April 8, 2003
Some Concerns on Playing Offense, Not Defense:
Today I was talking with Blythe about some of the problems in trying to make affirmative policy proposals to solve current problems in digital media.
One issue that kept coming up was how many different subpossibilities there are within each possible future scenario. For instance, as I’ve discussed before, your opinion of the status quo hinges on what you think of DRM. Your opinion of a no DMCA, let-the-market-decide scenario depends on whether you believe the market will really sort these issues out fairly (given the concentration in the entertainment industries and possible misuses of DRM). Within each possible policy choice, you have to play out tons of different alternatives to determine how it could unfold.
So many different issues are interconnected. For instance, I’ve noted how I see the broadcast flag issue as intimately connected to the spectrum issue. Furthermore, the future of television is also tied to commercial skipping and piracy as threats to the current business model. Even if you were to deal with piracy and deal with the spectrum side, the commercial skipping one would still greatly change people’s ability to profit from TV.
And what’s good for TV isn’t necessarily good for music. Even what’s good for consumers of TV isn’t necessarily good for consumers of music.
This complexity is quite overpowering for me sometimes. I don’t know where to begin to think about what sort of policy proposals I’d suggest writ large because there’re so many different variables to consider. So, I end up focusing narrowly on single pieces of legislation or change I’d favor. That’s good, but it’s weaker in some ways than the RIAA’s and MPAA’s stances, which fits all of their ideas into a larger framework.
Moreover, because there are so many variables and so many possibilities, I often feel like maybe what we should do is just pursue the laissez faire strategy. Get rid of the DMCA, and let technologists create and let people use technology. Give it a little more time, and we’ll go from there.
Though a more sweeping change, I think we should also push for opening up the spectrum now, because that’s key to letting technology flourish in a competitive market. It goes along with a let-the-market-decide mentality. Spectrum also plays a significant role in several issues in digital media. It’s critical to how we conceive of content’s production and distribution, and thus important to how we’re trying to protect the movie, television, and music industries. If we wait and try to deal with spectrum later, we might undermine any solution we come up with in the meantime. (This is not to say it’s significant to all issues; opening up spectrum or keeping spectrum the same doesn’t change the essence of the piracy problem.)
The DMCA is probably the most effective line of attack because it’s a much smaller change than opening the spectrum. But, as long as we’re pulling off needless restrictions, reshaping spectrum must be considered, too. It’s still a much more clear-cut argument than some other policy proposals, because the way spectrum is treated right now is “bad science.”
The problem with the laissez faire strategy is, first, that the free market strategy won’t necessarily be good (as noted above), and it’d be nice to mitigate those problems now. Second, when have we waited long enough? Think of this in terms of the debate about an Internet sales tax. We haven’t had one in part because we wanted to let e-commerce grow absent such constraints. But when is enough enough? Lastly, the laissez faire strategy doesn’t always feel like an affirmative strategy. It’s hard to say, “My policy proposal is no more policies for a few more years” because, with fair use and piracy in particular, it seems like there are plenty of urgent issues. Doesn’t it seem negligent to wait?
Many Congressmen treat it as negligence. They want a solution to these problems now; they fear the negative impacts on the economy, and they’re tired of dealing with the MPAA and RIAA breathing down their necks. That’s my impression, at least.
If that’s the case, then we’re almost forced into a position to propose more than a free market strategy. If they won’t settle for anything more than a quick fix (good or bad), then we’ve got to push policy changes like compulsory licensing.
Filed by Derek Slater at 7:06 pm under Reinventing Copyright
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