Flawed Analogy

Just as copyright infringement is often compared to theft, punishing copyright violations is likened to traffic violation enforcement. The analogy goes something like this: just as there are “forty million speeding tickets issued every year, and few drivers would argue that traffic regulations are irrelevant“, just because there is widespread disregard for copyright law doesn’t mean that there’s something wrong with the law or that we shouldn’t enforce it.

Whatever is the merit behind the argument for stricter enforcement of copyright laws, this analogy does nothing for our understanding of the issue. As a piece of rhetoric, the analogy is flawed: speeding is not a marketable good — you cannot pay somebody for the privilege of going faster than the posted speed limit. Copyrighted works, in contrast, are marketable goods; in fact, goods that copyright holders are hoping to market to you, their consumer. Speeding tickets are meant to deter speeding; enforcement of copyright is meant — one should hope — not to deter the reading of a book, listening to music, or watching a video, but rather to persuade you to pay the publisher, music record label, or movie studio for the privilege.

The analogy is not just poor rhetorics; it also does substantive harm because it leads us to focus on the wrong issue. Even setting aside any balancing of rights by users (and future authors) against those claimed by copyright holders, the proper question we should ask when considering more rigorous copyright enforcement is whether those measures will help us reach our objective: getting more people to pay for copyrighted materials.

Advocates of copyright enforcement take it as a matter of logical inevitability that deterring copyright infringement, or piracy, is going to boost sales of the legitimate goods. However, as discussed on this blog before (by A., our excellent guest contributor), this assumption isn’t supported by the actual examination of data. Furthermore, even granting that piracy hurts sales, and so reduction of piracy will boost sales, such a relationship alone is not enough to warrant more stringent copyright measures. Instead, we must have that the relationship is of such a magnitude — that is, that piracy reduces sales by a substantial enough amount — to justify the costs that additional enforcement entails. And on the question of magnitudes, even vocal advocates for more stringent copyright protection like Robert Levine is silent (except to note that those floated by the industries are exaggerated).

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