When Intellectual Property Is Theft

I liked Julian's observation that legislated extensions of copyright terms are more like theft than copyright infringement:

[I]f the defining characteristic of theft is that it deprives the victim of something they were entitled to use and enjoy, then there are things that can accurately be described as “intellectual property theft.” When legislators—many of whom now support censoring the Internet to stop “piracy”—rewrote the copyright bargain with the Sonny Bono Copyright Term Exension Act, they retroactively extended the monopoly of rightsholders over existing works by 20 years. That retroactive extension, of course, did nothing to incentivize new creation. And since economists have estimated that the present value of a copyright monopoly was already barely distinguishable from the value of an unlimited term, it’s doubtful that even the prospective extension bought us much additional creativity. But it did mean that the general public would be denied, for another 20 years, the free use of works that had been slated to fall into the public domain under the original copyright bargain. That sounds more like “theft” of intellectual property—and not just theft from a particular creator or industry, but from the whole of the public.

If you've ever had a hard time understanding what Prudhon had in mind when he said “Property is theft!” you could do a lot worse than reflect on the Sonny Bono Copyright Extension Act. To define and assign property rights just is to rig the economic game a certain way. To divide a common meadow into private parcels does deprive the public from the use and enjoyment of the meadow. And this does amount to theft if members of the public cannot see the new assignment of rights to have merit by their own lights. It's often (but not always) the case that dividing the commons is the only way to satisfy Locke's requirement that everyone be left with as much and as good. If you're duly compensated for losing access to a resource that would be otherwise depleted, we tend to think it's a fair arrangement. Likewise, keeping intangible creative works out of the commons through the assignment of intellectual property rights is justified if it leaves us better off than we would be in a world with no IP.

I happen to think copyright does induce creation and that creators and consumers as classes would be worse off without it. And I think returning creative works to the commons in, say, 20 or 30 years also induces creation and that creators and consumers both are made worse off by longer copyright terms. That's just a guess, but presumably there's some vague fact of the matter about optimal terms for various types of creative work. Whatever that is, that's what we're entitled to. Extending terms past the optimum, locking down more than a lifetime flow of monopoly rents for a few at the expense of the many, doesn't strike me as like theft. It's a straightforward plundering of humankind's common cultural inheritance.

Like Freddie de Boer, I'd like to have a serious, non-utopian conversation about the regime of intellectual property rights and intellectual property protection that would best encourage creation by making it possible to make a living selling the dearly created but easily and cheaply reproducible. (Unlike Freddie, I think a good place to start would be not to seethe with open contempt for those with whom we mildly disagree and not to preemptively ascribe irritation from those we've unfairly impugned to bad-faith tribalism.) One hopeful possibility here is that fair rules inspire respect and respect induces compliance. A more modest and limited scheme of copyright clearly focused on incentivizing and rewarding creators rather than on minting money in perpetuity for corporate copyright owners might make less draconian enforcement mechanisms sufficiently effective.

The Really Real Reality of Reality of TV

James Wood on John Jeremiah Sullivan's essay collection Pulphead:

One feels that Sullivan shouldn’t be allowed to have it both ways: if reality TV is “really real” because it catches people in the act of being on reality TV, it has only a limited, or possibly null, reality, and Sullivan is just being cynical and jokey. On the other hand, if reality TV is really real because it connects us with Poe and Whitman, and displays America for us as we really are, then large claims are being made for reality TV’s (perhaps inadvertent and unwitting) powers of mimesis. It can’t quite be both, and the ambivalence perhaps alerts us to the fact that essays like this one have their own unexamined unreality, too.

Why does Wood say that reality TV has “only a limited, or possibly null, reality” if the reality it presents is how people behave on reality television? This comes as raw assertion, and it wasn't at first clear to me that he might be right.

I'm familiar with Sullivan's argument only through the passage Woods quotes, but it strikes me that Sullivan is indeed making a large claim, not at all inconsistent with the fact that reality TV is at best the really real reality of people caught on reality TV.  Isn't the idea that when Americans accept the offer to make their lives public–when they get their fifteen minutes, when they've readied for their close-up–they mostly offer tearful confessions of stymied aspiration, outraged entitlement, myopic self-justification, avid but dumb cunning, and an unending parade of hurt feelings?

Of course, the casts of reality shows are manipulated by producers, are often “performing” the words and sentiments they think the producers think makes “good television,” and the final broadcast product has been heavily edited with a view to maximum drama. But what makes a good reality show so gripping is that these people are so willing to be goaded, that their hair-pulling performances of petty emotion are so authentic. And there is a remarkable implied consensus about the humiliations those of us at home most enjoy.

I think Woods' strongest argument would be that reality shows cannot reveal America's Freudian Id because we are only ever shown people who thought it was a good idea to appear on a reality show. Reality TV selects for vain, emotionally volatile extroverts. Fear Factor doesn't prove that, as a general matter, Americans will eat bugs for money. It proves that Americans who won't eat bugs for money don't show up at casting calls for Fear Factor. Sullivan's argument that “There are simply too many of them—too many shows and too many people on the shows—for them not to be revealing something endemic” pretty clearly fails to get around the self-selection objection. But it does suggest that America contains a huge number of vain, emotionally volatile extroverts. That's significant in itself. And surely the verbal and emotional scripts America's dim, neurotic, self-infatuated chatterboxes most readily deploy are drawn from and thus indicative of the broader culture. “[T]he test-tube babies of Whitman and Poe,” are the monsters among us who most guilelessly channel and enact the ambient American spirit, and a huge swathe of the rest of us want to watch. It's hard to see that as a “null” reality.