Notes: "Free Culture" Ch. 12 Harms

Creativity squandered, not expressed, not distributed
"The four students who were threatened by the RIAA (Jesse Jordan of chapter 3 was just one) were threatened with a $98 billion lawsuit for building search engines that permitted songs to be copied. Yet WorldCom—which defrauded investors of $11 billion, resulting in a loss to investors in market capitalization of over $200 billion—received a fine of a mere $750 million. And under legislation being pushed in Congress right now, a doctor who negligently removes the wrong leg in an operation would be liable for no more than $250,000 in damages for pain and suffering. Can common sense recognize the absurdity in a world where the maximum fine for downloading two songs off the Internet is more than the fine for a doctor’s negligently butchering a patient?" (185).

"But fair use in America simply means the right to hire a lawyer to defend your right to create. And as lawyers love to forget, our system for defending rights such as fair use is astonishingly bad—in practically every context, but especially here. It costs too much, it delivers too slowly, and what it delivers often has little connection to the justice underlying the claim. The legal system may be tolerable for the very rich. For everyone else, it is an embarrassment to a tradition that prides itself on the rule of law" (187).

"For in a world that threatens $150,000 for a single willful infringement of a copyright, and which demands tens of thousands of dollars to even defend against a copyright infringement claim, and which would never return to the wrongfully accused defendant anything of the costs she suffered to defend her right to speak—in that world, the astonishingly broad regulations that pass under the name “copyright” silence speech and creativity" (187).


Regulation simply enables the powerful industries of today to protect themselves against the competitors of tomorrow

"Everyone, of course, concedes that some regulation of markets is necessary—at a minimum, we need rules of property and contract, and courts to enforce both. Likewise, in this culture debate, everyone concedes that at least some framework of copyright is also required. But both perspectives vehemently insist that just because some regulation is good, it doesn’t follow that more regulation is better" (188).

"This is the world of the mafia—filled with “your money or your life” offers, governed in the end not by courts but by the threats that the law empowers copyright holders to exercise. It is a system that will obviously and necessarily stifle new innovation. It is hard enough to start a company. It is impossibly hard if that company is constantly threatened by litigation" (191).

"The law is a mess of uncertainty. We have no good way to know how it should apply to new technologies. Yet by reversing our tradition of judicial deference, and by embracing the astonishingly high penalties that copyright law imposes, that uncertainty now yields a reality which is far more conservative than is right.... Free market and free culture depend upon vibrant competition. Yet the effect of the law today is to stifle just this kind of competition. The effect is to produce an overregulated culture, just as the effect of too much control in the market is to produce an overregulated-regulated market." (192).

"The efficient spread of content means that content distributors have a harder time controlling the distribution of content. One obvious response to this efficiency is thus to make the Internet less efficient. If the Internet enables “piracy,” then, this response says, we should break the kneecaps of the Internet.... regulation of technical infrastructure will ... impose significant burdens and costs on the technology, but will likely be eclipsed by advances around exactly those requirements"(193).

"Copyright may be property, but like all property, it is also a form of regulation. It is a regulation that benefits some and harms others. When done right, it benefits creators and harms leeches. When done wrong, it is regulation the powerful use to defeat competitors" (194).

Better technology fosters better competition (196).

"While terrestrial radio does not have to pay our hypothetical Marilyn Monroe when it plays her hypothetical recording of “Happy Birthday” on the air,Internet radio does. Not only is the law not
neutral toward Internet radio—the law actually burdens Internet radio more than it burdens terrestrial radio... if an Internet radio station distributed adfree popular music to (on average) ten thousand listeners, twenty-four hours a day, the total artist fees that radio station would owe would be
over $1 million a year. A regular radio station broadcasting the same content would pay no equivalent fee." (197).

"And so the attorneys representing the webcasters asked the RIAA, . . . “How do you come up with a rate that’s so much higher? Why is it worth more than radio? Because here we have hundreds of thousands of webcasters who want to pay, and that should establish the market rate, and if you
set the rate so high, you’re going to drive the small webcasters out of business. . . .”
And the RIAA experts said, “Well, we don’t really model this as an industry with thousands of webcasters, we think it should be an industry with, you know, five or seven big players who can pay a high rate and it’s a stable, predictable market” (197-198).


Corrupting citizens
"According to The New York Times, 43 million Americans downloaded music in May 2002. According to the RIAA, the behavior of those 43 million Americans is a felony. We thus have a set of rules that transform 20 percent of America into criminals" (199).

"In September 2003, the RIAA sued 261 individuals—including a twelve-year-old girl living in public housing and a seventy-year-old man who had no idea what file sharing was. As these scapegoats discovered, it will always cost more to defend against these suits than it would cost to simply settle. (The twelve year old, for example, like Jesse Jordan, paid her life savings of $2,000 to settle the case.) .... And the consequence of our law as it is, is that those with the power can use the law to quash any rights they oppose"(200).

Drugs, driving regulations, taxes -- most Americans regularly break the law.

"Generations of Americans—more significantly in some parts of America than in others, but still, everywhere in America today—can’t live their lives both normally and legally, since “normally” entails a certain degree of illegality" (201).

"And I do care if the rules of law sow increasing disrespect because of the extreme of regulation they impose. Twenty million Americans have come of age since the Internet introduced this different idea of 'sharing.' We need to be able to call these twenty million Americans 'citizens,' not 'felons'" (202).