Caleb Crain: Why Matt Yglesias Is Wrong About Copyright

Commentary about business and finance.
Jan. 27 2012 4:32 PM

Matt Yglesias Is Wrong About Copyright

And I will prove it. By eating his lunch.

Immanuel Kant presaged aspects of digital piracy over 200 years ago


I'd like to eat Matt Yglesias' lunch. He's been writing about copyright a fair amount lately, and I've written a little on the subject myself, and I'm beginning to suspect he wouldn't mind.

Last week, for example, Yglesias belittled the damage of online piracy with this rationale:

Even when copyright infringement does lead to real loss of revenue to copyright owners, it’s not as if the money vanishes into a black hole. Suppose Joe Downloader uses Bit Torrent to get a free copy of Beggars Banquet ..., and then goes out to eat some pizza. In this case, the Rolling Stones’ loss is the pizzeria’s gain and Joe gets to listen to a classic album. It’s at least not obvious that we should regard this, on balance, as harmful.


That's quite a line of argument, and I don't think Yglesias has really taken it as far as it could go. So let me take it from him, as it were, and go further. If I were to visit the Slate cafeteria, sit in Yglesias' chair, and eat his lunch, it's not as if the money that I failed to spend on a lunch of my own would vanish into a black hole. No! The economy will not suffer! Yglesias, after all, will have paid for the lunch I ate, and the money that I didn't spend would still be in my pocket or my checking account or whatever. So I could take that money and spend it on, say, the new Shins album. Now I can afford vinyl! Flourish, Keynesian multipliers, flourish!

Oh, but Caleb, you will say. A lunch is different than an electronic copy of a work of art. And I would answer, Yes, that's true, but that's a separate issue, which I'll get to in a moment. The rationale quoted above depends in no way on the nature of what is taken. It's merely a claim that the economy-boosting spending potential of a thief is not necessarily impaired by his theft, and it can justify, or at least minimize the harm of, the theft of anything, abstract or concrete. It depends in no way on the nature of what is taken. Let's try taking Yglesias' laptop, for example. Here we go. ... Great! Now I have a new laptop. And the money that I was going to spend upgrading mine, I'm now free to spend on a new bicycle! Somebody in Portland will hand-make it, probably. A hipster has been given a job! Yglesias' laptop is my new bicycle! The Internet is so much fun.

Now let's consider the nature of what's being taken more carefully. As Yglesias himself put it, in a different post,

If I steal your car then you don't have a car anymore, whereas if I duplicate a digital media file we both end up with it.

By about two centuries, Immanuel Kant anticipated this point. As I explained in a review-essay on copyright that appeared in the National a couple of years ago, Kant addressed this quandary in the 1780s:

It turns out that Kant didn't think that an author could mount a strong legal case against piracy based on property rights in words. After all, even after pirates copied an author's words, the author himself still had them. It was better for an author to argue that his book was not an object but an exercise of his powers, which "he can concede, it is true, to others, but never alienate". In other words, ... a pirated book was not to be understood as property that had been stolen; it was rather a speech act that had been compromised. The business arrangement that an author made with an editor might make it look as if words could be traded like watches or pork bellies, but it just wasn't so.

Alas, Kant's concern for the moral rights of authors represents a path that American law, at least, did not take. Unlike Kant, we don't worry so much today about protecting the authenticity and moral integrity of a speech act; we focus on the money the author is or isn't making. Perhaps we should worry about integrity, though. If I find an essay of mine reprinted without permission on a link-whoring site, I do feel rage. I know I should be above it; I know that the economic damage to me is zero or near-zero. But I don't like it that my work is being exploited by dubious strangers.