I really and truly didn't mean to make this into copyright week here on the blog, and I promise to shut up about this soon. But there's a piece of this conversation that seems to be perpetually ignored, and Jerry Brito gives me an excuse to mention it today. He's responding to the back-and-forth between Tim Lee and me on recent legislative attempts to enforce copyright in the digital era:
Tim points out that copyright owners have, as a matter of fact, received greater and greater enforcement powers—almost on an annual basis. As a result, Tim says, “most of us are not anti-copyright; we just think enough is enough, and that the menu of enforcement tools Congress has already given to copyright holders is more than sufficient.”
Sufficient for what, though? Sufficient to significantly reduce piracy online? That’s certainly not the case. Piracy is rampant on the net. Some would say, though, that the only meaningful ways left to enforce copyright would (dare I say it?) break the Internet as we know it.
So I think that when Tim says that the powers copyright holders now have are “more than sufficient,” I think he means sufficient to provide an incentive to create. After all, the purpose of copyright is to “promote the progress of science,” not to protect some Lockean notion of property. It may be the case that while owners’ rights are no doubt being violated, a further reduction in piracy won’t affect the incentive to create.
I am, as always, speaking only for myself, but I think this is too cramped. The Constitution says that the purpose of patents and copyright is to "promote the Progress of Science and useful Arts," but the fact that the Constitution says this doesn't mean it's the only reason to grant patents and copyrights. There's another reason too: because creators have a moral right to profit from their works. In real life, pretty much everyone acts as if they believe this, and I suspect that for most of us it's the real underpinning of our support for IP law.
In any case, it's certainly part of the reason I support reasonable enforcement of IP law. The Sonny Bono Act was a travesty, software patents deserve to die a quick death, and a lot of recent attempts to police the internet have been cretinously wrongheaded, but the reason this hasn't soured me on continuing to look for solutions to widespread piracy is because I'm not solely concerned with promoting innovation and creation. I'm also concerned with protecting authorial rights to dispose of (and profit from) their creations as they see fit, and this is as true for digital creations as it is for physical creations. I'd hate to live in a world in which authors found it nearly impossible to make money from their works.
Now, I might eventually find myself in such a world anyway. We'll have to wait and see. But I'm certainly not willing to shrug my shoulders and give up on it quite yet.