No free lunch. But those prices?

“Information wants to be free.”  I must have mocked those words dozens of times here.  Or a few.  I might be counting the times I just thought that.  Either way, that expression is not an argument.  It’s a statement of ideological faith.  The pro-copyright right has its own religion on this, too.

The music industry, for example, demonstrates its faith via windmill-tilting-based litigation genuflection.  The best way to describe its approach copyright enforcement is to think of “mass tort” litigation seen through the wrong end of a telescope*–indeed, as it turns out, the “mass” is there in terms of the litigation, but it seems not so much in terms of the harm.  (Was anyone ever really fooled by that number?  Not LIKELIHOOD OF CONFUSION®.)

You don’t have to be a know-nothing, however, to believe that copyright still makes sense, at least conceptually.  Take Tracey Armstrong:

“Copyright holders have the right to price and term the works that they have created, the works that they own. That’s a stake in the ground. I couldn’t do what I do for a living without believing that,” says Tracey Armstrong, CEO of the Copyright Clearance Center, in a conversation earlier this week on the future of copyright. “We couldn’t foresee the iPad back in 1985, so digitization and the complications that come with it are what we’re working on right now.”

Well, okay, the fact that you’re paid to believe something doesn’t make it true, either–just ask a lawyer.  But she’s right.  More:

“I agree with the statement that everyone is now a publisher,” she says, “and what that means is a tremendous proliferation of material that is copyrighted and can be licensed.” She describes this as the “atomization” of content –- books being offered as individual chapters and paragraphs, computer software being parsed into individual lines of code –- a phenomenon that is causing exponential growth in the number of “granular” elements that are available to be licensed.

Of course, she adds, “the market is not infinitely elastic” -– and notes that there is plenty of information that will be offered for free, or will have to be.

Then again, there are the iconic, high value works that will never be offered for free.

Maybe.  Probably.  “Iconic”?  Probably less than ever. But notwithstanding that there is a new world of free content out there, few of those with the most to offer are going to invest their best efforts in the creation of high-grade works, in any medium, just to have it deemed what one commenter at CCS link above called “collective social product.”  That’s just lefty liturgy for you right there–nonsense.  Yes, copyright is creaking under the weight of the digital revolution–more on that below.  But that doesn’t affect the fundamental rationale for it.  Creators and those who invest in the publication and distribution of creative works are morally entitled to, and respond in a socially beneficial way, to the incentive created by their expectations of enjoying a limited monopoly over the fruits of that investment.

It’s particularly ironic, in light of this self-evident truth, for left-wingers to utilize sloganeering such as “collective social product” in arguing against copyright.  In their rush to “liberate” property and the “means of production” they’re abandoning the labor theory of value meant to justify collectivism as against our natural inclinations.  On the one hand, we expect to control the fruit of our efforts.  On the other hand, yes, let us resist the raw conception that market price is the only criterion of “value” in human intercourse–even with respect to creativity.

But copyright does not reward the arbitrary capturing and bottling of “knowledge,” but rather the tangible expression of it and the investment of effort and resources by the “knowledge worker” in bringing it to the market.  True, the rest is negotiable, but copyright in its ideal form is a very reasonable assignment of rights as to these expectations.

Now this assertion would seem belied by the change from a regime in which only a handful of publishers decided what would be published and distributed and at what price, to one in which free publication of valuable substantive content is ubiquitous.  Why is so much quality free content published if people need copyright as an incentive?

The reason is that there are many kinds of incentives, not all of them financial or amenable to easy “disclosure” or pricing.   We publish for free to enhance our professional reputations; to advertise our services; to seek the attention of those who might pay us for more intensive or comprehensive content; to be part of or affect debate; to gratify our egos.  None of these motivations means either that the “content” published for inherently “should be” free or that any other content that isn’t free “should be” free.

I’m not sure Tracy Armstrong is necessarily loaded for bear in her campaign to convince the rest of the world of this, however.  Her choice of citation to the “I Have a Dream” speech is particularly infelicitous.  That’s not an example of the sort of investment-intensive creative work that represents copyright’s best justification today.  To the contrary, as I’ve said in one of this blog’s most popular all-time posts, the misuse of IP in connection with the speech is depriving our culture of appropriate access to what can fairly be considered, well, a collective asset I guess (not “product” but asset), and one which in this case can hardly be squared, reasonable men can believe, with its creator’s intentions.  It’s not the end of the world, but it’s not copyright’s best face.

In fact, copyright must change.  Hitting the culture over the head with “enforcement” is not going to get us back to the horse and buggy era.  Big copyright needs to get behind a serious recasting of copyright that recognizes, notwithstanding the extent of investment in an original work, that copies of such works are, today, produced at only trivial marginal cost–whether authorized or unauthorized.  Modern copyright policy simply does not properly account for this.

Copyright is broken.  The copyright term is preposterously long, and making it longer over and over again does not enhance public respect for the instutition.  To the contrary, the change to effectively eternal copyright confirms another cultural reality that copyright absolutists ignore:  People feel that they have been “ripped off” by the stakeholders for generations.  They have been made to buy compilations of music they did not want in order to get one song.  They hear that they have to fear prosecution if they watch the Super Bowl with too many friends at the same time.  It’s always something, and it’s nonsense.

Moreover, one floor “up” from every-day public interaction with copyright, the institution’s heavy hand in the courtroom had made it no friends on the street.  Copyright statutory damages and attorneys fees, and the policy-distortive way they operate in the courts, have far overcompensated for the problem of IP piracy.  Instead of affecting the behavior of defaulting, offshore and judgment-proof mass infringers, they are mainly utilized to hammer Mom and Pop, and their kids off at college, into submission.  And because as a practical matter that fee shifting is almost entirely one way, there is no meaningful financial incentive whatsoever for copyright owners to either refrain from litigation or to temper their litigation demands.

People are contemptuous of copyright because of such overreaching, and they are learning to look the other way at or engage in file downloading.  It’s just like when people begin to develop resistance to insurance claim fraud after being burned by one unreasonable denial of coverage after another.  Right or wrong, people respond to autocratic control by denying their oppressors moral legitimacy. This works not only in states but in “free markets” that aren’t so free–ones that are highly regulated such as, well, the market for copyright-protected content and for insurance.  Users’ interaction with “the system” becomes an “us vs. them” battle, not mutual intercourse governed by fundamentally comprehensible rules of the road.  And that’s not a fight that, technologically, copyright can win.

Copyright, a concept based on a very moral argument, has as an institution lost much of its moral claim by these practices.  It doesn’t help, in a culture of intense economic class consciousness, that all can see (just try and avoid it) the massive imbalance of wealth distribution between consumers of popular “content” known as “entertainment” and those who–creative or not–benefit so “disproportionately” from restrictions on the distribution of that content.  And, again, this is despite near-zero marginal costs of reproduction (hence, attenuated risk) as well as stunning economies of scale.

If Big Copyright thinks it’s going to make information not “want to be free” by merely sentencing it to longer prison terms and throwing it in solitary, well, who knows?  It just might get shivved in the prison yard by some of that “collective social product” yet.

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* If I didn’t understand IP so darned well I’d say I’m going to “copyright” or “trademark” or “patent” that metaphor, but while it does not want to be free, it is free, and if you sit down and think about it you’ll see just how perfect it is and I will not bill you for that pleasure, either.

Originally posted 2011-02-22 13:25:33. Republished by Blog Post Promoter