Debate 4/Debate 4 Argument Against

Resolved: The outcome of the digital intellectual property crisis is crucial to whether or not the use of the Internet ultimately has a positive impact in terms of strengthening democracies.

Quick Link to the Argument For

Introduction

Framing the Debate

• Thus far in this course, we have discussed the impact of the internet in terms of strengthening democracy through the lenses of participatory democracy and economic democracy. This week, we're extending our analysis to include semiotic democracy--the democratization of the formation of culture--and asking in what ways changing intellectual property laws influence the impact of the Internet on these three conceptions of democracy.
• We make two arguments with respect to this week’s resolution:
  • First, IP laws have little effect on Internet's ability to positively impact participatory democracy (and less significantly, economic democracy). Even in the case of an entirely dead semiotic democracy, the Internet’s profound impact here is clear.

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• • Second, even accepting a neutral effect of the internet on participatory democracy, semiotic democracy can flourish in an environment of harsh IP laws, in a "Free Culture Stack," independent of proprietary culture. The extent to which a "Free Culture" stack flourishes will correlate directly with the harshness of IP laws. We must understand that even if legal standards existed for content holders to fully protect and control their content, this "read-only" Internet is simply unlikely to emerge. Just because content holders will possess the power potential to do this, it is unlikely they will. Consumer preferences will simply inhibit any attempt to impose such restrictive controls. If the "right to read" scenario comes to pass, the author that publishes under a less restrictive licensing regime will become an instant bestseller.

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Copyright Law vs. Private Ordering

For a good summary, see Terry Fisher's post on Lessig's blog

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• Copyright law is not the only modality that defines the limits of content creation. Technology enables creators to lock down their content (e.g., ebooks, DVD copy protection, broadcast flag). Therefore, it's important to recognize that even a highly permissive copyright regime may have a limited impact on advancing semiotic democracy.

Intellectual Property Laws and Participatory Democracy

No matter how the IP 'crisis' unfolds, participatory democracy, on balance, will be strengthened by the internet.

• Even if a very restrictive IP regime were to emerge, participatory democracy on the Internet will not be substantially affected. Among the positive impacts of the internet on participatory democracy that would not be affected by IP laws, include (see Debate 1 for detailed arguments):
  • Political discourse on the internet is unlikely to be affected. Regardless of IP laws, the Internet will allow individuals to disseminate their ideas more quickly and to a broader audience.
  • With respect to elections in particular, fringe ideas, third parties, etc. have the opportunity to interject in political debates.
  • Individuals can organize on an unprecedented scale. Geography is no longer a barrier to contributing to large projects.
  • The Internet makes individuals and institutions more transparent and accountable. Anyone can break a story—not just the mainstream media—and fact-checking becomes a lot easier when information is digitized and searchable. Polls gauging opinion are also far easier and cheaper to conduct.
• The argument against a positive impact of the Internet on participatory democracy is weak, perhaps boiling down to merely the following quote:
  • Fine, the internet has made contacting other people for political reasons easier. But that is because it has made everything easier. Shopping, spreading gossip, and finding friends are all easier now. But this makes it all a wash. If the internet made ONLY political action easier, more people would gravitate toward political action than otherwise would. But, since everything is easier, people will gravitate toward their predisposed tendencies. "It's easier to shop now, yay!
    • This impact of the Internet is only “a wash” if we’re considering substitution effects of what becomes “easier” to do. But if everything becomes easier to do, individuals will be able to do more things—like organize a debate watch party (‘’participatory’’), contribute to an innovation (‘’economic’’), or create a Vote Different video (‘’semiotic’’).
    • What if cultural creativity and political participation are to a certain extent mutually exclusive? I.e., I'm too busy watching movies on Youtube to vote?

What is the connection between Semiotic Democracy and Participatory Democracy?

• The IP crisis principally effects the workings of semiotic democracy. It is unclear the extent to which semiotic democracy (the manipulation and sharing of extant cultural products) and participatory democracy overlap. For every "Vote Different" ad that uses existing cultural products to further political discussion there are thousands of blog posts, comments, and Internet videos, that are entirely unaffected by IP concerns in the cultural sphere.
• While the ability to embed YouTube videos of FoxNews coverage right into a blog post or quote liberally from the New York Times may be curtailed by harsher IP laws, that is a cherry on top of the Internet sundae. Under any IP regime, the Internet will continue to allow for the dissemination of individual non-derivative ideas.

What is Semiotic Democracy?

Semiotic democracy is the ability for individuals to shape culture. It should only be narrowly understood as the creation of derivative works; the most powerful contribution of the Internet is in serving as a vehicle for widespread, cheap distribution--not only of mash-ups, but of any cultural products created by individuals regardless of wealth or status.

We often conflate the notion of the "mashup" with "semiotic democracy."

Mashups are a type of cultural product produced in a semiotic democratic culture - they are not the only products. Most content produced in this system comes directly from users and does not rely on the direct use (as in taking snippets of video clips, text, or audio files) of "prorietary culture." Typical cultural products make indirect use (reference, allusion, link, trackback) to "propretiary culture," or no use at all (justin.tv).

The Internet has clearly enhanced the ease, cost-effectiveness, and breadth of distribution available to non-commercial content creators. In Free Culture, Lessig describes two types of cultural products - commercial and non-commercial. It is instructive that Lessig describes the latter in the following way: "when old men sat around parks or on street corners telling stories that kids and others consumer, that was noncommercial culture." In that scenario, how important is semiotic democracy? Can these old men actually have impact?

The Internet makes it possible to actualize the possibility of freedom in semiotic democracy. The power of noncommercial culture is significantly greater because of the superior distribution mechanism.

Restrictive IP Laws May Actually Benefit Both Participatory and Semiotic Democracy: Economic Argument

It is possible that a restrictive IP regime will actually be beneficial to participatory democracy online.

• Political blogging tends to the extremes
  • Why?
    • Content creation activities are time-consuming and labor intensive. Current lack of economic incentives may be leading to a clustering on the extremes within the online community's intellectual debate. Greater economic incentives will encourage more mainstream participation in Internet debate and discussion.
• A restrictive IP regime could increase the economic incentives for content creators (bloggers, vloggers, podcasters) and thus encourage an increasing number of people to actively engage in the intellectual debate.
• See, e.g., Landes and Posner's economic argument for indefinitely renewable copyright.

Free Culture Stack

• We argue that in the long run it does not matter how strict or permissive copyright laws are. Essentially, the "copyright dial" will set itself.
  • Internet and cheap computing enables participation by many. This new culture is fundamentally different from traditional mass culture.
  • Free culture is created by individual authors. Unlike commercial work-for-hire authors, who are motivated by money, individual authors are motivated by status.
  • There are a lot of people who want to create for status using ubiquitous technology building on the works of others. Knowledge (Wikipedia), record labels (Magnatune, ccMixter, Jamendo), machinima (Red vs. Blue), photographs (Flickr CC), video editing (SpinXpress).
• The key point is that a free culture stack is emerging. Soon (if not already), authors will be able to exercise their creativity using only free components.
• Free culture is in many respects better than proprietary culture
  • Similar to free software, free culture is driven by user innovation. Free culture can identify and meet users' needs more quickly and accurately. Free culture gives authors and users what they want, not what Hollywood thinks they want.

Case study: Free software

• The GNU project arose out of increasing proprietary restrictions on software
• Today, building on more than 20 years of free software, users can use 100% free software for day-to-day work (K Desktop Environment, OpenOffice.org). The LAMP stack (Linux/Apache/MySQL/PHP) is the platform of choice for web developing and hosting.
• Importantly, anyone can create new software using the existing stack.
  • SourceForge, the largest repository of free software on the Internet, has almost 150,000 projects and more than 1.5 million users

Restrictive IP Laws Lead to Greater Demand for "Free Culture"

• Free culture benefits from a strong copyright system
  • The free culture pool relies on licenses that ensure that cultural works are distributed on the terms specified by authors. Creative Commons and GNU FDL form the legal framework of free culture.
  • While these licenses are not ideal (e.g., CC's numerous possible licenses may dilute its ideological message, the point is clear. Legal frameworks will emerge to enable the social movement.
• Strict copyright allows authors to send a clear signal about themselves, their work, and their beliefs
  • Instead of charging for their work, authors associate themselves with other creators using that license, express a preference about the target audience and mode of distribution, and align themselves with a larger social movement.

• A "copyright market" is developing with a dynamic equilibrium where more restrictive copyright laws lead to greater market share for free culture.

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Outcomes

• It is important to differentiate between what could happen vs. what is likely to happen. Are we expecting Stallman's Right to Read or something less severe?

Is there really a crisis?

• The possibility that government could provide through law the means for content holders to more actively restrict the use of IP does not mean content companies will necessarily take advantage of the full latent power of legislation. It is very possible that we are overestimating the extent to which the major content companies will aggressively pursue/demand more restrictive IP systems. Evidence suggests that common-sense assumptions about the economic hazards of less-restrictive IP systems for media companies are wrong. (See Study of Music Piracy Effect on Record Sales) Furthermore, media companies are beginning to acknowledge this possibility (See EMI and Apple). Companies gain considerable benefits from relaxing the IP protection on their content. As new and innovative approaches to monetization develop, the rewards of openness are likely to increase. (See Lorne Michaels on the SNL and YouTube). The digital IP crisis may simply resolve itself in the face of consumer preference for greater openness. If consumers are willing to pay an extra $.30 a track for DRM free music, companies will follow.

Case Study: Music Downloads

• From Harvard Professor Felix Oberholzer-Gee: "We find that file sharing has had only a limited effect on record sales. After we instrument for downloads, the estimated effect of file sharing on sales is not statistically distinguishable from zero." Full Report

Response to Counter Arguments

Uncertain Copyright Regime Has a Chilling Effect on Semiotic Democracy

• Pro Argument: "Financial Times on Viacom v. Google: "The 10-year-old Digital Millennium copyright act does not make clear whether user-generated content sites are liable for what users do with copyrighted content.... No court has yet answered that question definitively, largely because most previous lawsuits testing the legality of user-generated sites have settled. Chances are the Viacom suit will also settle – both sides would probably risk too much by going to court. Viacom’s suit is probably just negotiation by another name: a way to step up pressure on YouTube and Google to pay a fair price for its content. That would be a shame: digital behemoths can afford to face each other down, whether it is Microsoft facing down Google over its book digitisation project or Viacom v YouTube. But the YouTubes of the future cannot exist in such a tenuous legal environment. They need more clarity – or the next new new thing may never be born."
• Con Response: YouTube proves the point. The company was born and succeeded despite (or perhaps because of) the copyright chaos.

• Con Response: People are still sharing music. 50% increase in the past two years of the number of files shared per month. Clearly RIAA lawsuits have not had that chilling effect.

Diebold Actually Lost

• Wikipedia Entry on the Court Case