Copyhype

Earlier this month, Mark Lemley asked Is the Sky Falling on the Content Industries? In the paper (a draft), he traces content owner claims over the past two centuries that new technologies will disrupt their businesses. The essay quickly spread across the blogosphere – garnering mentions on sites like Hypebot and Techdirt – and hitting the #1 spot on the SSRN charts within days of being uploaded. While not the first person to make the claim that content producers repeatedly invoke the impending doom of their respective industries, ¹See, e.g., here, here (2002), here (2003), and here (2006). the essay is notable because of who the writer is.

Lemley is “widely recognized as a preeminent scholar of intellectual property law,” a professor at Stanford Law School, and a founder and partner of Durie Tangri LLP. He has written over 100 published articles, six books (including two treatises), and is one of the 50 most cited authors in law journals. In other words, when Lemley speaks, people listen.

A casual Google search shows that nearly all the responses to Lemley’s article are positive – a reinforcement of what the writers and commentators already knew. The moral of the story seems to be that it’s time to stop listening to the content industries, cause we’ve heard this all before. That’s not, however, a very satisfying response for those most affected by disruptive technologies. Instead of nodding in agreement and moving on to the next hot topic of the day, let’s examine Lemley’s claims and conclusion in more depth and see what, if any, lessons we can learn from the examples he provides.

Chicken Little, meet the Boy Who Cried Wolf

The abstract reads:

Content owners claim they are doomed, because in the digital environment, they can’t compete with free. But they’ve made such claims before. This short essay traces the history of content owner claims that new technologies will destroy their business over the last two centuries. None have come to pass. It is likely the sky isn’t falling this time either. I suggest some ways content may continue to thrive in the digital environment.

The paper, at 15 pages, is brief, and the first ten of those pages are devoted to recounting those content owner claims. Unfortunately, within the first few sentences, Lemley writes, “The music industry tells us, as their revenues decline because of file sharing… No one is going to create new music anymore.” I’ve seen this canard repeated time after time. Obviously, as copyright is a comparatively recent development in human history, it is simply not true that people will cease to create without it. But is anyone actually claiming they will? All mentions I’ve seen of this statement have been in the context of setting it up only to knock it down – the classic straw man argument. If anyone can point out where a content industry has seriously made this claim, I’d be happy to see it.

Straw man aside, the tale of doomsday prophecies from content industries of yore concludes with Lemley saying “if you claim that the sky is falling whenever a new technology threatens an existing business model, the rest of the world can be forgiven for not believing you when you claim that this time around it’s going to be different than all the other times.” Or, as Mike Masnick more bluntly put it: “How many times will content industries claim the sky is falling before people stop believing them?” But is this the best lesson we can take away from these stories?

The sky is not literally falling every time it rains, but that doesn’t mean you won’t want an umbrella. Technology is disruptive to established industries; new media do displace old methods of communication. Saying “let’s not listen” whenever this happens ignores the fact that industries and creators bear the brunt of the disruption while struggling to adapt. Lemley tells how the spread of radio threatened the music industry at first, but soon became an integral part of that same industry. As noted by economist Stan Liebowitz, though, soon is a relative term – according to Liebowitz, it took nearly a quarter century for record sales to recover from the introduction of radio. ²Stan Liebowitz, The Elusive Symbiosis: The Impact of Radio on the Record Industry (March 2004). Today, we are in the midst of another lost decade for the music industry – with similar disruptions occurring in other content industries like newspapers, books, movies, and television.

Rather than being labelled as chickens little, it would be more helpful to those affected by these disruptions to see how past generations have responded to previous disruptions.  We should recognize that – like the rain – technological disruptions are a normal occurrence and figure out the best way to weather the storm.

Learning From the Past

Lemley’s collection of anecdotes may be a “breezy read” and “enjoyable,” but taking away universal lessons from these stories is difficult since he conflates all content industries and all technological disruptions, as though each new innovation is just another chapter in the story of a monolithic content industry. In many cases, the only similarity between the separate industries discussed in the article is that the content is protected by copyright law. The publishing industry is far different than the television industry; filmmakers live in a different world from painters; even a term like the “music industry” conflates disparate groups, lumping together everyone from record labels, music publishers, live venues, and more.

So, for instance, it’s difficult to compare the effect of the VCR on the television industry with the effect of photography on painters. We are dealing with two different industries facing two different technological disruptions. It may help to categorize the different types of new technologies based on their effect. Perhaps something like this:

• Technological reproduction – Before the printing press, books had to be copied by hand. And before photography, portraits had to be painted by an artist. The last hundred years especially has seen the introduction of technology that allows reproduction of content in a way that didn’t exist before.
• Experience-shifting technology – Some new technologies changed the way people interacted with content. The gramophone allowed music to be archived where before it had to be performed. The VCR allowed “time-shifting” of television broadcasts. The shifts can also be between who we experience content with, as when movie attendance experienced a drop after the introduction of television.
• Improved reproduction – Many of the later examples do not involve a disruption so much as an improvement. Cassette tapes are far easier for someone to copy than vinyl records. CDs were even easier, with the added bonus that you didn’t have to worry about quality loss. Copying mp3 files is almost effortless.

Lemley argues that shutting or locking down new technologies doesn’t work, and I’m inclined to agree. I’ll save that discussion for a future post. For now though, let’s focus on the broader picture. Talking about how “content industries” have cried foul over “new technologies” is overly simplistic and sheds little light on today’s challenges.

Instead, once we start categorizing disruptive innovations, we can begin seeing what responses work in each situation and what responses don’t. Technological reproduction where none existed before is monumental – the introduction of copyright law itself followed closely behind the invention of the printing press. Experience-shifting technologies open the door to new business models and innovations in copyright law like compulsory licensing schemes for phonographs and cable broadcasts. Technology that merely improves reproduction may call for a different response. After all, whether you’re listening to the Beatles on vinyl or on a CD, you’re still engaged in the same conduct. It makes little sense in these situations to scrap an entire business model and more sense to look at ways to better manage the inevitable increase in piracy.

My purpose here is not to “find the answers” to each individual content industry’s current struggle. My point is to be more than just dismissive when they point out that they are struggling. Rather than using past disruptions to craft a chicken little narrative, we should use them to create a framework for better understanding what role copyright law can and should play in today’s world.

The Other Side of the Coin

One would think that those calling out the content industries for their chicken little rhetoric would refrain from doing the same. Sadly, no. Legislation supported by content industries is routinely decried as an attack on consumers. Copyright laws either inevitably lead to censorship or destruction of culture. Free speech, privacy, and due process are always in danger when the industry is concerned with infringement – critics use terms like “Orwellian” a lot. We hear about how our jails will fill up with innocent children and others any time the “MAFIAA” calls for more effective enforcement. Any attempt at copyright education is propaganda; anyone who joins in support is a shill.

This is just a sampling of the rhetoric. I’m sure if one would examine the talk surrounding each new bit of legislation, court case, or technology as Lemley has done with technological disruptions, one would easily find exaggeration and hyperbole on the opposite side of the copyright aisle that parallels that of the content industries. How long before their cries of “the sky is falling” begin to fall on deaf ears?