A Copyfighter’s Musings

Another way to criticize an intuition pump, like DeLong’s discussed below, is to argue that it proves too much. 

The point of the comparison to shopping carts is to make us think that whatever intuitions apply to one case should apply to the other. So, if our intuitions say that stealing a shopping cart is wrong, using a copyrighted work without permission is also wrong – in both cases, we’re taking something away from the rightful owner.

But what about libraries?  Libraries provide free access to copyrighted works without any compensation to copyrighted works. Perhaps libraries should be shut down, and copyright holders should be able to license book-lending services under whatever terms they want.

In general, I bet (or, rather, I hope) that our first intuition about libraries is that they’re perfectly justifiable and socially beneficial.  If DeLong or others want to push us to accept their analogy to shopping carts, they should also be willing to bite the bullet and say that libraries are at best a
tolerable though unfortunate historical accident and at worst unsound
policy that must be eliminated as soon as possible; alternatively, he ought to have a clever way of distinguishing this case or clarifying his principle.  If these principles lead to ostensibly wrong conclusions, we ought reject the intuitions pumped from the shopping cart comparison.

In the context of the copyfight, this argumentative tact should be familiar to anyone who’s listened or read Lessig.  Take his talks about Google Book Search – his first key point is that the principle the publishers/authors guild offer can’t possibly be right, because it would mean that basically any use of copyrighted material should require a license.  In Free Culture, his refrain is not a proof that certain copyright holders’ views of property are necessarily wrong, but rather an explanation of how they don’t square with “our tradition” or “common sense.”

It’s worth noting that, though rhetorically powerful, this tact has drawbacks.  Most importantly, it’s not rigorous – our intuitions or traditions may turn out to be wrong. For instance, DRM allows copyrighted holders to charge for certain uses in ways they traditionally could not, but one could argue that fair use is about transaction costs; new technologies allow these costs to be overcome, and thus tradition is basically irrelevant. (On this score, it might be worth checking ut Professor Solum’s review of Free Culture.)

Filed by Derek Slater at 1:45 am under General news
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