Among the premises commonly stated to argue that we must “rebalance copyright for the 21st century,” we find two widely spread and oft-repeated generalizations, both of which are false. The first generalization is about access, which proposes to speak for the consumer and implies—or explicitly declares—that copyright acts as a barrier to the diffusion of cultural works. The second generalization concerns the creation of new works and proposes that copyright acts as a barrier to derivative and new works, that it stops new creators from building upon existing works, which is inarguably an essential—even unavoidable—part of the creative process.
The fundamental problem with both of these generalizations is that neither the consumer’s nor the creator’s experiences, practices, or behaviors largely support the assertions being made. Nevertheless digital-rights activists, pundits, and academics continue to repeat these messages as though they are common sensical, observable truths; and further, they tend to conflate the two interests—consumers and creators—despite the fact that these are generally separate subjects with regard to copyrighted works. As such, I’m presenting the following as a two part-part essay. Part I will address the first generalization about consumers, and Part II will address the second generalization about creators building upon existing works. And, although I understand that it is very popular to say that “we are all creators now,” that there is no longer a line between creator and consumer, I believe this is also not true in the market overall. In Part II, I will address the hybrid consumer/creator, but for the sake of clarity, Part I concerns only those people who consume works and have no interest whatsoever in creating even so much as a minor mash-up. After all, this is almost certainly how we can describe the majority of the market we honestly call consumers.
Part I – Access and the Consumer
Statements made about copyright limiting access are typically—one might even say purposely—phrased in high-minded, aspirational tones. They involve words like culture, enlightenment, democracy, information, and education. The assumption is that copyright terms are so long, that prospective consumers of important and valuable works have difficulty gaining access to them—or at least difficulty relative to the speed of the Internet. This paints a picture in which copyrights keep great works under lock and key, thus starving society of the many rich, cultural experiences to which we are the rightful heirs as stated in the intellectual property clause of the Constitution.
Of course, one of the simplest, initial answers to this charge is that the lion’s share—by a substantial margin—of the works that are pirated via the Internet, are mass-appeal media, which have been produced only very recently; this includes works like motion pictures or hit TV shows that have not yet been officially distributed by their producers. So, even the most tamely-worded proposals to reduce copyright terms to roughly a decade on the grounds that this would be “more in synch with the 21st century,” are naive at best, and outright lies at worst. Or as Robert Levine puts it (and I have quoted him on this before), “It doesn’t matter if copyright is Life plus 70 or Life pus 50 years, because on the Internet, copyright lasts about ten seconds.”
With regard to older works (classics), the reformer’s view, which says these belong in the public domain sooner, is actually more elitist than its proponents would like to believe. It assumes the majority of the market actually cares to have access to these works, which is a typically liberal leap of faith that wants to lead even the most stubborn horses to water. I know that sounds snobbish, but it’s quite the opposite. I don’t think less of my neighbors because they don’t likely give a damn whether or not the entire oeuvres of Bergman or Fellini are available via legal streaming, but that they are eager to watch Game of Thrones, Sons of Anarchy, The Walking Dead, and sports. To the contrary, they represent the real market, while it is only a handful of us oddballs who might choose to make an evening out of re-watching Fanny and Alexander.
So, to put this in exaggerated terms, it wouldn’t really matter to a very large portion of the market if the works they don’t care to access had perpetual copyrights or if the works they do care about had ten-year copyrights because most consumers want to access current works immediately, and they will acquire them—either legally or illegally—regardless of copyright terms. And because most of the works they do want are current, these are also widely available through legal means. So, in this regard, it is dishonest when the voices who say, “You can’t stop piracy,” or “Piracy is a reaction to scarcity,” happen to be the same voices who say that copyright terms should be shorter. One cannot argue in favor of both theft and shorter terms at the same time without sounding ridiculous.
Meanwhile, long copyright terms are probably the most effective mechanism by which to preserve classic works that at least some portion of the market does want to access, and in formats in which they prefer to experience them. Maintaining licensing regimes funds necessary restoration, remastering, fresh translation, publication, distribution, and other labors necessary to produce fresh editions of media that are desirable to the market for a large number of classic works. (Because if one is going to make an evening of an Ingmar Bergman film, one does not to watch some crappy digitization of it on YouTube.) Yet, nearly two years ago, the Duke University Center for the Study of the Public Domain released an article, devoid of any clear thesis, complaining rather strenuously that a list of great works, including Bergman’s The Seventh Seal, remained under copyright as of the start of 2014.
Naturally, I’m using Bergman as an example that could stand for any classic work of art or scholarship, and I wonder now, as I did in my rebuttal to that Duke post, what exactly does one want to do with The Seventh Seal other than to watch it? Which, by the way, is currently possible via Hulu, Amazon, or iTunes. So, not only does the copyright barrier not exist for the consumer in this case, but the narrative that is constantly repeated, even by scholars we’re meant to take very seriously, tells a double-fiction—first, by implying that there are scores of disenfranchised people hungry to watch this classic film; and second, that those who do want to see it are unable to do so. Yet, here I sit, three dollars and about four button clicks away from watching Max Von Sydow play chess with Death, if I want to.
Of course, any number of readers can produce the title of an obscure work that is either difficult or nearly impossible to find. But this has always been a challenge for the true enthusiast of a particular genre or artist, and its singular nature is again its own rebuttal to the claims made by copyright reformers that “the public” is underserved by the current IP regime. A tiny minority cannot necessarily represent “the public,” and the legal system cannot wholly anticipate and serve every unique desire. But again, for the true enthusiast in pursuit of an obscure work, the most sustainable preservation mechanism is likely going to be one that is built on a foundation of licensing. While random digitization by amateurs ripping DVDs, etc. may have the momentary appearance of “making works available,” it is a very poor—and entirely unreliable—form of preservation. For instance, MGM’s long-term interests in its library of famous musicals is the mechanism that maintains the prints and quality reproductions of Singin’ in the Rain, not YouTube and certainly not Putlocker. But in any regard, the more niche the interest of the consumer, the more we are talking about such a small fragment of the consumer market that it seems irrelevant to any practical debate about copyright terms acting as a general barrier to access.
Also, despite the fact that many classic works of art and scholarship are either in the public domain or cheaply accessible, the promised enlightenment that is supposed to follow as a consequence often looks a bit like a fading 60-watt bulb. For instance, in a bizarre moment of afflatus in May 2013, anti-copyright’s would-be prodigal son Derek Khanna stated on Twitter that people should not read The Great Gatsby because it is not yet in the public domain. This still elicits a Scooby-Do double-take to consider his logic, which advocates a specific illiteracy as a symbolic protest against copyright terms, despite the fact that this particular novel is so widely available that one is apt to trip over a discarded copy in a city park.
Nobody can justifiably argue that readers lack access to the works of Fitzgerald because of copyright terms. Meanwhile, I’m sure these works are available illegally right now, but that does not necessarily mean any more people are reading them than they were 20 years ago. In fact, Gatsby itself is probably being assigned to groaning high school students at this very moment, including at least several who will keep up the American tradition of taking their access for granted and dodge the reading altogether. And, for that matter, we seem to be witnessing a new phenomenon in American colleges whereby certain students are refusing to engage with various assigned classics because some theme, topic, or language offends their own special snowflakyness. All of which is to say that I suspect that with every new work that might be made more available by “rebalanced copyright,” we may simultaneously see new social and cultural reasons for consumers to disenfranchise themselves from works anyway.
The reality is that we have more works legally and affordably available than at any time in history, plus an entire black-market that trades in making works available for free. Yet, it is hard to find much evidence that this river of media has produced a more fertile society comprising a cultural literacy that extends beyond whatever is trending in any given moment. Last week, my kid’s middle school had a Dress as a Movie Character Day, and so my daughter (because she’s my kid) went as Charlie Chaplin. By midday, at least twenty schoolmates asked who she was, and some thought she was Adolf Hitler. I find this extraordinary. With all the information that’s available right now—all of it entirely unaffected by copyright—how do middle-class American kids get to be 13-14 years old and not at least recognize an icon like Chaplin’s Little Tramp — to say nothing of knowing what Adolf Hitler looked like? These are hardly images of arcana.
In another example, my eldest in college, taking a required American civics class, reports that several of his fellow students had no idea Germany was recently divided East/West, and they had also never heard of the Cuban Missile Crisis. How? Are these not digital natives who have grown up with “the world of knowledge at their fingertips”? It is preposterous to claim that their ignorance on these basics of general knowledge is because Google hasn’t been allowed to digitize enough content due to copyright constraints. So, can anyone rationally argue that accelerating the progress of works into the public domain has anything to do with a broader literacy? If these kids are missing certain fundamentals, it’s because of other reasons—mediocre schools and family influence being the most likely—that have nothing whatsoever to do with copyrights. Ironically enough, I think my generation may have acquired more cultural literacy just watching Looney-Tunes cartoons on one of a dozen TV networks than many a digital native has gained from all the “access” he supposedly has today. After all, our Bugs Bunny “scarcity” was a primer in world history, music, film history, Shakespeare, art history, literature—and in a certain Wile E. Coyote way, basic physics.
This is not to say, of course, that there isn’t literacy to be found in contemporary media. Writer Daniel Starkey offers a very frank article about growing up poor and committing petty larcenies in order to have some of the things the kids around him had. Entitled Piracy Gave Me a Future, Starkey’s main thesis is that media piracy provided him with access to a literacy he might otherwise never have had. He writes …
“Deus Ex was the first game I’d seen that listed its primary influences, which included philosophers like Hobbes, Voltaire, Locke. They were wealthy men, to be sure, but learning about their work set me on the path to learning about sociology, about history, about how much all media is one long chain of slightly modified ideas, with each new link adding a new twist or perspective. The game’s themes also spoke to some of the most personal concerns of my life, including economic class, injustice, about the disempowered fighting against a wealthy ruling class.”
And this is exactly the kind of anecdote the copyright “reformers” like to cite in order to prove the purpose of their agenda. But I would counter this with two points. The first—as I have already indicated—is that Starkey pirated works that were current and, therefore, would still be under copyright even with very short terms; and the second is that exceptional individuals like Mr. Starkey have throughout history found ways to educate themselves beyond the barriers of their circumstances. Those barriers are usually financial, cultural, or political while having very little to do with the specifics of intellectual property laws. After all, there are millions of kids whose parents bought them Deus Ex and who did not take from their gaming experiences the kind of life lessons that effected Starkey’s future. But it is the market of those millions of paying customers and the legal framework for development and distribution of the game that provides the foundation for producing Deus Ex in the first place. (It should be noted that Starkey’s article does not make any kind of mention regarding copyright reform; he is merely sharing his own introspection.)
The critics claim that copyright creates “artificial scarcity” in a time when technology demands abundance. They say we live in a “read/write” culture today, but this is only a fragment of the larger picture because I think we also live in a “don’t read/burn” culture, in which whatever is viral (ergo profitable) continually overwrites the kind of fundamentals of cultural literacy referred to above. One need only look at the state of our politics to see that my kids’ schoolmates aren’t the only ones who seem to have no knowledge of basic, historical facts and are living out Santayana’s axiom. Yet, organizations like the Electronic Frontier Foundation like to draw circuitous lines from a creator’s enforcement of his copyrights toward a slippery slope into political censorship. This was in fact the crux of one statement after the Ninth Circuit Court ruling in Lenz v UMG. As posted on the EFF site, attorney/activist Corynne McSherry says the following:
“The decision made by the appeals court today has ramifications far beyond Ms. Lenz’s rights to share her video with family and friends. We will all watch a lot of online video and analysis of presidential candidates in the months to come, and this ruling will help make sure that information remains uncensored.”
Aside from the specific rebuttal we might make to McSherry’s assertion that a rights holder can use DMCA to effectively censor a candidate or criticism of a candidate—because she can only be referring to very specific and rather unlikely circumstances—her larger point would be laughable if it were not so depressing. Have the hyperbolists at EFF not noticed that our digital-age, 140-character politics have become more reminiscent of the volatile, populist, and naive 19th century than anything akin to the revolutionary promise of a more progressive 21st? Remix isn’t just some fun thing the kids do with a song and some video clips, as Mr. Lessig would tell us, remix is also what’s happening to truth, to science, and to journalism that’s trying to stay relevant in a world moving faster than the speed of real investigation. So, it seems to me that we could hardly detect censorship in a public debate so utterly devoid of facts, reason, statesmanship, or even solid reportage in many cases. Yet, the EFF would have us believe that it will be some musician taking a video off YouTube that will in some way harm our political process. If anything, it may be the musician who’s the only one making any sense.
This is not to say that social and intellectual progress is not being made in many areas, or that digital technology does not play a significant role in that progress—only that copyright terms (or patent regimes for that matter) are not acting as a barrier to that progress. For all the anti-IP rhetoric, these regimes are probably as generative as they have ever been, and I sincerely doubt there is any measurable evidence to prove that the copyright system is holistically out of synch with the 21st century and the digital market. It’s just one of those things that sounds true and may even look true on the surface, but probably isn’t true if we really study the matter carefully. If anything, the present reveals that the general consumer has ample (legal) access to more works than he can realistically experience. At the same time, there are myriad social reasons why consumers do not access any number of works of art or scholarship, and it seems hardly reasonable to blame the rights of the artists and scholars for that.
In Part II, I’ll address the assertion that contemporary copyright is out of synch by acting as a barrier to the creation of new works.