Simon Molloy, July 2016

Copyright ground zero

June 1999 was the dawn of a new era in the public’s attitude to copyright. Around the USA, a flood of low quality MP3 music files was rushing onto student computers along the high speed Internet connections of college campuses.

Napster had launched the age of online digital music. The access was unprecedented, the price was right. It was Good. Clearly, it was breaching copyright laws. This was a Problem. Something this Good had to be somehow made ‘ok’. Arguments soon appeared:

• the record companies unreasonably limit access to back catalogues and obscure material (but the hits were the big downloads and why would record companies publish and distribute loss making titles?)
• the record companies package weak songs with the good ones on overpriced albums (the artists write the songs, not the record companies)
• students can’t afford to pay for music (for the first time in history)
• downloading will lead to increased CD sales anyway so artists will benefit (it didn’t, CD sales collapsed)
• the MP3s were only low quality – people wouldn’t be satisfied with MP3s and would soon return to CDs (MP3s got better)
• artists can earn income in other ways such as live performance (most of them were already doing that)
• you couldn’t actually rip-off the artists because they were already being ripped-off by the record companies (a personal favourite).

And so it went. Yet, despite the weakness of their arguments, the free stuff brigade managed to position themselves as the good guys instead of ending up being branded the opportunistic copyright thieves. A number of the arguments cited above claimed ‘no harm, no foul’ – free MP3s will encourage CD sales. But one of their central arguments clearly demonstrated their lack of regard for the welfare of artists – that artists would create ‘for the love of it’ even if they were denied income from their works.

US folk singer, Gillian Welch, put it this way in her song, Everything is free:

Everything is free now
That’s what they say
Everything I ever done
Gonna give it away

Someone hit the big score
They figured it out
That we’re gonna do it anyway
Even if it doesn’t pay

(Gillian Welch, Everything is free, 2001)

For some of us it is difficult to embrace the idea of wanting to enjoy the works of a living artist while being indifferent to their fate. For others, no so much. Still, it’s counter-intuitive that the free stuff brigade found their way so easily on to the high moral ground.

The value of the high ground

In all social and economic debate, it is greatly advantageous to occupy the moral high ground.

For example, when it comes to social safety net policy, the proponents of fiscal rectitude find it hard to counter the calls of compassion for the needy and ‘save the planet’ goes a long way to frustrate the pleas of economic growth enthusiasts.

In fact, it’s not always obvious what argument should occupy the moral high ground. For example, those who argue for reining in social welfare payments claim that burdening future generations with our profligacy is a greater evil than reluctantly reducing social welfare expenditures.

Unfortunately, the contest for the high ground can displace pragmatic argument. The vast majority of us want a safety net for those in need but of course don’t want to create perverse incentives and unsustainable debt. We know that the art of policy is in finding the right balance. But in the age of social media outrage is the new reason. Careful numerate analysis doesn’t cut through, doesn’t go viral.

The point is that substantial benefits flow to the proponents who can shape and position the arguments that colonise the moral high ground. This is mostly because asserting a moral imperative transcends the need to sort through the messy ambiguous trade-offs, costs and benefits that are associated with real policy decisions – if it’s too hard to decide what’s the best thing to do, just do what seems right.

Economics and ‘free stuff’

The proponents of free music soon discovered that their rallying cry was already in place; first uttered by Stewart Brand at the inaugural Hackers Conference in California way back in 1984 – information wants to be free.

The functional translation of this appealing anthropomorphism was: ‘not only is ‘free’ desirable, it makes society better off as well’. Now it was not only ok to get free stuff, but at the same time one could occupy the intellectual and moral high ground.

Like all ideas that spread and persist, this slogan contains a grain of truth. The theoretical well-spring of that grain of truth is to be found in the economic theory of public goods.

A pure public good is kind of a weird thing – it’s a ‘good or service’ which is both completely non-rivalrous and non-excludable. Non-rivalrous means that if one person consumes the public good, there is no less of it for another to consume: a television broadcast is an example – if I tune in, it doesn’t cause you to get a weaker signal. Non-excludable means that once the public good is made available to one consumer, it is not possible to exclude any other consumer from enjoying it, for example, national defence or a fireworks show. Non-excludability is a problem because who would want to fund and produce something that you can’t stop people from consuming? We’ll return to this point later.

In economic theory, public goods are clearly delineated from private goods which are both non-rivalrous and excludable – once I have eaten that hamburger, there is none left for you (rivalry) and the guy behind the counter won’t hand over the hamburger until he is pretty sure I am going to pay for it (excludability).

In the digital online world, a catalogue of music can be shared at near zero cost and perfect copies can be endlessly made – the magic of online digital distribution changed music from a private good (tracks on a physical CD) into a public good (MP3 files on a server).

New technologies mean that the marginal cost of provision has become zero (or very close to). Critics of copyright argue that production or ‘first copy’ costs are sunk costs and should be disregarded because society will be made better off if everyone who values something at more than what it costs to provide it can have it – if one person is made better off at no cost, society is, by definition, better off.

So, by sharing ‘free stuff’ around the world, you are actually making society better off. Now that’s an idea that is tailor made to take the moral high ground!

It’s not just about now

But wait. There’s a flaw in this thinking. One of the glaring problems with the idea that information wants to be free is that it is based on a static perspective. It implicitly dismisses the future, in particular, the responses of the creators of future copyright works and the benefits that society may enjoy from the flow of future works.

It is true that widely dispersing current works benefits society. This is obvious. But the ‘zero marginal cost’ argument is partial and misleading. When confronted with the question of the flow of future creative works the response of the ‘free stuff’ brigade is that artists will continue to produce these works ‘for the love of it’ or because they ‘can’t help themselves’. As Gillian Welch puts it “That we’re gonna do it anyway/Even if it doesn’t pay”.

This is not only an unprincipled and demeaning view of the creative process, it is also misinformed and impractical.

There may be some artists who are at the mercy of their creative impulses but many, faced with impoverishment will find something else to do. Others will simply not embark on a path of professional creativity.

Those who imagine that producing creative outputs in the modern world is down to the lone artist are simply wrong. Producing a finished song requires not only initial creative impulse but also technicians, producers, recordists etc. but also promoters and marketers and so on if it is ever to reach a wide audience. How will all of these inputs be attracted and financed if recorded music generates no revenue?

Those who argue that access to cheap powerful digital recording and distribution tools enables the artist to undertake all of these functions are missing the point. If artists take on all these other roles, they are spending less time being artists.

And so we return to the question of funding. If music has effectively become a public good, who will fund it? Who will bring all the various skills and resources together to produce music at a professional level? One answer is government. Governments fund many public goods which would otherwise not be produced. But somehow the idea of a Department for Popular Music doesn’t quite fly. In the information wants to free world we may have to accept that lower levels of resources, human skills and ‘artfulness’ are, on average being bought to new music.

‘Free stuff’ or art

All in all, it is difficult to sustain the argument that reducing the returns to some activity to near zero will not reduce the resources flowing into that activity. Another serious misconception is to imagine that this loss of income for artists will result only in a reduction in the volume of output. The effects are much more widespread and pervasive: the nature of the art form changes, artists are less committed (out of necessity), careers are shorter, there is more emphasis on the back catalogue than on what is new and so on. The effects of large changes in incentive structures manifest powerfully and unpredictably, especially in the long run.

Gillian Welch continues:

Every day I wake up
Hummin’ a song
But I don’t need to run around
I just stay home

And sing a little love song
My love, to myself
If there’s something that you want to hear
You can sing it yourself

(Gillian Welch, Everything is free, 2001)

Which is to say, that if we choose a system that doesn’t reward artists, we are not going to encourage them to produce the very thing we want from them.

Free now, pay later

Ultimately, winning the moral high ground requires not only a plausible moral argument but the right tactics and politics and a winning narrative.

It’s telling that the proponents of free stuff don’t often challenge directly the fundamental principle of copyright – that artists have rights over their creations.  The arguments are mostly about the messy details of things like the role of the record companies, access to back catalogues, forms of artist income, the mechanics of promotion, the price of music, and so on.

Copyright isn’t dead, it’s that the political will to support it has been dissipated by the cursory moral appeal of the ‘information wants to be free’ aphorism and the way it has been positioned by its proponents. They have also been able to harness the idea that the newness and change are inherently preferable to the status quo, which is to say their position is regarded as an idea whose time has come.

Upon closer examination, the copyright debate looks remarkably like debates about climate change and budget deficits: we want growth but we don’t want to overheat the planet; we want government benefits but we don’t want unsustainable debt, but, in general, we want it now despite the future consequences. We shrug our shoulders as myopia wins again.

The supporters of copyright could potentially regain some footing on the moral high ground by pointing out their opponents want ‘free stuff’ now even at the cost of imposing a more culturally impoverished world on future generations.

Perhaps the aphorism ‘there’s no such thing as a free lunch’ contains a greater truth than ‘information wants to be free’.