Metaphor slinging, ends and means: Yet another plea for a rational copyright debate

While slogging through my Google Reader backlog this morning, I came across this interesting Ars Technica post on “metaphor slinging” in the Copyright Wars. You know: is it “infringement” or is it “theft”? Asher Hawkins reminds us that people have been throwing around loose language like “piracy” and “theft” since the dawn of copyright law. He then goes on to look at the rhetorical pros and cons of using “piracy” and “theft,” compared with the more (legally) accurate term infringement.

His conclusion? “Piracy” and “theft” have won the rhetorical battle, and we should come to terms with that: 

Since we appear to be stuck with these terms, perhaps the most pragmatic approach is to demand greater clarity in their usage—by pushing those involved in the copyright debate to either limit the terms’ application to specific scenarios that involve a level of willfulness and/or commercial motivation or provide better reasons why they should be applied to unintentional conduct. Would Orwell approve? Probably not. But an ill-defined metaphor is at least better than an undefined metaphor.

I get where Hawkins is coming from, and it may be unfair to criticize an argument for not being about something else, but I think he misses the real problem with the way that copyright is discussed today, namely that so much of it focuses on language and rhetoric, and not on what we want copyright to accomplish. At the end of the day, debates over whether something is “infringement” or “theft” are effectively debates over what copyright should do. Unfortunately, focusing on metaphors means that this debate happens in the most confusing way possible.

As it happens, I was in Ottawa last week to give a talk to the Library of Parliament on a paper I wrote last year on the usage of metaphors in competition policy. In it, I criticized the way that people use “level playing field” to turn a conversation about ends — how can be maximize competition in a particular economic sector — into one focused exclusively on means — how can we apply the rules equally to everyone. That’s not a good thing, since sometimes applying the same rules to everyone can actually lead to less competition. For example, when the Canadian government opened the aviation industry to competition in 1984, Air Canada used its status as the legacy national carrier to reduce, not increase, competition.

Whoops. 

Over the course of the Q & A that followed, I realized that I was essentially arguing for regulators and policymakers to focus directly on what they want to accomplish and what their sector looks like in reality, and to avoid “metaphor slinging” (what a great term). After all, “level playing field” is itself a metaphor that may or may not be appropriate for the problem at hand. If you know what you want and are open to how you get there, and aren’t basing your worldview on metaphors, I’d argue you have a much better chance of coming up with creative ideas that will actually get you where you want to go.

(Just in case the utilitarian nature of this argument doesn’t give it away, yes, I used to be an economist.)

The presentation was about competition policy, but I think the lesson works for copyright as well. When we talk about “piracy” or “infringement,” we’re talking about a specific action (e.g., illegally downloading a movie), not about our ultimate objectives. A conversation about “piracy” vs. “infringement” misses the point. It’s a discussion of means (“We have to stop piracy” vs. “It’s not equivalent to stealing”), not ends (say, “How do we maximize creative production and ensure that the most people have access to the most creative works?”).

Your milage may vary regarding whether you think that maximizing creative production and distribution is or should be the main goals of copyright (or, more precisely, the main goals of however we decide to regulate the market in creative works), but that’s the conversation we should be having. It would be just as contentious and politically bloody — there are no shortage of people and groups who think that copyright’s main goal is (or should be) to compensate artists or intermediaries — but it would almost certainly be more honest and straightforward. Focusing on the metaphors instead of the market misses the forest for the trees (See what I did there?).

We’d be better off if we took a step back from thinking about what a specific term means and focus more on what we want to do, and how to best get there.

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