The Case for Intellectual Property

Given how technical a topic intellectual property is, most debates about it are strikingly emotional and partisan. Opponents of intellectual property cast movie studios, record labels, and even book publishers as robber barons who want to squeeze every last cent out of consumers whose only crime it is that they love art. Defenders of draconian punishments for online piracy, meanwhile, tend to cast themselves as civilization’s last line of defense – once the pirates take away our intellectual property, they seem to say, our women and children will be next.

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The hysterical terms of the debate are hardly conducive to drawing the fine distinctions the field of intellectual property calls for. Even a recent exchange between Matt Yglesias and Caleb Crain on Slate, which rightly got a lot of attention for its relative subtlety (and considerable entertainment value), suffers from a few fundamental misconceptions. Their main points of disagreement revolve around two questions that appear crucial if we want to formulate reasonable laws on intellectual property: Is intellectual property theft? And to what extent is online piracy a threat to important social and cultural goods, like the ability of artists to produce movies, films and books? Unfortunately, they both are confused about the first question and both miss (though, in Crain’s case, only narrowly) the most important considerations concerning the second question. Let me try to do better.

Is online piracy theft? Yglesias and Crain both try to settle the question by analogy to other forms of theft. For Yglesias, online piracy isn’t theft. His reason is simple: if you steal my slice of pizza, I no longer have a slice of pizza to eat; if you illegally download a copy of a book I’ve written, my publisher retains the original copy of the electronic file. Crain is more ambiguous on this point. On the one hand, invoking Immanuel Kant, he echoes the point that nothing is really being stolen because no material possession is being taken away from a holder of intellectual property. On the other hand, Crain worries that what is being stolen is the potential income that artists might derive from the sale of their property to persons who, instead, acquire illegal copies for free.

But both Yglesias and Crain – and, along with them, virtually every writer who’s tackled this point in the public sphere so far – put the cart before the horse here. They think that we need to start by thinking about whether the making of unauthorized copies of art is theft; once we’ve settled that question, we can decide whether or not online piracy violates the rights of holders of property rights. Thus, using ever more extravagant metaphors, they endlessly agonize about the supposedly complex concept of theft. “Is an illegal download more like stealing a Mercedes or more like Jesus multiplying fish?”, they ask.

But this is confused. The concept of theft is much simpler than they realize: it is the act of infringing on another’s property rights. We therefore need to start with an entirely different question, to wit, “what property rights do we have reason to grant producers of artworks in our society?” Once we have settled that prior question, the supposed mystery about theft and intellectual property implodes: (immoral) theft of intellectual property is any infringement on another’s (just) property rights.

This brings us to our second question. In our legal tradition, we don’t think of property rights as rigidly encompassing the exact same rights and duties in every circumstance. Rather, the famous metaphor used in first-year law classes is of property rights as a bundle of sticks: a property holder does not hold all sticks in all circumstances. It is up to the legislator, taking account of considerations including economic efficiency and the public’s interest, to decide what kinds of sticks holders of a particular kind of property should be assigned in particular circumstances. So if we want to decide whether holders of intellectual property should be assigned the right to stop others from making electronic copies of their work, we first need to determine what would happen if we didn’t assign them this particular stick.

Here Yglesias’ point about pizza becomes relevant after all. To steal somebody’s pizza has a very straightforward moral and economic cost that online piracy does not have: the owner of the slice of pizza now no longer has a slice of pizza. Since online piracy does not impose the same costs on the holders of intellectual property, the particular set of reasons that justifies us in assigning to the owners of slices of pizza the right to exclude others from their meal does not justify us in assigning to holders of intellectual property the right to stop others from making copies of their work. But might there not be other reasons why it is in the interests of artists, and indeed of society as a whole, to ban the uncontrolled reproduction of movies, music and books?

Crain rightly argues that there is. His worry is straightforward: the producers of valuable artistic work will no longer be able to do what they are doing if intellectual property, the economic foundation for their (already mostly meager) salaries, is taken away. Yglesias, however, does not buy Crain’s argument because he thinks that some people would continue to write books or sing songs no matter how low the salary they received. No doubt. But it doesn’t seem to occur to him that it might matter, both for the quality of the eventual result and for meritocratic reasons, who gets to do this. Sure, somebody in our society is always going to have the leisure to spend years of their lives focusing only on writing an intricate novel – there already are plenty of untalented trust fund kids doing that now. But it might turn out that these novelists of Yglesias’ future are primarily the likes of Georgina Bloomberg, rather than the likes of David Foster Wallace or Jonathan Franzen. The notion that Franzen or Wallace should – or would – simply have fired off their masterpieces around the edges of a 9-6 workday is naïve.

The same is true for political commentary – but here the inegalitarian effects of watering down intellectual property would be even starker. Sure, blogs would not disappear just because, copying of their work being so rampant, even the most famous bloggers could no longer live off their writing. Perhaps Yglesias is even so devoted to writing political commentary that, foregoing a social life and kids (too time consuming), he would spend a majority of the time his day job leaves him blogging. Even so, he would be at an inherent disadvantage to people who could spend their whole day on blogging: after all, they could respond to major stories more quickly, do more intricate research, and spend more time on honing their attacks. And who would these people be? People who can either live off their riches, or are paid handsomely by billionaires to defend the points of view they find congenial. In short, the brave new world Yglesias is advocating is a world in which only men of means can devote their lives to art, and politics becomes even more dominated by the rich.

So here’s the liberal argument for intellectual property. For both political and artistic reasons, it is important for the most talented individuals to be able to devote their life to art (or, yes, blogging). People of average means will only have a fighting chance to make a livelihood from their talents if they can stop others from gaining access to their work for free (or from placing copies of articles on their own websites.) This is a good reason for us to assign producers of intellectual property the right to decide how their work is to be distributed. Anybody who violates the terms they set infringes on their property rights and is therefore to be considered a thief. As a result, we are justified in employing both tort and criminal law to keep instances of intellectual property theft to a minimum.

Just as with all other uses of state coercion, there is of course one condition: the punishments inflicted on perpetrators of online piracy must remain proportionate both to the degree of their guilt and to the social harm they cause. The most sanguine proposals of defenders of intellectual property overstep this mark – just as many criminal laws against thieves of trivial material goods like slices of pizza are overly punitive. So, by all means, let’s have a careful debate about how to enforce a socially useful law without inflicting draconian punishments on people for what is, after all, a relatively minor offense. But let’s also drop the deluded pretense that the defense of intellectual property is inherently conservative, or even reactionary.;