post.

    @Orin: I think that the Oatmeal author is not unusual. Some people pirate because free is a great deal, but some feel either a personal connection to the artist (and hence want to reward them), or a moral duty to engage in lawful transactions where possible (or, perhaps more accurately, where the cost of doing so isn’t too high). Thus, if HBO makes it very difficult to engage in a lawful transaction – or costly enough that many of the consumers who feel the moral duty feel they are no longer bound by that obligation – I would argue that their moral argument against piracy is weakened. It’s not obviated, but it is far less strong. Ditto the music industry before iTunes: when one cannot use the Internet to obtain music save for crippled services such as Pressplay, complaining about downloading has a whiff of hypocrisy.

    Let me say that I find your answer about the AP unsatisfying. *Why* doesn’t the law require us to do so? I don’t believe law tracks morality precisely, and certainly not in terms of copyright law. (Is there a moral case, rather than an economic one, for denying recording artists a public performance right, while granting it to composers?) This is the difference between HBO arguing that piracy is unlawful – which is easy – and arguing that it is *wrong*. I am trying to figure out why it is wrong.

32. Derek Bambauer - February 22, 2012 at 7:05 pm

    @kormal: “when he can reasonably afford to pay for access to the content legally?” What is “reasonably afford”? My sense is that you are engaged in precisely the sort of weighing I am trying to pin down. Can an impoverished college student download music unlawfully? (Napster.) Orin and I can easily afford to pay the AP for the quotes from their news stories we use. The law doesn’t require us to do so, but why do we feel no moral compunction to send them a check? Reporters don’t make much money.

33. Derek Bambauer - February 22, 2012 at 7:06 pm

    Let me try it a different way. I write copyrighted law review articles as part of my job. I will do so regardless of whether they are pirated or not. Is it morally acceptable to pirate my articles? (Leave aside whether anyone would want to. They would not.)

34. Seth Finkelstein - February 22, 2012 at 7:17 pm

    One of my views of the copyright debate is that if you take any of copyright’s underlying principles and examine it closely and widely, you will run into a blind alley. That is, it will be unsustainable as a practical matter. In a way, this is trivial in that anything taken to extremes can be made contradictory. But there’s something nontrivial at work too, as much copyright discussion consists of mutual contradiction thrown back and forth among valid principles in moderation.

    Thus, can I rephrase the post’s point as something along the lines of “A merchant who charges an *unjust price* weakens the moral claim against evasion”.

    Count off the obvious:

    1) What’s an “unjust price” ? The market fundamentalist will claim it doesn’t exist.

    2) Even if it exists theoretically, is this case, or cases like it, unjust?

    3) Morality vs. Law – When is the law meaningless, or so widely ignored as to be a minor matter.

    Does this focus the discussion?

35. Derek Bambauer - February 22, 2012 at 7:29 pm

    @Orin: I’m remiss in not thanking you earlier for such a thoughtful conversation. I am learning a lot.

36. Orin Kerr - February 22, 2012 at 7:33 pm

    Derek, maybe it’s just me, but I’m a little confused by the question. Are you asking about when one has a moral duty to follow IP law? When one has a moral right to ignore IP law? I would think they are quite different.

37. Orin Kerr - February 22, 2012 at 7:34 pm

    Oh, and re 7:29, happy to discuss! Invigorating ideas.

38. A.J. Sutter - February 22, 2012 at 9:29 pm

    No matter how you slice it, the question of moral duty is very contingent. For example, is copyright really a necessary incentive for the creation of great works? Contra, e.g., Shakespeare’s plays, the Mona Lisa, the works of Kafka that he wanted burned, etc. The list of things that got invented without patent protection is at least as impressive, and far more contemporary.

    In the absence of copyright, how many artists would create if they knew they could make a sustainable living, and get credit for being the creators (plus maybe some moral rights to limit the ability of others to trash their stuff)? Probably lots. Not that copyright laws protect them so much anyway, since nowadays it’s the distributors of copyrighted works who gain the most.

    Contra the usual Lockean narrative, there is also an argument that ownership of creations is already problematic because no one’s ideas are born out of a vacuum. If you design a better vacuum cleaner, it’s probably because at some point you read some engineering textbooks, or studied someone else’s vacuum cleaner. If you write a play, probably you’ve read or seen someone else’s, too. (Even in Lockean terms, the notion that one is taking things from nature is probably a false premise in this context.)

    And while I’m not usually one to advance libertarian, free-market arguments, an interesting one against IP is made in the book by Boldrin & Levine.

    So what would the general (i.e., not case-specific) moral claim rest on? The threat to discourage creation of valuable future works? No, that has alternative work-arounds. “Thou shalt not steal”? No, that begs the question of whether the attribution of ownership has a moral basis in the general case. A general moral obligation to obey laws? Well, I think the positivists were correct to point out that this doesn’t exist.

    A moral duty to follow IP laws probably would be relatively rare and very fact-dependent — e.g. that following the law would directly support an indigent artist or widows and orphans. A separate issue is whether I personally would feel comfortable flaunting IP laws. Because I’m a lawyer, I’d probably feel more reluctant to do so than the average person, especially if the occasion for it were simply my own entertainment.

39. James Grimmelmann - February 22, 2012 at 9:44 pm

    This conversation is making me think of two things. First, there’s Andy Inhatko’s response to the Oatmeal: “The single least-attractive attribute of many of the people who download content illegally is their smug sense of entitlement.”

    And second, there’s the Onion: “Moviegoers Not Interested In Hearing What Is, Isn’t Possible, Demand Heath Ledger ‘Dark Knight Rises’ Appearance”

40. Heidi R. Anderson - February 22, 2012 at 10:19 pm

    The Onion also just reported the following…A Brooklyn Law student recorded all of Professor Bambauer’s lectures and made them available to anyone for free on BitTorrent. Someone who downloaded and watched them all for free justified his actions as follows: “As the price of lawful access to Bambauer’s lectures (exorbitant law school tuition) 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 Bambauer’s lectures (and who doesn’t?), your options are: pay law school tuition covering Bambauer’s classes plus all other classes, or pirate. I think Bambauer’s class rocks, but I’m not paying $40,000/year in tuition for it. If the University of Arizona expects me to do so, it weakens their moral claims against piracy.”

41. James Grimmelmann - February 22, 2012 at 10:35 pm

    I can’t speak for Derek, but the primary reason I don’t make my lectures available publicly online is to make the classroom a safe space for students. Someday, I may switch to pre-recorded lectures and use class time for purely interactive discussion and problems. If and when I do, I’ll put the videos online for free viewing. (And my casebook is available for pay-what-you-want download, with “I want to pay nothing” as an option.)

    Law schools are not selling information. They are selling a service and a credential. If members of society are getting information that they didn’t directly pay for, that’s not a threat to higher education — it’s a wonderful spillover and one of the reasons society subsidizes educational institutions.

42. Seth Finkelstein - February 22, 2012 at 11:56 pm

    I now have an image of classroom lectures as Game Of Thrones (trial by ordeal?).

    The academic equivalent is probably more the “JSTOR” type open access debate. Interestingly, there it’s outright entirely about funding the intermediary business, with a pittance for the content-creators not even having the status of an excuse (since the authors don’t benefit from copyright except in the sense that they give it over to the intermediary business, which typically has some sort of local monopoly).

43. kormal - February 23, 2012 at 9:38 am

    What is “reasonably afford”? My sense is that you are engaged in precisely the sort of weighing I am trying to pin down.

    Derek, thanks for the response. I posed the question because your post and response seemed to suggest that you felt there was a threshold of accessibility & affordability that weakened or strengthened HBO’s moral claim. For example, you’ve used the word hypocricy to describe the music industry’s complaining about downloading music, but I’m not sure I understand this. If the music industry wants to limit lawful access to its content, it might be unmise or futile. But I’m not sure I see the argument for hypocracy or how limiting access weakens a moral claim.

44. Derek Bambauer - February 23, 2012 at 10:25 am

    @Heidi: actually, if I have a copyright claim in that situation, it’s only to my Powerpoint slides – I don’t record my classes, and my notes aren’t detailed enough to count as fixation. So, maybe if I sing (I don’t), I might try an 1101 claim, but that’s it. And my Powerpoints are already floating around the Net.

    More seriously, I’m with James: I would have no objection to placing my lectures on iTunes University or the like, for free. If you can get the same experience from watching a streaming video of my class as you can by sitting there, I am not doing a very good job.

45. Derek Bambauer - February 23, 2012 at 10:26 am

    @Orin – on moral right versus moral duty – that is a fascinating idea, that they are different. Could you say more?

46. Derek Bambauer - February 23, 2012 at 10:31 am

    @AJ: your post really captures it well. From a utilitarian perspective, we shouldn’t assign copyright at all if the work would be created anyway. (I’m putting aside the question of whether we need copyright to incentivize distribution and marketing, which is probably the best argument for it.) From a labor-desert perspective, you have Nozick’s objection: if I pour a can of tomato soup into the ocean, may I claim the ocean? (Note also that fixation makes no sense from a labor-desert position.) And from a personality theory perspective, we would expect few protections for duplication, but very strong protections against derivative works and the like.

    And I’m with James on the entitlement problem. I think, though, that much of it is subconsciously defensive: we prefer to think of ourselves as moral actors, and so we try to create narratives where our actions are not only permissible, but laudable.

47. Orin Kerr - February 23, 2012 at 4:32 pm

    Derek,

    Consider three scenarios:

    1) The law perfectly reflects morality (as with “malum in se” crimes like murder), so you have a moral duty to follow the law that is not from the law per se but rather from the morality that it happens to track.

    2) The law exists but there is no moral basis one way or the other (as with “mala prohibita” crimes), so you have whatever duty to follow the law that you perceive from the fact that the law is the law, but not independently from morality.

    3) The law actually conflicts with morality, so you are morally required to violate the law.

    When you’re talking about the “moral claims” relating to IP law, I’m not sure which of these scenarios you have in mind.

48. Seth Finkelstein - February 23, 2012 at 6:57 pm

    @Orin Kerr – isn’t there an important middle ground between case #1 and case #2 – The law IMPERFECTLY reflects morality.

    It seems to me this would be especially true with copyright law, which is complex, confusing to nonspecialists as well as ordinary people, and covers a range of material ranging from classroom lectures to big budget entertainment. Having “morality” and “law” either fit perfectly OR be completely at odds over such a vast span would be improbable. I’d characterize much of the copyright debate as people trying to import moral intuitions from one area into another area (“theft!” vs. “sharing”).

49. Joe - February 23, 2012 at 8:29 pm

    It appears to me that we wouldn’t have this discussion or face the problems we face with regards to copyright today, but for the fact that homo sapiens has for the first time in its entire existence created a good/service that is post-scarce. No laws, no theories, no models we are used to working with are able to capture this.

    Supply/demand market models fail because they would require the infinite good be priced at zero. Current copyright laws fail (exhibited by rampant piracy) because they weren’t drafted with fore-knowledge or much expertise about infinite digital goods.

    I think we need new models and new theories for a new world. As we go forward into the future only more and more things will become digitized (and the costs of digitization, copying, and delivery will become more and more negligible).

50. James Grimmelmann - February 23, 2012 at 8:51 pm

    Post-scarcity isn’t the explanation for copyright’s current trouble. Post-scarcity might make other systems more possible, but post-excludability is what’s causing the current one to break down.

51. Seth Finkelstein - 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.

52. Derek Bambauer - 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.

53. Derek Bambauer - 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.

54. Orin Kerr - 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.

55. Derek Bambauer - 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.

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