Copyright, economics, and the moral high ground

My friend Herman sent out a link to a blog post by Jason Robert Brown, which documents Brown's discussion with a teenager named Eleanor about "trading" Brown's sheet music online. It occurred to me that although Brown was correct about the law and his rights, and although Eleanor's invocation of the "starving artist" argument was weak, overall she had the better of the argument.

First, the conclusion: Brown does have the legal and moral right to control copies of his work. Almost all countries observe the Berne Convention, which governs what works can be protected by their authors and when that protection becomes active. The Convention provides for a minimum duration for the protection; individual countries can allow longer protection periods if they choose. Legally, Brown is right, and can enforce his copy rights either by asking infringers to stop or by suing them in court.

Eleanor is a fan of Brown's music, and enjoys performing his songs as part of her burgeoning career in theater. She complains that she's unable to get access to Brown's sheet music because she doesn't have a credit card (and so can't purchase it online), so she has to resort to a "trading" web site, which is apparently like Napster for sheet music. Brown points out that each song is about $4, it can probably be found in a store somewhere, and maybe even at the library, so she really has options that conform to the law. Maybe Eleanor lives in New York, and that's easy for her; maybe she lives somewhere else, where sheet music is harder to find. In either case, those truly are her only legal options. One wonders, in passing, how the young Jason Robert Brown secured access to sheet music as he grew up, and what affect that had on his development and career. Maybe he had a budget big enough to afford copies of the all works he needed or wanted; maybe he stuck to works whose copyright had expired? Or maybe he just had a great local library.

Eleanor ultimately gets her fair use argument wrong but makes two convincing economic points, both of which influence the publishing behavior of successful authors like Cory Doctorow, Stanford Law Professor Larry Lessig, and economic writer Kevin Carson. The first is (very broadly) that you literally lose nothing by giving your work away to someone who would or could not have otherwise paid for it; there's no lost sale in that case. There's a bit of nuance to the concept, because different people might have bought it at different prices (marginal utility), but overall the idea of a phantom "lost sale" still holds. The second is that unless people know who you are, you'll be able to own and protect 100% of a relatively smaller number of sales of your work. By treating the works you give away for free as a marketing expense, you "grow the pie"; as Eleanor points out, you increase your reputation, and that can have "network effects" down the road. Each of these authors is making money even though they also give copies of their works away for free. Why? Because people appreciate their talent and ideas, and still love having actual books, and they pay to come hear these thinkers address an audience. Such authors don't end up charging 100% of the people who enjoy their works for each copy, but the compensation they get is certainly more than the whole "pie" of a lesser or unknown author or artist.

Brown tries to justify his moral position by giving a few examples, two of which are weak for different reasons. His first anecdote is about a friend borrowing a screwdriver and not giving it back, but that's comparing apples to oranges; in the screwdriver, he has a property right in a non-reproducible physical object, which is different from his copyright in a reproducible digital work. The second anecdote describes a "lost sale" that the Thornton Wilder estate misses out on because his friend wants Brown's copy of a Wilder book, and doesn't want to buy his own. Brown argues that Wilder's estate deserves to benefit from the sale of another copy; that's true to a point, but it exposes the whole issue of the debatable and ever-lengthening copyright periods in the United States. How long should an artist be able to prevent others from copying their works? What are the trade-offs, the parties affected, and their relative utilities? The Berne Convention says protection should last no less than 50 years, but signatory states can set longer periods; the US has extended that quite considerably (to "life of the artist plus 75 years") and may continue to do so. He then gives a third example which gives a good overview of the concept of "fair use", and then is apparently surprised that a good discussion of copyright issues is available from the University of Texas web site ("Texas! Of all places!"). I guess he doesn't think he has a lot of fans in Texas. I'm also guessing he probably doesn't run all his blog posts past his agent for feedback.

Jason Robert Brown doesn't feel like he needs to give anything away to become better known, and maybe the struggling/starving artist idea doesn't resonate with him. That's fine; that's his right. In the end, though, there will certainly be other musical geniuses who market themselves like Doctorow, Lessig, and Carson; and people like Eleanor are going to share, perform, and enjoy their music, perhaps to the exclusion of people like Brown. The ugly truth is that you can maximally benefit from the "it's all mine" approach, a strict insistence on charging for every copy of your work, only if you're selling necessities; Brown's just not in that business. His sales will go up or down based on his reputation more than from his aggressive copyright enforcement. Eleanor has no legal or moral right to steal or share his sheet music; Brown has no moral obligation to make it available to her or anyone else for free. But by trying to get every dollar he can from his work, he may be putting a limit on his relevance and appeal. It will be interesting to watch it all play out.