Aaron Swartz and Copyright Law
by Benjamin Studebaker
Recently, Aaron Swartz, a talented programmer involved in the creation RSS feeds and Reddit, committed suicide. Apparently this was in response to his being hounded by a federal prosecutor for the crime of violating copyright protections and sharing a large cache of academic articles access to which was controlled by JSTOR, an online academic library club of sorts. In the aftermath of the Swartz suicide, activists are demanding a significant curtailment of copyright law. Is this a reasonable policy? That’s my question for today.
Before I dive down into whether or not we should ditch copyright law, I want to clear a few things up. There is a lot of emotionalist argument going on around the internet, driven in part by Swartz’ father’s claim that the government “murdered” Swartz by driving him to suicide. These emotional appeals need to separated out from the issue. It is simply not rational to blame the state for Swartz’ death, nor is it rational to propose changing the law on that basis alone. Consider the following scenario:
- Tom murders someone.
- Tom is hounded by the government, which is attempting to prosecute him for his crime.
- Tom, fearing capture, kills himself.
The state, surely, cannot be blamed for Tom’s death. Tom ultimately chooses to commit suicide due to psychological factors over which the state has no control. The state is bound by law to enforce the law against murder; it cannot take into consideration the fact that enforcing this law might upset Tom or drive him to suicide. And what would the alternative policy be? That the state not enforce laws against murder? And think of how ridiculous it would be if people were to make the argument that because Tom committed suicide, this were a reason to legalise murder. Such arguments simply do not follow.
Now, one could argue that the laws restricting copyright infringement are not just, but that does not change law enforcement’s obligation to nonetheless enforce said laws. A society in which law enforcement can select which laws to enforce or not to enforce is a society in which justice is arbitrary. It could also just produce blatantly devastating consequences. Imagine if our police officers believed that women who got raped deserved it and policed on that basis, refusing to enforce laws against rape. It is not such a far-fetched scenario–that is more or less what is happening in India. Blaming the prosecutor for the suicide, as many people all over the web are doing, is illogical and ridiculous, and sets a dangerous precedent.
All that said, the case against copyright law can stand independent of any emotional argument derived from the suicide. As I understand the argument, the claim is that human intellectual or creative output is a collective good that should be owned in common, with access to it free and universal for all people everywhere. The trouble with the argument is that much of our intellectual and creative output has been created precisely because this is not so. This is not to say that academics and artists are greedy or only willing to work for money, but that they derive their living from selling what they create. If we provide universal access to their product, from whence is their income to be derived so that they may continue to produce in the future?
Now, the counterargument from the universities, firms, and businesses that depend on copyright is also not particularly helpful. They argue that the status quo–or something even more strict (think SOPA here) is necessary in order to ensure the continued fiduciary backing for their intellectuals and artists. This argument ignores the serious potential benefits of wider and cheaper access. Access to this work could inspire better and more future work and it could enrich the lives of a great many people, particularly in poor countries or neighbourhoods where the funding just isn’t there to guarantee access for any large section of the population.
So how do we reconcile the two needs such that we can expand access without undermining the resources available to provide for future intellectuals and artists? I can think of one feasible alternative, but bear with me–it’s a doozy. Here’s what we could do:
The worldwide entertainment industry, as of 2010, was worth $745 billion a year. Estimated global annual output is about $70 trillion. This means that entertainment accounts for about 1% of worldwide spending. It really isn’t very much, but it sure feels like a lot because of how we presently pay for it–person by person, item by item, with the distribution of fun strongly favouring the wealthy. Globally, we could come up with $745 billion without too much trouble, if we all chipped in a little. So let’s say that we create a very progressive tax to raise the money–call it the “Fun Tax”. Each country collects its own nation’s entertainment tax individually before sending it off to an international organisation. Let’s call it the “Fun Fund”. The Fun Fund takes all the entertainment produced each year, all the books, music, movies, and so on, and it digitises them and puts it up on a website. Let’s call it “fun.gov”. Every person can download anything and everything on fun.gov for free. The Fun Fund tracks the number of downloads each individual piece of entertainment gets per year. At the end of the year, it distributes the money it receives through the Fun Tax to the various entertainment projects, which then divvy it up among their various contributors (quite a few, presumably, for say, a movie, fewer for a book or a band). The Fun Fund has to remain politically neutral as an element of its constitution, of course–it cannot refuse to put a piece of entertainment up on its site or advertise for one thing over another. At the end of each year, the Fun Fund can propose changes in the Fun Tax so as to adjust to changes in the market, which are then voted on by the world’s states.
This would solve the problem. Artists and intellectuals would get paid, and access to their work would be universal for all people. The trouble with it is not theoretical, it is practical–citizens in rich countries would pay considerably more in Fun Tax than would citizens in poor countries, and so rich countries, particularly the United States, which profits from entertainment as one of its primary exports, would likely resent going from net profiteers to net contributors. Nonetheless, if we were seriously interested in making entertainment and information free and available to all people, as Aaron Swartz was, this is what we would do, or something quite similar to it. Of course, we aren’t really serious, are we? Westerners upset over Swartz’ suicide love the idea of getting their entertainment and information for free, but I bet they aren’t too keen to pay a tax for it. They remain committed to getting something for nothing, but the trouble is that nothing in life can be sustainably free. Sooner or later the producers go bankrupt under that model, and the only reason our system of disorganised internet theft continues to work out is because it isn’t total, because there remain millions upon millions of suckers who do not participate in it. Those of us who are internet savvy continue to take advantage of them and of the those that make the content that they buy, and until said savants will submit to some sort of novel system like the one I describe, governments will continue to ponder SOPAs and PIPAs, and one of these days they’ll manage to pass one. When that day comes, information and entertainment really will return to being the sole bastion of the international bourgeois.
There is a factor, though, that you ignore entirely–the value of the audience. Very often an artist, musician, writer, etc. d-sized folloes not simply create for money, but to have their work seen, heard, etc. In the past, this value was not very high. The ratio of content to audience was very low, mostly because retailers had control over the distribution and had limited shelf space.
Now with the internet, the ratio has risen dramatically to the point where merely having a moderately-sized foh llowing is quite an achievement. With the millions of writers out there who want people, including me as a person, to read their works, why should I pay anyone? The demand for an audience is high enough that content creators willingly give their content away. Hell, I’m on wordpress right now where I can read blogs like this one for no charge. Soundclud, reverbnation, and Youtube all give me music for free. Only high-scale production feature films and TV are out of the reach of “free” anymore.
Audiences have value, but audiences do not in and of themselves provide a living. For instance, I am able to spend time writing these posts for your free consumption because I am effectively on a patronage system–my income comes from my parents, who desire that I learn and write and who consequently sponsor my learning and writing. If I did not have an outside source of wealth (and presumably, at some point I will graduate and this will be the case), I would have two choices:
1. Get a job that pays me for my writing.
2. Get a real job and maybe do a little writing in what would remain of my spare time, but at not nearly the same frequency or quality.
If we adopt a free system, we take away the first choice and are left with amateur part-timers and clients of wealthy patrons. While I concede that would not eliminate intellectual or creative work in its entirety, I submit to you that the amount of it available for audiences to select from and the quality of the work available for selection both would decline considerably. Also, by making writers and artists dependent on patronage, you ensure a less critical, more docile social commentary, because writers are not apt to bite the hand that feeds them.