Monday, December 17, 2007

Copyright Infringement More Tax Evasion than Speeding

I earlier analogized copyright infringement to exceeding the speed limit. On reflection, though, I think that understates the case against infringement, and that it more resembles tax evasion than it does speeding. That far from establishes copyright as a natural right. To the contrary, it establishes it as a welfare right, granted by the State, based on the redistribution of wealth, and enjoyed by authors at our expense. Here is how I put it now, in a revised version of what I posted earlier:

When you infringe a copyright, you can admit to breaking the law without also admitting to violating a natural right. Thus does a good driver on an empty road speed with a clear conscience.

So, too, might a citizen drive dangerously close to the Tax Code's limits. To misjudge, and blunder into tax evasion, could lead to loss of liberty and property. Citizens thus obey the Tax Code for good reason. Voluntary payment of excess taxes remains very rare, however; most people evidently pay their taxes under compulsion rather than out of joy. In that, the Tax Code resembles the Copyright Act. Both rely on positive legislation; both create regulatory regimes; both redistribute property (money in the one case, rights to throats, pens, and presses in the other). We grudgingly accept that the Tax Code and the Copyright Act create special beneficiaries of State power, the former by way of tax credits, the latter by way of exclusive rights. We might even celebrate it, reasoning that both the poor and authors merit our generosity. But we do not speak of a natural right to welfare. Nor should we speak of a natural right to copyright.

None of that goes to show that we should infringe copyrights. Speaking only for myself, I try to respect them. I probably misjudge, sometimes, I admit. Copyright contains many subtleties, even to an avowed geek, and its application often relies on contestable facts. We often don't know what constitutes infringement unless and until a judge tells us. It doesn't matter to copyright law if I do not bow deeply enough to its commands, of course. I—like you and everyone else subject to the Copyright Act—am held strictly liable for my infringing acts.

Still, I try to respect copyright law. It does not unduly burden me, I find, and I have a profound appreciation of good authorship. I do not think that copyright's beneficiaries have any natural right to my obedience, however; nor do I think that, say, Medicare's beneficiaries have any natural right to my tax payments. But I think that authors, like the poor, merit our concern and material aid. Government programs somewhat promote that aim. They operate with dismaying inefficiency, however, and often with outrageous unfairness. Thus did the U.S. federal government recently enact welfare reform. Thus, too, should we reform authors' welfare: copyright.

You probably try to heed copyright law, too. Most people do. Why? We recognize copying limits, like speed limits and tax codes, as legislation designed to maximize social utility, created by statute for presumptively good reasons and thus, unless manifestly inefficient or inequitable, enjoying some claim to our obedience. We follow such laws out of patriotism, unreflective habit, grudging acceptance, or fear—but not because they protect natural rights.

So, to judge from actions, go the moral intuitions of most folks. We regard violations of persons, property, and promises as serious matters, dire deviations from acceptable social behavior. We regard casual copyright infringement, in contrast, as little worse than driving 80 m.p.h. in a 65 m.p.h. zone, or exaggerating the value of a charitable donation.

[NB: The above text comes from chapter 1.5, § C.3 of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. Please note that I will soon renumber it "Chapter 2," and adjust all subsequent chapters accordingly. You can find a PDF of the entire chapter, including footnotes, here. As always, I welcome your comments.]

[Crossposted to Intellectual Privilege and The Technology Liberation Front.]

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