As part of a proud legal/philosophical tradition that traces itself back through the Queen’s England to the Republic of Rome – egalitarian for all, or at least for a certain class – it gives me pause to think about how the old philosophers would think about intellectual property rights today. Would they be proud of how we’ve developed upon their legal theories? If Socrates were here today, what would HE have to say about the Copyright Wars?
Like the likelihood that our founding fathers would be proud of what we’ve done with the Commerce Clause, I believe the response would not be a positive one.
Aristotle, “The Philosopher,” who could see into eternal truths:
"For the habit of lightly changing the laws is an evil, and, when the advantage is small, some errors both of lawgivers and rulers had better be left; the citizen will not gain so much by making the change as he will lose by the habit of disobedience."
After the internet made copyright into an exciting field again, it also managed to make most young Americans into felons. Aristotle would probably be against all the constant changes in the legal system. Especially when so much of copyright law is so dense and technical that it’s almost impossible to interpret - developers of new technologies may just have to develop a wide user base, wait to get sued, then use it to negotiate a valid licensing deal. Many of his arguments regarding law center around the fact that there’s a social benefit to have law-abiding people, so laws should be structured so people can understand them and abide by them. Well… of the 14 million songs claimed by music platforms, 4 million are commercially viable works and around 10 million are unregistered and potentially infringing works by smaller bands (think: covers, remixes, sampled tracks, etc.). The music industry ignores them because it’s polite and the defendants are likely to be judgment-proof anyways.
Here it would be useful to point out that intellectual property may not have been considered property at all. Many influential ancient philosophers understood knowledge and art as belonging to a transcendent class of forms that were universal and accessible to anyone. To "own" some particular way of experiencing those forms probably wouldn't have made a whole lot of sense to them. It would have been like owning "being a human" or "having brown eyes." The ideas/expression distinction of present day copyright law – where the creative expression is copyrightable but the ideas or facts are not – would not have been seen to be distinct at all, but rather part of the same universal class.
Socrates would probably be on the side of the government. We each have an obligation to uphold laws and to submit ourselves to the punishment for violating them (which, presumably, would include today’s up-to-$150,000 per willful violation + attorney’s fees 5 U.S.C. §504(c)(2)). Famously, in the Crito, Socrates justifies staying and allowing himself to be put to death even though he has a chance to escape because he had submitted to the laws of Athens his entire life and enjoyed the benefits of living in the city. If he left when the laws turned against him, it would be immoral because it would be violating an implied contract between the citizen and the state. To generalize this and apply it to the present day, as citizens our options are a) obey the laws (and attempt to change those that are unjust) or b) leave the country. Or one may just go into self-imposed exile. Though one would have to be careful with option B - many countries are adopting similar if not stricter intellectual property laws than those of the US. In Europe fair use is not much of an excuse, and some claim the US standards so low they violate international treaties. (see Berne Convention or TRIPS)
In addition, Socrates and Plato were almost pathologically against unnecessary obfuscation. The current state of the legal system would cause them to despair for our society – huge cases and seas of regulations may turn on who can present the better argument regarding a hair-splitting legal distinction. Socrates and Scalia probably have lots of fun discussing the whether textualists of purposivists should carry the day. One of the arguments that Socrates had against the Sophists was that they used obfuscatory language and needlessly complex arguments in order to seem correct, regardless of the truth of their arguments. I imagine he'd take one look at the modern regulatory environment and just assume that the Sophists had won.
