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


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  1. icon
    Greevar (profile), 25 May 2012 @ 11:14pm

    There's no such thing as a "balanced" copyright.

    The only reason copyright worked at all in the beginning was because the means to copy and distribute works was difficult and expensive. It was something only publishers with their large amounts of capital could achieve. Now we have computers attached to the internet and copying is accessible to everyone. It doesn't matter how much copyright is relaxed, it will never be enforceable and it will never truly serve the good of the public. The only realistic solution is to remove all restriction on distribution. This means authors can no longer make a profit by the power exclusion. They will have to profit through other means, such as leveraging the popularity of works to sell related goods and services. There's no balance that can be struck with copyright because it only takes away and gives nothing back.

    Since the internet has become commonplace, there has been an explosion of content and the tools to create better content keep getting cheaper and more accessible. There won't be a deficit of content if copyright were to disappear, that's a myth perpetuated by those that want to maintain control. Since YouTube came along, there has been a huge increase of content. If people really want to continue making a profit through content, they will find a way and there are far more revenue streams out there than there was as little as ten years ago.

    Industry incumbents only want to make copyright persist in order to bring the market back to what they had in the late 20th century, where they were the only providers to go to for content and there were only a handful of competitors to out perform. This, of course, meant they didn't have to produce "great" content, just "good enough" content so that it was better than the other content in that particular time slot.

    Copyright has always been and always will be a contradiction of itself. The goal is to provide a greater supply of content for the betterment of society, but it tries to achieve this goal by restricting access to the content that would otherwise serve to better society. You can't educate the masses by holding information back from those that can't afford it. That's backwards. You have to make it free to access.

    Germany is known for their superb engineers. They got to be so good because there was access to such knowledge for only the cost of printing due to a total lack of copyright in stark contrast to England, who were the creators of what became modern copyright. Interestingly, Germany was producing far more works than England despite the lack of copyright. People were copying and distributing engineering text books to learn the skills they are so famous for. Had copyright been in place at the time, they would not have had as much access to the text books that increased their knowledge in the field of engineering. A lack of copyright on engineering knowledge created a nation of great engineers.

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