Ernest’s blogstorm continues, which means this post
is already buried on the page. It raises an interesting issue,
one I hope to say more about in the future once I’ve thought a bit more, but I feel like talking it out a bit now.
Ernest first repeats a point he has made many times: “I oppose
copyright infringement via filesharing services and council against
it.” The lawsuits are a legitimate piece of any voluntary
licensing, market-based system, and penalties must be higher than the
actual harm in order to act as a deterrent.
But he then states that the music industry is in part responsible for
file-sharing: “The RIAA is partially at fault for making the original
attractive because there were no real legitimate avenues to meet
customer’s wants…. [A]nyone could have predicted that without
legitimate avenues to download
music, more people would use illegitimate avenues. This is not
rationalization, not justification, merely acknowledging the facts.”
There’s a deeper point there, beyond allocating fault.
Undeniably, Napster and file-sharing generally have put pressure on the
music industry to license legitimate online services, driving the
competition and improvements in services we’re only starting to see
now. In pushing along this competition and in particular by pushing
prices lower, one could argue that this leakage in the copyright system
has helped check the deadweight loss caused by the monopoly
grant. One cannot prove the counterfactual – who knows what would
have happened without Napster. Regardless, we can recognize the
constructive role file-sharing has played.
With respect to this constructive role, it’s also worth setting it
within the context of a broader viewpoint about copyright: a leaky
copyright can be a good copyright. That’s not just the case in
file-sharing. It’s a crucial aspect of fair use.
Allowing copying and copying technologies ultimately can help create
new markets for copyrighted works, provide people with greater access,
more flexibility and more enjoyment in how they use copyrighted works,
and in total improve social welfare. If the screws of copyright were
tighter, if it did not leak in this way, we wouldn’t realize this
flood of benefits from various copying technologies.
But turning back to file-sharing specifically: can we reconcile the
constructive role its played with Ernest’s first point? That
is, can we a) acknowledge this constructive role while b) opposing
widespread infringing file-sharing. A reconciliation could start
by noting that the (a) is descriptive of the entire system, while (b)
relates to the message we project to individual file-sharers. It
may be a good thing that their activity is leading to more features and
lower prices in legitimate services, but they cannot use that as a
basis for justifying their own behavior. Justifying it in this
way would form a seemingly boundless basis for infringement, leaving no
clear legitimacy for lawsuits in any context – at what point do prices
and features become good enough that infringement would no longer be
justifiable? and how would that point be determined in a non-arbitrary
way? (Ernest made this argument in a different way many months ago.)
This separation between (a) and (b) is imperfect. Underlying (B)
is an assessment that the constructive role played by
file-sharing is ultimately countered by many ill-effects. Perhaps
a part of the reconcilition is a sense that, whatever may have been the
meritorious effects of file-sharing during Napster’s birth, now
competition in legitimate services can become good enough that it’s
time to call off the dogs.