03 May 2005

Two Ships in the Night

Professor Crawford had an all-too-familiar experience moderating a panel recently: She ended up with parties who didn't communicate with each other. As she puts it:

RIAA: Copyright law is about control. Other Guys: Copyright law is about encouraging innovation.
RIAA: Copyright infringement is immoral and is destroying small songwriters. Other Guys: The content industries should embrace online business models.

Can I just say that these positions are not opposed at a fundamental level? As a Constitutional matter, copyright is about promoting progress in science and the useful arts (ok, "other guys," are you happy now?) through the mechanism of exclusive rights for a limited time (ok, RIAA, are you happy now?)—in other words, the goal and the mechanism are both of Constitutional gravitas. What this really implies is the following dependent set of concepts:

  • Innovation and creation of new works is good for society.
  • Individuals, and not collectives, do the most/best innovation, although sometimes they do work together.
  • Economic reward is the least-intrusive means for a government to encourage innovation.
  • Economic rewards should be determined through market forces as little distorted by preconceived notions of value as possible, because the value of innovation cannot be determined before the fact.
  • Innovation must eventually become common coin to be helpful to society as a whole.

The real problem is that the two "opposed parties" in the debate are not the proper representatives of the creators. The RIAA is not a creator of works; in fact, it tends to stifle creativity in the name of the next quarterly report and predictable revenue streams. The RIAA is instead a patron. Patronage is a valid means of paying creators, but not the only one—and, in fact, it is one that is implicitly discounted by the IP Clause (Article I, § 8, cl. 8). On the other hand, the "other guys" are seldom interested in using creations to promote progress in science and the useful arts; instead, they want copies for themselves. Sure, there are a few who use materials as parts of greater wholes—Ken Burns comes to mind—but that argues only for changes in degree, not in kind, of protection.

It would have been interesting if Professor Crawford had moderated a debate that included a representative from the ultimate herd of cats: freelance creators of works. I'd gladly join in, but I was in Chicago this past weekend (and if you're really interested, I'm sure you can spot a number of embarassing pictures of me on the web from that set of events). <SARCASM> Of course, those crazy science fiction writers never think about the effect of change on things, so they're not a representative sample. </SARCASM>