Our colleague Jason Waller, who teaches philosophy at Eastern Illinois University, provides a detailed description of and step-by-step guide to Robert Nozick’s influential “taxation is forced labor” argument in this fascinating book by Michael Bruce and Steven Barbone, editors, Just the arguments: 100 of the most important arguments in Western philosophy, Wiley-Blackwell (1st edition, 2011), pp. 242-243. (We reproduce Professor Waller’s reformulation of Nozick’s reasoning below.) Is the chain of Nozick’s reasoning plausible, or do you reject any of Nozick’s seven premises? For my part, Premise #6 looks debatable, but even if that premise were false, would Nozick’s overall conclusion still be sound? More generally, when is state coercion or public paternalism ever justified?
That is the title of my most recent work-in-progress, and it is available here via SSRN. Inspired by my friend and colleague Brian Frye’s frontal attack on plagiarism norms, especially his thought-provoking paper “Plagiarism is not a crime,” my work explores the related problem of “literary fan art,” i.e. unauthorized derivative works by third parties that are based on someone else’s literary work product. Literary fan art poses a difficult legal and economic puzzle: how far should property rights extend in the domain of literature? That is, because copyright laws extend to derivative works, the legal question often boils down to this: when does fan art constitute “fair use”? To motivate the paper, I present some notable examples of contemporary literary fan art inspired by Ernest Hemingway’s classic novella “The Old Man and the Sea.” Next, I show why the traditional fair use standard is utterly unhelpful in solving the fan art puzzle, and then I sketch an alternative Coasean solution to the problem of fan art: the law should assign property rights in fan art to the fans.
Check out this visualization of the world’s forests, courtesy of Esri (the Environmental Systems Research Institute), a supplier of geographic information system software and geodatabase management applications. There are no forests in Australia! More details here. (Hat tip: u/ochang1980.) (Happy 18th Birthday, Aritzia!)
I’m interrupting my self-imposed one-week exile from blogging to pose three questions to Dan Ariely, a professor of psychology and “behavioral economics” at Duke University (You see, we finally got around to reading the revised and expanded edition of his 2008 book “Predictably irrational: the hidden forces that shape our decisions.”) Stated bluntly, Professor Ariely’s smug and self-refuting thesis is that people are not only stupid; we are stupid in predictable ways, so here are our three questions:
1. What is the “optimal level” of stupidity? Why isn’t it not zero? Sorry for the double negative, but economists of all stripes will understand the spirit of my first question. When we are making choices in real time, we don’t have infinite amounts of time and cognitive resources to measure all the potential pros and cons of our choices. Simply put, we don’t live an ideal world, a world with zero transaction costs, so some level of stupidity might, in fact, be optimal!
2. What are the sample sizes of each of your experiments? (And what is the average age of the participants?) For example, on page 92 of your book you mention in passing that one of your social science experiments had only 25 participants. Need I say more …?
3. Why don’t you address any of Steve Levitt and John List’s criticisms of your methods, especially their point about the paltry financial stakes of most of your experiments? Although you mention in passing Levitt and List’s powerful critique of social science lab experiments at the beginning of your book, at no point do you actually respond to their specific and well-reasoned criticisms. Why not? (Your caricature of and fictional dialogue with your “Mr. Logic” straw man doesn’t count!)
Alas, we still have a long ways to go, as we’re only up to page 538. Also, please note: we will take the rest of May off and resume our blogging duties on Monday, June 3rd.
In our previous post we reframed copyright disputes in general–and the problem of literary fan art specifically–in economic or Coasean terms: under what conditions do copyright owners get to have veto rights over fan art, and by the same reciprocal token, when do fans get to veto the veto rights of copyright owners when they revisualize or reimagine their literary works? Or, stated in plain and simple and jargon-free English, who gets to harm whom?
Once the question of fair use is reformulated this way–in terms of competing and reciprocal harms–, the fan art conundrum becomes soluble; the optimal level of fair use becomes a tractable problem: we should choose that rule or course of action that minimizes the overall level of harm. In the case of literary fan art, for example, my lawyerly intuition is that a narrow reading of the fair use doctrine would do more harm than a broad reading would. That is, courts would produce a greater degree of harm if they granted copyright owners unlimited veto rights over fan art than if they allowed fans greater leeway in reimagining and reinterpreting established works of art. And I would further venture to speculate that–to the extent that fan art rekindles interest in the underlying literary works that are being depicted or introduces those original works to new audiences–fan art will very likely generate new sales and expand the market for those underlying works.
But you don’t need to take my word for it or accept my mere mortal speculations as gospel. The various revisualizations of Hemingway’s novella that we have featured on this blog are paradigm cases of the main point I am trying to make here. Imagine a world without Olympia Le-Tan’s “Old Man and the Sea” clutch bags, or a world without Guy Harvey’s collection of “Old Man and the Sea” watercolors, or a world without Jodi Harvey-Brown’s “Old Man and the Sea” book sculptures. Aside from the fact that that is not a world I would want to live in, none of these pieces of fan art syphon off sales of Hemingway’s book or dissuade us from reading the novella. On the contrary, these sundry pieces breath new life into Hemingway’s story; they invite us to read or reread the old Cuban fisherman’s futile battle with the giant blue marlin. So, three cheers for fan art … for expanding markets, for rousing our collective imagination, and for creating new worlds of beauty!
In my previous post we saw how utterly unhelpful the fair use standard is–how trying to predict ahead of time whether a particular derivative work or piece of fan art constitutes “fair use” or not is almost like the inscrutable task of an ancient augur, who must somehow divine the future by the minute inspection of the entrails of a goose. Here, I will explain why this level of uncertainty in the domain of copyright law might actually be a good thing.
So, to cut to the chase, why is uncertainty a virtue in the domain of fan art and other types of derivative works? Because, from a purely economic perspective, fair use is about finding the optimal level of copyright theft or piracy (to put it bluntly!), and in most cases it’s really hard to figure out what this optimal level of theft is. Wait! Hold on! How can theft or piracy ever be optimal? This is not a trick question, but to answer it, we must first take morality out of the copyright equation. From an economic or Coasean perspective, copyright disputes are not really about right and wrong. (That is, by the way, why I disdain such judgmental terms like “piracy” and “theft” in this area of law.) Ok, if fair use is not about morality, then what is it about?
In a word, fair use is about creating or finding the best (i.e. optimal) balance between creators and copiers, between innovators and imitators, between intellectual owners and intellectual squatters!
Although the outer contours of the fair use defense are fuzzy at best, the fact that fair use even exists at all tells us something very important about the law. It tells us that creators, innovators, and owners are not the only ones who are morally worthy or legally deserving of copyright protection; so are copiers, imitators, and squatters! To see why, let’s set aside the problem of literary fan art for the time being in order to focus instead on a more extreme example involving an original creator/innovator on the one hand and a mere copier/imitator on the other–like one of Melania Trump’s plagiarized speeches. (See video below.) Even in such a crass and clear-cut case of plagiarism, as the late Ronald Coase once wrote in another context, disputes between creators and copiers are ultimately “reciprocal in nature.”
Coase made this counter-intuitive observation in two papers, one on the FCC (1959) and another on “The Problem of Social Cost” (1961). In both papers he reframed legal disputes, such as traditional common law cases involving nuisances, as reciprocal problems. The social cost paper, for example, begins by considering a “standard example” in economics and law, the problem of factory smoke. In brief, a factory emits smoke and pollutes the air. Neighbors who live downwind from the factory are harmed (e.g. foul air, quality of life, decrease in property values, etc.), so they decide to sue the owners of the factory for the harm thus caused.
But if we were to take a step back from this situation, we will see that the factory smoke problem is, in fact, a reciprocal one for two reasons. One is that the problem is caused not just by the factory smoke; it is also caused by the neighbors’ decision to live next to factory! The other reason is that someone is going to be harmed no matter how the case is decided. If the court decides to dismiss the case or to rule in favor of the factory, then the neighbors are going to continue to be harmed, but vice versa, if the court rules for the neighbors, then it is the owners of the factory who are going to be harmed, since they will have to shut down the factory, relocate it somewhere else, or pay the neighbors money damages. For Coase, then, the key question is not, Who is harmed? Both sides are. The key question is, How do we decide which side to harm?
(Before proceeding, allow me to make an additional clarification regarding Coase’s idea of reciprocal harms. When people think of harms, we often think of John Stuart Mill’s famous harm principle: “The only purpose for which power [i.e. law] can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” But in reality, Mill’s harm principle is incoherent. It is just empty rhetoric, meaningless banter. Why? Because as Coase has taught us, harm is unavoidable. So, to say “do no harm” or “your right to swing your fist ends where my nose begins” is totally unhelpful. Instead, we should ask, what legal rule or course of action produces less harm.)
Now, let’s fast forward to fan art. From an economic perspective, Coase’s reciprocal analysis of the factory smoke case also applies to fan art! If we define fair use too broadly, making it easy for fans to produce any and all derivative works, then original creators will be harmed. But at the same time, if we define fair use too narrowly, making it easy for copyright owners to veto fan art, then it is the fans who are going to be harmed! The question here thus is analytically identical to the question in the factory smoke case: which group should we harm? Suffice it to say that we will consider this $64 question in our next post …
We are exploring the law and economics of “literary fan art,” i.e. creative works of art that reimagine someone’s else literary work product, such as the various visualizations of the characters and story in Ernest Hemingway’s “Old Man and the Sea.” Because copyright laws extend to so-called “derivative works,” the legal question boils down to this: when does literary fan art constitute “fair use”? Alas, this inquiry is almost like that of ancient augurs, who (to paraphrase the late Ronald Coase) must somehow divine the future by the minute inspection of the entrails of a goose, for the fair use doctrine is one of the most nebulous areas of the law.
Simply put, as unbelievable as what I am about to tell you may sound, there is often no way of knowing ahead of time with any degree of certainty whether any particular derivative work constitutes fair use or not! Why is the fair use test shrouded in so much fog? Because this test does not consist of a simple, clear-cut, bright-line rule, e.g. you may use up to 10% of another person’s work. Instead, fair use is a standard consisting of a set of general guidelines. (For a good overview of the difference between “rules” and “standards” in law, check out this helpful introduction by our friend and colleague, the legal theory wizard Larry Solum.) Specifically, when a court is deciding whether a work of fan art or some other type of derivative work constitutes fair use, it is supposed to apply four general factors. What are these factors? In a case involving literary fan art, we can restate them as four separate questions:
How “transformative” is the fan art?
Is the fan art based on an original work of fiction (like a play or novel) or on an original work of non-fiction (like a biography), and in either case, has that original work been published yet?
How much material is the creator of the fan art stealing or borrowing, as the case may be, from the original work?
Does the fan art help to increase or decrease sales of the original work?
What weights should be attached to each factor, i.e. which factor is the most important one? Or, if the factors are to be equally weighted, what happens when two of the factors point in one direction and the other two point in the other direction? Courts are coy when it comes to fair use; they refuse to say! (As an aside, if I were declared “copyright law emperor” for a day, I would eliminate the first three factors and tell courts to focus on the last one, or to be even more precise, I would reformulate and simplify the fair use test as follows: no infringement unless the owner of the original work can produce evidence of lost sales.) As a practical matter, then, the scope of the fair use defense is fuzzy at best, or in the words of one copyright lawyer (shout out to Rich Stim): “Unfortunately, the only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court.” As a result, most questions of fair use never get answered, which might be a good thing! I will explain why in my next post …
Image credit: the University of Minnesota Libraries Copyright Program
prior probability 