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That Which Is Not Hypocrisy

About two years ago I was at a law conference, presenting a paper called "Replacing Copyright." The thesis of the paper was that copyright, a regime that served a specific economic purpose to respond to a specific economic problem occasioned by the invention of the printing press, had become obsolete in light of a completely different cost-curve and means of distribution. I argued that it should be scrapped in favor of a "revenue right" regime in which authors would have a presumptive right to all revenue generated from their works, but would not have control over uses that did not generate revenue. (It’s a complicated discussion, as you might imagine. Several good books and dozens of interesting articles have been published on the topic.)

During the question period, one of the smarties in the audience asked why, if I believed what I said I believed, had I put a copyright notice in the first footnote of the paper. This got a good laugh.

But while the question was funny, it was fundamentally misleading. I’ve heard similar accusations of "hypocrisy" made against various people on the left, usually saying that they’re hypocrites because their personal lives do not match their policy positions. Peter Schweizer has written a whole silly book on the topic. A set of examples might be:

  • If you believe in increasing funding to public schools rather than giving public-money vouchers for people to attend private school, then why do you send your children to private school?
  • If you believe that public money ought to be spent on funding for the arts, then why don’t you spend most of your money on funding for the arts?
  • In a Senate hearing a few years ago, Al Gore was asked why, if he believed that we ought to have policy rules in place favoring massive energy conservation, he didn’t spend a few tens of thousands of dollars making his own home as maximally energy efficient as possible.
  • In the 1988 presidential election, Michael Dukakis was asked, since he didn’t believe in the death penalty, whether he would be content to let the rapist and killer of his wife go on living.
  • And so forth.

Each one of these arguments, like the one made to me, creates a false parallel between public policy and private life.

It is one thing to recommend that society adopt a set of practices designed to enhance the public good. It is quite another thing to volunteer unilaterally to adopt those practices on your own, when nobody else is doing it. In the former case, everyone is in the same boat, and any disadvantage (strategic, economic, etc.) occasioned by the new rule would be shared across the board. But in the latter case, the individual making the change would be at a competitive disadvantage against everyone else in the society who was not making the change. Indeed, it is precisely because of this competitive disadvantage that one wants to make it a policy rule rather than an individual choice in the first place — the competitive disadvantage creates a "prisoner’s dilemma" or "freeloader problem" in which no one will want to adopt the new rule for fear of being out-competed by others.

Too, we want society as a whole to adopt a set of rules that is somewhat more rational and forward-thinking than individuals sometimes engage in on their own. (When Mario Cuomo was asked the same question posed to Michael Dukakis, he responded that naturally he would want to kill the murderer of his children with his own hands, but that there was a difference between his own personal desire for vengeance and what the legal system should allow and require.)

Copyright is an industrial artifact of the printing press, and has existed for a comparatively brief period of time. It will not survive the digital transformation now underway. The original structure of copyright was made in the 16th and 17th centuries at the behest of printers, and has always given publishers a series of structural advantages over authors. The extent to which the regime that eventually replaces copyright will benefit authors depends, in some measure, on how proactively and creatively authors "think out of the box" to help shape the new system, rather than clinging to one that is doomed. In the long run, I hope to be one of the authors who helps make that new system. But while the industrial-copyright regime is the only one we have, I’d be foolish to give up on its protections unilaterally.

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