Over at the America’s Future Foundation website, Sonny Bunch responds with indignation to Matt Yglesias’s argument about the inevitability of free music. He starts by quoting the following excerpt from Matt’s post:
It is, of course, possible that at some point the digital music situation will start imperiling the ability of consumers to enjoy music. The purpose of intellectual property law is to prevent that from happening, and if it does come to pass we’ll need to think seriously about rejiggering things.
No! False! The purpose of intellectual property law has very little to do with Matt Yglesias being able to enjoy a wide variety of new music. The purpose of intellectual property law is to protect the intellectual property created by artists so they are rewarded for their efforts. The purpose of intellectual property law is to punish people who steal that which isn’t theirs.
I have trouble getting too worked up about the semantic question of whether copyright infringement is “really” theft or not. I don’t engage in illegal file sharing and I don’t condone the practice. But at the same time, there are important differences between literal theft and copyright infringement, and I don’t think it’s particularly illuminating to equate the two.
But I do think Bunch is on shaky theoretical ground. America’s Founders had a pretty clear view of this subject, which they enshrined in our Constitution, and it’s at odds with the story Bunch is trying to tell. The Founders placed property rights protection in the Fifth Amendment, reflecting its status as a fundamental right. In contrast, the copyright clause appears in Article I, Section 8. That’s a section that enumerates the powers of Congress, not the rights of citizens. Indeed, the Constitution does not require Congress to grant copyrights at all, and contains no specific protections for copyright holders. To the contrary, the only specific requirement is a limitation on copyright protection; it requires that copyrights—unlike traditional property rights—be “for limited times.” Finally, the Constitution contains an explicit statement that the purpose of copyright is a utilitarian one: to “promote the progress of science and the useful arts.”
Indeed, if Bunch seriously believes that the function of copyright law is to “punish people who steal that which isn’t theirs,” I would be curious to know whether he obtained Matt’s permission before quoting his blog post. This, of course, is permitted under copyright’s fair use doctrine. But if copyright is just another form of property rights, then theft is theft. I don’t think there’s a section in Locke’s Second Treatise that says stealing is OK if it’s done in small increments.
I was also puzzled by Bunch’s argument that copyright law is justified by artists’ “right to profit from their labors.” This is a peculiar argument to see on a blog of a free-market organization. In a free market, people do not have a right to profit from their labors. To the contrary, the genius of capitalism is precisely that profits are determined by consumers through the market process. Sometimes people make poor business choices and lose money. Sometimes increased competition pushes down prices and drives the least-efficient producers out of business. This is, in fact, exactly what’s happening to incumbent recording labels. That’s unfortunate for shareholders of those companies, but for the rest of us it’s simply part of the market process that has made us such a wealthy nation.
Similarly with authors, artists, and other creative people. Their compensation should be set by market forces. As I’ll be explaining in a future post, I don’t think zero-priced content means that musicians or authors won’t be able to make a living. But that’s neither here nor there as a policy matter. The fundamental point is that copyright is not a welfare program for musicians or authors. The function of the copyright system is not to ensure artists can “profit from their labors,” it’s to benefit the general public by “promoting the progress of science and the useful arts.”