Category: Law & Policy

The Revolution in the Mirror is Closer than it Appears

The father of modern chemistry Antoine-Laurent Lavoisier was beheaded in 1793 in what is now the Place de la Concorde. A victim of France’s post-revolutionary Reign of Terror, he was specifically marked for execution by one vengeful, lesser scientist named Jean-Paul Marat, whose incorrect theory about combustion had been publicly scorned by Lavoisier at the royal academy.

It’s rare when revolutions do not produce new tyrants, and of course the fact that our own war of independence avoided this fate is a legitimate source of national pride for Americans.  This doesn’t mean we’ve managed to avoid tyranny altogether, only that our despots tend to be CEOs instead of warlords.

In an article for Evonomics, Lawrence Lessig writes, “ … the biggest danger to free markets comes not so much from antimarket advocates (the Communists and worse!) as from strong and successful market players eager to protect themselves from the next round of strong and successful market players.”

Lessig is of course referring to historical precedent in which “old innovation” employs—or even revises—legal mechanisms as a means of protection against “new innovation”.  The familiar narrative is one in which the legacy industry clings to power for as long as it can while new industry inexorably builds the market of tomorrow.  Referring to the protectionists as capitalism’s biggest enemies, Lessig sets the stage as follows:

“…there are only two things we can be certain of when talking of free markets:  first that new innovation will change old; and second that old innovation will try to protect itself against the new.”

In the article, he identifies this protectionism as the kind of crony capitalism in Washington that ought to make allies of “progressives on the Left and free-market advocates on the Right”. And indeed, this type of alliance did manifest in 2012 with the shouting down of the SOPA and PIPA bills, when we saw paradoxical solidarity among members as divergent as the ultra-conservative Heritage Foundation and the anarchic hacktivist group Anonymous. And those bills were certainly labeled “protectionist”, although there were no reasonable grounds for portraying either their intent or their mechanisms in that light.  Still, one cannot deny that one droning note of rhetoric, which continues to muddy the waters, is a broad narrative of Old v New, with New having the advantage of at least appearing to be on the “right side” of history. After all,  history will tell you that New always wins.  That’s why it’s called New.

But the crucial detail Lessig leaves out of his otherwise reasonable premise is that New already won quite some time ago. The yearning revolution he’s talking about is in the rear-view mirror.  The self-proclaimed innovators—the market leaders who are presently writing the future and leading the public debate—already have the lion’s share of wealth at their backs.  Google, Apple, Facebook, UBER, Amazon, et al are not seedling enterprises trying to grow through the concrete and rusted barbed wire of outdated policy; they are the crown jewels of Wall Street and private equity with the capital to do just about anything they want and the PR budgets to tell the market that it’s what we want, too.  Far from banging their heads against a wall of protectionism, New industry is actively and effectively rewriting policy and public opinion; and Lessig is correct that both progressives on the Left and free-market advocates on the Right are cheering them on.  Though I don’t think he’s quite right that they should be.

Neither progressives nor free-market advocates (and I personally consider myself a bit of both) should be bamboozled by the rhetoric of innovation yet to come.  This is not to say that new inventions and new paradigms are not on the horizon—no doubt they are—only to propose that the corporations most likely to be at the forefront of the biggest changes, for better or worse, are already among the most financially and politically powerful entities in the world.  And Lessig is right that the powerful will use protectionist measures to entrench their interests, but the funny thing about our market today—in which a company like UBER goes from start-up to a $60bn market cap in five years—is that Silicon Valley’s leaders and VCs have disrupted protectionism itself and renamed it progress.

Redefining IP as Protectionsim

Not surprisingly, in this broader narrative about protectionism, Lessig invokes criticisms of both patent and copyright law.  With regard to the former, he refers to an increase in patent litigation from 2007 to 2011, with particular focus on the “patent troll”, who might litigate away an otherwise useful innovation.  Although patent trolls are a problem—the worst are sort of the ambulance-chasers of IP law—these actors do not generally represent a protectionist agenda for legacy business.  Ironically enough, though, the Google and Facebook-backed “reform” bill HR-9 is a protectionist proposal inasmuch as its language so broadly defines “patent trolls” that the law could actually harm small, entrepreneurial inventors while entrenching already-big patent owners—like Google and Facebook.

With regard to copyright, Lessig accuses the recording industry of seeking Internet radio rates “designed” to stifle diversity and competition online.  But in describing he innovation being hindered in this case, he first broadly conflates amateurs and enthusiasts with big, corporate players and then blames the RIAA for assuming the online radio market will consolidate.  It’s a bit hard to summarize his point here since he begs some important questions.  You can read the section for yourself, but his larger argument that the recoding industry “wants” a smaller market seems to overlook clear evidence that the networked economy tends to produce monopolies by its own means, and not because of so-called protectionist maneuvers by traditional industries.

Moreover, given that Lessig’s broader thesis is a criticism of money in politics, it seems especially disingenuous to ignore the fact that the VC money behind most of these technology plays is very much betting on market consolidation rather than expansion. In this extensive profile of Marc Andreessen, Tad Friend, writing for The New Yorker, describes the sensibilities of Silicon Valley’s major venture capitalists, who make big bets with the understanding that just one needs to become the “unicorn” while the others can fail entirely.

It is a rationale driven by an instinct for knowing that the 1000x return is somewhere in the mix of proposals that may sound like haphazard lunacy to many of us, but which sound like the future to this niche club of mostly male investors. But the point not to be missed is that this culture produces extraordinarily powerful, competition-resistant companies that go from zero to Forbes cover at historically unprecedented speed. And the political influence they wield scales in tandem, as we see when Google shifts in a matter of a few years from virtually no lobbying to ranking among the top ten in the country.  So, Lessig’s portrayal of private industry leveraging public policy is fair; it’s simply looking in the wrong direction.

Perhaps most importantly, the ideology of the venture capital behind the businesses we tend to aggregate under the generic term innovation is one that has almost no kinship with Lessig’s stated political reform agenda (i.e. getting money out of politics).  Guys like Marc Andreessen and Peter Thiel don’t talk about “fixing” American politics; they talk about rejecting it altogether—taking themselves quite seriously with proposals to establish alternative, technocratic states.

Utopian fantasies like Seasteading may be appealing to any number of libertarians and anarchists out there, but it’s a world view that should not in any way be confused with, for instance, a Bernie Sanders-like proposal to effect reform from within the system. In fact, the two interests are wholly antagonistic since Sanders-style political reform is predicated on forcing American-made wealth to reinvest in America itself—not on billionaires building autonomous societies akin to Ayn Rand’s magic valley in Atlas Shrugged.

Meanwhile, the extent to which Silicon Valley’s brand of libertarian ideology speaks with money in Washington, it is often disguised as anti-protectionist, legislative reform proposals just like HR-9.  Political clout is not exclusively a matter of pay-to-play; it’s also a manifestation of market capitalization that buys even unproven companies a seat at the table simply because they’re too disruptive to ignore. Meanwhile, it’s clear that there is a lot of stable, economic value in “old” industry. And so, this narrative that, for instance, the rights of individuals—be they authors or inventors—are just nuisance barriers to be innovated around, can foster our own economic reign of terror in which lesser innovators are financially incentivized to decapitate greater genius.

Fresh Scholarship on Copyright

For quite some time, too long perhaps, a considerable amount of academic scholarship has trended toward focus on copyright’s negative effects, or at least doubt its positive effects, without adequate analysis of the creative process itself.  When viewing the market, and especially creators, many academic views I have encountered appear to look solely at finished works, how the market interacts with those works, and then to interpolate from these data the creative process that generated the works in the first place.  As such, many attempts to reinvestigate copyright’s role in incentivizing production are incomplete. To quote from a new academic article that will be published in the March 2015 issue of the Harvard Law Review, “Copyright’s incentives/access debate has done a good job recognizing the risks. Yet it has all but ignored the rewards.”

At last, a legal scholar has emerged who has taken a scientific approach to examine the creative process in an effort to better understand copyright’s generative benefits.  Joseph P. Fishman, Climenko Fellow & Lecturer at Harvard Law School, is the first academic to my knowledge who has attempted to express in analytical terms what I believe most artists understand intuitively — that constraint is always part of the creative process, and that copyright’s constraints very likely produce a greater diversity of works than we would see in a market without such constraints.

In his paper, Fishman refutes the often misguided assumption that creative people require “absolute freedom” in order to be more creative.  Artists and creative producers understand that a process without constraints (or boundaries) is not a process at all but a road to madness or failure or both.  A novelist does not arbitrarily pick themes and plot devices and language as she goes, but makes firm choices and either sticks to them or changes them wholesale in the book in order to produce a story that her readers will want to follow.  Most of us are familiar with the Michelangelo-attributed quote about sculpting being the act of “cutting away everything that is not the angel.”  Fishman has quantified that metaphor in his paper titled Creating Around Copyright.

The title refers to a well-established and accepted benefit of patent law that “working around” patents generates the kind of diversity of useful inventions that benefit society exactly as intended.  Fishman’s thesis asks why this same working around principle is not applied to legal scholarship on the subject of copyright.  Why would working around copyright not be as diversely generative as working around patents?  Experientially, creators will tell you that it is.  And now Mr. Fishman has applied legal theory that corresponds with that experience.

Last July, I wrote this post describing how the creative process is always about working around obstacles and that obstacles — legal, financial, physical, logistical, and internal — are often the most important catalysts to producing unanticipated, creative solutions that themselves become the signature elements that give a work its unique or masterful qualities.  Shortly after publishing that piece, Fishman contacted me, still in the early stages of writing his paper.  We spoke for a while, and his article does cite that October post, but what I did not know was that he would produce such a thorough and scientifically-based explanation of what artists throughout history have consistently described anecdotally.

Citing extensive psychological research into the creative process, Fishman demonstrates that there is an optimal balance to be maintained between constraint and freedom.  Too much constraint fails to produce creative diversity, but so does too little constraint.  In order to view the creative process as a science, Fishman rightly describes artistic work as an exercise in problem solving no different from the activities of a scientist or technologist.  We tend to talk about the arts in emotional or poetic terms, but Fishman is right that the process is entirely analogous to problem identification and solution.  As such, the psychological experiments to which Fishman refers throughout his article suggest that a purely “open” process free of constraints produces less creative variation than a process with the right amount and right types of constraints.

Fishman contrasts various experiments in constraint with the path-of-least-resistance approach (i.e. freeform) to creative development; and in a copyright context, a path of least resistance might be the ability, for instance, to riff off any existing creative works without the permission of rights holders.  But Fishman explains, “Following this path of least resistance inhibits originality, and hence creativity, by launching a mimetic approach to problem solving.”  To translate that into a contemporary example:  the world would be more boring with a hundred simultaneously available Sherlock Holmes derivatives than with, say, one or two of those while creators are forced to invent other works.

One analogy that came to mind while reading Fishman’s article was child-raising.  You’re probably familiar either with the concept or the unfortunate experience of the young child whose parents allow him to “express himself” insofar as he is given few if any boundaries.  Those of us who have witnessed this catastrophe in action know that the unbounded child is not only a brat, but is a thoroughly unoriginal brat incapable of producing creative solutions, even if his parents might see genius in his mischief.  But the child who is given appropriate boundaries balanced with appropriate freedoms will produce volumes of creative work though play acting, building, arts and crafts, etc.  As engaged parents, we constantly try to find that balance between constraint and freedom that produces a person capable of creative (i.e. original) problem-solving skills, but we know for sure that the child without any constraints is a recipe for trouble.  It seems to me that Fishman is seeking an analogous balance with copyright law.

The article even goes so far as to create a taxonomy of constraints, identifying seven properties for examination with regard to their generative or restrictive effects.  With the first of these properties, Source, he discusses chosen vs imposed constraints, which is an interesting and important division to recognize.  An artist or group of artists will embark on a project with myriad imposed constraints (time and money always at the top of the list), and will need to pick a number of chosen constraints that actually give shape, texture, and voice to the finished product.  I would add to this taxonomy a third subcategory under Source that most artists probably understand, and this would be innate or internal constraints.   In fact, any artist who looks first at external constraints and not at internal ones may have to consider the possibility that his biggest barrier is that he is not in fact an artist.

 When I was still in college, I spent some time thinking about various artistic media in terms of their constraints, operating from the premise that these boundaries are in fact what define each medium and are, therefore, the source of their power to affect us as we want art to do. After all, when one attends a class in a medium, say photography, discussion begins with the boundaries of the medium, even though we don’t usually think of it that way.  New photo students will begin to consider composition, light, two-dimensionality, color, all of which are boundaries that define a thing we call a photograph as something distinct from, say, looking at the subject of that photograph in real life.  Or to put it another way, a constraint on a photograph is that it cannot make a sound, but a power that it has is that it can make the viewer perceive sound without hearing it and thus offer an experience that re-contextualizes “real life,” which is what art is supposed to do.

This contemplation of boundaries is particularly relevant, I believe, to filmmakers because film more than any other medium trades on a gestalt that what is being experienced is “real.”  Even the most fantastic on-screen world in a narrative film tends to draw viewers into an immersive experience that is more visceral than with other media.  Additionally, the hundreds of dynamic variables, choices, and obstacles that are constantly being managed in order to complete a motion picture ought to make filmmakers particularly cognizant of the generative power of constraint.  The line between an imposed workaround and a brilliant creative choice is so blurry as to be absurd.

In his article, Fishman mentions standup comedy, which is a medium that probably deserves more study than it gets in this context. He writes,  “In stand-up comedy, for instance, the reputational cost of appropriating others’ jokes stimulates continued innovation in developing new ones.”  What’s interesting about that world is that comedians don’t need copyright per se to protect their jokes because it is an unspoken rule that stealing someone else’s material will very quickly ostracize the thief from both fans and peers.  Some might view this as evidence of copyright’s irrelevance, but to Fishman’s point, it should be viewed as an endorsement of constraint’s generative capacity.  The accepted boundaries among comedians force them to work harder to find their own voices, which adds to the diversity of comedy rather than homogenize the medium.

It is heartening to see a legal scholar make the effort to examine the pros and cons of copyright from a creative-process perspective.  It is also about time.  I sincerely hope others in Mr. Fishman’s field take note.

See Working Around Copyright by Joseph P. Fishman here.