|© Kirti Poddar|
Harris makes the obvious distinction between tangible and intangible property, being that if you take someone's book you deprive them of that book, but that if you share the book online no-one loses out. He says that society benefits from sharing, so the theft analogy doesn't hold.
Harris goes on to discuss the constitutional cause that provided for copyright law in the US: copyright was designed to benefit society. It was not designed to reward artists. Although there are arguments on both sides, Harris says that going back to the purpose of copyright law in the US helps us understand that file sharing might not be stealing.
Of course the next question is what about the artists? If we allow file sharing we remove the incentive for creation. We need incentives for artists to trade, otherwise not as many works will be made for society to enjoy.
Harris suggests that perhaps although artists need incentives, expanding the term of copyright protection from 14 years to 70 years plus life was excessive. Restricting the term might be one way to retain copyright whilst allowing some forms of file sharing.Harris goes on to consider enforcement. Law suits have been filed, successfully, against both software developers and consumers, but file sharing has not slowed. This he compares to prohibition, when sale and distribution of alcohol was prohibited yet people continued to drink.
There were several different forces behind prohibition, but Harris notes that prohibition is not something that the people ever wanted. The issue was never put to the public vote, and consequently the constitutional amendment was a miserable failure. People continued to drink. The Government imposed stricter penalties but they didn't work.Ironically prohibition soon began to worsen the social problems that it had been intended to cure: disrespect for the law, underage drinking, corruption and gang violence.
So after about 10 years the legislation was reversed and alcohol consumption became legal again. Why? Because the Government had miscalculated level of non-compliance that prohibition would generate.Harris says that although we don't need 100% compliance for the law to work, we need most people to comply with most laws. And by and large people will comply with laws if they think that they are just; if they fit with the public's sense of right and wrong.
Harris argues that it doesn't matter how severe the penalty is: people will not be deterred if they don't feel morally obligated to comply. This, he says, is the problem with file sharing. Young people in particular do not think that they are doing anything wrong; the law is out of pace with social norms.File sharing raises two important questions:
1. What should we do when we have new technology? Should the law change?
2. If we have laws that do not align with social norms, should we change them?
In response to question 1, Harris says that the Internet has dramatically changed the landscape of copyright and that therefore, intuitively we should change the law so that it works with the Internet. He compares the Internet with photography (who will pay for portraits?), radio (who will pay for music?) and VCRs (who will pay for films?) to make the point that new technology does not mean that artists will no longer make money from their work.
As to the second point, Harris goes back to alcohol prohibition, saying that prohibition teaches us that it might be worth changing laws to make them consistent with social norms. Young people feel no moral guilt for file sharing, he says, and it is going to be difficult to enforce the law or to change social attitudes to file sharing.
So how do we make sure that authors can charge so that they have an incentive to create? Harris has two suggestions. First he suggest imposing copyright levies on copying equipment and blank devices. This is a method already used in many European countries which would enable people to file share having already paid a tax on the types of equipment that are used to file share.
Harris' second suggestion is that a licence fee should be included in ISP fees, so that when you pay for access to the Internet you also pay to use and share content.Having said this, Harris wonders whether providing these legal avenues would make any difference if people believe that they shouldn't pay to share files. He suggests that file sharing should be made legal for non-commercial use (a term that would need to be defined). He argues that this would simply be similar to allowing copying of CDs at home or taping from the radio. Artists would still have an incentive to create because they make so little from CD sales; artists make most money from live performances and sales of performances.
Harris argues that file sharing is seen by artists as free promotion of their music.So who would lose out? The record industry would. Harris says that if we think of copyright laws as a way first of benefiting society and second of protecting artists we should not be unsympathetic to record industries losing out.Harris closes by saying that it is difficult to strike a balance, and of course we have no way of knowing what the right system is. However he is of the view that, on balance, whilst it would be controversial to legalise file sharing the benefits would outweigh the disadvantages.
What do you think?