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The Copyright/Baseball Analogy

November 14, 2006

Tags Monopoly and Competition

My friend Carl Horowitz writes a good piece urging Hollywood to join the film pirates rather than fight them. He is surely right about this. Film downloads cannot be stopped, but the premise of his article is that if they could be stopped, they should be stopped.

He makes an analogy to baseball. He says that defending piracy as a right is like saying that "so long as there are empty seats at a major league baseball game, there's nothing wrong with crashing the gates. After all, my freebie neither affects the game's outcome nor diminishes anyone's revenues or salaries. Plus, by telling my friends about the game, I am widening the audience for baseball."

But in the case of baseball, what is being sold is access to the stadium, where there is a scarcity of seats (in the sense that they are limited). If there were a way to watch the game without invading the physical space--some technological trick that permitted cameras to see through walls--it should surely be permitted since there is no scarcity in the moving images of players running around a field hitting a ball. On the other hand, the owners of the technology that made this possible could surely charge their customers since they are owners of the particular machines that made this possible (though anyone should be free to make such machines themselves without having to deal with patents, etc.).

In any case, the baseball analogy is closer to the movie theater, which at the proprietor is ostensibly selling rights to watch a movie but actually selling rights to sit in a seat in a theater during a period of time in exchange for which the theater agrees to show images on a screen. The consumer isn't actually buying the images themselves. So too for DVDs: the consumer is buying the package, the technology, the availability, etc, but not actually the images on the screen, which are not scarce. The non-scarce good—the moving images—would be available to everyone in a copyright-free world. Only the means of the delivery (theater, DVD, download, or whatever) becomes a commercial product.

So I ask: am I correct that Carl's analogy in defense of copyright doesn't hold up?

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