Last week a Los Angeles jury awarded the estate of Marvin Gaye a $7.3 million verdict against songwriters Robin Thicke and Pharell Williams for their 2013 chart topping hit “Blurred Lines.” The plaintiffs claimed that “Blurred Lines” copied several key elements of Gaye’s 1977 song “Got to Give It Up.” There are many parts that contribute to what we call music: melody, harmony, key, time, rhythm, note patterns, chords, instrumentation, lyrics, and so on. The degree of similarity or dissimilarity of any one of these components is not an objectively measurable property. One’s judgment of similarity is a subjective assessment that depends on our unique set of experiences and preferences. For some a song’s rhythm may be the most striking characteristic, whereas others may find the key or melody to be more noteworthy (bah-bump). To underscore this point one need only to do a cursory Internet search on this topic to witness the broad range of opinions: some say it was a blatant “rip-off” whereas others assert only a superficial similarity (the cowbell). So if the degree of similarity in such a case can be so dependent upon a mere cross section of opinion, how can it be said “justice has been done”? Try this case 10 more times and you’ll get a random array of “thumbs up/thumbs down” decisions. Using the result of one coin toss is hardly just.
But the arbitrariness of the outcome, insofar as it rests solely upon the subjective opinion of 12 jurors, is not a failure of the judicial system itself or of the jurors. Jurors in such a case are tasked with the intellectual equivalent of deciding if that now infamous Internet dress is gold and white or black and blue. The failure is in the legislative system. Ambiguity and arbitrariness in law breads ambiguity and arbitrariness in outcomes. Copyright (and by extension all intellectual property law) is nothing if not arbitrary and that fact betrays the invalidity of IP laws in their specious claims to be protecting “property.” Laws protecting actual property (that is scarce, rivalrous physical goods) do not have expiration dates. The title to your house or car doesn’t simply expire after some set time period; but not so for copyright (or patents, etc.). In fact the fingerprints of crony-capitalism are all over the recent extensions of the copyright term (life of author + 50 years in 1976 and then extended to life of author + 70 years in 1998). Every time some particularly lucrative piece of copyright material would otherwise fall into the public domain (yes Disney, I’m looking at you) there is mysteriously a push in Congress to extend the copyright term just a bit further out.
Surprisingly there are still some areas of human creativity that are not protected by copyright and yet, despite pro-IP arguments to the contrary, innovation and creativity have flourished. Yes, the utilitarian argument for IP laws is superficially plausible – unfortunately the empirical data indicates IP laws inhibit innovation whereas a lack of them fosters innovation. For example, food recipes are not copyrighted (can you imagine the state of affairs if McDonalds had copyrighted the hamburger and fries – it would be a CRIMINAL offense for any other firm to make such a meal). Clothing design/fashion is not covered by copyright. Designs are copied, altered, and tweaked into a dizzying array of choices. Fashion trends twist and turn and change so quickly as each firm tries to distinguish themselves and stay one step ahead of the competition. Imagine that, people can still actually be creative without the “protection” of a state granted monopoly.
Human creative efforts invariably must draw on the work of those who have come before. If one objects to truth of this statement, then they would see no downside in not educating their children, destroying all books and technology, and depositing babies in the forest so that each new generation must start from scratch. Since such a scenario is obviously absurd then we can agree that it’s not “copying” that is “bad” but rather “too much” copying that is bad. Ok, so where shall we draw this arbitrary line in the sand between “just right” and “too much”?
Let’s erase that line and allow the full flourishing of human creativity in all arenas. Where is the harm in that? If the “copy” is more successful than the original what has the original lost? What has been stolen? The right to limit the choices of others to your inferior product? If your business model necessitates the deployment of armed goons of the state to influence the peaceful behavior of others, then it’s time to rethink your business model.