On January 25, the New York Times Magazine published a piece by Robert Boynton on "The Tyranny of Copyright" (available for a fee). It is an admiring report on the academic "Copy Left" - especially its principal spokesman, Stanford Professor Larry Lessig - and describes their "fear that the United States is becoming less free and less creative" due to the expansion of copyright.
As I argued in an earlier piece, this depiction is utterly at odds with reality. In recent years, creativity, personal expression, and communication have all expanded beyond what we ever could have imagined, largely as a result of the digital revolution - especially the Internet. The ease of obtaining and disseminating information is nothing short of amazing.
In order to make their case, Lessig et. al. basically argue that things are going to reverse quickly and radically. For example, Boynton recites a list of the "copyright horror stories," designating the legal actions brought by the record industry against those illegally distributing files as "the most publicized." Even efforts to sell music online are viewed with dread. Boynton reports that:
"The Copy Left sees innovations like iTunes, Apple's popular online music store, as the first step toward a society in which much of the cultural activity that we currently take for granted -- reading an encyclopedia in the public library, selling a geometry textbook to a friend, copying a song for a sibling -- will be rerouted through a system of micropayments in return for which the rights to ever smaller pieces of our culture are doled out."
But there is no mention of how this parade of horribles might happen in reality. One might think a serious, skeptical journalist might ask, but Boynton does not enlighten us.
Boynton makes much of Lessig's concern that copyright terms are too long. But Internet piracy has shrunk the effective copyright period to zero for the large and growing number of people using P2P systems. Copy Leftists don't want to discuss the narrow issue of stealing music; such copying cannot be seriously defended in the name of creativity. But at bottom, they seem to believe that people are entitled to obtain works for free, immediately.
Or more precisely, they are unwilling to accept any limitations on how content may be obtained or used, even limitations that are necessary to preserve the right of creators to have a meaningful opportunity to market their work. Rather, they seek to protect the free and illegal distribution of movie and music files on the Internet, unfettered by iTunes minimal constraints or even a price tag. They often invoke comparisons with an analog world in which technological limitations largely restrained infringement. Limited restraints to reign in piracy will leave consumers with a wealth of new opportunities.
And such limited restraints are essential. Copyright is designed to be the "engine of free expression," it promotes creativity by giving authors incentives to invest time and effort and money in creating new works. To fulfill this vital role, copyright laws must give creators effective means to protect these rights. (Indeed, the New York Times clearly recognizes this, copyrighting its works and demanding payment for use.) Most important, consumers as a group benefit from a system that eliminates free-riding, enabling the cost of a work to be spread over as many users as possible. (For more on this, see Jim DeLong's testimony last year.) And even a system of micropayments, enabling market transactions, can benefit consumers, vastly increasing both availability and convenience of works they want. (Randal Picker's article discusses these possibilities.)
Copy Leftists suggest, contrary to this tradition, that copyright is being used to inhibit creativity, for example by delaying the ability of authors to benefit from ideas. But this is nonsense - ideas are not protected by copyright at all and may be used immediately. More generally, Copy Leftists seem unwilling to recognize the enormous public value from works available for a price under copyright, including consumer surplus.
But apparently the Copy Left does not care much for mass markets in content anyway. Yale Professor Yochai Benkler says that TV has "narcotized us," and emphasizes that people are "interactors" who don't just buy goods and consume. Efforts to make content markets more efficient at serving consumers are unlikely to satisfy Professor Benkler.
Benkler's vision may be seen as elitist, utopian, or prophetic. But the fact remains the vast majority of us (well, me anyway) are overwhelmingly consumers of culture, enjoying the works created by those willing to invest their talents and money in creating music, movies, games, and other forms of digital entertainment products. The Copy Leftists are entitled to their vision. But they should not be permitted to undermine the copyright system that enables the rest of us to enjoy a cornucopia of entertainment and cultural works.