Suppose that, back in the 70s, DARPA had developed two revolutionary networks. In addition to the precursor to the Internet we all know and love, they had also developed a teleportation network enabling small, inorganic objects to be instantly transmitted via miniature wormholes from any point on the network to any other point. The effect can even be time-limited, so that objects will snap back to their original locations after a predetermined number of minutes, hours, or days has elapsed.
Among the many areas of life transformed by this technology is the entertainment industry. People quickly realize how inefficient it is that all our homes are packed with books, DVDs, and CDs that we’re legally entitled to be reading, viewing, or listening to as often as we like—but in practice only really make use of for an infinitesimal fraction of the time we own them.
Libraries and video rental stores already take advantage of the fact that most people are happy to read a particular book or movie once, then let someone else enjoy it. But the teleportation network, combined with the power of the Internet, suddenly allows millions of individuals to make their personal copies of these works available for instantaneous loan to others. Every book, movie, or album you’re not currently using, or just about to, is listed publicly as available for borrowing. (Maybe borrowers feed their credit cards into the system, to ensure that you’ll be bought an immediate replacement if your copy should be damaged while on loan.) The massive waste of letting a book or DVD sit unused on a shelf for months or years for every few hours it’s actively enjoyed is suddenly eliminated—to the delight of everyone but the companies in the business of selling those books and movies.
Since the system doesn’t involve copying, but only the transfer of physical objects, it is plainly legal under the First Sale Doctrine: No copyright is even arguably infringed at any point in the process. Because it’s so obviously legal, nearly everyone participates in the system. Possibly some small fee is paid into the system by those who borrow vastly more than they loan out, and transferred to those who do the most loaning. Over time, this evolves, so that when a work is in high demand but short supply, people who don’t want to wait can pool small amounts of money to buy a shared copy (to be resold once everyone’s read/heard/seen it as much as they care to).
This proves understandably vexing to copyright owners, who find that many fewer copies of each book, DVD, and CD are sold once large numbers of potential buyers are able to get all the satisfaction they wanted from a single, widely-shared copy. The MPAA and RIAA launch a major public relations campaign attempting to persuade people that “lending is theft,” which prompts widespread public ridicule and is, predictably, an enormous flop. Reluctantly, creative industries begin looking for new business models that will allow them to thrive in the changed technological context, while policy makers contemplate whether alternative incentive mechanisms are needed to ensure that creative works continue to be produced.
Obviously, this fanciful scenario isn’t exactly analogous to unauthorized file sharing, which allows many different downloaders to simultaneously use each particular work—though it’s not clear how great a practical difference this would make, given that each copy still sits fallow most of the time it’s in any individual’s possession. It’s actually not far off at all from a “cloud storage” model we could see emerge over the next few years, however, provided each privately-purchased song, movie, or book can only be used or accessed by one device at a time. (Access might be allowed only to devices incapable of making a permanent copy—though nothing physically prevents me from making a personal copy of a book or CD I have borrowed from a friend.) Henry Farrell points out that it’s also almost exactly the model Zediva is employing for remote DVD rentals (in contrast with the more familiar Netflix streaming).
A situation like the one I’ve imagined might be considered a major policy problem, and it might not.It might have less effect on sales than BitTorrent does in our world, and it might plausibly have more because of higher rates of adoption. But if it were a policy problem, then the problem would have nothing at all to do with the moral properties of “illicit copying,” nor would jeremiads against “theft” from artists be relevant, or likely to be regarded as anything but risible.
The policy problem would just be this: New technology had multiplied the number of people who were able to enjoy each copy of a work—in itself an obvious and enormous benefit—reducing the number of people prepared to buy individual copies of those works, and calling into question whether the traditional business model predicated on mass individualized sales would continue to supply enough revenue to incentivize production of (enough) new works. Here is a solution no sane person would propose to this problem, if it were a real problem: Prohibit people from using the teleportation network to loan books and movies to their friends, and monitor it to ensure they did not do so.
Some readers, of course, are probably bouncing in their chairs with eagerness to interrupt that my thought experiment is quite irrelevant: In our world, people are shamelessly copying rather than loaning works. True enough. But there’s nothing morally special about copying. It’s a method we regulated to solve an incentive problem, because given the available technology in 1909—when statutes first sought to control “copying” rather than “publication” and “sale”—that was the most efficient point at which to regulate in order to solve that problem. If technology had evolved in order to make mass loaning, rather than copying, instantaneous and frictionless and easy, the underlying problem wouldn’t be any different. Any moral baggage “copying” has picked up is a pure artifact of the chance fact that “copying” is what it seemed to make sense to restrict given early 20th century tech.
So here’s one way to think a little more rationally about copyright policy: Pretend that instead of BitTorrent, we’d invented the Teleporter Library. Then think about what business or policy solutions would make sense in response. It’s a neat way of clearing from consideration a lot of charged rhetoric about “stealing music” that should have been irrelevant all along.
Addendum: Taking the Teleporter Library notion seriously on its own terms, and not just as a kind of allegory about IP, it’s worth noting that in some ways, it would put many consumer goods suppliers in the position our content industry is currently in. Maybe it would continue to make sense for everyone to just continue to own (say) their own screwdrivers and such. But there are a lot of things we only need (at most) a few hours of the day, or even a few days of the year. Some of these things we might nevertheless have various reasons for wanting to own (I don’t want to hook up and then disconnect a dishwasher every time I run it, even if it’s only every other day) but many would more sensibly be shared. Just glancing around my apartment, things I would probably “subscribe to” rather than own in a world of nearly-free teleportation include: Luggage, a printer, a bicycle, toaster, blender, vacuum cleaner, television set, Playstation (and Rock Band controllers)… hell, even my sofa, reading chair, and coffee table don’t really get used more than a few hours a day—and some days not at all… though in the latter cases the convenience of just flopping into them after a long day without waiting even a short time for a “download” might weigh in favor of owning. I can imagine you might see an increase in investment in innovation as each Teleportation Library competed to distinguish its catalog of subscription appliances—and maybe appeal to the broad group of people who’d pay a few extra bucks to have a fancy espresso machine for their dinner party, even though they’d never dream of buying one.
21 responses so far ↓
1 Patrick // Jul 11, 2011 at 5:54 pm
I like this thought experiment, but I’m not as confident as you that the content industry wouldn’t have succeeded in getting legislation passed to partially abolish the first sale doctrine.
2 Guan Yang // Jul 11, 2011 at 5:56 pm
The simple solution that preserves existing law and the first sale doctrine: prices would be extremely high, perhaps tens of thousands of dollars per copy. Only teleporter libraries would ever buy any, and they would buy the number that is likely to be viewed simultaneously. Authors would get roughly the same revenue as before (although perhaps not exactly the same amount because rental markets are different from purchase markets). The only people who would get screwed are those who for some reason really want to own a copy.
3 Julian Sanchez // Jul 11, 2011 at 6:07 pm
Yep! That is one obvious potential response. And indeed, consistent with the subscription/streaming model we’re seeing become more popular for digital content. (Though, of course, mass produced works available before the development of the library would remain…)
4 Julian Sanchez // Jul 11, 2011 at 6:13 pm
Of course, under the conditions of the thought experiment, the companies would probably cut out the middleman and just maintain their own libraries: All rental, no sale—at least initially.
5 K. Chen // Jul 11, 2011 at 6:56 pm
“But there’s nothing morally special about copying”
I disagree. The inherent moral weight of copying versus resale, trade, disposal, or loaning, is that the seller, trader, disposer, loaner is denied of the benefits of the copy for the duration that the copy is transferred, including the convenience of access and absolute right to deny access to others, sentimental value, and so on. The uploader/photocopier/etc on the other hand, maintains all the benefits of the copy as well as being able to grant others the benefits of the copy.
The problem you’re setting up seems to depend on the notion that the property value of a copy of intellectual property is to consume it. And while that is the primary purpose, it doesn’t cover all the ancillary reasons that people buy copies of works, including but not limited to showing off to their co-workers that they’ve read Freedom. The policy problem created in teleportation world is that publishers (and publisher authors) can’t charge as high prices for the non-content aspects of a work.
I’d add on, that insofar as intellectual property is property, and bundle of sticks aside, being able to transfer or even annihilate the value of a thing is part of what you buy. When I buy a dead tree copy of something, part of the value expected is the physical ability and right to pass it on. When I give up that ability, and that right, I’d expect something significant in return. The couple hundred game licenses I’ve bought via Steam are not transferable. I don’t know about the legalities, as guilty as anyone else about not paying enough attention to EULAs, but I know Steam will not facilitate me reselling the licenses I’ve gained. I do however, get a sort of immortal durability for my products as long as Valve stays in business, and I didn’t pay as much as I would have at a retailer.
6 Justin Charity // Jul 11, 2011 at 6:58 pm
I’m not sure I understand how Guan Yang’s response circumvents the problem: that a good that’s really expensive to produce is also really easy to copy. Why would the libraries volunteer to eat the studios costs just so pirates could copy the movies from the libraries instead of the studios? While we’re on it, what incentive do pirates have to copy movies that they wouldn’t within the framework of your thought experiment and in the context GY’s answer? In any case, isn’t someone going to be bleeding revenue so long as they aren’t charging $0?
7 Justin Charity // Jul 11, 2011 at 7:22 pm
And simply put, your supposition is unreasonably strong:
“Here is a solution no sane person would propose to this problem, if it were a real problem: Prohibit people from using the teleportation network to loan books and movies to their friends, and monitor it to ensure they did not do so.”
Really? I imagine that–think beyond VHSs and DVDs for a moment–if we developed and popularized technology that would allow the transfer of small, inorganic, I can think of myriad pretexts for intervention and regulation by the federal government. Sure, policing the pirating of movies may not be a strong *initial* pretext, but the idea of this network certainly lends itself to lots of different actors credibly and incredibly making claims as to how and for what purposes it ought to be regulated and policed.
8 RickRussellTX // Jul 11, 2011 at 9:46 pm
> it would put many consumer goods suppliers in the position our content industry…
Tools, for example. I have a 41mm impact socket burning a hole in my toolbox, because it has precisely ONE function: to remove and replace the clutch nut on my Honda CN250 Helix.
The only thing keeping me from “lending” it to members of the CN250 mailing list is the difficulty of tracking it at the UPS store down the street.
9 What’s so special about copying? « Worth Stealing // Jul 11, 2011 at 11:03 pm
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10 Pete // Jul 12, 2011 at 7:50 am
It’s a neat way of clearing from consideration a lot of charged rhetoric about “stealing music” that should have been irrelevant all along.
I’m not sure about this. “Stealing music” is already incoherent but that doesn’t seem to stop people using charged rhetoric about copyright holders not getting paid.
It’s actually really, really hard to steal someone’s intellectual property in a literal sense – I’m not even sure how you’d go about trying to illegally deprive someone of their patent, copyright or trademark. But everyone manages to ignore this fact when they see rights-holders not getting money that they think they’re entitled to.
For me, the teleporter thought experiment gets interesting when you take it one step on. We have this awesome new technology that can solve important problems, massively improve welfare and make much of economic life more efficient. A small number of copyright holders seem to be upset about this.
What is the next sensible step?
I’d submit that ” radically remake the technology in a way that the copyright holders prefer” is not the right answer.
11 The Teleporter Library: A Copyright Thought Experiment | adupicoga // Jul 12, 2011 at 12:01 pm
[…] Source: http://www.juliansanchez.com/2011/07/11/the-teleporter-library-a-copyright-thought-experiment/ […]
12 Justin // Jul 13, 2011 at 9:55 pm
In acknowledgment of the wide availability of copyrighted material freely on the Internet, some artist, such as music artists, have actually tried a form of what you describe, with the “pay what you want” schemes. Most notably, Radiohead did this with their 2007 album In Rainbows. So like the library, people can possess the music for no cost, and even call it their own. I think that this raises the question to the listener, “How much do you actually value music?” (or movies, books, etc.) And in the case of Radiohead, and many other artists who self-release in this way, their fans end up contributing a very decent amount for the artist’s work.
So, I feel that if listeners, readers, or in general, the audience feel that the artist’s work is quality and something deserving of merit, then they would at least donate some amount of money to allow said artist to continue to produce work for them, the audience, to enjoy.
The opposite of this scenario, in my mind at least, is the complete devaluation of music, movies, etc. if the audience’s answer to the question is, “Well, I guess I really don’t value these things as much I as thought” which would in turn lead to less quality work. Then the industries themselves die and some new thing emerges to entertain that can circumvent the library’s restriction.
13 Justin // Jul 13, 2011 at 10:27 pm
Another possibility (though I find it unlikely) is the personalizing of artistic content so that other people do not share the same feeling that the original buyer has about the work. For example, a song written specifically for a girl’s broken heart which few can relate to. I can’t see many artists today wanting to do this though, as it would be seen as a total sellout. But maybe the industry will have a big change.
14 The Teleporter Library: A Copyright Thought Experiment | gidusaboby // Jul 14, 2011 at 12:50 am
[…] Source: http://www.juliansanchez.com/2011/07/11/the-teleporter-library-a-copyright-thought-experiment/ […]
15 RJ Miller // Jul 14, 2011 at 7:20 pm
The primary analogy I use with people in regards to IP is a situation in which someone builds a car with the same engine, as well as the same interior and exterior design as one you already have.
Does your car go slower because someone has duplicated it? Is it less comfortable? Less efficient?
The answer to all is no, the simple reason being that copying something is not the same as actually stealing it.
If anything saying that someone has a right to a particular arrangement of matter, text, or code is simply advocating a partial theft of someone else’s property.
16 Pithlord // Jul 15, 2011 at 10:57 am
A system of property rights may ultimately have a pragmatic justification. It doesn’t follow that uncompensated taking of property acquired under the existing property system is of solely pragmatic interest. We have pragmatic reasons to define ownership of land by priority of registration inland title offices. If we were a pre-agricultural nomadic society, we would have pragmatic reason not to have private ownership of land. But to the extent someone acquires land relying on these pragmatic rules, there seems to be an injustice in taking those rights from them independent of consequences.
That works with rules generally. Initiating new rules may only involve weighing costs and benefits. But treating people based on the rules as they were at the relevant time seems to be important for reasons that go beyond cost-benefit analysis.
So the difference here is that in the teleporting scenario, no one violates the rules and pragmatically, new productions could adapt. Not so with what has actually ocurred to copyrighted material.
17 Mike // Jul 15, 2011 at 11:35 am
@RickRussellTX
I thought of tools immediately, partially because a more reality-bound network of this *does* exist. Nearly every auto parts store in the US (at least several of the major chains – Autozone for certain) will loan out a wide library of job-specific tools for free, based on the idea that they will make up the cost in additional sales of parts.
So that’s one question – what industries would find it useful to bundle access to these free items?
18 JM // Jul 16, 2011 at 10:12 am
“The MPAA and RIAA launch a major public relations campaign attempting to persuade people that “lending is theft,” which prompts widespread public ridicule and is, predictably, an enormous flop.”
Isn’t this the crucial part of your argument? That teleport-lending would be regarded as equivalent to lending a book to your friend? It seems more likely (to me at least) that this new type of lending would be viewed as something radically different, both in its nature and its impact. You note that:
“Any moral baggage “copying” has picked up is a pure artifact of the chance fact that “copying” is what it seemed to make sense to restrict given early 20th century tech.”
But couldn’t the same sort of thing be said about lending? The _lack_ of moral baggage attached to lending is due to the particular circumstances of technology at the time mores about lending came into being, i.e. it’s so impractical for most people to loan books and CDs out to more than a handful of close friends that no one cares about it from a moral point of view.
19 LanceThruster // Jul 22, 2011 at 8:34 pm
Without adding any comment of my own as of yet I would like to offer two brilliant pieces by musician/songwriter janis Ian on file sharing –
http://www.janisian.com/reading/internet.php
http://www.janisian.com/reading/fallout.php
and mention the sci-fi short story “Doomship” where matter and people were duplicated once the receiver was in place (the only way to deal with the great distances of interstellar travel) and the paradoxes it spawned (copies of yourself were sent on suicide missions while you yourself stayed safely home) and the fact it wasn’t used to duplicate priceless art or precius metals as it was so insanely expensive in the first pace that only powerful government entities coud use them in the first place.
Great thought exeriment, btw. Lending libraries are already trying to sort out the rigths invlved in ebooks. The industry’s plan was to charge for a specific # of loans but that an unscrupulous publisher could use up that number with many fake check-outs.
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