Creativity & Control, Part 2
Adkinson, William F. Jr.
"Creativity & Control, Part 2" BY WILLIAM F ADKINSON, JR. Stanford Law Professor Lawrence Lessig's new book, The Future of Ideas, was recently excerpted in these pages. Lessig describes two possible...
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...Certain transformative uses receive Think of it as a Mute button for the world around you...
...Recent developments in digital content suggest the current framework of copyright laws is falling short of this goal...
...Lessig appears to have little regard for the extent to which the competitive pressures facing firms protect users' interests, and expresses concerns about the "monopoly" conferred by copyright...
...Lessig lastly proposes that Congress constrain the ability of content owners to use technological measures to protect their products from piracy...
...Congress can neither adequately anticipate fast-moving technological and business developments, nor design compulsory licensing institutions flexible enough to adjust to them, as the ongoing experience with Webcast licensing illustrates...
...22 THE AMERICAN SPECTATOR • MAY/JUNE 2002...
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...Few economists would contend that these numbers are insufficient for a workably competitive market...
...The mechanism for obtaining access for customary or protected purposes may also be used to obtain access for copying and distribution...
...Lessig emphasizes the opportunity for computer users to "rip, mix [and] burn" music and other digital contentforms of creativity that depends critically on copying the expression of others...
...But "we" act through highly imperfect governmental institutions, subject to influence by the very corporations that Lessig distrusts.Worse yet, as Lessig himself has recognized, these institutions tend to be bureaucratic, resistant to innovation, and insufficiently flexible to respond in Internet time...
...These lawsuits did not attack new technology, only its use to pirate copyrighted content...
...Piracy itself is in fact the central problem facing digital creations...
...The answer, in large part, is because the "creativity" he would protect is highly derivative...
...Technological protection may well be essential to induce content owners to make many works available for distribution over the Internet at all...
...But if copyright leaves a rich public domain, why is Lessig so concerned about the future of creativity...
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...And he darkly warns that "the future of ideas is in the balance...
...Indeed, Lessig approvingly quotes judge Alex Kozinski, who has said that copyright "encourages others to build freely on the ideas that underlie" copyrighted expression...
...Many, such as Harry Potter, are available illegally as soon as they are released in theaters...
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...The high rate of technological and business transformation makes private control especially desirable...
...Technological innovators remain free to distribute licensed content, including content from independent labels and recording artists seeking to circumvent traditional channels...
...indeed, if the labels fail to adopt such innovations, they will be easier to topple...
...Lessig does cite some potentially transformative uses of existing works, which may reflect substantial creativity...
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...From the outset, this thesis is difficult to square with basic facts about the Information Age-particu William EAdkinson,Jr...
...DRM's potential to provide benefits such as inexpensive "pay per use" is widely recognized...
...Literally billions of recordings and movie files are downloaded via "file sharing" services each month...
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...Government has a key role in defining and enforcing the property rights (especially copyrights) involved, but should let competing private firms design and test business models, and set prices...
...The record and movie companies, according to Lessig, are acting like "dinosaurs" in suing Napster and its progeny, fighting "every form of innovation...
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...Recall that copyrighted works are not monopolies in the antitrust sense-they lack monopoly power-and the ideas contained in them are in the public domain from the outset...
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...But as Columbia Law Professor Jane Ginsburg has observed, litigation against Napster and others "is best understood as an attempt to tame a new technology into copyright friendliness, rather than as an endeavor to suppress it altogether...
...Q1494 For int,innarinn ,N• all ,Air pnaducrs: wws .hose.comJq 1494 Better S"e d ttart>r.]gh nmsearch MAY/JUNE 2002 - THE AMERICAN SPECTATOR 2 I some protection already under "fair use" principles...
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...Indeed, the words "rip" and "burn" are most commonly associated with Internet piracy of music and, increasingly, movies-pure copying, with no creative element at all...
...This lack of effective protection from this piracy is the greatest threat to incentives to create digital works and distribute them over the Internet...
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...While such constraints may sound innocuous, they could gravely impair the efficacy of technological protection, especially in light of the expansive view taken by some (especially academics) of fair use...
...Policymakers should focus on solving this difficult problem, rather than on quick-and counterproductive-"fixes...
...The opportunity for radical challenges to the labels' system of production and distribution remains...
...Lessig recognizes that the Internet "exposes unprecedented realms of copyrighted content to theft," since "digital content can be copied perfectly and practically freely...
...But even these terms are unlikely to interfere with creativity or confer power over consumers...
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...CREATIVITY & CONTROL, PART 2 SBY WILLIAM F ADKINSON, JR...
...With this in mind, let us consider the changes Lessig proposes, starting with cutting back on copyright duration to a maximum of 75 years.The most recent extension-to nearly 100 years, and even more in some casesmay in fact be difficult to justify as necessary to promoting the creation of works...
...The development of such a market depends crucially on the existence of clear, enforceable property rights...
...The necessary legislative and regulatory proceedings (and resulting litigation) would cause lengthy delays...
...In particular, he argues that protection technology that fails to accommodate "fair use" should not receive the protections from hackers contained in the Digital Millennium Copyright Act...
...Price discrimination enables the seller, in Jane Ginsburg's words, "to offer endusers a variety of distinctly-priced options for enjoyment of copyrighted works...
...While copyrights do convey a legal monopoly over the exercise of certain rights, prominent antitrust experts like judge Richard Posner conclude that "copyrights .. . rarely confer monopoly power" in an antitrust sense...
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...Moreover, there are a substantial number of competitors in each of these industries-seven major movie studios and five major record companies, plus a variety of independents...
...Lessig describes two possible futures for the Internet-one an enormous but vacuous shopping mall, the other a flowering of barely imaginable forms of creativity...
...At one level, new technologies have disrupted the balance between piracy and enforcement...
...Copyrighted music and motion pictures must compete for consumers' interest...
...I agree with Professor Lessig that a robust, growing market for rich digital online content will play a key role in the next generation of IT growth...
...We're that confident that Y11011 he delighted...
...is Senior Policy Counsel at The Progress & Freedom Foundation in Washington...
...New and improved business models will emerge, and policymakers would do well to allow this process of "creative destruction" to work its course...
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...Lessig's proposal for compulsory licensing of online music is fatally flawed...
...In my view, the expansion of creative content on the Internet will be best served through primary reliance on markets...
...The ultimate question then, is deciding what mix of private control (disciplined by the market) and governmental control (disciplined by political institutions) is optimal...
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...At a deeper level, the lack of a robust framework of property rights disrupts and distorts the marketplace, and thus prevents all participants-consumers, creators and distributors-from enjoying the new technologies' full benefits...
...Government-mandated royalties will also undermine incentives, especially as Internet distribution expands...
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...Moreover, there is every reason to expect that content providers would use technological protection and digital rights management-DRM-to benefit consurners...
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...Perhaps these protections should be expanded incrementally to promote certain creative activities, but this question should be addressed directly, and not conflated with protecting simple copying or its close cousins...
...larly with the explosion in access to information made possible by the digital revolution...
...Creating the conditions for a workable online content market should rank near the top of the list of priorities for those concerned about the health of the digital economy...
...More important, government intrusion would interfere with the critical process of developing business models that can attract high-quality online content...
...He argues that through legal and technological machinationsand specifically, the over-assertion of copyright-business interests are charting a course toward the first...
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...In contrast to his skepticism that the marketplace will protect users adequately, Lessig seems to have considerable faith that "we" can achieve a better result...
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...Designing technology to overcome these problems may prove extremely challenging, making it very difficult, if not impossible, to preserve some uses without enabling widespread piracy...
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Vol. 35 • May 2002 • No. 3
