Category: Economics

Copyright is Not About Defending Old Models

old models

Pretty much since Napster (1999), tech pundits have been presumptuously lecturing pro-copyright creators about economist Joseph Schumpeter’s principle of “creative destruction.”  This is the observation that the market will naturally produce innovations which will displace existing products or services, often rendering the older models obsolete.  Take Schumpeter, add hubris and piles of money, and you get the “disrupt everything” culture of Silicon Valley—one that is so arrogant that it treats anyone who won’t join the disrupt rodeo as a Luddite and a fool.

Typically, anti-copyright pundits like to repeat the buggy whip cliché, claiming that the individuals and institutions who defend copyright are “clinging to the buggy whip industry while automobiles wiz by them on the highway.”  It’s an effective talking point if nobody’s paying much attention.  And since the internet itself hasn’t exactly helped in the paying attention department, the buggy whip analogy became an even easier pitch with the arrival of social media and the 140-character debate.

It’s a message that even many creators and artists bought up to a point; but the misdirection in the analogy distracts many observers from noticing the false comparison being made.  Because if we stick with the metaphor, then it is accurate to say that copyright advocates do not argue the cause of buggy whips in a world of automobiles; they merely assert that transportation is still in demand, regardless of how people and goods are to be conveyed.

The hidden truth in this faux-Schumpeter exercise is the fact that nothing has actually displaced consumer desire for creative works. We still want movies, books, TV shows, music, etc.  What has changed—and only for a segment of the market—is the means of conveyance for these products. The copyright proponent doesn’t really care whether the CD or vinyl album remains relevant—only that music itself is still in demand.  The principle of creative destruction doesn’t even belong in this conversation (though one could argue that a destructive form of creative thinking is at play.)

Apropos of my recent post When Copyright Criticism is Something Else, it is easy to confuse the subject of intellectual property rights with the efforts of an industry or business to “cling” to market share tied to a fading product. That some record labels sought to squeeze every dollar out of CD sales before their obsolescence is to be expected, but this has little to do with the principle that copyright should continue to protect the makers of music—and should be revised wherever it is failing to do so.  Even the mistakes made by the recording industry, through its stumbling adaptation to the internet, should be viewed as separate from a broad defense of copyright’s purpose.

The buggy whip analogy, in this context, is a lie.  And what’s most galling about this particular lie is that it is still aggressively evangelized by the one industry best suited to exacerbate the non-competitive trends that have shaped (or mutated) the American economy since at least the 1980s. The internet industry promises Schumpeter-like results—a vow to repeal and replace, if you will—for authors of creative works, if they are willing to abandon traditional notions of a property interest in their work. Not only has this proven to be a con in the world of creative arts, but the industry’s influence, even among tech entrepreneurs, hardly makes a compelling case for fostering competition and innovation.

A recent article in The Economist reports on a summit held at the University of Chicago, where academics have begun to rethink the state of competition in the American market resulting from the trend away from regulatory influence that began nearly 50 years ago. “Those that make a high return on capital can sustain their returns for longer, suggesting that less creative destruction is taking place. The number of new, tiny firms being born is at its lowest level since the 1970s,” the article states.  A little later, the article says the following about Big Tech:

“An analysis by The Economist in 2016 suggested that about half the pool of abnormally high profits is being earned by tech firms. The big five platform companies—Alphabet, Amazon, Apple, Facebook and Microsoft—earned $93bn last year and have high market shares, for instance in search and advertising. They are innovative but sometimes behave badly. They have bought 519 firms, often embryonic rivals, in the past decade, and may stifle them. The data they gather can lock customers into their products. They may also allow firms to exert their market power “vertically” up and down the supply chain—think of Amazon using information on what consumers buy to dominate the logistics business. Investors’ sky-high valuations for the platform firms suggest they will, in aggregate, roughly triple in size.” [Emphasis added]

The internet industry presents its products and services—and frankly its ideology—as the antidote to decades of competition-killing in the market; and a big bullet point in this message is that a legal framework like copyright is an obsolete barrier stifling your potential. It’s an economic fairy tale meant to imply that if it weren’t for copyright being wielded by big corporations, you would have an easier time becoming the next YouTube star or killer-app developer. If that sounds like an exaggeration, I’ll remind readers of the time Julie Samuels of the EFF said in context to the “future of copyright” (2013) that “We want a thousand more YouTubes.”  I’m not repeating this silly declaration to pick on Samuels per se, but to highlight the fact that copyright advocates are frequently accused of standing in the way of absurd projections dressed up as legitimate market potential.

It is a political tactic—not a serious economic discussion—to predict an impossible outcome and then blame a group or a particular legal regime for preventing that outcome.  And I am intrigued by the extent to which so-called progressives fall for this narrative given how similar it is to the false argument that “all regulation is a barrier to jobs and prosperity.”  There seems to be a blind spot to the reality that the industry, which insists that copyrights are stifling opportunity in the digital age, comprises the companies with some of the worst track records for fostering any innovation they do not own.

It would be wrong not to include global media conglomerates (i.e. major copyright holders) in the universe of entrenched corporations that have benefitted from this trend of consolidation.  No question they have–even to the extent of self-parody as when Tina Fey’s series 30 Rock (2006-2012) consistently lampooned the relationship between product giant GE, its network NBC, and the late-night comedy show Fey’s character writes. But the deregulatory policies, dating back at least a half-century, which have resulted in some of the ill-effects of mega-mergers and massive consolidation, cannot be blamed on copyright law, even if copyright plays a small role in that larger narrative.

For individuals—especially artists and creators—to abdicate copyright in response to  corporate domination is as irrational as giving up the right of free speech because we don’t like the SCOTUS ruling in Citizens United.  Copyright is one of many policy areas in which we must decide either to continue tweaking the system or to abandon the underlying principles altogether.  By inappropriately invoking Schumpeter in this debate, the internet industry seeks to disguise the fact that it has roughly the same attitude toward copyright’s protection of creators as the extraction industries have to environmental law’s protection of the biosphere.  Perhaps it’s time for copyright skeptics to recognize that the most outdated aspect of this whole conversation is their stupid buggy whip analogy.

Photo by DelmasLehman

Billionaires in Bunkers—The Luxury Apocalypse

Photo by CarlosYudica

Remember that theme “make the world better” that’s been pitched, promoted, and even believed by many a Silicon Valley innovator?  Well, according to Evan Osnos, writing for The New Yorker, a considerable number of tech-industry billionaires, rather than ask themselves what they might do as leaders to effect positive social change, are instead preparing for the day we all decide to kill them.

Doomsday planners, referred to as “preppers,” are described in Osnos’s in-depth article covering the history, psychology, and various styles of backup plans pursued by the very wealthy. It is certainly not just internet-industry tycoons who’ve invested in post-apocalyptic, luxury lifeboats; but I was particularly struck by the rationale of those who imagine that mass unemployment through automation could bring about a violent revolution.  “The fears vary,” writes Osnos, “but many worry that, as artificial intelligence takes away a growing share of jobs, there will be a backlash against Silicon Valley, America’s second-highest concentration of wealth.”

Among the on-the-record subjects Osnos interviewed was LinkedIn co-founder Reid Hoffman, who estimates that more than fifty percent of Silicon Valley’s billionaires have invested in some form of escape route. Examples cited include property in New Zealand with an emergency flight plan via private plane; a private island off the US coast; or a three-million dollar luxury bunker apartment at the Survival Condo Project, built inside a disused nuclear missile silo in Kansas and guarded by heavily-armed mercenaries.

Personally, when I think about various doomsday scenarios, the first question I ask is whether or not I’d even want to survive, and most of the time the answer is No.  I mean I wouldn’t even want to live at a time in human history prior to the invention of the flush toilet, so I don’t maintain active fantasies of slugging it out in a medieval, Mad Max-like world. These are fun thought exercises or the premises of some good fiction writing, but I think it’s adorable that the wealthy “prepper” imagines not only surviving the collapse of civilization but goes so far as to expect a rather comfortable survival at that.

The investment in these plans reveal the kind of arrogance that assumes that in a collapsed civilization, these folks would still maintain their status at the top of the food chain.  For instance, I’m not surprised that a private security team is happy to be paid today to guard that bunker; but on the other side of the cataclysmic threshold, where money might become meaningless, those same trained killers may decide the bunker is theirs and that the former billionaires can work for them.

Surviving a doomsday scenario naturally depends on the causes and the extent of collapse, but it seems to me that most of the possible histories present a world not worth surviving.  Even the description of Osnos’s tour of the Survival Condo Project with its founder Larry Hall sounds doomed to me:

The complex is a tall cylinder that resembles a corncob. Some levels are dedicated to private apartments and others offer shared amenities: a seventy-five-foot-long pool, a rock-climbing wall, an Astro-Turf “pet park,” a classroom with a line of Mac desktops, a gym, a movie theatre, and a library. It felt compact but not claustrophobic. We visited an armory packed with guns and ammo in case of an attack by non-members, and then a bare-walled room with a toilet. “We can lock people up and give them an adult time-out,” he said. In general, the rules are set by a condo association, which can vote to amend them. During a crisis, a “life-or-death situation,” Hall said, each adult would be required to work for four hours a day, and would not be allowed to leave without permission. “There’s controlled access in and out, and it’s governed by the board,” he said.

I’m not sure which is my favorite implied folly—the classroom full of  Macs for a world that might be devoid of electricity and almost certainly will no longer have a working internet; or Hall’s projection of internal governance and justice maintained by the condo board of the apocalypse.  Often, such scenarios end in cannibalism, so I’d rather be taken out with the first strike, thank you.

Alternatively, Osnos writes that the growth industry in supplying the survivalist imaginations of “preppers” also brings out high-profile critics, like PayPal co-founder Max Levchin, who considers his colleagues’ pricey lifeboats a “moral miscalculation”, and whom Osnos quotes thus:  “It’s one of the few things about Silicon Valley that I actively dislike—the sense that we are superior giants who move the needle and, even if it’s our own failure, must be spared.”

The best way to survive—indeed probably the only way to survive—the end of civilization is to invest in civilization itself and to hedge against collapse.  For all the many millions these people are wasting on exit strategies that would likely end in their grisly deaths anyway, they could put this wealth and their intelligence to better use.

For instance, Van Jones, on CNN last night, hosted a discussion with a group of West Virginia coal miners. They are representative of a large segment of the American population left behind by globalization and generally ignored by both Democrats and Republicans in Washington.  Their votes for Donald Trump, in an economic context, sound like a Hail Mary play—a roll of the dice that a man who seems to be an outlier will shake up the system enough to restore some political clout to the “rust belt” and provide them with economic opportunity that has been in decline for decades.

I assume that many of these “prepper” billionaires—be they tech wizards of Silicon Valley or capitalists of New York—are skeptical that Trump’s approach to restoring opportunities for these American workers is in any way realistic. Certainly they imply as much with some of their fears as to how social collapse might occur.  As such, perhaps their survivalist dollars and imaginations would be more wisely, to say nothing of more morally, invested in helping to develop solutions to some of the problems their own industries have created.  For instance, if there is truly no avoiding the march of automation toward the unemployment of tens of millions of people, these folks might want to devote their resources to meeting that challenge.  Because nobody can stockpile that much ammo.

CORRECTION:  First publication of this post inadvertently stated that Van Jones visited miners in Pennsylvania.

Copyright Still Essential to Economic Future 

iipa-infographicThere is a lot of anxiety about jobs these days and with good reason.  The subject of trade has a lot of people on edge, and we’re only just beginning to talk seriously about the very real prospect of automation killing middle-class jobs in places other than the obvious repetitive factory work.  As theoretical physicist Michio Kaku predicts in a video on BigThink.com, AI won’t replace everything.  “If your job is repetitive, if your job simply involves the friction of capitalism, that is, middlemen work, your job is doomed.  However, if your job involves creativity, imagination, innovation, thinking, experience, leadership, hey… there’s a bright future for you.  Because the economy itself is changing from commodity-based capital to intellectual capital.  Intellectual capital cannot be mass produced,” Kaku says.

2012 was the first year the “core copyright industries” broke the trillion-dollar mark for contribution to U.S. GDP, and that number has grown steadily since, with 2015 weighing in at $1.2 trillion according to the latest report from the International Intellectual Property Association (IIPA.)  As in the past, the new IIPA report shows the core copyright industries as growing at a faster rate (4.81%) than the entire rest of the American economy (2.11%). What it defines as the “core” includes industries directly associated with copyright ownership (e.g. publishing, movies, music, software), which continues to support about 5.5 million fairly high-paying middle-class jobs.  The IIPA also notes that what it defines as the “total copyright industries,” including those that derive direct benefit from the “core industries,” as supporting over 11 million jobs.

Critics of these types of positive-outlook reports often respond by asking rhetorically why then do copyright owners complain about infringements like large-scale piracy when they seem to be doing just fine?  To me, this is a bit like saying, “The air is breathable today, so why do we need environmental protections?”  Piracy is only one threat to copyright; another is a mindset that the purpose of copyright is largely obsolete in the digital age.

It is also important to maintain a perspective which distinguishes between macro views and micro views.  In the big picture, these types of reports from the IIPA reveal that investing in intellectual property overall remains a robust and positive sector.  This macro view will not, however, reveal specific subsections of the “core industries,” like the independent photographer whose works are appropriated in ways that eat away at the combined revenue streams for his small business.  I addressed a similar matter in this post with regard to the difference between major motion picture profitability writ large versus the effects of piracy on an independent production.

It has long been believed that as the market becomes more automated, the jobs that depend upon human creativity will never be taken over by the robots.  As Kaku points out, despite what the sci-fi writers say, AI doesn’t perform these tasks particularly well.  There are plenty of computer scientists who might beg to differ and certainly at least a few who insist that one day an AI will compose and perform symphonies, write novels, and make movies. But before we time-travel all the way into that reality, we currently live in a market economy that needs jobs to put food on the table.  And for the moment, the investment in copyright-based industry appears to offer better returns than many other sectors.

In this regard, the presidential transition represents a tricky moment for some of us.  The president I like, and I suspect a lot of creative people like, has not been good for IP and has been particularly starry-eyed when it comes to Silicon Valley’s influence on copyright policy.  I have repeatedly asserted that when many of the OSPs say “innovation,” what they really mean is non-creative destruction, which siphons value from certain kinds of labor without replacing it with new and comparable forms of labor opportunities. Now, as Andrew Orlowski observes in a new article for The Register, president-elect Trump’s Strategic and Policy Forum has “snubbed” the bigwigs of Silicon Valley, which Orlowski suggests reflects an understanding that Facebook and Google are simply not major job creators.

Personally, I’d like to see a balance on that forum. I don’t think we’re putting the internet on the shelf, and we’re certainly not going to effectively manage the 21st century economy by pretending digital technology and networked systems don’t exist.  But there’s also no denying the fact that the Obama administration was remiss in properly valuing the economic and social significance of copyright-based work, as evidenced by tone-deaf policies like the DOJ ruling on 100% music licensing, the FCC “unlock the box” proposal, and to an extent, even the policy direction of the Library of Congress.

One way or another, it would be great to see copyright become non-partisan again like it’s supposed to be.  Because no matter what other issues are in play, copyright supports one aspect of American life that I think we can all agree on—and that’s the bounty of creative works nearly everyone taps into every day. That’s the fun part of America, remember? These works don’t generally pollute the environment, cause adverse side-effects on users, or even break treaties with indigenous tribes.  And the fact that the fun industries sustain millions of good jobs, contribute nearly 7% to the U.S. economy, and add up to $177 billion in exports is kinda cool. Why wouldn’t we protect that?