Reality should always be our starting point for discussing policy, and copyright policy should be no different. This seemingly goes without saying, but when it comes to copyright in particular, a funny thing happens to reality and evidence.
William Patry’s latest book, How to Fix Copyright, is premised largely on the claim that copyright policy lacks any empirical support.Â More recently, you can see such arguments coming from non-profits like the EFF â€”Â Congress Shouldn’t Debate Copyright in a Reality-Free ZoneÂ â€” or bloggers like Cory Doctorow â€”Â Copyright policy in the UK: an evidence-free zone.
The irony is that the evidence is there, the reality is there, but sadly, it is all too often ignored or even misrepresented â€” whether we’re talking about empirical evidence, historical claims, or the realities of operating creative enterprises. It’s troubling to see disagreements about the proper scope of copyright law transform into denialism. (I last addressed this topic inÂ How Much More Evidence?)
Carnegie-Mellon economics professor Michael Smith recently spoke at the Digital Book World conference in New York on the topic of piracy’s negative effects. That was the topic of a meta-study he wrote, along with fellow professorÂ Rahul Telang, that summarized the growing body of research concerning piracy: Assessing the Academic Literature Regarding the Impact of Media Piracy on Sales.
Smith and Telang found that of the papers based on empirical data (as opposed to theoretical models), 25 found economic harm from piracy, while only 4 found little or no harm. And for those who are skeptical of non-academic papers: Smith found that 12 peer-reviewed papers published in academic journals found a negative impact from piracy while only 2 did not (and there are legitimate questions concerning the methodology of those 2 outlier papers, some of which are explored in Stan Liebowitz’s 2005 article Economists’ Topsy-Turvy View of Piracy).
Evidence like this, of course, does not tell us where to go from here. But it is amazing how many who join with skeptics of copyright either don’t know about the scholarly record on piracy or don’t care. Problems with economic arguments stretch beyond just this issue of the harm from piracy. Edmund Kitch explores four broader issues in this area in his 2000 article Elementary and Persistent Errors in the Economic Analysis of Intellectual Property â€” including the assumption that intellectual property rights are economic monopolies.
This feature of copyright debates, a “willful blindness” to reality if you will, is not limited to just economics â€” the same could be said of history.
Recent criticisms of copyright, such as the retracted RSC memo or articles published by the Cato Institute, continue the cavalier revision of the historical record that is not uncommon among copyright skeptics. Appeals are made to a copyright past that bears little resemblance to reality. Appeals are made to motivations of the original drafters of U.S. copyright law that just aren’t supported by the historical record, and occasionally are made out of whole cloth.
The Center for Individual Freedom recently published a paper rebutting some of these claims: The Constitutional and Historical Foundations of Copyright Protection. I’ve also written about some of the myths from the birth of copyright law beforeÂ and pointed to other articles that delve into these and other historical inaccuracies that tend to crop up in copyright discussions.
And an entire book could be written about the myopic view from skeptics of the business realities that creators and industries that rely on copyright face.
So when debates over specific issues in copyright law pop up, or even discussions of more generalized reform, we should be sure that assumptions and claims are grounded in reality. On that, we can all agree. The difficult part is picking which reality â€” the one based on evidence and facts, or one based on something else.