Here's a tale of two creators in my life. Dan makes violins. JoAnn writes bestselling novels. To enjoy Dan's creations, a person must purchase a physical object. To enjoy JoAnn's creations, a reader can buy a physical book or purchase a digitized version online. Dan's rights as a creator are not questioned. If someone goes into his shop and takes five violins for friends without paying, no one would argue that's legal, or right. Yet in JoAnn's case, some argue that it's different if that same person makes five copies of the digital version of her book without paying.
Technology makes it easy for anyone to duplicate and distribute creative works. That does not justify indiscriminate use of technology. Modern cars can exceed 120 miles per hour, but few would suggest driving that fast is wise. This is critical to remember when hearing calls to decriminalize file sharing, the uploading and downloading of creative works without permission of rights holders. Those files include books, sound recordings, movies, broadcast programs, video games, business software, photos, graphic arts, and even quilt and needlepoint patterns.
Mash-up. Decriminalization advocates say amateurs need to be free of copyright laws so they can combine songs and images into new works. But the amateur mash-up culture is thriving alongside copyright law. Why? Because copyright law is purposefully ambiguous, encouraging such creativity. The mash-up culture doesn't rely on file-sharing.
But creators rely on a legal marketplace to get paid. So those advocating file-sharing decriminalization claim to have a way to pay creators. They call for a licensing scheme that would allow unfettered file sharing while we pay an imposed flat tax, regardless of how much we upload or download creative works. Those taxes would then be collected and distributed to rights holders by a third party. Nothing could be more ill-conceived than this all-powerful über-distributor. Could this organization have the omniscience needed to track every digitized work when they continue to replicate every millisecond? Could every public and private network be monitored? Could our privacy rights be protected from this Big Brother? And could a fixed and finite amount of taxes be distributed fairly among millions of rights holders?
The answer to all of those questions is clearly no.
But more to the point, why turn the principle of copyright on its head when the marketplace is responding to consumer demand? Why download illegally the latest episode of The Office when NBC makes it available free at Hulu.com? Why download illegally JoAnn's latest book when you can obtain it wirelessly from Amazon.com on the phenomenal new digital reading device the Kindle? And why should Amazon develop and market the Kindle if legalized file sharing means no one will buy digital books?
The market is providing legal alternatives, driven by our property rights system that gives creators power over the production and distribution of their works. They have a motivation to create artistic works, and thus the creative industries and their 11 million U.S. workers produce a positive balance of trade with every U.S. trading partner. We enjoy a treasure-trove of creative works that is the envy of the world. We can't flip the rights system to empower file sharers at the expense of artists and their motivation to continue to create. Rather than decriminalizing theft, far better to support legal alternatives and better educate consumers on the importance of creators' rights. To throw up our hands at online theft is to show a lack of faith in the intelligence and reason of the American people.
I'm glad Dan the violin maker is unaffected by this debate. But I fear JoAnn the author has an uncertain future. Can she earn an honest return on the thousands of hours she commits to each book if file sharing is decriminalized?
Copyright laws work—for JoAnn, for all of her readers, and for all of us. It is imperative we not abandon the rights system that produces our rich and diverse culture of creative works.