In Part I of this response to Raustiala and Sprigman’s paper, I contend that the authors place too much emphasis on the porn industry (namely on one data company’s transformative effect) as a model that can be instructive for other types of creators. Primarily, I believe the authors fail to weigh the substantial differences between porn and nearly all other forms of copyrightable expression. In Part II, I respond to the paper’s main thesis that access to consumer data can significantly minimize the risk involved in producing a creative work and that this lowered barrier suggests a recalibration of copyright law in both theory and practice.
Although the paper’s authors do parenthetically admit that it is too soon to predict the extent to which “data-driven authorship” may reduce the risk of market failure, they still proceed to make a strenuous case for limiting copyright protections on this basis. While it seems very likely that data-mining us consumers will surely continue to influence the development of at least some creative works, it is indeed far too soon to assume that market success will be any more likely to result from algorithmic intuition than from good old-fashioned human instinct.
For one thing, even pre-digital over-analysis of market expectations has a long history of yielding works that audiences find dull and, well, predictable. Meanwhile, more than a few works of distinction are the products of gut feel, singular visions, and even drug-induced madness. Most of the time, of course, the works that earn and retain their place in the stars is pure happenstance and sweat—an unpredictable cosmic meeting of elements in both time and place, plus a lot of work.
But even if data-mining could produce the elusive magic box of prescience that increases the likelihood of market success by a significant margin, does this really implicate a change in copyright law as Raustiala and Sprigman propose? They write…
“Copyright is traditionally justified as necessary to protect investments in the production of creative works. If others are simply free to copy original works, then originators will find it impossible to recover their investments. If you want creativity, the story goes, you have to stop copying.”
That is a partial truth at best. Investment of either time or money, or both, is certainly one reason that is traditionally presented as the case for copyright protection, but it is not necessarily at the core of copyright’s purpose for existing. As referenced in this recent post, it has long been held in English courts, American courts, and the innate sentiments of many people that the fruits of the author’s labor are her property as a principle of natural right. So, it is hardly axiomatic that copyright’s raison d’etre is based solely on the protection of some externally measurable amount of investment risk.
To the contrary, copyright’s protections apply uniformly to works produced across a very wide spectrum of investment risk. A song written in a half hour is protected in exactly the same manner as a song mulled over for years, just like the boot-strapped indie film made with personal debt is protected the same as the hundred-million-dollar studio feature. The prodigy has the same rights as the late bloomer, and if the market rewards either creator, this will only reflect an appreciation of the work itself and not the amount of labor or risk invested to produce the work.
Relatedly, how might we measure the relative risk taken by various authors in order to then rationally limit copyright based the proposed Raustiala/Sprigman theory? Is the novelist who spends three years writing on spec taking a greater or lesser risk than the investors who pour millions into a new action movie? Even without detailed analysis, we can say with near certainty that the investors in the blockbuster film stand a much better chance of earning a substantial return than the book author will ever receive for her invested risk.
Yet, according to Raustiala/Sprigman, we might need to consider limiting the copyright protections for the speculative book authors on the grounds that the big-time movie investors may soon be able to use consumer data to reduce their risk by some as-yet-undefined margin. And if copyright were limited on this basis, how could such a policy achieve anything other than to exacerbate the disparity between corporate and individual creators? If, as the paper points out, TimeWarner needs AT&T’s data-mining capacity to compete with Netflix and Amazon, then it stands to reason that the independent author in a market dominated by “data-driven authorship” becomes an even smaller cog in the machine.
And this appears to be Raustiala and Sprigman’s real goal: to reduce the status of the author as an individual who does anything particularly special. After all, if we redefine the significance of the author, this would certainly be grounds for redefining the purpose and practice of copyright law. Despite the fact that there is no telling at this moment how significant “data-driven authorship” may be, the authors of this paper are ebullient over the prospect that it will likely “undermine the Promethean allegory” in favor of what they call the “Panoptian model.”
“In the Panoptian model, creators are no longer Promethean geniuses who bring something previously unknown from the heavens down to earth. Instead, they are unsleeping watchers. They are accessories to a system of surveillance — one that we, as consumers, have for the most part bought into willingly, but which we are nonetheless likely to understand [sic] not entirely new and less than entirely beneficent.”
I’ve read some artist-hating, tech-utopian declarations over the years, but this paper’s view of creators as “accessories to a system of surveillance” may be the winner. Its implications reach far beyond Raustalia and Sprigman’s feelings about authors and copyright and—perhaps unwittingly—advocates the supremacy of the networked hive in which each sovereign individual’s value is reduced to a data point.
In our contemporary narrative, when society is struggling to hold onto democratic principles (i.e. our humanity) against the forces of tech-enabled extremism, these academics, so eager to find some rationale for limiting copyright law, have managed to advocate what Professor Shoshana Zuboff has termed “surveillance capitalism.” “This new form of information capitalism aims to predict and modify human behavior as a means to produce revenue and market control,” she writes. Or to put it another way, Raustiala and Sprigman seem to hope that data can do for art what Cambridge Analytica has done for elections.
What many readers may not know is that Christopher Sprigman is one of the most influential thought leaders on contemporary copyright, which I find disconcerting to the extent this paper reflects “new thinking.” While I see no reason to scorn conversations about amending the practice of copyright law in response to new and clearly-definable market realities, I find the underlying view of creators espoused by this paper to be frankly cynical and ugly. As the authors write, “The [Panoptian] label refers to Argus Panoptes, the hundred-eyed giant of Greek mythology who served as unsleeping watchman for Hera.” Indeed.
At best, Argus is an apt metaphor for a surveillance state that serves the interests of a single, powerful, and jealous goddess. Of course, the force that brings down that surveillance state, which causes Argus to sleep with all eyes closed and thus lose his life to the sword of Mercury, is music. So, with respect to their chosen metaphor, it is notable that the future Raustiala and Sprigman want to embrace is one that does not celebrate the next Brian Wilson who tells family, friends, and corporate powers to “screw the formula” while he produces a landmark album that makes even the Beatles drop everything and say, “Damn. That’s different.”
Photo by kentoh
