Resetting The Balance To Save Copyright (Part III)

from the alternate-side-of-the-street dept

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:
  1. 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.
  2. 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.
  3. 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.

Filed Under: acta, advertising, hollywood, john tehranian, parking, sopa
Companies: disney, mpaa, riaa, youtube


Reader Comments

Subscribe: RSS

View by: Time | Thread


  1. identicon
    Anonymous Coward, 29 May 2012 @ 6:27am

    "Surely you do not mean to imply that everyone who is an author and relies upon the rights accorded by copyright law must earn the respect of those who consume his/her/their works before they dare ask for things as simple as payment, non-distribution, etc."

    I don't imply that. I said it, straight to the point.

    If a store owner is a douche, I won't shop there.
    If an author is an ass, I won't buy their books.
    If an artist is a - insert adj here - I won't buy their art.
    If a musician supports the assumption of guilt and mass lawsuits, I won't buy their music .. etc.

    I vote with my wallet based on the ACTIONS of people or entities who want my money. The 'Awesome and Human' who want me to buy get my money. Why this is such a difficult concept for some to wrap their head around is beyond me.

    Those who treat the customer without respect deserve neither respect nor money. Now I'll sit back and wait for the assumption that I mean that infringement is 100% ok.

    It's not so black and white. To assert otherwise is intellectually dishonest, or just plain stupid.

    " This statement makes me wonder if this is a subject with which you have intimate familiarity. How many situations are you aware of where someone's life savings have been taken away because of downloading 1, 2,...50 songs? "

    You don't read much, do you ? Students, mom's, etc.. sued regularly without evidence and the presumption of guilt on their heads have been all over the internet ( here, reddit, Ray Beckerman's Blog, P2Pnet ) for at least 10 years. How do you MISS that ? Ordinary people, when they refuse to 'settle' are run to financial ruin through punitive litigation. It's ridiculous. This is supposed to make people 'respect' copyright owners ? No. It's designed to make people FEAR being sued. The backlash will continue, and it is well deserved. The 'protections' you mention can not be used by anyone without a lot of money. And while you mention 'Free Passes', why should entities that CONSISTENTLY file false, incorrect, or misleading take down notices ( perjury) get a free pass? Why should the entities that falsely sued Dajaz, only to be forced to return the domain once the accusations were proved baseless get a free pass ?

    Sounds like you have a personal stake in this either as a lawyer or a paid label 'property'.

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Techdirt Gear
Show Now: Takedown
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.