Monday, October 15, 2007

Copyright or Copywrong? The Ethics of Technological Multiplication

On Oct. 5, a jury in Minneapolis fined Jammie Thomas, a 30-year-old single mother, a total of $220,000 for downloading twenty-four copyrighted songs. Thomas was the target of a lawsuit filed by the Recording Industry Association of America (RIAA) and major music labels. Although music-downloading websites have been sued successfully in the past, this is one of the first times in recent months that an individual downloader has been fined.

Let’s leave aside, if we can, the picture this story gives us of six large, wealthy corporations, and a trade association representing many more, all ganging up on a woman who is not likely to be able to pay these fines any time soon. It can actually happen that a poor person does something wrong enough to be fined a lot of money for it, if not sent to jail. But is that what happened here?

Thomas’s case is just one tip of a huge iceberg that is floating around in electronic media today: the fact that making essentially flawless copies of a digital original requires less technical resources every week. Let’s try to clarify the issues a little bit.

Even back in the Stone Age, every tribe probably had some clowns and singers that other Cro-Magnons enjoyed listening to. These prehistoric entertainers created something of value: an economic good. Elementary justice demands that the entertainers who spend time and effort practicing and performing should receive some kind of reward for their effort. In those days, it might have been an extra joint of meat from the stewpot. Whatever the reward, the performer may have insisted on it before performing. The more people his performance attracted, the more stewpots he could sample from, but before the Internet, radio, printing, or writing, his ultimate market was pretty small.

Since the invention of writing itself (probably the oldest communications technology), the reproduction of economically desirable artifacts (stories, jokes, songs, etc.) has had a technological component. But even way back at the prehistoric origins of entertainment, there were two extremes that everyone involved had to navigate between. At one extreme, the performer has an absolute monopoly: he is the only performer in the world, everybody wants to see him perform or die, and so he can charge whatever he wants. He can demand the entire wealth of the whole tribe in exchange for one performance if he wishes. This is clearly unfair to the rest of the folks, who have themselves acted unwisely in becoming such slaves to amusement.

At the other extreme, the performer himself becomes a slave: he is threatened with death if he doesn’t perform, but he gets no rewards if he does. Anybody who wants to can walk up to him and demand a performance any time, with no charge to the members of the audience. This extreme is clearly unfair to the performer, who would be better off waking up dead some day.

You’ve been waiting for the technology to come in, right? This is an engineering ethics blog, after all. Well, here it is. All that technology can do is to multiply the performer’s performance in number, magnitude, impressiveness, duration, or other ways. But without the performer, that human being who originates the thing everybody wants to see, you have nothing. Printing, radio, television, motion pictures, phonographs, DVDs, the Internet, YouTube—all these things just give more people access to the performance, whatever it is. Now, it takes a certain amount of time and money to execute this multiplication—call it the marginal resource cost. What has happened over the last few decades is that the marginal resource cost for multiplying the performance has shrunk by many orders of magnitude. When you compare what the Bell System charged a major TV network in 1955 to operate its network transmission facilities (and factor in inflation)—probably the equivalent of many millions of dollars today—with what it costs some 14-year-old kid in Casper, Wyoming to make a video and put it on YouTube, you get some idea of how these marginal resource costs have collapsed. With some exceptions, the direction the technology has moved is to make more stuff available, for everybody, cheaper. So if there were no copyright laws at all, you’d get a situation in which few people would bother to do anything very good that requires a lot of resources (personal or financial), because they could never recoup their investment.

On the other hand, strong-arm tactics like the RIAA lawsuit against Jammie Thomas attempt to move things in the other direction, toward total, perpetual control of the performance by those who own it (not necessarily those who actually did it in the first place). Many people, including Stanford law professor Lawrence Lessig, think we have already gone too far in this direction, at least on paper. Copyright terms have been extended greatly in the last few years, to the point where many artists are worried that quoting or citing anything more recent than 1910 in print, music, or film will make them liable to a lawsuit. Part of this trend, no doubt, arises from a fear on the part of corporate copyright owners that if they don’t do something quick, everybody will digitize everything and just swap it around forever without anyone making a dime off any of it. These fears are no doubt exaggerated, and another part of the trend arises from a much simpler cause: greed.

Mixed up in all this are things like cultural traditions, expectations of private purchasers of entertainment media, technical standards and compatibilities, and many other factors which make copyright law such a happy hunting ground for lawyers. Certain acts of technological duplication in themselves should be made illegal. I don’t think anyone seriously disagrees with the principle that counterfeiting money should be against the law, even if you do it just to have some pretty pieces of paper to look at and you never intend to spend any of it. But attempts to make simple acts of technological multiplication illegal get into murky waters involving privacy, intentionality, and the tradition that what you do in your own home is your own business. The problem is as much political as it is technical, and politics, generally speaking, is not my beat. Still, there's enough engineering involved to make it worth thinking about in an engineering ethics blog.

This blog itself is an example of how nearly-free multiplication costs are used: I don’t pay to write it (except with my time and effort) and you don’t pay to read it. Still, I hope you get more than your money’s worth.

Sources: An article describing the Jammie Thomas case is at the Australian Broadcasting Corporation’s website at Lawrence Lessig’s webpage is at And an interesting comparison between copyright law and the way magicians safeguard the secrets of their tricks appears in Tim Harford’s blog

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