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Julian Sanchez: Things That Are Irrelevant to Copyright Policy

Julian Sanchez:

Things That Are Irrelevant to Copyright Policy: Sometimes individual creators decide it’s in their best interests to transfer rights to their works—a song, a movie, a story, a character—to big, faceless, generally unsympathetic corporations. This should have exactly no impact on anyone’s view about the proper scope of the underlying right. Yes, sometimes people are hoodwinked into making unwise deals, and that’s bad and unfair—but it’s a kind of generic sad fact about life and contracts and whatnot, with no special significance in the realm of copyright. Often, the value of a right derives primarily from the ability to transfer it, and doing so will genuinely be in the best interest of the creator. So if you think that underling right is properly defined and deserving of respect when held by the creator, it is exactly equally deserving of respect when voluntarily sold to an entity you might not particularly like.

Sometimes, on the other hand, rights are retained by independent and sympathetic creators, who unsurprisingly want those rights to be as expansive as possible, and object to either general narrowing of those rights or the recognition of any number of “fair use” exceptions. These will often be wonderful, likeable, creative people, and the correct policy response to these objections as such is: Cry me a fucking river; now piss off.

Wise assessment of copyright policy should have nothing to do with how you feel about the person or entity who holds the right at any particular time, because copyright policy is not about identifying wonderful and meritorious people and ensuring—certainly not as an end in itself, anyway—that their income is proportioned to their intrinsic moral desert—or lack thereof. We are all the massive beneficiaries of millennia of accumulated human scientific knowledge and cultural output, and not one of us did anything do deserve a jot of it. We’re all just extremely lucky not to have been born cavemen. The greatest creative genius alive would be hard pressed to create a smiley faced smeared in dung on a tree trunk without that huge and completely undeserved inheritance.

So banish the word “deserve” from your mind when you think about copyright. Nobody “deserves” a goddamn thing. (I say this, for what it’s worth, as someone who makes his living entirely through the production of “intellectual property.”) The only—the only—relevant question is whether a marginal restriction on the general ability to use information incentivizes enough additional information production over the long run to justify denying that marginal use to every other human being on the planet, whether for simple consumption or further creation. That’s an empirical question, and while I strongly suspect the answer will generally be “not by a longshot” beyond a whole lot more limited level of protection than we currently provide, I’m happy to be persuaded otherwise along any particular dimension. But if you want to make an argument that turns in any significant respect on how unlikeable big corporations are or how marvelous creative people are… well, spare me. And the rest of us. Because in both cases it’s probably true, but as a policy matter, nobody should really give a damn.