Response to Neil Turkewitz

Response to Neil Turkewitz, Executive Vice President of the RIAA, "Copyright, Fair Use and the Public Interest" in Cultural Comment, Cultural Commons, December 2004.

Neil Turkewitz has mischaracterized the stance of Lawrence Lessig and others in his comments, and his statements need to be corrected and placed in a broader context. While I support most of Lessig's positions, I will not purport to speak specifically for him here, or for the EFF. I will speak for myself, as a grass-roots creator and proponent of the public interest.

False dichotomy: Turkewitz complains about 'the false premise underlying the basic anti-copyright position - that is, that the basic strain on the copyright system is to achieve a balance between the "public" on the one hand, and "private copyright owners" on the other. In this formulation, the "public's" interest is exclusively defined as the ability to get copyrighted materials as cheaply as possible, with free obviously being the best (since it is the cheapest) option.' However, this complaint is something of a straw horse.

It is true that there have been extremists who have called copyright "obsolete" and called for its complete dissolution. I agree that such an extreme claim is unquestionably wrong and harmful. The fundamental social contract underlying copyright is as pertinent today as it ever was: in order to provide incentives for enabling the broadest possible range of creativity (because of the public benefit that breadth ultimately provides), it makes sense to create a viable economic market to reflect the public value of any and all creative work, so that all creators can potentially be compensated for the opportunity costs of creating intellectual works "on spec."

Copyright optimalism: However, there are more than just two polar positions on the question of copyright. While the "copyright minimalists" are surely wrong, there is still a critically important distinction between "maximalist" and "optimalist" positions on copyright, and Turkewitz, despite his protestations of balance, represents a maximalist organization (the RIAA), and inaccurately paints Lessig, EFF and other optimalists as minimalists. Copyright maximalism is as surely harmful to society as minimalism, as it limits control over the market success of creativity to a small, powerful elite (in this case, it is a corporate oligopoly rather than a government monopoly, but the effect would be similarly destructive to society). Everyone in this discussion, including myself, will claim to take the middle, balanced position while describing opponents as extremists. This is public-relations spin, to be sure, but in some cases it is more than just spin.

The straw-horse dichotomy described by Turkewitz is surely false. The public does have an interest in protecting a fair economic value for creative work in our society, and not simply in getting something for nothing. However this distracts from a deeper question Turkewitz does not address: what is the best way to structure a market in order to most accurately reflect the genuine public value of creative work?

Copyright is based on the premise that creative works can be physically duplicated and distributed as intact objects, and control over that duplication and distribution is the leverage of enforcement for the market value. This is an artificial model, and not actually fundamental to the underlying social contract. The reason that such a contract is necessary in the first place is because creative "intellectual works" are inherently problematic for a market system.

Public goods: Intellectual works fall into the category of "public goods" because they are non-rivalrous (i.e., if I teach you a song, I have not given up my knowledge of the song, or ability to sing it myself - you don't have to take anything away from me in order to get something yourself) and non-excludable (i.e., if someone hears a song performed, no one can stop them from learning it - once it is let out into the market, it is merely information which cannot be controlled directly through physical means, but only by constraining its propagation, whether human or technological). Public goods present special difficulties for a market-based economy because the market tends to value products in terms of the cost to create and distribute products, and for public goods this cost is essentially reduced to zero, so there is no incentive for anyone to produce or protect public goods without something else to provide that incentive.

This is the fundamental reason that a social contract was necessary in the first place: the natural world does not provide a way to form a viable market around the value of creative work. It is a case of inherent market failure.

Social contract: In order to address this market failure, government steps in to create artificial (and intentionally limited) property rights that can support a working marketplace for creative work, and that is the basis for "intellectual property" including copyrights. Copyrights were based on the idea of "fixation" of the work in some physical medium as a prerequisite to distributing it to an audience, and its rules initially applied exclusively to characteristics that were enforceable for physical objects (such as maps and books, and later sound recordings and audiovisual media), namely constraints on the physical duplication and distribution of copies of the work.

New digital information technology, especially the Internet and the computers connected to it, has profoundly undermined the physical control over duplication and distribution of intellectual works. This presents a systematic problem for the old paradigm of physical copyright enforcement, unless one considers Draconian methods of imposing artificial information control on the Internet. In short, given the advent of new technology, and the speed with which it has become pervasive and critically important to the operation of the economy and society as a whole, we are presented with new choices. We can choose to go one way or another, but we cannot choose to remain in the old paradigm, because it no longer fits.

New paradigms: What copyright optimalists argue for is the design of new market paradigms that maintain the original intent of valuing creative work in a similar balance as before. These paradigms are based on an offshoot of the copyright paradigm: blanket licensing of performance rights, and efficient formalization of processes for licensing derivative works. The important aspect of these models is that they abandon the idea of controlling the distribution or use of intellectual works, and concentrate on mandating payment following the monitoring of use. Controlling duplication, distribution and performance is no longer the lever by which value is extracted, transaction-by-transaction, from the market. Instead, a pool of revenue is derived from a broad range of public sources that benefit from the collective advantage of information propagation on the Internet, and that pool is allocated according to the distribution of use of information across the network.

These models are all still in early stages of development, and details remain to be worked out among them. However, they all have a real potential to restructure the market for intellectual works as used online, in ways that could protect the incentives for creativity.

Other new paradigms: The major alternative to such proposals is that of the copyright maximalists - to impose artificial constraints on information flow over the Internet in order to attempt to mimic the constraints of the old marketplace for physical, fixed media. A major flaw of this approach is that it cannot accurately be described as a "return" to the old paradigm, because the pervasive and invasive characteristics of the Internet add important features that were not present in the old paradigm.

Specifically, areas of the physical world that were previously not available to feasible physical enforcement were the domain of "fair use" including private, non-commercial and educational use. These were accepted as part of the former balance of the market, and did not erode the market value of commercially distributed creative works. They provided a vital domain for creative experimentation to take place broadly on an informal basis, and were the source of most innovation in the realm of creative trends.

The old way is lost and gone: We cannot return to the old media world because the methods of content control that would be necessary to return to the transaction-enforceable market would extend themselves into the non-commercial realm and obliterate it. In the process, a kind of deeply personal invasion of privacy would also be imposed on the full range of data exchanged on the Internet, which, unlike broadcasting, involves a great deal of personal communications along the lines of telephone conversations.

So, to portray copyright optimalists as wanting to somehow remove existing copyrights is inaccurate. What they want is to prevent the extension of existing rights into unprecedented areas, which is, in effect, what the maximalists are fighting for.

Moving forward: Turkewitz describes how copyrights were a progressive step beyond the old elite-controlled patronage system, and they were. However, because of the marketing costs in a mass-media-driven society, private patronage has been replaced by corporate patronage in the form of a media oligopoly that controls the most significant and effective access to the marketplace. His organization represents the interests of that oligopoly, often at the expense of the creative people themselves who are forced to go through their gates to get to their audience.

The Internet holds some profound potentials in the way of enabling more forms of direct access to the audience for individual creators, and that may put pressure on the old economic model upon which the media oligopoly thrives, so it is understandable that they would fight against those potentials. But, it is important to distinguish the interests of copyright holders (often large corporations) from the interests of the creative people who produce the actual intellectual works whose copyrights are owned by those corporations.

Society's interests are specifically in enabling the widest range of creativity possible in a fair market context. They are not in protecting specific corporate powers or market structures. In an ideal world, society would enable creators to address the audience as directly as possible, with the least possible distortion from market intermediation. The Internet holds the potential to move us in that direction, and it is the large media corporations who are pushing back against that social improvement in market dynamics, presumably because it might erode their current dominance over the marketplace.

Turkewitz warns of the "tyranny of government control" over information, but completely ignores the increasing potential for the tyranny of corporate control over information, which is equally dangerous. Government has a proper role in intervening in cases of market failure - that was the basis for creating copyrights in the first place. Highly concentrated market power is another form of market failure that similarly justifies government intervention.

The proper role of such intervention is to support a fair and balanced market structure that distributes competitive incentives over a wide range of participants. At the present time, it is still not clear what the government should do, if anything. But it is clear what the government should not do: it should not extend the already-considerable market power of media conglomerates to realms that they never controlled in the past. And it should allow the process of building a new, working model to proceed on its own merits.

Common ground: The best way to proceed in the way of designing a new information market is to stop demonizing the opposition, to focus on common ground, and honestly build from that starting point. Many in the optimalist camp are ready to do exactly that. These issues most importantly include the desire to see creators fairly compensated for the public value of their creations.

But it takes the full range of stakeholders to come to the table in order for this to work. Unless everyone feels that such a discussion is better than their best alternatives, they will not play along. And apparently, the media oligopoly has not decided that it can't do better by trying to force their unilateral and self-serving agenda. What is occurring today is a power battle that will set the context of any potential negotiations in the future.

It is critical that the government not step in to unnecessarily support the oligopoly in its quest for dominance over control of information propagation. Culture is a public good that belongs to The People, and should not belong to corporate masters.

Dan Krimm
December 2004