Stealing, remixing, and the Constitution

Photographer John Harrington has a post criticizing Lawrence Lessig’s approach to copyright and urging photographers not to give up their rights, no matter what Lessig and others might recommend. The post represents a dangerous approach to intellectual property firmly at odds with the Constitution.

The Law is only The Law until we change it

“Call me a killjoy,” writes Harrington, “but stealing music is stealing from artists. Period.” But why? Presumably because he believes the appropriation he’s describing is against the law. But why is it against the law? What is the purpose of copyright? I’m glad I asked…

To promote the Progress of Science and useful Arts

The Constitution states clearly what the purpose of copyright is, and it’s not to infinitely preserve the natural rights of artists. Its aim is to further progress. Which means we have to ask: is copyright achieving that aim? Are terms too long or too short, by that criteria? Lessig and others have argued persuasively that they are far, far too long. I’m open to debating that as an empirical matter, so long as we agree upon the basic purpose of the law.

Nothing is derivative of nothing

My fear is that Harrington would object to the very criteria by which the Constitution insists we judge copyright. My fear is that he would claim artists simply have certain natural rights to their work, and regardless of what the law says, stealing is stealing. I could go on for a while about why I find this misguided, but it’s hard to have a productive argument about a philosophical tenet. Here’s just one reason: despite what Cadillac would have you believe, nothing is derivative of nothing. Ideas, art, culture all build on what has come before. When thinking about intellectual property we often focus on output without considering input. (Put another way, everything is a remix, as the video below argues.)

Against artistic rent-seeking

Artists and content creators will always be tempted to favor strong intellectual property regimes. But self-interest is no basis for a moral theory (sorry Ayn). As Lessig has also argued, control over intellectual property has never been easier to exert. Technological limits to near-perfect control are evaporating. If content creators give in to temptation and insist on advocating for an intellectual property regime justified by a conception of natural rights – despite the Constitution’s clear position to the contrary – our culture will suffer. The line between stealing and remixing needs to be considered on the basis of maximizing progress, not just protecting property.