By , February 07, 2013.

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. More recently, you can see such arguments coming from non-profits like the EFF — Congress Shouldn’t Debate Copyright in a Reality-Free Zone — or bloggers like Cory Doctorow — 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 — 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 in 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 professor 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 — 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 — 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 before 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 — the one based on evidence and facts, or one based on something else.


  1. I don’t get these freehadists. Nobody needs to “justify” copyright. Copyright is a natural, God-given property right. It is self-evident, like all natural rights.

    • I don’t get these freehadists. Nobody needs to “justify” copyright. Copyright is a natural, God-given property right. It is self-evident, like all natural rights.

      It’s hard to tell if you’re serious or if you’re just trolling. Either way, I don’t think you’re adding much to the discussion with these types of comments.

      • what are you talking about?? It’s true, copyright is a natural right. go read the UN declration of human rights. I don’t need to justify copyright to you..

  2. Nobody ever said it was impossible to show that some sales are lost due to personal copying. It’s just that, first, the benefits far outweigh the costs, and second, efforts to police copyright in the digital realm have unacceptable consequences for freedom of expression, tend to perpetuate the current monopolistic voices in civil discourse ie. those who can afford to police and have “copyright agents” installed inside popular channels like youtube, and can only work for a limited set of copyright holding bodies, ie. everything is worthy of copyright protection, but everything cannot be “content ID” checked against a list of everything else, the network would choke. I’d like to help you, but it’s impossible.

  3. I feel like I should be arguing with your point, but I’m not sure what point you’re actually trying to make.

    Maybe it’s oversimplifying, but it seems to me as if you are suggesting Smith and Telang’s work (among others) contradict Paltry’s position. If that is indeed the case, that’s nonsense.

    I have read almost all of the papers Smith analyzes. They all address limited effects on a single industry within our current system of copyright – i.e., the net positive financial gains from, for example, increased exposure of creative works IN A SINGLE INDUSTRY do not make up for the financial losses due to diminished sales due to piracy IN THAT SAME INDUSTRY.

    They do not even address whether losses in one copyright industry might produce gains in another – e.g., the money that pirates might have spent on downloaded songs now goes to purchasing video games. And they definitively do not address Paltry’s point – that is, whether our current copyright system is better or worse than any other potentially implemented system of fostering creative works.

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