1709 Blog: for all the copyright community

Tuesday, 14 August 2012

Copyright law and alcohol prohibition

Today this blogger's attention was caught by a Surprisingly Free podcast in which Donald P. Harris, associate professor of law at Temple University, discussed the regulation of file sharing and compared it with the Alcohol Prohibition era of the 1920s and 30s in the US. It is a fascinating and very thorough discussion of file sharing and the issues faced in enforcing copyright law on the Internet. Harris' arguments are summarised below, however if you have time do listen to the podcast.  

© Kirti Poddar
Copyright owners rightfully object to file sharing, says Harris, because they receive no remuneration from it, however the flip side of the coin is that consumers simply want to share works and take full benefit of the Internet. We have seen numerous efforts by recording industry in particular to prevent file sharing, to no avail. People are file sharing at unprecedented levels. Therefore, Harris suggests that we need to take a lesson from history and in particular the prohibition era when social norms and the law were out of sync.The podcast host suggests that file sharing is comparable to stealing, and asks why we should consider helping file sharers to take from copyright owners.

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?


Thomas Dillon said...

Poor associate professor Harris is several years behind the debate. The interviewer sounded quite intelligent, though.

Crosbie Fitch said...

It is indeed a 'Liberty vs Temperance' rematch.

It's not a matter of 'norms', but of something more fundamental: natural rights and the liberty we were born with - abridged by Queen Anne in 1709.

Crowdfunding sites such as Kickstarter are demonstrating that artists and their fans can exchange work and money directly, without having to go via the 18th century process of selling copies (at monopoly protected prices).

Harris should eventually attain enlightenment and become a copyright abolitionist. ;-)

Andy J said...

Interesting. While I fully agree with the analysis he provides, I don't think the partial solution he proposes (making downloads for personal use free and relying on live performances to generate renumeration for artists) goes any where close to being the answer.
For a start it only applies to the music industry, and there it patently fails to address the power and interests in maintaining the status quo of the record labels, who would, on the current model, be cut out of the revenue loop.
And secondly this solution clearly does not address the movie or ebook markets, let alone all the other media (eg photography) which are also affected by the culture of "it's on the internet, so it's free to use" generation, a state of mind which would only be reinfoced by making the downlaoding of music legal.
The other thing that the history of prohibition tells us is that you can't easily change the way an industry operates just by legislation. You need to let market forces do that. Which is what I hope the current unsatisfactory situation will eventually force the record and movie industries to do, in much the same way that newspapers and the book industry are having to do in their sectors, due to the impact on the internet.

Paul Sanders said...

This would be much more interesting if he were not completely wrong about the market and about attitudes.

Here are some recent numbers from Nielsen:


A music exec is no more qualified to advise on law than a law professor on business.

Anonymous said...

Several large ISPs in the UK already effectively offer the "license fee" model, by providing bundled subscriptions for catch-up TV and on-demand movies and streaming. Contrary to Harris' assertion, I believe a lot of today's adults are prepared to pay for content. Whether the next generation will feel the same way when they grow up remains to be seen, but I'm fairly optimistic.

Gillian Spraggs said...

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.

Here is the latest 'chart' on TorrentFreak of the top most downloaded movies on BitTorrent. The Hunger Games tops the list. All of them were released this year.

Proposals for reducing the term of copyright are a red herring, merely a distracting gesture, in the context of the realities of copyright piracy/'filesharing'.

Crosbie Fitch said...

Well observed Gillian.

It is surprising how many people think piracy can be solved by reducing copyright's term from say 70 years to 14 years.

Of course, if you reduced it to 0 years, then piracy would be solved - it would no longer happen - we'd simply call it cultural liberty.

Gillian Spraggs said...

we'd simply call it cultural liberty

Crosbie, I'll quote you a sentence from that renowned fighter for liberty Tom Paine: 'It may with propriety be remarked, that in all countries where literature is protected, and it never can flourish where it is not, the works of an author are his legal property; and to treat letters in any other light than this, is to banish them from the country, or strangle them in the birth.'

Anonymous said...

Crosby has little squeamishness about seizing other people's property and curtailing their freedom for the greater good.

I doubt if he would be so sanctimonious if it was his own property was being seized, and his own freedoms curtailed.

Crosbie Fitch said...

Gillian, I quite agree that the works of an author are their natural property, as much as the paper and ink they've purchased to fix them upon. Such works should not be seized, and I deplore the cavalier way US courts can sequester an author's writing in a so called 'compulsory discovery process'.

Naturally, upon an author's decision to exchange the property of their work (for money), like all natural property, it becomes the property of the recipient.

The nature of authorial works as property, and the natural right of the author to exclude others from their writings, is not at issue here. What is at issue is the liberty of the recipient to share and build upon the writings they have purchased, their liberty to their own property - their natural right to copy such works annulled by Queen Anne in 1709. That is the issue.

People, being born with such inalienable liberty, find it natural to share and build upon their own culture, to retell the stories they hear, sing the songs they hear, and to make and share copies of recordings thereof. People have the instinct, the natural imperative to do this.

An 18th century privilege is being ignored by the people, and its supporters denigrate them as pirates, and misapply terms such as 'steal', 'theft', and 'seize', when no such actions are performed.

Copyright prohibits mankind's cultural liberty, and this legislation is even more doomed to abolition than sumptuary laws.

You cannot save copyright by coming up with an argument in its favour, or even kidding yourself you can defeat my argument as to why it's doomed. I'm merely providing an explanation as to why people are ignoring copyright, which you can of course ignore.

Gillian Spraggs said...

Crosbie: I agree that it is very natural to wish to share copies of recordings one enjoys, and books as well. I do this myself, quite often, by buying copies of CDs and books as gifts.

As a point of cultural history: copyright predated the Statute of Anne. The 1710 Act for the Encouragement of Learning vested copyright primarily in the author who wrote the work, rather than the publisher who registered it.

Under the copyright regime, people remain as free as ever to share and perform their own stories and songs.

I don't call illegal copying 'theft'; that debate is tedious, and largely beside the point. I call 'filesharers' freeloaders, parasites and leeches.

Your various unsupported assertions scarcely amount to an argument.

Crosbie Fitch said...

Gillian, because copyright arises in an 'original' work, it is a matter of default that the privilege is held by the initial owner of the work, i.e. the author (or in the case of works for hire, the employer - YJMV). You can spin this to imply that the privilege was granted to benefit authors, but when only wealthy and powerful publishers could effectively prosecute the privilege then it should be obvious that it was granted in their interests (to restore the monopolies the Stationers had arranged for themselves under the licensing of the press act - expired ~1695).

You may not have heard of musicians who find themselves unable to sing their own songs or perform their own music because they have signed away the copyright to a record label. What was that about liberty being inalienable?

Also see Paulo Coelho caught pirating his own books by his publisher.

Would you call authors that pirate their own books "freeloaders, parasites and leeches"?

Gillian Spraggs said...

You can spin this to imply that the privilege was granted to benefit authors

I didn't. The title of the 1710 Act proclaims that its object was 'the Encouragement of Learning', which is not the same thing. The preamble speaks of 'the Encouragement of Learned Men to Compose and Write useful Books'. Johnson's Dictionary (abridged edition, 1756) defines 'Learning' as 'Literature; skill in languages or sciences', and 'Encouragement' as 'incentive'. The declared object of the Act was to promote the development of the nation's literary culture.

when only wealthy and powerful publishers could effectively prosecute the privilege

John Gay and Alexander Pope are early examples of authors who took publishers to court over their copyrights.

You may not have heard of musicians who find themselves unable to sing their own songs or perform their own music because they have signed away the copyright to a record label.

Such cases are regrettable; the cause of their problems, however, does not lie in the copyright regime but in their entering into unwise contracts.

Also see Paulo Coelho caught pirating his own books by his publisher. Would you call authors that pirate their own books "freeloaders, parasites and leeches"?

Coelho on his own admission pirated translations of his books, licensed translations to which he did not own the rights. He was secretly gambling with assets in which other people, translators and publishers, had made serious investments. He had entered into agreements with those people. These were not 'his own books' that he was uploading to pirate sites.

Crosbie Fitch said...


Did you know that the word 'learn' comes from old English leornian, which in turn comes from an older meaning of following in another's footsteps, of copying another's path? (no doubt having first obtained permission from the pathmaker to do so)


The Statute of Anne's pretext of encouraging learning by prohibiting copying is undone by being a contradiction in terms.

You have to be a serious copyright Koolaid drinker to maintain this doublethink.

Mankind learns just fine without a law that prohibits people from sharing and building upon their own culture and knowledge.

Publishing corporations and their copyright lawyers, however, don't do at all well without monopoly profits to sustain their profligacy.

So, what are you hankering for? Encouraging our learning (promoting copying), or perpetuating a state granted monopoly despite its impotence against a population naturally at liberty?

Gillian Spraggs said...

Publishing corporations and their copyright lawyers, however, don't do at all well without monopoly profits to sustain their profligacy.

Authors don't do well without an income. And trade publishers, whatever else one may say of them, do have a track record of investing in authors.

Even Cory Doctorow has gone on record as saying that 'publishers have virtue'.

As for copyright, US lawyer and blogger C. E. Petit had this to say only the other day: 'The real problem is not with the imperfection of copyright — and imperfect it is — but with the lack of workable alternatives. If we assume that authors (and other creators) need not support themselves with their works, we're also assuming that the progress of the useful arts and sciences is adequately served with a creative class that is either creating during leisure time (as they have "day jobs") or dominated by patronage. If we assume that authors (and other creators) must be able to support themselves with their works, but cannot have a private property interest in those works, we're also assuming a different kind of patronage — probably governmental or quasigovernmental in nature. For all of the flaws of the free-market-for-works system — and they are legion — they're less extreme than any of these alternatives.'

This strikes me as a pretty fair statement of the case for copyright as the least-worst system for financing literary and other forms of culture.

Nothing in copyright necessarily prevents copying, Crosbie. It places limits on copying without permission, and is the basis on which, to use your image, a toll may be charged by the ones who open up new paths.

The complex cultural productions to which we have become accustomed, which include novels, trade non-fiction, feature films, documentaries, audiophile recordings of symphonies, etc, require a lot of investment, of time, effort, money, and, often, expensive equipment. I don't want to see those cultural forms killed off. I think it would be a terrible loss. And no, I don't see that Kickstarter - which is another form of patronage, analogous to the old book subscription model - is going to fill the funding gap.