Mark Twain had a lot to say about statistics, ranking them as the highest of all lies: “There are three kinds of lies: lies, damned lies, and statistics. Twain is also attributed with the more insinuated saying that “statistics are like ladies of the evening, once you get them down, you do anything with them!” It’s been quite awhile since I’ve seen a manipulation of statistics that illustrates Twain’s philosophy about them more than what is found in the article posted by self-styled “political evangelist” and anti-copyright activist, Rick Falkvinge, this week entitled Kill Copyright, Create Jobs. Absent three very slick and attractive graphics, the only “facts” that Falkvinge offers in support of this conclusion is statistics which, as far as I can tell, are made up!
In an effort to defeat the claims of the United Kingdom’s “copyright industry” that 1.2 million jobs will be lost by 2015 if stricter enforcement of copyright laws is not enacted, Falkvinge begins with the exaggerated conclusion that “for every job lost (or killed) in the copyright industry due to nonenforcement of copyright, 11.8 jobs are created in electronics wholesale, electronics manufacturing, IT, or telecom industries — or even the copyright-inhibited part of the creative industries.”
Falkvinge reaches this absurd conclusion through a somersault of logic involving segregating the “creative industries” into various categories of groups subdivided into “copyright-dependent” and “copyright-inhibited” sectors. Of course, these phrases are never precisely defined but, reading between the lines, the reader can gather that the latter sector includes industries “fueled by a lack of copyright monopoly enforcement,” while the former we must assume includes some form of enforcement. Once he groups the various creative industries according to this loosely defined structure, he asserts that “the contribution of the copyright-inhibited industries outweigh the copyright-dependent industries by a factor of 11.8,” and then draws the leap of faith that when a copyright-dependent job is lost, a copyright-inhibited job is created. He then forms this general conclusion: “Prevent copyright enforcement, or weaken or kill copyright, and create jobs. Lots more of them.” Wow! Please, Obama, take note of this staggering feat of intellectual prowess!
There are so many errors in this article, it’s hard to begin, and I don’t intend to address each one. But as you start to examine the sectors of industry that Falkvinge places into these divisions, you can easily see where his analysis falls apart. Seriously, I don’t think it’s intended so much as analysis as it is rhetoric. Nonetheless, let’s look at some examples.
In the first instance, Falkvinge erroneously relies on the conclusions of Peter Higgs in Beyond the Creative Industries for his foundational argument that the “creative industries” of the U.K. only account for 7% of its GDP, which he divides into three categories: copyright-dependent, copyright-inhibited and copyright-agnostic. I say he relies on this statistic “erroneously” because the 7% figure contained in Higgs’ report is based on what Higgs calls the “creative core” of the industry, not the entire industry. Higgs’ defines the creative core as the “pre-creative and creative stages of the value chain” (p. 27). This approach, Higgs establishes, only focuses on those involved in the initial stages of creation, i.e., the musicians, the dancers, the producers, etc (p. 28). Thus, by default, the analysis does not factor in the post-creation employment of the creative industry and, thus, cannot be used in support of Falkvinge’s overall asssertion that on 7% of the GDP of the United Kingdom is based on the creative industries.
Second, in one sweeping yet unexplained fell swoop, Falkvinge places the entire advertising and marketing industry in the “copyright-inhibited” category. Last time I checked, the advertising and marketing industry relied in large part on the creation of intellectual property, much of which is copyrighted work which relies on enforcement. In another breathe, again without laying any factual foundation, he states that only 25% of the software, electronic publishing, games, film, television, radio and photography industries are “copyright-dependent.” Twenty five percent? Seriously? Then he “estimates” than only 50% of the music and performing arts sectors of the creative industry are dependent on copyright protection. Again, really?
With regard to his category of “architecture, visual arts and design,” Falkvinge’s “analysis” is totally off the mark. First, again, he simply asserts that 100% of the architecture industry is copyright-inhibited, meaning it does not rely on copyright protection for enforcement. He doesn’t define whether he is referring to architecture as a visual art or whether he is referring to the more intellectual and abstract protection of the actual structure which the U.S. Congress protected in 1996 with the Architectural Works Copyright Protection Act. One can only assume that Falkvinge is unaware that the U.S. and most other Berne Convention signatory countries protect such works, since he groups architecture with the visual arts.
Secondly, Falkvinge lumps all of the “visual arts and design” industry into “fashion design” and then asserts that it is “copyright agnostic,” since fashion design is not entitled to copyright protection. Ignoring the fact that there are many other arts to be considered in the visual arts and design sector of a country’s industries, let me just address the last assertion about fashion design. There are several nations that actual do offer copyright protection for fashion design, namely the European Union, and France individually, and Japan, just to point out a few. The U.S. currently has legislation pending that would follow in the footsteps of these country and protect U.S. fashion designers whose designs are pirated as soon as they are released. (See this post on Law on the Row regarding the pending legislation).
As Falkvinge draws to a long and painful conclusion, he states that U.K’s “monopolized entertainment
[industries’]” claim that they will lose 1.2 million in jobs by the year 2015 is “deceptive, dishonest and bordering on fraudulent,” which he uses to link to another self-aggrandizing article in which he claims that we as a culture are creating now more than ever, that copyright monopolies are an obstacle, and the copyright abolishment would only intensify this effect. All I can say to Falkvinge’s claim is bull$^!+. Isn’t that something akin to the pot calling the kettle black? Is it really deceptive to say that most of my songwriting clients, the people who write the music, are struggling to feed themselves and have to take full time retail employment to make ends meet? Is is dishonest to say that those same songwriters do not create as much music as they did before they were forced to work 10-12 hours a day to support their families? And how can you deny the decline in sales of recorded music? How can you deny the falling profits of the world’s entertainment conglomerates? I certainly don’t pretend to know about the music industry of the U.K., but I do know that the local economy in Music City U.S.A., Nashville, Tennessee has suffered dramatically as a direct result of illegal downloading of copyrighted works. I certainly know that this has a trickle down effect on all sectors of the music industry here, including my own practice! If any of these claims are fradulent, then call me a fraud.
Long before Falkvinge began spinning his illogical analyses, a company of men including Jefferson, Madison and Pinkney and other great thinkers of their day dealt with the issue we are dealing with – should creative ideas be entitled to protection as individual property? These men debate natural law versus utilitarianism, and ultimately derived what is arguably a very workable system of protecting intellectual properties. The U.S. system is based on theories like those of Thomas Hobbes and John Locke, who believed that we should “give to every man his own,” and that man acquired the ownership of property by exerting labor and converting nature – in this case ideas – into something that benefits society. In fact, Locke believed that because a work created by an individual enriched society in general, and would theoretically continue to do so in the future, the author should have the right to be compensated as long as that benefit to society continued. But, our Forefathers also wisely saw that in order to create, it is helpful to have a thriving public domain, so they placed certain limitations on these rights, namely granting the monopoly for “limited time.” The “monopoly” of copyright protection – Falkvinge derisively refers to it as the “copyright monopoly” as if it’s a bad thing – is merely a reflection of these ideas. If we believe that one should benefit from his or her own creation, his or her own expression of an original idea, then laws and rules are the only way to enforce that in a developed society. Because of the wisdom of our Forefathers, we have that in Article I, Section 8, Clause 8 of the U.S. Constitution. For my money, the logic of Locke, Hobbes, Jefferson and Madison surpasses the diatribe of Falkvinge at least by a factor of 11.8 to 1!
So, in summary, I am quite certain that Falkvinge, if he even takes note of my existence, would categorize me as just another one of the “lawyer who advocate maximization of the copyright monopoly.” He would likely also allege that my claims are misleading if not bordering on fraudulent. Regardless, I think that it is evident that Falkvinge’s assertion that for every 1 job lost to copyright infringement, 12 more will pop up to replace them is unfounded and, frankly, completely manufactured.