A reader writes:
Yglesias and Bunch are each correct in different ways, but Yglesias has the better argument here. Bunch, willfully or not, ignores the fact that while the intellectual property laws -- and this goes beyond music and even beyond copyright into patent law -- were intended to protect the creation of intellectual property, they have come to be used largely to protect the distribution of intellectual property. At some point in the life of a creation -- and we can have a legitimate argument about when that point is reached -- the distribution of a work becomes divorced from its creation.
The record companies' problem is that technology -- the internet on the distribution side and the laptop and other personal recording technologies on the creation side -- has made the record company's traditional role as financer and distributor of works increasingly irrelevant. They are using the intellectual property laws to protect a distribution model that is largely outdated.
But to the issue of an artist's profits: Bunch argues, correctly, that "artists . . . have a right to profit from their labors." But here, too, he cuts his analysis off at a point that is convenient for his argument. What "profit" is reasonable for an artist? He, and certainly the record companies and the artists, seem to base their arguments on the assumption that artists, and in many cases their successors, have a right to live exclusively off their works.
This assumption needs to be examined because it treats the intellectual property laws solely as an incentive to lay one golden egg. If as an artist I can garner outsized profit from one work, how does that provide an incentive to create additional works? If my successors can live exclusively off the profit of my work, what incentive is there for them to create ANY artistic work? Why does an artist need to be so well compensated that as a society we ask that he does no other productive work? One can name many, many artists -- Wallace Stevens comes immediately to mind, but there are countless others -- who created great art while making a living doing other things. Contrast Stevens's life with, well I won't name anybody, but the artist who creates one good, maybe great, work and then spends his time living off royalties and sleeping with starlets. This is defensible on moral or economic grounds?
I just wanted to weigh in on the budding IP debate to say that anyone who takes a firm stand on the specific meaning of IP law doesn't really understand IP law. Copyright, patent, and trademark law all serve different purposes, and have different statutory regimes precisely because the issue is multifaceted, complex, and must meet various and sometimes opposing interests. Conflating three separate legal regimes as "IP law" can make arguing about it's purpose inherently impossible.
For instance, Yglesias points to the Constitutional requirement that the protection be for a "limited time." Well, over the last 200 years as IP laws have evolved, we've decided that "limited time" means something very different in patent law and copyright law. Patents generally last for 25 years, copyrights last for the life of the author plus 75 years (this is a gross simplification, but good enough for our purposes). Patents cover inventions that increase our standard of living and move society forward. The inventors of those things should be protected, but only for a short time; after that society as a whole should be allowed to benefit from the increased utility of the technology's wide dissemination.
More to the point, copyright law protects expression -- the words or notes an artist uses in creating his work. Though I agree with him on many things, Yglesias is wrong here. Copyright law is very much in the business of protecting the rights of the author. That's why a copyright term lasts so long (copyright terms have been increasing steadily over time, indicating that we are becoming more and more concerned with protecting authors as time goes forward). That's also why copyright protects such a wide range of expressions and has so few formal requirements for securing one. Our copyright scheme is actually quite expansive in its protection of producers' interests.
One could say, as Yglesias does, that copyright protects consumers, but only with very roundabout logic: copyright incents producers to produce copyrightable works, and that allows consumers to consume those works, thus protecting their interest in listening to music, etc. It's much more logically satisfying to accept the basic truth and say "copyright law protects an author's interest in his copyrightable works," and then derive whatever ancillary benefits you want from there.