Ted Olson on P2P

Former Solicitor General turned RIAA hack has written an absurd commentary for the Wall Street Journal today. Let’s take a look at some of the juicer tidbits.

After attempting to liken P2P file sharing to stolen property in the physical world, he comes up with this:

These copyrighted products are being stolen every day as a result of so-called peer-to-peer file sharing systems that are available to any one of us free of charge as long as we have a computer. They are operated by companies who make millions of dollars in advertising revenues aimed at the systems’ users. It has been estimated that tens of millions of songs and 400,000 movies are illegally copied in this manner every single day.

Estimated by whom? Blank out. What he probably means to say is estimated by him and his RIAA buddies who have a vested interest in seeing that number inflated. If he had an objective or unbiased source without a vested interest in the outcome, he probably would have cited it, now wouldn’t he?

But what’s more is that in every single study I’ve seen regarding the number of songs stolen, they presume that the person doing the downloading a) would have ordinarily purchased the music had it not been available for free (a completely fallacious assumption) and b) that the person doing the downloading didn’t already own the music they were downloading. In my experience, the latter situation is far more common that one might at first believe.

Take the example of one coworker of mine, a woman in her early fifties who purchased an iPod mini. She wanted to put her music collection on her iPod, but didn’t want to pay iTunes for it. Why? Because she had already purchased all the music she could ever want and her collection was sitting in her basement, recorded on vinyl. She had no technical expertise to rip her vinyl to her iPod, so she sought to just download her music from a P2P network. So, was she stealing?

I think not. But I think Olson would disagree.

The Framers of our Constitution believed that private property rights are at the core of a free and prosperous society; and that property comes in many different forms, intellectual property as well as tangible property. In fact, the Framers considered intellectual property rights so important to the development of our culture and economy that they extended special protection to intellectual property through the copyright and patent clauses of our Constitution. For over two centuries, Congress has implemented these protections through laws designed to provide our creative citizens with a property-based incentive to transform their ideas into innovations and artistic works in order to stimulate creativity and promote the progress of science and useful arts.

Never mind Olson’s improper mixing of past and present tenses in the first sentence here. Let’s get to the meat of the matter. The phrase “intellectual property” is decidedly 20th century in origin. Legal texts simply do not even mention the phrase until the late 19th century, and in the 20th century it gained momentum to the point where it became a commonplace expression. But in the 18th century, when the Constitution was written, the phrase was not in use.

That’s because the phrase is basically a metaphor. And Olson seems to want to take the metaphor literally. But there are several distinct differences between real property and so-called “intellectual property”. Let’s list just a few:

  • Real property has no expiration date set on it. It is transferable to others in perpetuity. “Intellectual property” on the other hand, has a limited life, 20 years for a patent, and 90 years plus the life of the author for copyright. When the founders wrote the constitution, the limit for copyrights was 14 years, plus one term of renewal for 14 years should the copyright holder wish to do so. By that standard, all copyrights older that 28 years would be in the public domain today, such as say, the entirety of the Beatles music library.

  • Real property must be recorded with a register of deeds, to set an objective measure of who owns what. No such requirement exists for copyright.
  • Real property must be maintained for some purpose to remain in the hands of the owner. This principle dates back to John Locke. That is why you can buy thousands of acres in Wyoming on eBay for a pittance, because it is very difficult to maintain such a large tract of land and to keep squatters off of it from a distance (or even if you live there). Failure to maintain fences and “no trespassing” signs at a minimum can lead to loss of property rights to squatters. Copyrights and patents, on the other hand, can go unused by their “owners” with no dissolution of their rights, thus the phenomenon of “orphaned works”. Real property cannot be likewise “orphaned” as squatters would eventually acquire real rights in the property.

And that’s just scratching the surface. What the founders envisioned was a limited exclusive right to reproduce or authorize reproduction of a work or invention. They also envisioned that such a work would eventually become a part of the common culture or common knowledge in a field or craft generally within the lifetime of the creator of that work. What Olson is envisioning bears no resemblance to that.

The purveyors of these file sharing enterprises advance the utterly absurd defense that inhibiting their unlawful enterprise will somehow stifle innovation. Not unless stopping pickpockets stifles magicians. The fact is that innovators must have legal protection if they are to innovate. The best way to stifle innovation is to allow the theft of the innovator’s product. Lawful and productive creativity is severely inhibited when cheating and theft is not controlled.

The P2P defense is decidedly not absurd. The entirety of the Internet is based on the exchange of information. Unless the Supreme Court wants to ban such practices as email an IM connections, there is no way to make the practice of file sharing illegal per se. Rather, what Olson is proposing is akin to enforcing no trespassing laws by outlawing walking itself. Sure, such a ban would stop people from trespassing, but at what cost?

The Framers’ insights are not outdated in the digital era. If anything, the advent of file-trading services confirms the Framers’ wisdom — and underscores the continuing importance of a system of property rights that protects and encourages creativity and innovation.

Indeed, the Framers’ intentions are well worth nothing, though they bear little resemblance to Olson’s ideas. The Framers understood that after 28 years a content creator typically should have exhausted the ability to generate revenue from his work. And should such a work still be desired by the marketplace, it is because it has become a part of the common culture to which we all belong, not just to the creator any longer. They judged that given the distribution technologies of the time, 28 years was enough for a typical content creator to receive just compensation for his work.

Today, distribution methods are decidedly more efficient than they were in 1789. If anything, the length of a copyright should be shortening, not lengthening. The fact that it has been lengthening, the fact that songs which by any objective measure are part of our common culture, songs such as “Happy Birthday”, are still “owned” by Time Warner is evidence that something else is afoot here. Namely, copyright holders have banded together as a cartel to purchase laws from congress that in essence, make no sense. That alone is bad enough. I just wish they would be honest about what they’re doing, rather than attempt to claim the moral high ground, as Olson has done today.

Read Ted Olson here.


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