Law in the Internet Society
Charles Colman Paper #1

Professor Moglen writes that "coercive distribution schemes which have traditionally monetized the copyrights of artists are dying off" because they are "hopelessly inefficient." While their disappearance is perhaps inevitable, it will likely prove detrimental to the variety of artistic works produced and made available to the public.

As Professor Moglen has observed, in a zero-marginal-cost world, an artist is not harmed when someone consumes a digital copy of his work for free. Despite inevitable free-riders, some will choose to pay the artist for his work, even without a legal obligation to do so. One might predict that these people will open up their wallets because of social pressures, enthusiasm, gratitude, or a desire to fund more work by the artist. Even if only 10% of a work's audience chooses to donate, the argument goes, the creator will still be better off than he was under the old system, where major labels, book publishers, and movie studios took nearly everything and gave the artist the remaining crumbs.

I believe reliance on social pressures as a guarantee of generosity is misplaced, as Net usage is a solitary activity for a substantial portion of media consumers. Even those who are active in online communities do not experience social pressures equivalent to those exerted in real life. When a donation hat is passed at a concert, people surely wish to avoid being seen passing the hat without adding to the pot. No good analogue is possible on the Net without an extreme reduction in privacy. One can imagine some future facebook that posts a user's every economic transaction for all his friends to see (it does this already for Fandango tickets), but many would surely object to this. Without a repellent level of transparency, social pressures can only be brought to bear on the Net through intrusive questioning ("how much have you donated?"), or unprompted broadcasting of personal contributions. Neither practice is likely to gain traction in a culture that considers money to be a private matter.

Nevertheless, enthusiasm, gratitude, and a desire for more works by an artist will result in some voluntary contributions. The pay-what-you-wish model is best suited to singer/songwriters, book authors, and perhaps small-scale documentary filmmakers. Their projects require little expertise beyond that of the creator, and thus avoid a major production cost: coordination among multiple parties. These works are also particularly likely to elicit the generosity of the public because they have a face—that is, they are headed by a single creator with whom consumers have direct contact and can thus imagine a personal relationship. But these advantages have their limits. Because small-scale works have become so easy to produce and distribute, many more of them exist than at any other time in history—a “profusion of the small,” as Professor Moglen calls it. Even assuming that people continue to spend the same proportion of their income on media as before—a doubtful assumption, when payment is optional—each artist will now receive a smaller share of the pie. In the end, fewer people will be able to survive as professional artists. Still, this may not be cause for concern. Because small-scale works require the time and creative force of just one individual, they can be produced on nights and weekends with one’s discretionary income. Even if these moonlighters never see a dime in return for their efforts, many will continue to make art for the sake of reputation and because, as Professor Moglen writes, it is “an emergent property of human minds to create.”

However, along with a “profusion of the small,” we can also expect a significant “reduction of the large.” Works that require substantial investment, expensive technology or large teams of people face major barriers to creation in a voluntary contribution regime. Such works (television shows with large casts, movies with action scenes or elaborate special effects, orchestral recordings) cannot be easily created outside one’s day job with a small amount of disposable income. Few investors will pour large amounts of money into such projects in the hope that consumers will be generous enough to return the favor—particularly in hard economic times, when people naturally eliminate optional expenses first. (Corporations and private patrons will no doubt continue to sponsor creative works when they consider it beneficial to do so, but as professor Neil Netanel argues in Copyright and a Democratic Civil Society, 106 Yale L.J. 283, 358 (1996), such sponsorship undermines central goals of copyright law. I may address this in a subsequent paper.) Because expensive works often draw a large audience, they will suffer more acutely from the free-rider problem: it is difficult to reassure oneself that “everyone else” will donate to an obscure singer/songwriter, but easy to assume (reasonably, if mistakenly) that a donation to a major film would merely be a drop in the bucket. Furthermore, a consumer cannot easily imagine a personal relationship with a less visible creative figure—the director of a major film, a team of writers on a television show—in the way that he can with a singer/songwriter or author, who seems to speak directly to him. In the end, lack of funding will cause entire categories of complex and expensive works to disappear along with the corporations that financed those works in the past. It may well be that nothing can be done about this, but that does not mean our culture will not be impoverished as a result.

-- CharlesColman - 19 Nov 2008

This paper claims to be a response to my argument. It isn't. I'm not going to respond to the interlinear problems, because that doesn't seem productive right now. Your responsibility to understand arguments against which you are proposing objections is a basic component of intellectual integrity, and you must discharge it here before we can be expected to respond to the details of your positions.

I have not argued, as you say "that the transformation of media into a zero-marginal-cost good eliminates the need for proprietary copyright." Your essay concerns "art" and "artists," which for these purposes means non-functional digital goods. I have said nothing about the elimination of the need for proprietary treatment of such goods: there is no way to tell whether a proprietary work of art is superior or inferior to a competing free work, as one can with functional goods, so there is no moment of obsolescence for each proprietary work superseded by a free one. By a trivial inference that you presently play out at unnecessary length, the maximum variety and quality of goods will be achieved if all arrangements of production are facilitated. (If you rewrote your essay to indicate your agreement with me, the essay would then be an extended explication of the preceding sentence.)

But because distribution of digital goods is efficiently performed if the distribution right isn't limited, and cannot be prevented without impracticable levels of technological control and legal force (without regard to whether individual works are held as property by their creators or made available under licenses allowing free modification), it is a descriptive rather than normative statement that the coercive distribution schemes which have traditionally monetized the copyrights of artists are dying off. They are hopelessly inefficient, and they cannot keep themselves in the saddle by legal control of all digital technology, so they are doomed. Whether they were helpful in supporting artistic quality could be debated, but their normative status is now beside the point.

That's my argument. Your essay claims to be disagreeing where we are not at odds, and leaves entirely untouched the questions at which my analysis actually aims. You are free to agree with, disagree with, or ignore everything I have to say. But you cannot combine agreeing and ignoring under the banner of disagreement.

-- EbenMoglen - 30 Nov 2008

I think I understand now where I went wrong in stating your argument. I want to make additional changes to the paper, but in the meantime, I've gotten rid of the parts you find most objectionable and reframed the topic. I guess the paper basically does explain at length why "the maximum variety and quality of goods will be achieved if all arrangements of production are facilitated," though I think it contains a bit more insight than that. Anyway, I'll see what (if anything) I can do with it.

-- CharlesColman - 01 Dec 2008



Webs Webs

r3 - 01 Dec 2008 - 22:34:33 - CharlesColman
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM