Friday, July 06, 2012

Recent reading: copyright and uncertainty

Michael A. Carrier, Copyright and Innovation: The Untold Story: Really interesting piece based on interviews with people in tech and music about the effects of Napster and Napster on digital music innovation.  One nicely made point (of many): record labels had trouble adapting not just because they didn’t want to disaggregate tracks, but also because they had so much physically invested in the old way of doing things—and had managed to capture most of the gains to be had in the distribution channel from end retailers like Tower.  If you’ve spent a billion dollars buying trucks to deliver CDs but have ongoing distribution costs down to the minimum, digital looks extremely problematic.  Also, they didn’t have the rights clearance issues worked out (surprising how often that happens in copyright industries—the people who yell loudest about owning property might not really be the owners).  Short-termism and a culture focused on yearly bonuses also comes in for criticism, as with other sectors of the economy.  A quick overview:
One innovator likened the uncertainty to “a protection racket” or “the way that I imagine politics work in corrupt countries” where “everything is OK until it’s not OK.”  In those settings, “you do what you want until one day you can’t and they come and your tail light’s broken.” That situation, in which “there isn’t a strong rule of law,” is similar to “the current copyright system” in which it’s “actually impossible to run a fully legal music service.”
Contrast this with Steven J. Horowitz, Copyright’s Asymmetric Uncertainty, which claims that because “users are risk seekers in the face of liability, they engage in more (not less) expression under an uncertain regime than under a clear one. Copyright holders by contrast are risk averse, valuing clear entitlements more than equivalent murky ones.” Horowitz reaches this conclusion in substantial part by defining users as “those who want to use preexisting works to create novel expression . . . . Unlike the copyright holder, the potential user tends not to create with an eye toward exclusive distribution of his work.” Not for nothing when we're talking tolerance for being accused of breaking the law, this ideal type is explicitly a “he.” Also of course this skims over key sources of uncertainty for platforms, documentarians who need E&O insurance, educational fair use, etc.


  1. Steve Horowitz8:24 PM

    Professor Tushnet,

    Thanks for taking the time to read my paper! It looks like the quoted bit from Professor Carrier neatly aligns with my basic criticism of copyright's uncertainty: the primary problem is that this is no way to run a legal system committed to the rule of law, particularly in light of the harsh (even punitive) remedies that copyright affords.

    As for the uncertainty in the areas you mention, I think the bigger problem for those groups are (1) again, the penalties are too severe, and (2) the scope of copyright is too broad. I tried as much as possible to take both of those as a given, but doing so may at times seem artificial. In any event, I agree that there's a problem.


  2. I agree that the rule of law issues are significant, but I don't think it's fair to say that this is just a problem of penalties (though it is significantly a problem of penalties). Universities, gatekeepers such as publishers and insurers, and platforms are not risk-tolerant; they are risk-averse. It's of course true that they'd be less risk-averse if they faced lower damages, as you can see in the University of Georgia litigation. But I don't think you've correctly described the risk preferences of many "users" as conventionally defined in copyright debates. For one thing, the cost of litigation itself is enough to operate as a significant deterrent. Separately, gatekeepers almost never have the same commitment to preserving the speaker's message as the speaker herself, and so they'll tell her to change rather than fight even a winnable battle.

    Separately, I don't think you have enough evidence about the risk preferences of even the subset of users on which you focus; I think your analysis could be improved by thinking about which users operate in ignorance of the law and therefore with no particular subjective feeling of risk; which users operate using norms of fairness that make them feel safe whether or not the law conforms to their ideas; which users think the chances of getting caught are low even though they assume that (1) they're breaking the law or (2) regardless of merit, they simply couldn't afford a fight (this also requires that they assume that the first move will be a takedown notice rather than a lawsuit, so they can afford to put up a video etc. and see if it gets taken down); and so on. If you're already defining "users" as the limited set of people who want to make new works and don't care about commercialization, most of them will fit into those classes, and that means that legal un/certainty won't do very much in itself. If you really want an account of how users think, there are thicker ones available (e.g., Henry Jenkins); if you don't trust their self-reports because people make up rationales for their behavior that are really based on underlying risk calculations--which is certainly possible--you need some stronger ways to connect the law, whatever it is, with the risks that users in fact perceive.