Copyright Fallacies

I'm wary of real-world analogies when discussing copyright. One of the big problems with copyright, as I see it, is that it just doesn't map onto physical reality particularly well. The idea of something that can be infinitely replicated without any additional cost is pretty alien to our real-world experience, and it tends to get pushed under the rug a lot. When questions of intellectual property come up, the reaction has almost invariably been to try to treat it like it's a physical object. Reasoning by analogy is a fundamental part of our legal system, and it really bites us in the ass when it comes to copyright. (This is, I think, essentially where the concept of Fair Use comes from: once you've bought it, you can do more or less whatever to want with it--carry it around, give or lend it to someone else, use it as much or as little as you like; anything, that is, except exploit its ease of reproduction. You can use it in all the ways that it's like a thing, but in none of the ways it's like an idea.)

This "common sense" position worked as long as there were substantial costs to reproduction. Making and buying a CD was enough like making and buying a pot or a hammer that the analogy held. Now, not so much. What used to take an entire industry of reproduction and distribution has been replaced by desktop-publishing and the internet. This has exposed the huge, gaping difference between any real-world analogy and intellectual property: if you "sell" your IP, you still have it. If I "steal" your IP, you still have it. The incentive for individual users not to distribute is absent, in a way that's impossible to duplicate in the material realm.

This is why I think that real-world analogies make for poor arguments. Copyright in the digital age is so different from what we are familiar with that any analogy can't help but mislead.

Really, the power-grab underway by the companies in the recording and distribution business is a far more honest recognition of the realities of digital reproduction than the defense of the blurry concept of Fair Use. The only people who really get the realities of the media are the recording companies and the pirates--everyone else is still trying to treat intellectual property like it's a thing. The record companies, for all their flaws, have at least figured that much out. Sure, their proposed legal framework is obviously rapacious and terrible for consumers, but at least it responds to the reality of intellectual property, and not to a poorly thought-out analogy from the material world.