King Marketing

Before copyright law someone would get hold of a manuscript and knock off a few thousand penny copies of Dickens and sell them illegally, for which he was never remunerated, and he had no legal recourse. Today, people rip off source code from other programs, and big companies spy on little innovative companies. Wanting to get paid for your work, and to have the integrity of that work protected by an understood legal framework, is a far cry from egotism and greed.

Copyright and IP laws have been abused by well-lawyered-up corporations, and it’s deplorable. But is that the fault of copyright, a mechanism intended to protect the weak, or the fault of people abusing the system / reshaping the system to their own ends? It can be reshaped back if we want it to.

In the meantime, we can’t eat our ideals. To give up copyright, we might as well declare every day Earn Nothing Day and then we have to live in a van, down by the river. Does egotism and greed have anything to do with feeding your family?

As a small businessperson, inventor or software developer, let’s say I invest a lot of time and money into creating something useful with the intent to sell it. Of course I want some sort of legal protection for my work — precisely to prevent a Microsoft, Monsanto or General Electric from ripping off me, my colleagues, my employees and their families. To do otherwise would be to act against our own economic self-interest.

There is economic cost already built up in the product — research, development time, overtime, expenses, manufacturing, distribution — that has to be recouped. But since apparently no-one can own an idea, is all that money imaginary? I don’t think so.

Nothing binds anyone to traditional copyright models anyway. For those who want/need something with more liberal terms, that encourage sharing and collaboration, there are alternatives like the GPL or the Creative Commons or copyleft. The very fact that are even market alternatives for copyrights these days is encouraging.

(Is it possible to be an egotistical, greedy bastard while running OpenOffice on Linux? I digress.)

Here’s a parallel that explains the root of the problem, which is the classic tragedy-of-the-commons scenario.

In England, most television is financed by a license fee. Some people don’t pay, so they send people around with electronic “television detectors” to find cheaters. Is that fascist, or fair? If someone ‘gets away with it’ they are being a free rider on the system and driving up the costs for everyone else, so it is in society’s interest to discourage this behaviour, or the quality of their programming goes down.

Filesharing is another area where abuse can ‘ruin it for everyone.’ But Canada came up with a better solution: a levy on blank media, which includes MP3 players like iPods. The funds collected are destined to be evenly distributed to all recording artists to offset projected losses from filesharing.

In agreeing to this mechanism, we have created a fascinating collective solution with a legal twist, where filesharing / cd ripping is de facto encouraged because we in effect pay for the right to do so upfront. It will be interesting to see if this legal precedent extends to DVDs and even the content of books/magazines, someday.

Solutions like the blank media levy, or UK TV licenses, are examples of arbitrated, cooperative responses to collective action problems. In order to ensure fairness, they could not be left up to the free market to decide: the state had to develop legislation or participate in arbitration, and these processes were overseen in good faith by all the stakeholders — citizens, nonprofits, elected representatives, artists and yes, corporations.

An argument is often made that market logic isn’t so good for culture, particularly ‘challenging’ or minority art. We like to think, for every Britney a dozen Negativlands languish.

But in fact what the market tends to do is help art or ideas, of any stripe, find an appreciative audience very efficiently. It’s what markets do. There is a market for Rush Limbaugh, and he finds his way to his listeners as easily as they seek him out. For every kind of music, from Gregorian chants to white noise bursts, there is an audience as well.

I think we risk throwing the baby out with the bathwater when we tar all corporations as evil monsters (as much as they paint filesharers as arrr, pirates, matey!).

For example, without the financial, organizational and structural advantages that corporations have, like good talent development, national distribution networks, or even having the ability to avoid bankruptcy every time a record or movie bombs — a lot of the artists and thinkers we enjoy today would remain unknown to us. They would be starving and going back to their job at the bank. Yes, even Noam Chomsky.

In short, corporations are not evil in and of themselves, but the way they are regulated and structured, in response to market incentives, encourages antisocial behaviour that ultimately works against even their long-term interests: you can’t strip-mine culture forever with cheap and shallow things before you damage the topsoil permanently.

If we cry wolf at the Big Bad Corporation everytime they do something we disagree with, we are in effect creating a victim culture, handing a lot more power to corporations than they really hold or deserve credit for, at least in my opinion.

So is the solution to eliminate the corporation, or to change the playing field and/or the incentives to encourage positive behaviour?

In the end, I think only citizens, acting through the state, can help change the incentives of the market to ensure fairness — for example, Canadian content regulations (for better or worse) helped foster a homegrown star system in response to domination by foreign acts and labels. It can work, it just needs people to participate, not abdicate the system.

[edited for clarity Friday, Dec. 17]