April 23, 2014

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Copyright and Cultural Policy

James Grimmelmann offers another nice conference report, this time from the Seton Hall symposium on “Peer to Peer at the Crossroads”. I had expressed concern earlier about the lack of technologists on the program at the symposium, but James reports that the lawyers did just fine on their own, steering well clear of the counterfactual technology assumptions one sometimes sees at lawyer conferences.

Among other interesting bits, James summarizes Tim Wu’s presentation, based on a recent paper arguing that much of what passes for copyright policy is really just communications policy in disguise.

We’re all familiar, by now, with the argument that expansive copyright is bad because it’s destructive to innovation and allows incumbent copyright industries to prevent the birth of new competitors. Content companies tied to old distribution models are, goes this argument, strangling new technologies in their crib. We’re also familiar, by now, with the argument that changes in technology are destroying old, profitable, and socially-useful business, without creating anything stable, profitable, or beneficial in their place. In this strain of argument, technological Boston Stranglers roam free, wrecking the enormous investments that incumbents have made and ruining the incentives for them to put the needed money into building the services and networks of the future.

Tim’s insight, to do it the injustice of a sound-bite summarization, is that these are not really arguments that are rooted in copyright policy. These are communications policy arguments; it just so happens that the relevant which happens to affect communications policy is copyright law. Where in the past we’d have argued about how far to turn the “antitrust exemption for ILECs” knob, or which “spectrum auction” buttons to push, now we’re arguing about where to set the “copyright” slider for optimal communications policy. That means debates about copyright are being phrased in terms of a traditional political axis in communications law: whether to favor vertically-integrated (possibly monopolist) incumbents who will invest heavily because they can capture the profits from their investments, or to favor evolutionary competition with open standards in which the pressure for investment is driven by the need to stay ahead of one’s competitors.

The punch line: right now, our official direction in communications policy is moving towards the latter model. The big 1996 act embraced these principles, and the FCC is talking them up big time. Copyright, to the extent that it is currently pushing towards the former model, is pushing us to a communications model that flourished in decades past but is now out of favor.

This is a very important point, because the failure to see copyright in the broader context of communications policy has been the root cause of many policy errors, such as the FCC’s Broadcast Flag ruling.

I would have liked to attend the Seton Hall symposium myself, but I was at the Harvard Speedbumps conference that day. And I would have produced a Grimmelmann-quality conference report – really I would – but the Harvard conference was officially off-the-record. I’ll have more to say in future posts about the ideas discussed at the speedbumps conference, but without attributing them to any particular people.

Comments

  1. Cypherpunk says:

    This attempt to put “copyright policy” into the same framework as other communications issues doesn’t work. The copyright problem is fundamentally not a matter of policy, but of reality. What is the nature of information? Can it be successfully (or adequately) controlled, corralled and restricted? If the answer is no, then you can make all the policy decisions you want, but the information will still spread. It’s Canute and the tides. At some point we have to acknowledge that there is an underlying reality and that is what should shape our policies.

    As far as speed bumps, I don’t think that’s the right way to look at it. The speed bump model is supposed to slow down the transition of content from the controlled to the uncontrolled world. This opens up a window where, if you want the content during that time, you have to pay for it. And this is supposed to solve the content problem (which is, for those who have forgotten, how do those who produce content get paid for it).

    The problem, as you know, is that any time you get into a technological warfare situation where one side is trying to hide information and the other wants to share it, the sharers have the advantage. It’s generally going to be easier to enhance sharing technology to be even faster and more efficient than it is today, constantly undercutting any attempts to protect a window. The window will be under continual threat and always being narrowed. It will be a technologically chaotic and unstable situation, unconducive to business investment.

    And in fact, from that web page’s description of Nesson’s proposal, most of his ideas are not speed bumps at all. Business models, watermarks, legal sanctions, ISP liability, education, none of these are oriented towards a time window. They are general efforts to discourage illicit file sharing.

    These ideas make more sense than speed-bumping. I’d suggest that the number one step to discourage file sharing would be for each artist to make a very public and personal appeal to their fans not to participate in the practice; to put a statement on each CD saying, don’t buy this if you don’t agree to avoid sharing it; to put out an audio message on the CD talking about all the work that had gone into it and how if it isn’t profitable then no more CDs will be forthcoming.

    The point is to make people understand that they are harming the very artists whose music they love when they share it. Let sharers understand that their actions are not just wrong, but hurtful. Let them hear this message from the people they most respect, the artists themselves. This will go a long way towards eliminating the facile rationalizations which most sharers use today to justify their actions. It will divide music lovers into two groups: those who support the artists, and those who hurt them. Rather than speedbumping, divide the world into good guys and bad guys, and make sure that everyone knows into which group they fall. I am confident that in such a system the good guys would provide a profitable market for content creators.

  2. mancide says:

    People are also wise to the trickery the RIAA/MPAA are trying to accomplish with sneaking new laws and restrictions into the mix. Sharing isn’t so much about hurting artists as helping the smaller ones. I think most people, including myself, have purchased music we wouldn’t normally purchase because of sharing. Sharing was also a solution to an artificial problem caused by the RIAA, the death of the CD single. People don’t want to pay $20 bucks for a song, they want to pay $0.99 or something more reasonable for one song. iTunes Music Store is showing that the vast majority of people are not trying to steal anything from the artists, they were simply filling a void that the RIAA had allowed to grow. The RIAA does not cater to the new generation listener. They don’t beleive that a person can like pop, metal, blues, and folk. They do not understand this.

    The model the RIAA is based on is going to die. Apple is ushering in the new wave model of how we will buy music. iTMS has already been such a success, labels are trying to artificially hurt it by pricing digital albums higher than their physical counterparts. This, again, shows that the industry does not understand the market or the customer anymore.

    This article is an example of how we have been down a similar path in the past, and the RIAA could not react nor understand the change in customer tastes. It also shows you how scared they are of something they do not control.

  3. Copyfight says:

    It’s All About the Distribution – Free Speech, Telecomm and Copyright

    I’ve said it before. I’ll say it again. When it comes to information, it is all about the distribution. Last week, Ed Felten pointed out a great point about the important nexus between copyright law and communications regulation (Copyright and…

  4. unmediated says:

    It’s All About the Distribution – Free Speech, Telecomm and Copyright (Ernest Miller)

    I’ve said it before. I’ll say it again. When it comes to information, it is all about the distribution. Last week, Ed Felten pointed out a great point about the important nexus between copyright law and communications regulation (Copyright and Cultural…

  5. JD Lasica says:

    Can someone explain to me why a conference needs to be “off the record” in order for people to exchange ideas freely? What kind of society are we living in?

  6. Ed Felten says:

    JD: Good question. I’ll blog about this soon — maybe tomorrow.