A Virginia jury in 2019 smacked Cox Communications, the cable giant, with a $1 billion penalty for allowing its customers to use its networks to pirate music. The plaintiffs, Sony and other major record labels, said Cox should have cracked down on the IP addresses associated with Sony’s piracy.
The Supreme Court on Wednesday unanimously tossed that verdict, ruling that Cox wasn’t liable for not cutting off customers who used its networks to pirate digital content. The company wasn’t doing anything wrong, Clarence Thomas stated in the court’s opinion, by “merely providing a service to the general public with knowledge that it will be used by some to infringe copyrights.”
“This opinion affirms that internet service providers are not copyright police and should not be held liable for the actions of their customers,” Cox trumpeted in a press release.
The statement gets at the key problem: Who should be copyright police?
I believe that copyright enforcement should generally be the responsibility of copyright holders.
Yes, taking people’s intellectual property is wrong, but at some point it’s not the public’s problem — it’s the problem of the owners.
As an analogy, imagine someone who likes to leave his keys in his car and his car door unlocked. That’s great, it’s convenient. Lots of people in high-trust neighborhoods do this. It would be stupid to say this person is “asking for his car to be stolen.”
But if his car repeatedly gets stolen and he repeatedly calls the police, thereby repeatedly drawing on public resources to recover his car, it’s reasonable for the police to say, “Look, pal, you need to start bringing your car keys inside the house.” It would also be reasonable for the police to eventually say, “We have enough other things to do. We’re not going to hunt down your car when it gets stolen if you won’t take basic steps to prevent its theft.”
What’s more, I believe intellectual property does not deserve protection as much as real property does. If you steal my car, I’ll be without it. If you steal the recording of my original song, “My Dog is Brown,” I don’t lose that song, and neither do the people who paid for it.
Intellectual property, for the most part, is not really a natural right, but an instrumental, contingent right. The Constitution states it well: “The Congress shall have power to … promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
Intellectual property, to some extent, is a government-granted privilege more than a natural right.
For these reasons, there’s a real limit to the duty of the government or third-party private actors to protect Sony’s intellectual property. If Sony has serious trouble protecting its IP, it should find new ways to make a profit.
What basic things could movie or music studios do to prevent theft of intellectual property or maintain the profitability of music distribution?
I don’t exactly know, because I’m not a tech, movie, or music expert. But here are some ideas from a paper that libertarian policy analyst Jamie Plummer put out 20 years ago:
- Build loyalty so that customers want the artist or producer to succeed and would feel bad stealing the IP.
- Innovate to offer physical forms of the product.
- Put advertising inline so that “stolen” copies add to the value.
- Pay to create high-tech keys that make it harder for non-payers to get the content
Interestingly, since this issue first became live 20 years ago, the biggest change has been streaming services, which allow listeners to get songs for free. This innovation drastically diminished the demand for pirated songs.
I’d add some other examples: Hasbro owns the role-playing game Dungeons & Dragons, along with numerous trademarks and copyrights. But it’s basically just a set of rules and some stories. It would be trivially easy to learn, adopt, and use the rules and stories that Hasbro publishes without paying them.
But guess what Hasbro does: It packages the rules and stories in a handy, convenient, physically attractive way — plus offers useful, innovative online versions — to induce players to pay Hasbro for the product.
Sony wasted a lot of money and time on this case, money and time they could have spent innovating new business models.