The Internet Threat

In The Public Domain: Enclosing the Commons of the Mind, James Boyle devotes Chapter 4 to “the Internet Threat”, which is the way of thinking that “Big Media” (my term--not his--for publishers, music labels, movie studios...) use to justify continuing their grip on power. His explanation helped put things into context for me. The Internet Threat, he explains

... is beguilingly simple. The Internet makes copying cheaper and [so Big Media] must meet the greater danger of illicit copying with more expansive rights, harsher penalties, and expanded protections. ... [w]ithout an increase in private property rights, cheaper copying will eat the heart out of our creative and cultural industries.

This has a certain logic – but it also sounds way wrong. Why? Boyle is clear that he does not disagree with the basic idea of copyright, and admits that Big Media are harmed by illicit copying. But, he goes on to show how this thinking is “dramatically incomplete” – and bad for individual freedom and cultural expression.

• For one thing, although new technology enables the potential for harming copyright holders, it also enables potential for benefitting copyright holders (e.g., with new promotion and distribution opportunities). It’s not clear, on balance, whether the harms outweigh the benefits. (And, even if this could be accurately measured today, the balance will likely change tomorrow.) “A large, leaky market may actually provide more revenue than a small one over which one’s control is much stronger.” Big media wants protection from the dangers, without regard to the benefits they receive.
• Another problem with the argument of the “Internet Threat” is that Big Media uses it to target the technologies which threaten them. Boyle describes the story of video recorders, which came on the scene in the ‘70’s with dramatically “cheaper copying”. Movie studios were “horrified” by video recorders, which they saw as a critical threat to their business model of tightly controlled distribution. In a famous suit against Sony (manufacturer of the Betamax), the movie studios sought to hold Sony liable because their machines could be used to violate copyright. Effectively, they wanted to be able to control the technology that threatened them. But the Supreme Court recognized that, since the technology could be used for legitimate, fair use purposes (like for time-shifting of TV programs), then the movie studios had no right to control the new technology. They had to learn to live with the existence of video recorders (and, ironically, figured out how to profit from them).

One way to view all this is that the new technological and social developments of the Internet represent entirely new “industries”. And, if established industries feel threatened by that, they can either adapt or perish. But, they should not control the playing field for newcomers. “Imagine”, opines Boyle, “if we had given the lamp-oil sellers the right to define the rules under which the newfangled electric light companies would operate”. We are, together, creating a new world of information and social relations. Exciting. Challenging. Profound.

The Public Domain: What does it look like?

I’m reading The Public Domain: Enclosing the Commons of the Mind by James Boyle and just finished Chapter 2 (Thomas Jefferson Writes a Letter).

It’s hard to mentally envision the “public domain” because, while we may think about intellectual property itself, we tend not to conceptualize its opposite, the “outside” of intellectual property. The public domain, Boyle says, is “not some gummy residue left behind when all the good stuff has been covered by [intellectual] property law” (p. 40-41). The public domain is, rather, the vast majority of our culture. (Language itself, for instance, is part of the public domain. You don’t have to buy “English, Professional Edition”; it’s just there for you to use as you wish.)

The whole justification for the government granting copyrights and patents – which are, in effect, monopolies – is to provide a form of “protection” in order to encourage authors and inventors to put forth the time, effort and expense to create new works, and then to receive reasonable recognition and reward in return. But, in summarizing Jefferson’s warning about this protection, such monopolies “should be tightly limited in time and should not last a day longer than necessary to encourage the innovation in the first place.” (p. 21) In other words, some protection may be useful, but it should be as temporary and limited as possible.

This has provided me a metaphorical image. I think the public domain is like a coral reef. The vast, beautiful majority is comprised of long-dead coral animals. On the edges, here and there at any given time, are living coral polyps. The live a little while and then die, their calcified remains adding incrementally to the overall coral reef. The living coral polyps need some protection to do their job. But their lives are temporary. If their lives were permanent, the reef wouldn’t grow. And the collective result of their temporary “production” is the giant, diverse coral reef for others to use and enjoy (ignoring, of course, the tragic ecological threat posed to real coral in the real world).

This is not a perfect metaphor for lots of reasons. But it’s helped me construct a mental image for the public domain: vast, beautiful, diverse. And, to the extent that intellectual property is justified and useful (which is an argument in its own right), it should be limited and temporary in order to enrich our shared public domain as soon as possible.

This is one reason Creative Commons make so much sense. Enabling individual creators to determine for themselves the limits of their copyright is a much more nuanced and efficient way of applying “just the right amount” of protection for each creator’s work. The government’s current one-size-fits-all system is both heavy and ham-handed by comparison. In order to protect the very few creations that might (another argument) warrant extensive protection, it “overprotects” all creative works, and, in so doing, squanders the dynamic potential of our public domain -- the “basis for our art, our science and our self-understanding... the raw material from which we make new inventions and create new cultural worlds.” (p. 39)