I wish I could say it was by brilliant design instead of happy coincidence, but I spent the ten days
before the election in the U.K. (I had the great pleasure there to meet Techdirt contributor Glyn
Moody at the cafe in the National Gallery on Trafalgar Square--perfect coffee and excellent
cakes, but that's true of nearly everywhere in London).
I returned to Washington on Election Day to find a ghost town; anyone who wasn't out on the
campaign trail was hunkered down somewhere, or just hiding. Would that it were always so.
Like every other American of every political persuasion, I was long-past exhaustion with the
2012 campaign, which lacked any substance on any subject, not least of all on tech policy.
Innovation, especially in information technology, is just about the only engine of economic
growth we have left in the U.S., and you'd think that an election that pretended to be so focused
on fixing the economy would said at least something about what government could do to
But no, instead we got, well, you can fill in your own most cringe-worthy sound bites from the
campaign. (The week in London featured enough good wine to kill just the right brain cells,
thankfully. I can't actually remember much of the last few months.)
I tried in my own small way to raise the issue in an op-ed I sweated over for the better part of a
week. Despite supportive words from former Wall Street Journal publisher Gordon Crovitz, I
got no response from either the Washington Post or the New York Times.
What I wished the candidates from President on down to the local Police Protection and
Community Services District in my very small, unincorporated town in the Berkeley Hills
(where, I’m happy to report, my least favorite neighbor got the fewest votes) had spent at least a
moment on was to acknowledge the ways in which the application of industrial-age laws
and regulations to information products, services, and enterprises get in the way--even when they
aren't trying to. Often, in fact, especially when they aren't trying to.
As the pace of technological change continues to accelerate, thanks to Moore’s Law and its
complements, the pace of legal change falls further and further behind. Technology is disruptive
and growing moreso. Traditional law is slow and deliberate by design.
So when it comes to traditional forms of government, the real governing law for technology,
increasingly, is the law of unintended consequences. We see it every day here on the front lines
of the Internet economy: counter-productive extensions to copyright and patent; immigration
policies that send non-U.S. engineers home to compete against us just as they've finished their
educations in American entrepreneurship; a tax code that forces U.S. companies to invest their
foreign earnings anywhere but in the U.S.; and the FCC's century-old approach to spectrum
management that still imagines a world in which every device needs its own separate network
and where new usable frequencies are always available.
Just to name a few.
Had the candidates been reading my favorite Techdirt posts from last week instead of tweaking
their stump speeches, they would have gotten a flavor for the kind of dangerous and costly
absurdities I'm referring to:
Criminal Procedure -- The FBI and other intelligence-gathering agencies have long-complained that new technologies challenge their ability to keep up with criminals and
now terrorists. When Congress doesn't expand their authority to further undermine the
Fourth Amendment fast enough, they just improvise, and then stonewall efforts from
those, such as the Electronic Frontier Foundation, to find out what they’re actually doing.
Without transparency, we have tyranny, even if benevolent.
Patents -- Whatever the value of granting limited monopolies to inventors to incentivize
invention was during the Industrial Revolution, it should now be clear to everyone that
in fast-paced, dynamic markets for information technology products and services, twenty
years or so of exclusive rights to new innovations is far too long. Especially when patent
offices worldwide seem to think every tweak counts as an innovation. (That is clear,
by the way, to every company in Silicon Valley, including those who are sometimes
beneficiaries of that system.)
Congress took nearly a decade to pass a patent reform bill that included no real reforms.
So, as has often historically been the case, the judiciary is stepping in to try at least to
keep the madness to a minimum. My former boss Richard Posner paved the way in
dismissing part of the Motorola/Apple smartphone war with extreme prejudice (not a
legal term). Now, as Mike reports, another judge has picked up the banner and run with
it. Patent litigants beware: compete in the market, not in the courts.
Copyright -- At a conference in Charleston this week, I argued that the true disruption
of the information revolution was to separate information from physical media, turning
on its head Marshall McLuhan's cryptic comment that "the medium is the message."
Content industries organized their supply chains around expensive physical assets
necessary to produce and distribute the media, with little regard for the creative
information that goes into it. It's newspapers, not news, and records, not music.
The Internet is dismantling those supply chains, leaving incumbents unclear, at best, on
what it is they actually add to the value of creative content. The last stages of industry
transformation, I said, are always desperate efforts to create hybrids of the old technology
with the new and, finally, litigating everything that moves.
Most of the former "mass media" industries are now entering the end game for their long-stranding, cartel-like supply chains, and the flailing is in full view--to everyone except
our elected officials, who dutifully respond to concerns about "piracy" and "theft" by
extending when they should be shortening copyright duration, and adding when they
should be subtracting from criminal and civil penalties.
Historically, this resistance is inevitable if pointless--a new and better supply chain
always emerges, and those who added real value in the old one always find a more
profitable place in the new. Mike's story about Harry Fox's determined efforts to force
licensing fees from a Thai youth orchestra for performance of a public domain work
by Johann Strauss nicely captures the sad state-of-the-art here. As Marx paraphrased
Goethe, history always repeats itself, first as tragedy and then as farce.
Patents, Take Two -- As I said, sometimes the patent bullies are also the patent victims.
While I don't share Mike's complete disdain for patent trolls (sometimes they do resolve
market problems that can't otherwise be fixed), litigation remains an expensive form of
resolution and one that is often the victim of what economists call regulatory capture,
where the institution (here the notorious federal district court in East Texas) becomes
dangerously aligned with those it's supposed to oversee.
Mike teases out the ugly details in a post on jury trials that went against Apple and
Google, respectively. By the way, to anyone who thinks lay juries are appropriate fact-finders for patent infringement cases, please get in touch. I have a virtual bridge I'd like
to talk to you about.
Internet "Governance" -- One issue that never came up in campaign 2012 was the
insidious effort by the U.N.'s International Telecommunications Union and repressive
client governments around the world to insert themselves into the highly-functional,
engineering-driven approach to governance that has led to the total victory of open IP
protocols over any other networking standard they've encountered. That may be because,
as far as I could tell, there wasn't a single person in the U.S. who thought giving the ITU
more power through an upcoming rewrite of the relevant treaty was a good idea.
As with SOPA and PIPA, the best evidence that the government entity proposing itself
to solve a problem that doesn't exist would instead be the worst possible change agent
in the first place comes from the entity itself. Caught off-guard by worldwide scorn,
the 150 year-old ITU has responded with the most pathetic P.R. campaign since, well,
since SOPA and PIPA. Every speech, statement, and "Twitter storm" ITU Secretary-General Hamadoun Toure lowers himself to participate in has the opposite effect to
its intent, making clear that the ITU doesn't even know what the Internet is, let alone
what "governance" problems can't be solved without the help of the U.N.
The best/worst example came this week in an op-ed piece Toure wrote for Wired.com,
which, as Mike rightly points out, is infested with wishful thinking, deception, and
an uncanny ability to talk down to Internet users as if they were infants in hopes of
impressing them with Toure's vast wisdom as a seasoned bureaucrat. Why, says the
Secretary-General, our secret treaty negotiations are even open to your participation on
our website. What he doesn't mention is that even that pathetic crumb requires users
first to register, provide lots of private information, and agree to terms of service more
restrictive than the iTunes Store.
Everyone sees the Would-be-Emperor's nudity here, except of course for the ITU.
The readers of Wired (are there still readers of Wired?) duly tore Toure apart in the
comments. No matter, he won't read them.
I'm out of time, but I've only skimmed the surface--and that's just what was on Techdirt,
admittedly the best source for tech policy horrors. Honorable mention to Tim Cushing, however,
for his piece on India's struggle--and failure--to find the "balance" between freedom of speech
and individual rights to protect their reputations through defamation law (and, more often, the
needs of law enforcement to protect public safety).
There's no balance. Either you have freedom of speech or you don't. Either you trust in the
marketplace of ideas or you don't have one. Mark Twain once said that "A lie can travel
halfway around the world while the truth is putting on its shoes." But that was before the
Internet. Now both can travel all the way around the world without needing shoes, and do so
instantly. The medium is not the message.
In the end, maybe it's not such a bad thing that politicians ignore technology policy. True,
the old laws are causing plenty of mischief. But efforts to correct them often just make things
In the few months before campaign 2016 begins, maybe we can get Google to take Silicon
Valley off all of its maps. Or better yet, convince politicians to switch to Apple maps.
Summary of Parts One and Two: The essential balance of copyright between incentives for creators and the feeding of a rich and unlicensed public domain has been undone by a long series of misguided efforts to save copyright by making its rules both stronger and less enforceable at the same time. The industry’s tactics have backfired, eroding what was left of any moral authority for obeying the law. And that was the chief (and most efficient) mechanism for enforcement all along.
The repeated and retroactive extension of copyright terms, largely at the behest of the Disney Corporation, has had the unintended consequence of creating a nation of felons, both technically and in spirit. According to one provocative study by John Tehranian, we all violate copyright unintentionally many times a day. And to the extent we realize it, we don't care.
To return to the parking analogy, the result of these legal changes has been to paint every curb a red zone—it's now illegal to park anywhere. The result is not perfect enforcement of copyright but its opposite. No one obeys the law or thinks they ought to. Getting caught is more or less a random event, and rational consumers won't change their behavior to avoid it.
The center will not hold. Large media holding companies are becoming desperate, expending their resources not to find new ways of making money but to secure passage of increasingly draconian laws (SOPA) and treaties (ACTA) that give them more, largely unusable new powers. Even if passed, these legal tools will do little to improve legal enforcement. But they are certain to cause dangerous and unintended new harms.
At the same time, the marketing machines of these same companies have convinced us that our right to enjoy content is inherent—the American Way. Once offered, we imagine free content should always be free, even if the rightsholder changes its mind or intended all along to attach conditions to consumption based on time or place or the ability to associate mechanisms, such as advertising, that allowed for indirect revenue generation.
Americans don't understand that subtlety, and rightsholders have given them no reason to try. Public education efforts have been pathetic. Instead of teaching consumers the costs and dangers to the delicately-balanced system from copyright infringement, they emphasize moral and legal prohibitions that are rightly perceived by consumers as petulant, cynical, and amusingly out-of-touch.
These campaigns, for starters, say nothing about the economics of content production and distribution. They are morality tales, narrated by fabulists who pride themselves, in their day jobs, on their mastery of manipulation and misdirection. It's as if Darth Vader sat down with preschoolers to talk about why they shouldn't throw stones at the Death Star because of the potential for property damage.
Consider just a few examples below: YouTube's mandatory copyright "school" for violators and
the classic 1992 "Don't Copy that Floppy:"
Clearly, not much has changed over the last twenty years in efforts to change public perceptions and behaviors. The Hollywood that can produce blockbuster movies somehow can't make a PSA that isn't a self-parody.
I think the public can be educated, and should be. Here's where I part company with those who reject copyright altogether. The theory of copyright—limited monopoly in exchange for a rich public domain—is still a good one, and the system created by the English, adapted by early Congresses, had the virtue of being largely self-enforcing and therefore efficient.
It is the 20th and 21st century imbalance in copyright, and not copyright itself, that must be fixed. And it can be fixed. There is a way out of this dangerous and increasingly tense cold war between content industries and their customers. Here's a simple three-step solution:
If rightsholders want consumers to obey the law and support their preferred business model, they first need to stop making it impossible for consumers to follow the rules. Copyright needs to be weakened, not strengthened.
Content industries need to end the stalling and excuses—perhaps understandable in 1998, when I first wrote about digital distribution in "Unleashing the Killer App," but not now, nearly fifteen years later. They need to embrace digital media and new channels fully, even if doing so means tolerating a considerable amount of unauthorized distribution and reuse as working models for profit-generation rapidly evolve.
Public education needs to focus not on self-righteous indignation but on collaborating with consumers on finding ways to compensate creators for the value of their work. If consumers understood the economics of content creation and distribution, and given an easy way to cooperate, they'd do it.
Ironically, there's every reason to believe that embracing a relaxed copyright regime and encouraging creative reuse would actually generate more revenue for creators. That, in any case, has been the lesson of every form of new media to be invented in the last hundred years or more.
Each of them was initially resisted and branded as illegal and immoral. Each of them—from the player piano to the photocopier to the VCR to the Internet—has instead offered salvation and riches to those who figure out the new rules for working with them and not against them. (Hint: network effects rule.) Rightsholders consistently confuse each fading media technology with the true value of the content they control. The medium is not the message.
For now, industry apologists—the MPAA, the RIAA, the U.S. Chamber of Commerce and others—are caught in a dangerous cycle of denial and anger. A growing number of consumers refuse to follow the current rules. So they lobby to make the rules stronger and the penalties more severe, amping up the moral rhetoric along the way.
But this only serves to starve the public domain more, undermining the basic principles of copyright. With the system increasingly out of balance, self-enforcement becomes even less likely. The law is impossible to obey, and rarely enforced. So consumers make up their own rules, for better or worse, with expensive and unnecessary casualties piling up on both sides.
Eventually, consumers and creators find the right balance and the most effective forms of compensation, regardless of the industry's efforts to cut off their nose to spite their face.
Then along comes another disruptive technology and a new round of customer innovation, and the cycle starts all over.
Rights holders remain stubbornly parked in the same old spots, afraid that if they move their vehicles at all they'll be doomed to circling the block forever, unable to stop until they permanently run out of gas.
The rest of us, meanwhile, are happily enjoying our flying cars.
Summary of Part One: Consumers, trained by content providers to think most entertainment can be enjoyed freely, no longer take copyright seriously as a legal or moral imperative. It's like a parking meter that's rarely checked. When we do get a (large) ticket, we're outraged. After all, no one else got one for doing exactly the same thing. Our cognitive dissonance has left copyright a law in name only.
Media industries have made things worse for themselves by training customers to think of ads and other indirect sources of revenue-generation as an inconvenience, a feature of programming best not talked about. Ads are woven into the flow of the programming, and increasingly hidden in product placements and other inline forms of sponsorship. My favorite brand of frozen pizza is now co-marketed with the new "Avengers" movie. The psychology of advertising is subtle and complex—or maybe not.
In either case, the result is that at the most basic level—at the reptilian cortex of the brain—consumers are encouraged to ignore the reality that advertisers pay for or highly subsidize most forms of content. Because the economics of content are kept mysterious, we have no reason to believe that if we enjoy movies, music, books or television shows at the wrong time, or with the wrong people, or without the ads, we're undermining the basic rules of the industry. How can we be expected to understand that doing so is not only dangerous to the continuation of that longstanding model but also a crime, punishable by enormous fines and even possible jail time?
What consumers do see, however, is that as content has been translated, often kicking and screaming, into digital form, the unit cost of production, distribution, and marketing has plummeted. Yet for most media, the price has not decreased proportionally, largely because rightsholders want to protect increasingly uneconomical physical media formats such as hardcover books, newspapers, and movie DVDs.
Worse, even as the unit cost of media declines, the rules against unauthorized copying have become stricter. It's as if there were suddenly millions of new parking spaces available across Manhattan, but parking lots keep charging more than $10 an hour. And all the meters are suspiciously broken.
How did this happen? Since well before the invention of the photocopier, media industries have pursued a consistent if counter-productive legal strategy of responding to disruptive technologies that decrease costs and open new markets by lobbying for extensions to copyright terms, increased penalties, and criminalizing more behaviors.
Their theory—if there is one—is that technologies that make it cheaper to create and distribute content also make it cheaper to violate copyright (see Napster, et. al.). Cheaper production is ignored, while increased potential for violations requires enhanced penalties that can't, in any case, be enforced. It's a lose-lose-lose strategy for producers, creators, and consumers. And it's a loop we've been stuck in for decades.
One result of that fatal loop is that under current law the concept of fair use—long understood as a safety valve to an otherwise economically-dangerous copyright monopoly—exists in name only. And with copyright terms continually and retroactively extended, almost nothing enters the unrestricted "public domain" anymore, even though the continued expansion of the public domain was the whole point of granting the "limited" copyright monopoly in the first place.
Copyright was designed as a low-cost and largely self-enforcing mechanism for achieving two important goals: incentivizing creators to build the intellectual capital of a new nation and making sure that their efforts could be used and built upon as quickly and as freely as possible. Copyright gives authors a monopoly, which necessarily reduces potential social value. (Economists call it "dead weight loss.")
But there's an essential caveat. Once the limited period of the monopoly expires, all rights are unreserved. The public can do as it pleases with the work—copy it, adapt it, reframe it, anthologize it, mock it. (Some amount of mocking is allowed even before the term expires.) As the Constitution puts it, Congress shall have the power—and not the obligation—"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
But copyright law no longer promotes the progress of anything. It just secures more rights. And patent law, in its own state of disarray, is even worse. It's actually counter-productive, as if to make it a crime just to think about parking.
This dangerous imbalance in the system is the result of misguided efforts to preemptively rescue American content industries from wave after wave of disruptive copying technologies, each seen as the certain destroyer of the content enterprise. Jack Valenti's infamous testimony that the VCR was "to the American film producer and the American public as the Boston strangler is to the woman home alone" is still chilling in both its rhetorical excess and its misreading of the future. (And how was the "American public" threatened at all?)
The imbalance of copyright today is the result of Hollywood's irrational fear of the unknown. As Prof. Tom Bell made visually clear with his 2009 "Mickey Mouse Curve," the regular extension of copyright terms and penalties, especially in the last hundred years, has not been based on the reasoned deliberation of Congress so much as the unrelenting lobbying of the Disney Corporation, determined to spend whatever it must to keep every iota of its creative work out of the public domain. Worse, Disney's obsession is about control, not maximizing profits.
As Bell's curve demonstrates, whenever the earliest works of Disney are about to lose copyright protection, Congress steps in to extend it retroactively. This is no coincidence. But it is ironic coming from a company whose oeuvre includes so many films based on content (the Hunchback, Hercules, Mulan, Tarzan) that had only recently entered the public domain. Or maybe not ironic at all.
Source: Tom W. Bell
(It is a persistent myth, by the way, that allowing "Steamboat Willie"—itself a parody of a Buster Keaton film—to enter the public domain would mean the end of protection for Mickey Mouse. While freely copying those early cartoons would no longer violate Disney's rights, all the later works would still enjoy their full run of exclusive rights. And Disney's trademarks in its characters and character designs would greatly limit what others could do with Mickey beyond copying the public domain cartoons themselves. Trademarks are valid so long as consumers continue to associate them with a particular source—potentially forever.)
Irrational policy decisions produce unintended consequences. The successful campaign to continually and dramatically extend copyright is increasingly a pyrrhic victory for the content industry. By removing all of the safety valves against abuse of the "limited" monopoly, copyright, as Supreme Court Justice Breyer has argued in dissent, has effectively become permanent. The law is now rewritten solely to protect the interests of a few large rightsholders.
Yet traditional forms of legal enforcement have become nearly impossible. Consumers use a constant supply of disruptive technologies (the cloud, P2P protocols, encryption) to rebel against a dictatorial copyright regime. And the speed of innovation has long-since outstripped the speed of Congress and the courts. Most consumers now see themselves and each other not as lawbreakers but as freedom fighters. Copyright, in its current mutant form, is now firmly on the wrong side of history.
Next: How to Reset the Balance and Save Copyright from Itself
What do copyright and parking laws have in common?
The short answer: no one takes either very seriously.
According to a recent article in L.A. Magazine, only 10% of parking citations ever get written. Which is to say that 90% of the times that people park illegally, there are no consequences. Those who violate the increasingly strict parking rules in most U.S. cities are more likely to associate a ticket with bad luck or personal hostility against them than with the fact that they broke the law.
In other words, when you get a ticket, you don't feel guilty. You feel victimized. As John Van Horn, the editor of Parking Today, explains, low levels of enforcement undermine the deterrent intent of parking laws. "We break the law often and get away with it. Deep down inside we know that. What makes us mad is getting caught the few times we do. 'Ninety percent of drivers on this street got away scot-free today, but I get the ticket?' That makes us crazy."
Part of what drives us to rage at getting a ticket is that we don't actually believe parking should be illegal in the first place. The freedom to park wherever there's space is deeply ingrained in the American psyche if not the law. The invention of the parking meter in the late 1930's was greeted with near-riots across the country. Editorials railed against the new devices as "illegal," "immoral" and a "perversion." The Alabama state Supreme Court declared meters unconstitutional in 1937, and ordered them removed from Birmingham streets.
"I truly believe that when men and women think about parking, their mental capacity reverts to the reptilian cortex of the brain," says UCLA's Donald Shoup, perhaps the nation's only academic devoted to the study of parking.
A law that is rarely enforced—indeed, which is not cost-effective to enforce except sporadically—is no law at all. Which brings us to copyright.
Overprotective and largely unenforced rules, combined with a deep-rooted sense of entitlement, create an explosive combination. The problem is the same with parking and copyright. As copyright law becomes more strict, and its penalties more byzantine, Americans are less likely to make the effort to follow the rules, or to believe that new forms of technology-enabled copying are immoral in the first place.
We refuse to see our behavior as illegal, even when we know it is. Recent surveys by the Pew Research Center, for example, report that 72 percent of Americans between ages 18 and 29 "do not care whether the music they download onto their computers is copyrighted or not." Rightly or wrongly (if those terms even mean anything anymore in this context), the added penalties, extensions, and limits on copying, along with decreasing rates of successful enforcement, are making it less, not more, likely that Americans will obey the rules.
We are collectively living in a state of cognitive dissonance, uncomfortably embracing two conflicting beliefs at the same time. Copying is illegal. Copying is not wrong.
Where did we get the idea of a right to free content? In large part, from the content producers themselves. An older generation grew up with music, movies and television programs beamed directly to their televisions and transistor radios at no charge. Those consumers can't understand why saving content onto some medium and enjoying it again or later should suddenly transform a strongly-encouraged behavior into a felony.
A younger generation, raised on cheap Internet access, was likewise encouraged to enjoy all manner of copyrighted materials freely and frequently by content providers who wisely chose to rely, as their predecessors did, on advertising and other indirect revenue to pay their costs and generate profits. That's the message of newspapers, magazines, and broadcast networks who offer some or even all of their content without a paywall. And the movie industry teases consumers mercilessly with trailers, interviews, and production blogs that show just enough of upcoming movies to make us feel entitled to see the rest, one way or the other, the sooner the better.
Yet when fans enthusiastically encourage others to embrace their preferences by posting clips or copies of popular content to YouTube or by ripping CDs and DVDs to repeat their enjoyment on other devices, they instantly cross the legal line from well-trained consumers to dangerous criminals—even terrorists.
Copyright may be the law, in other words, but it no longer holds any moral authority with most consumers. There's no longer an ethical imperative to obey it or even understand it. Self-enforcement is fading, and the rules are so severe and so frequently violated that effective legal enforcement has become nearly impossible.
It's a meter, and we all know that the meter is rarely checked. Copyright is a law in name only—as obsolete and irrelevant as rules still on the books in some jurisdictions that regulate who can or must wear what kind of clothing.
Harper and Row v. Nation notwithstanding, I don't think it's entirely clear that the passage quoted qualifies for copyright protection in the first place. Not every bit of written text gets copyright protection, as the Feist case most recently makes clear.
It doesn't seem likely there's any constitutional conflict between trademark and the copyright clause. A trademark is not an exclusive right to copy--I can, for example, use your trademark in a comparative ad, or for other reasons, so long as I don't use it in a way that creates a likelihood of confusion (the legal term of art) with relevant consumers as to the source or affiliation of my products/services.
Due to errors in registration during the time when the specifics were more demanding, some early Warner Brother's cartoons lost copyright protection long ago. They can be copied without permission, and that hasn't raised any legal challenge to the copyright.
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