Copyrights and Copywrongs

Published September 24, 2004

Since the advent of Napster, forces inside the music, video, and book industries have fought to ensure that the value of copyrighted works is not diluted by burgeoning technologies. Unfortunately, much of this battle indicates a general disrespect for and misunderstanding of the importance of intellectual property rights.

Illegal downloaders invoke many justifications. To some, the industry’s overflowing coffers are an excuse to download freely. Others act out of anger, believing the industry has hornswoggled the consumer for decades and that their acts of thievery are retribution.

The perceived immunity surrounding illegal downloading is about to be shattered as the Recording Industry Association of America (RIAA) embarks on an enforcement campaign against illegal, high-volume Internet music swappers. Internet music downloading, as RIAA President Cary Sherman points out, is illegal, despite informal norms that convey the opposite notion. This new policy won’t make the RIAA any friends in homes, dorms, and offices around the country. But this begs the question: Should it?

Tradable patents and copyrights are an integral and commonplace part of a free-market system. To be sure, many artists, after selling the rights to their creative output, do not see much of the profits, which are retained by the production companies. But this does nothing to vitiate the immorality of downloading content without paying for it.

Rather, of those who swap files online, perhaps no rationale is more pernicious for property rights than those who think the production companies are due no payment. Only willful myopia leads to the assumption that property rights can be ignored when one doesn’t like the business models through which they are attained.

Contrast this faulty conception of property rights against that evidenced by the Public Domain Enhancement Act (PDEA) recently introduced by Reps. Zoe Lofgren (D-California) and John Doolittle (R-California). Under the act, copyright holders would be asked to pay a nominal fee to maintain their copyrights after 50 years. The logic here is that only profit-generating copyrights will be renewed. Those not registered for a period of, say, three years will return to the public domain.

As Supreme Court Justice Stephen Breyer noted in his dissent in Eldred v. Ashcroft, the older and less commercially useful a copyright work is, paradoxically the more useful it often is to historians, artists, and teachers. Hence, the American Library Association has expressed its support for the bill.

But more important than the wisdom of the PDEA is its basic assertion of property rights: The copyrighted works belong to the copyright holder and are inviolate. Their existence does not hinge on popularity, profitability, or ease of circumvention. These characteristics run exactly counter to the rationales that motivate file-swappers of all makes and models.

Apple Computer and its willing audience seem to have grasped this concept: It recently announced the 7 millionth song legally downloaded from its music service. As economists are wont to remind us, you can’t get something for nothing–at least not for long. If enough consumers disregard the property rights of copyright holders, we’ll all end up with nothing.

Benjamin Glatstein is a summer associate at Defenders of Property Rights ( and first-year law student at the University of Chicago Law School.