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. identicon
    Sock, 26 May 2012 @ 4:30pm

    Re: Re: Re: Re:

    @Pro Se: It seems to me that you are one of the more outspoken voices that have come out in support of strong copyright laws and so I'm addressing this post to you. Honestly, obvious troll is obvious so I don't even know what you're even doing here trying to fight the horde like you have been but I wish you the best of luck with that. I'm not going to argue the pro's and con's of copyright with you. What I will do is try and provide you with a different perspective on the problem.

    You see, I'm not very old. I peg you to be in your mid 40s to 50s and so I'm probably somewhere around half you're age. This is the internet after all so it's hard to say for sure. If I'm right, then you grew up in an enviroment that, for all it's simalarities, might as well have been another universe. I wasn't around in those days but listening to the stories from my parents when they were growing up, it sure did sound like a completely different place - they hardly had tv! A different world, a different set of rules. In those days you're society was built up of big, well respected institutions. You had your government and Uncle Sam and the American Dream (I'm assuming you're American as it suits me) and media comglomerates; all of them lovely, large, institutions that were trust worthy and that were doing amazing things. You had technology that; while it brought you information and culture; it was uni-directional, limited, slow and combersome. That was ok though because things did not move or change quickly. Essentially you lived in a culture that was write-only. You were given messages and that was that; you read it on a sign board or heard it from a comercial or watched it in a cinema. You did not interact with it, contribute to it, mold it and pass it on. It was seperate from you and the channels that delivered it to you were controlled by someone else. That was ok though because you trusted them, after all you were proud be be a [insert nationality here] and one has to stand up and be patriotic of one's own.

    I've not known what that is like - I have never lived in that enviroment. When I was born the internet was already here. I grew up with a cell phone in my hand, an internet connection in my room, social media bookmarks on my browser and free, open source software installed on my devices. I can't even imagine what it would be like to want to know about something and not be able to fire off a google search and have that information at my disposal with in minutes if not seconds. This technology has become so central to everything that I do that it has become my life. I do not watch TV or read news pappers or hang out at cinema's and arcades - instead I am permenantly connected to people from around the world of every creed and gender and persuation, who at any time and almost instantaneously, can share text, sound, images or video with me; regardless of where I am at the time. Some of them I know personally but most are complete strangers. This is normal for me and I have always known it.

    I do not only comsume the culture and data that I receive either; I produce it - like this post and the youtube video I remixed last week or the new meme I forwarded to my girlfriend; which was altered slightly so that she would find it endearing. I live in a space that you do not know - that you cannot know. I do not see myself as American or European or Australian or African or South American or East Asian or any other nationality. I am a netizen. This has literally become such an ingrained part of my life that it is now a part of my identity.

    Now to my point: I am not alone. There is literally a whole generation of people who are like me. Not only in your country but in every country around the world. As time passes our ranks will swell, your generation will die off and we be in the positions of power that you now sit in. We do not recognise or want copyright. It does not conform to the rules of the universe we operate in; not practically or even morally. We create, copy, modify, remix and forward information and data on a permanent basis. As the meme goes: this is how I roll.

    The rules have changed. How then will you stop me?

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