Larry Lessig was on Fresh Air yesterday talking about his new book and the Stanford -> Harvard switch. For diehard Lessig fans and followers (like me) there wasn’t much you haven’t already heard, but then again, it’s always interesting to listen to attempts to educate the public (well, the NPR listenership at least) in the politics of file sharing and the Copyright Term Extension Act.
I must confess that I generally enjoy just hearing Larry Lessig talk. He has such a smooth, crisp, measured enunciation that I might even enjoy listening to him read nutritional labels. But while Lessig touched on quite a few old and new interesting points, the highlight for me was what Terry Gross said around 17:30. That’s when she expressed bewilderment at the dominant theory of copyright law.
Apparently, Terry Gross was unaware that the purpose of copyright is to create incentives for new works of authorship via limited-in-time monopoly rights. Apparently, she had always thought that copyright was about giving some money to the artists that make valuable things and not ripping them off. Lessig quickly set her straight by citing Jefferson and Madison.
But her initial reaction made me think: Perhaps part of what is wrong with copyright today is that Terry Gross — who is a creative person herself and has been talking with artists, writers, and actors practically non-stop for many years — has never managed to intuit the dominant theory of copyright.
Jessica Litman once suggested that there could be an issue here:
On a more academic level, however, the divergence between the actual law and the popular impression of it may hold a lesson for us, especially insofar as we are drawn to grand theory. When copyright scholars rely on the assumption that authors know the law under discussion, their models threaten to describe a fantasy kingdom peopled with authors who behave as no authors behave. Those models will, of course, generate improved models and counter-models, each coherent and a thing of beauty. Authors, unaffected by the improvements in the theories, will continue muddling through. There is some danger, however, that the literature will describe ever more hypothetical versions of the world. When we interpret a law that authors do not believe in through the lens of theoretical models peopled with unreal authors who know the law’s provisions and adjust their creative output accordingly, we run a risk: We may remove ourselves even further from the concrete reality in which people who create works of authorship ply their trades. As the literature discusses copyright as a means of encouraging authorship, the authors it invokes may become increasingly alien from real ones.
Jessica Litman, Copyright as Myth, 53 U. Pitt. L. Rev. 235, 247-48 (1991). Things have not changed that much. Paying attention to what people like Terry Gross think copyright is — rather than what lawyers think it is — is probably still a smart idea. The perspective of the lawyers may win in court, but ideally, it should be connected to the actual practice of creative production.
Understanding popular “copynorms” can be important not just for scholars, but for businesses as well. A couple years ago, Mark Shultz advised that if copyright law is going to really function in the online environment, it needs to be understood (and respected) by those it seeks to regulate. The recent strategy shift by the RIAA suggests that he was right — at some point, the “lawsuit as educational device” tactic fails not just from a PR perspective, but from a business perspective as well.
Jessica Litman was on to something. (Truer words may never have been written, some might say.) Understanding the actual practices and beliefs of creative people, on the one hand, and of users, consumers, and “remixers,” on the other hand, is important. If you’re in “the business,” on one side or a second (or a third), it may be enough. For those people trying to understand where the law has come from, where it is going, and where it should go, it may not be. Enough, that is. Normatively, we should no more simply accept those practices and beliefs as authoritative and legitimate in themselves than we (or they) should simply accept the incentive/Progress argument as legitimate and authoritative in itself.
Neither position is self-evident. The risk that Jessica Litman alluded is not merely that the law may remove itself from reality, but also that the law may substitute one myth for another.
We have all read the stories of parents sued for hundreds of thousands of dollars because their teenage children file swapped music over the internet. In many cases, the parents were bullied into settlement, even though they may not have been guilty of anything. Over 35,000 individuals were sued for sharing music in violation of copyright law. The government should have ended this travesty a long time ago, but our political leaders are in the RIAA’s pocket for campaign donations. This list includes Barack Obama. I wish I could tell you the RIAA had come to their senses and realized the unfairness of what they were doing, but I can’t. They are stopping because it isn’t profitable any more.
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Thanks for the really interesting post. I am a fan of trying to match theories to behavior, but I agree with Mike that normative theories have some independence from independent views. The best theories, I suppose, are those that are solid normatively, but that also explain the behavior of participants.
For example, the best economic theory for trade secret law – which is about spending on protection and misappropriation – bears little resemblance to how my former clients viewed trade secrets (something more akin to labor value theory). That said, studies (and informal observations) show that spending on cost and misappropriation differs in countries with less trade secret protection. (Shameless plug: You can read more here – http://papers.ssrn.com/abstract=885778)
Thus, I’m not so sure that the Terry Gross view is that far from the prevailing copyright theory. After all, isn’t giving artists money and not ripping them off the primary incentive they get to create works?
For that matter, from a pure social value point of view, the limited terms requirement is an afterthought borne of non-zero transactions costs and the desire for creative but non-money making artistic works. If transactions costs were zero and all works were profit driven, then terms could be unlimited – anyone desiring reuse would just license the work from the prior creator.
Of course, transactions costs are not zero, we desire non-economic works, and we have the possibility of independent creation, but all of these are tangential to the primary incentive artists have – making their works non-public goods.
Great post. I think the issue goes way beyond Terri Gross, however; I’m convinced (although I’ve never systematically collected examples — this is article no. 452 on my to-do list) that you can find plenty of examples of *courts* stating or acting as though copyright is primarily a just reward for past authorship rather than an incentive for future authorship.
Also, this is a bit tangential, but there’s plenty of room for disagreement on Lessig’s version of history. I don’t think the citations to Jefferson prove much of anything, and the Madison quotes you typically see are either letters to Jefferson, who needed to be mollified, or very vague stuff from the Federalist. The strict IP-as-only-an-incentive theory does not really become conventional wisdom among lawyers until the anti-patent Supreme Court of the 1930s through 60s.
“you can find plenty of examples of *courts* stating or acting as though copyright is primarily a just reward for past authorship rather than an incentive for future authorship.”
Yeah, but if you don’t reward past past behavior ex post, won’t that kill ex ante incentives?
Thanks for pointing me to this conversation. I was most intrigued by their tete-a-tete over the productivity of things like YouTube, Google, and Amazon. Gross intimates a classic critique of them as parasitic “middlemen,” implying that these darlings of Web 2.0 aren’t as valuable as the content they organized–or at least critiquing their power vis a vis the authors of that content. I don’t recall Lessig’s response to her questioning on that point, but James Boyle on On the Media had what I think is the best answer:
BROOKE GLADSTONE: But James, surely the Internet and all the piracy that it allows suggests that we need to strengthen intellectual property rights and not weaken them.
JAMES BOYLE: First of all, just think about this: Supposing you were somebody who had copyrighted content, in a world where you had a potential audience of a million people, and basically there was no illicit copying at all. And I come along and I say, okay Brooke, I have a deal for you. I have this thing called the Internet. Suddenly you’re going to be able to reach a billion people, two billion people. That’s going to be your potential audience. I’m going to reduce your cost of reproduction of your material to zero. I’m going to reduce your costs of advertising dramatically, so suddenly you can reach this global audience for pennies.
“But the downside is that now there’s going to be an illicit copying level of 10 percent or 20 percent or 50 percent. Which would you pick, the closed world with perfect control and a million people, or the open world with the possibility of reaching billions, but also tradeoff; you lose control of your work?
“What the movie companies and the record companies want is all the advantages of the new technology and none of its disadvantages.”
Like Boyle, I think there are genuine complaints to be heard from content owners. But big media has so aggressively stonewalled consideration of rational payment/licensing systems that I have little sympathy.
On the other hand, I’m not nearly as pro-Web 2.0 as Lessig sounds on the Fresh Air program….and I think that those who’ve been fighting on the side of good in the “copyright wars” have to be very nimble and flexible if they are to avoid embracing new masters as unaccountable as the big content industries.
“But the downside is that now there’s going to be an illicit copying level of 10 percent or 20 percent or 50 percent. Which would you pick, the closed world with perfect control and a million people, or the open world with the possibility of reaching billions, but also tradeoff; you lose control of your work?”
Ah, but why can’t we strive for better control where I get to choose whether or not I lose control? Sure, the argument makes sense, but this argument assumes that content owners get that choice. And even if there is 50% illicit copying in this giant market, why not shoot for 40%, or 30% or 5%?
I suppose the counter argument is that if you don’t allow free copying then you lose the growth in market, but I’m not convinced, especially for large content providers that can reach that billion people on their own.
The “control” argument is an odd one, I’ve always thought. The author’s (or owner’s) right to control distribution of the work is a relevant question, but it shouldn’t be dispositive. Even Creative Commons licenses recognize that.
Eventually, and unfortunately, many of these arguments start to resemble the old joke about a convention of stand-up comedians who amuse themselves by repeating jokes that are so old that they’ve been given numbers, to save everyone the trouble of repeating the whole thing. The first one stands up and says, “5.” And everyone laughs. The next one stands up and says “17.” And everyone laughs. The third one stands up and says, “12.” And there is silence. Finally, someone says, “Some guys just can’t tell a joke.”
I agree about the rehashing of arguments. Unfortunately, empirical evidence one way or the other is hard to come by.
I agree that control shouldn’t be dispositive, but neither should positive externalities. Creative Commons realizes that control isn’t dispositive, but even there the author get’s to choose what level of control he, she, or it wants – and that choice is what preserves ex ante incentives. For example, I have to think that many open source authors might not contribute as much if they couldn’t rely on copyright/agreements to control downstream users – keeping them from going proprietary. Similarly, NBC might invest more in creating content if it can monetize that content on its own website rather than rely on YouTube to reach the millions. The tradeoff, of course, is the loss in social benefit caused by fewer people having access to that content.
The real answer, I think, lies somewhere in between – balancing network benefits with preserving ex ante incentives to maximize social benefits – a complex question that may never get answered fully. The point of my comment was that ex ante incentives are rarely discussed in “free internet” arguments like Boyle’s.
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