When I was a law student, a professor asked us whether we believed law and morals were co-extensive: if the law did not prohibit certain conduct, did that mean it was moral to engage in it? One of the comments on my first post similarly asked how I distinguished effective laws from moral considerations, whether I thought we could distinguish illegitimate from legitimate copyright conduct without a moral scheme.
The reference to effective laws was to my argument that we do not need strong copyright laws or weak copyright laws, but only effective copyright laws, with effective being judged by whether the copyright laws serve their purpose. This remark drew a comment that I was a typical academic, trying to “logic out” things. There was also a question about what I meant by means testing and a request for more information about Jack Valenti’s Boston Strangler testimony.
If only I was able to give a typical academic response to these questions. Of my 27 years as a copyright lawyer, only 5 were in academia, and even during those 5 years many of my colleagues did not regard me as an academic: I had spent my career up until then in private practice and government service. Since leaving academia, I spent 6 more (out of 12) years in private practice, and now three years in-house at Google. To me, then, effectiveness is not a logic problem, but an empirical one. Here’s an example, an easy one, term extension. If we say with Judge Posner and Professor Landes that we want to provide copyright in order to provide to convince creators to bring their works to market where they otherwise wouldn’t (say because they could more money doing something else), we have to figure out the proper level of incentives, in the form of the type of rights we grant and how long protection should last.
What type of empirical evidence might we look at to determine the length of protection? George Akleroff, Kenneth Arrow and others took a stab at this in their Eldred brief. They concluded:
“Term extension in existing works provides no additional incentive to create new works and imposes several kinds of additional costs. Term extension for new works induces new costs and benefits that are too small in present-value terms to have much economic effect. As a policy to promote consumer welfare, the CTEA fares even worse, given the large transfer of resources from consumers to copyright holders.”
Another way is to look at the renewal records under the 1909 Copyright Act, when the original term was 28 years but another 28 years was possible if the copyright owners merely paid $10 and filled out a simple form. Who wouldn’t pay $10 and fill out a simple government form to get 28 years of protection? As it turned out almost everyone except for motion picture studios. Here is a sample of the renewal rates from a study the Copyright Office did:
Type of Work Renewal Percentage
Lectures, Sermons and other oral works 0.4%
Dramatic Works 11%
Works of Art 4%
Technical Drawings 0.4%
Art Prints 4%
These are some ways to determine what effective laws are: I assert life plus 70 is inefficient because it wildly exceeds necessary incentives and has negative impacts on the creation of other works.
In terms of morality and the Valenti quote. To me, copyright is an economic right, not a moral right and does not raise moral issues. The Second Circuit made this point too, agreeing with Judge Lynch:
“Copyright and trademark are not matters of strong moral principle.
Intellectual property regimes are economic legislation based on policy
decisions that assign rights based on assessments of what legal rules will produce the greatest economic good for society as a whole.” Sarl Louis Feraud Int’l v. Viewfinder, Inc., 406 F. Supp. 2d 274, 281 (S.D.N.Y. 2005), affirmed on this point, vacated and remanded on other grounds, 489 F.3d 474, 480 n.3 (2d Cir. 2007).
Morality is used in the Copyright Wars as a way to cover up the inability to justify expansion of rights on economic grounds. Valenti’s Boston Strangler quote is a good example of this. On April 12, 1982, Mr. Valenti testified before Congress about the alleged dangers posed to the motion picture industry by videocassette recorders:
“We are facing a very new and a very troubling assault . . . and we are
facing it from a thing called the video cassette recorder and its necessary companion called the blank tape. “
“We are going to bleed and bleed and hemorrhage, unless this
Congress at least protects one industry . . . whose total future depends
on its protection from the savagery and the ravages of this machine.
[Some say] that the VCR is the greatest friend that the American
film producer ever had. I say to you that the VCR is to the American
film producer and the American public as the Boston Strangler is to
the woman home alone.”
Note that Mr. Valenti spoke of the VCR as a threat not only to the
movie industry, but also and much more broadly to the American public. It is the essence of moral panics that folk devils (here VCRs) be demonized as a threat to society itself. Mr. Valenti knew keenly that it was not enough to appear before Congress as a special pleader for his clients; instead, he had to appear as the savior of society itself, which could only be saved, of course, by Congress giving powerful rights to his clients. Had Congress done so, Mr. Valenti’s clients would have inflicted severely injuries upon the public and themselves. Where would the morality have been in that?