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
    Pro Se (profile), 26 May 2012 @ 8:31am

    Re: Re: Re:

    If you resided in a society in which you were the only member, the word "right" has no meaning. You can do whatever you please without third party interference because there is no third party to interfere with your activities. Tom Hanks in the movie Cast Away is a good example. He alone was the arbiter of what he could and could not do. Only when a second person enters the picture (I submit that a soccer ball does not count) does a right begin to have any meaning. Once this happens, however, a decision must be made. Will doing whatever you please whenever you please still be the rule? If it is to be, then of course there is a downside since the same would apply with equal force to your new "friend". Thus, I hew to the line that a right arises only in the context of a society of two or more persons, and as a general rule this is because of a societal compact to which both of you have agreed in order to keep each of you from beating each other to a pulp just because each of you have the ability to do so.

    You use the term "government". Let me suggest that "society" is perhaps a better word, and that "government" in its most elemental sense is little more than a mutual understanding of the rules upon which you and your "friend", i.e., your society, have mutually agreed, as well as how they will be enforced as between the two of you.

    Rights being a social construct, it seems to me that what they are and what they are not results from the societal compact into which each of you have entered.

    Privilege to me suggests your ability to operate within your society, you and your "friend", without your "friend" throwing a justifiable tantrum because you have not paid heed to the terms of your compact. In other words, I view rights and privileges as generally being synonyms. Whether you choose to use the word "right" or "privilege", they merely reflect the terms of your compact.

    With the above in mind, you may want to reconsider your use of the word "privilege", for in truth it derives from your compact. Under your use of the word, "due process", "right to a jury", "freedom of speech", "freedom of religion", "speedy trial", " the right to hold property", etc. would all be privileges conferred by the compact. Just as easily the two of you could agree otherwise, including agreement that neither of you can copy what the other has done. In fact, in your two person society this might make sense in order to avoid the duplication of effort. You decide you want to make a chair in contravention of your compact, in which case your "friend", who you previously agreed would be the "chair maker" could properly complain "You are the sole fisherman per our agreement. Why are you making chairs when you are supposed to be out fishing?"

    The above are just my musings as I wait for my morning breakfast of caffein to kick in. However, you might want to give them a bit of consideration.

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