{"id":3009,"date":"2005-06-01T15:54:01","date_gmt":"2005-06-01T19:54:01","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/cmusings\/2005\/06\/01\/ernest-on-lawsuits-and-leakage\/"},"modified":"2005-06-01T15:54:01","modified_gmt":"2005-06-01T19:54:01","slug":"ernest-on-lawsuits-and-leakage","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/cmusings\/2005\/06\/01\/ernest-on-lawsuits-and-leakage\/","title":{"rendered":"Ernest on Lawsuits and Leakage"},"content":{"rendered":"

<\/a><\/p>\n

Ernest’s blogstorm continues, which means this post<\/a>
\nis already buried on the page.  It raises an interesting issue,
\none I hope to say more about in the future once I’ve thought a bit more, but I feel like talking it out a bit now.<\/p>\n

Ernest first repeats a point he has made many times: “I oppose
\ncopyright infringement via filesharing services and council against
\nit.”  The lawsuits are a legitimate piece of any voluntary
\nlicensing, market-based system, and penalties must be higher than the
\nactual harm in order to act as a deterrent.<\/p>\n

But he then states that the music industry is in part responsible for
\nfile-sharing: “The RIAA is partially at fault for making the original
\nNapster so
\nattractive because there were no real legitimate avenues to meet
\ncustomer’s wants…. [A]nyone could have predicted that without
\nlegitimate avenues to download
\nmusic, more people would use illegitimate avenues. This is not
\nrationalization, not justification, merely acknowledging the facts.”<\/p>\n

There’s a deeper point there, beyond allocating fault. 
\nUndeniably, Napster and file-sharing generally have put pressure on the
\nmusic industry to license legitimate online services, driving the
\ncompetition and improvements in services we’re only starting to see
\nnow.  In pushing along this competition and in particular by pushing
\nprices lower, one could argue that this leakage in the copyright system
\nhas helped check the deadweight loss caused by the monopoly
\ngrant.  One cannot prove the counterfactual – who knows what would
\nhave happened without Napster.  Regardless, we can recognize the
\nconstructive role file-sharing has played.<\/p>\n

With respect to this constructive role, it’s also worth setting it
\nwithin the context of a broader viewpoint about copyright: a leaky
\ncopyright can be a good copyright.  That’s not just the case in
\nfile-sharing.  I<\/span>t’s a crucial aspect of fair use.<\/a>
\nAllowing copying and copying technologies ultimately can help create
\nnew markets for copyrighted works, provide people with greater access,
\nmore flexibility and more enjoyment in how they use copyrighted works,
\nand in total improve social welfare.  If the screws of copyright were
\ntighter, if it did not leak in this way, we wouldn’t realize this
\nflood of benefits from various copying technologies.<\/p>\n

But turning back to file-sharing specifically: can we reconcile the
\nconstructive role its played with Ernest’s first point?  That
\nis, can we a) acknowledge this constructive role while b) opposing
\nwidespread infringing file-sharing.  A reconciliation could start
\nby noting that the (a) is descriptive of the entire system, while (b)
\nrelates to the message we project to individual file-sharers.  It
\nmay be a good thing that their activity is leading to more features and
\nlower prices in legitimate services, but they cannot use that as a
\nbasis for justifying their own behavior.  Justifying it in this
\nway would form a seemingly boundless basis for infringement, leaving no
\nclear legitimacy for lawsuits in any context – at what point do prices
\nand features become good enough that infringement would no longer be
\njustifiable? and how would that point be determined in a non-arbitrary
\nway? (Ernest made<\/a> this argument in a different way many months ago.)<\/p>\n

This separation between (a) and (b) is imperfect.  Underlying (B)
\nis an assessment that the constructive role played by
\nfile-sharing is ultimately countered by many ill-effects.  Perhaps
\na part of the reconcilition is a sense that, whatever may have been the
\nmeritorious effects of file-sharing during Napster’s birth, now
\ncompetition in legitimate services can become good enough that it’s
\ntime to call off the dogs.<\/p>\n","protected":false},"excerpt":{"rendered":"

Ernest’s blogstorm continues, which means this post is already buried on the page.  It raises an interesting issue, one I hope to say more about in the future once I’ve thought a bit more, but I feel like talking it out a bit now. Ernest first repeats a point he has made many times: “I […]<\/p>\n","protected":false},"author":72,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[84],"tags":[],"class_list":["post-3009","post","type-post","status-publish","format-standard","hentry","category-general-news"],"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/cmusings\/wp-json\/wp\/v2\/posts\/3009","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/cmusings\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/cmusings\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/cmusings\/wp-json\/wp\/v2\/users\/72"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/cmusings\/wp-json\/wp\/v2\/comments?post=3009"}],"version-history":[{"count":0,"href":"https:\/\/archive.blogs.harvard.edu\/cmusings\/wp-json\/wp\/v2\/posts\/3009\/revisions"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/cmusings\/wp-json\/wp\/v2\/media?parent=3009"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/cmusings\/wp-json\/wp\/v2\/categories?post=3009"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/cmusings\/wp-json\/wp\/v2\/tags?post=3009"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}