I have neglected this blog due to a wave of work. In an attempt to turn that neglect around, I offer up some somewhat sketchy notes for my dissertation. I have been thinking through some arguments about file sharing and first sale. To get a better grip on the issues, I have a short taxonomy of file sharing cases. Other scholars have done this before; this is just my attempt to get some clear on the fine points of the file sharing debate.
Instances of file sharing can be divided into four categories:
- Public Domain content (PD)
- Protected works still in circulation (PC)
- Protected works out of circulation (P~C)
- Unreleased works never in commercial circulation (NC)
For each category, there are different issues at stake. PD cases are the least problematic. A work in the public domain can be freely copied, so there are no legal interests at stake. PC cases are perhaps the hardest cases for justifying file sharing. The work is still under legal protection and is still available for purchase on the primary market. In other words, the work is still readily available, and it might be the case that the proliferation of free copies will undermine the market for commercial copies, depriving creators of profits and therefore undermining the incentives provided by copyright. To argue that PC file sharing can be justified, one must address those concerns.
P~C and NC cases are even more complex. For P~C cases, file sharing might be justified on an Archiving Argument. One might argue that even though the work is still under copyright, if it is no longer available for purchase, the work might be lost. If the work has some cultural significance, or even just personal significance to a sizeable audience (and these two may be one and the same, really), the work's falling into obscurity may be seen as tragic. Devotees of the work may then counteract the loss of the work by making digital copies available and encouraging others to do the same. In addition to archival purposes, some of the fans who have downloaded the work might have been willing to pay for it if it were available commercially (ie if a copy could be located on the secondary market, or if the original distributor released the work again), but since it is not, file sharing is their only means to access the work. These argument all appeal to some sense of creative works bringing a benefit to the audience, and the Incentives Argument is rooted in securing that benefit. In such cases, one might argue that copyright has failed because the work is both protected, the monopoly still legally guaranteed and enforceable, but unavailable to the audience. If one has ever felt any animosity directed at the Disney Vault, such arguments might have already come to mind.
NC cases are perhaps the most difficult to address because they are not uniform. Some NC works are recordings of concerts made by attendees, some are works the creator never decided to release, and some might be early versions or drafts of works released later. One might argue that the creator's decision to not release a work must be accepted by the audience; releasing such works might undermine the creator's artistic integrity or distort the creator's sense of his/her own work. On the other hand, there are some Archiving Arguments here as well. One might argue that preserving and sharing unreleased works is in the interest of documentation for future study. A close study of NC works might give the audience a more rich appreciation for the creator, providing some valuable insight into the creative process, perhaps. Once again, there seem to be two sets of concerns competing: the creator's control over the release of works, and benefits sought by the audience but potentially blocked by copyright and the creator's unwillingness to release the work.
P~C and NC cases seem to test the Incentives Argument. To address such cases, providing justification for those types of file sharing or to show that such justification is impossible, the limits of the Incentives Argument must be better defined. While PD cases are entirely unproblematic, PC cases might not be justified if free copies do indeed undermine the market for commercial copies. Now, some scholars have argued that there is no such effect. If it is the case that free distribution of digital copies either does not affect the commercial market, or have a positive effect on the commercial market, market-based arguments simply fail. At that point, it seems that the only remaining argument against PC file sharing is that first sale justifications cannot apply, since a new copy is created at every transfer.
It seems that discussing file sharing requires some discussion of first sale. More to follow, hopefully soon.