A Critique of Benkler's Argument for a Commons-Based Content Layer

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This piece questions the premises underlying Benkler’s argument for a more commons-based “content layer” of information outputs. Yochai Benkler, The Wealth of Networks 392, 439. I discuss three of Benkler's premises, namely his contentions that exclusive intellectual property rights, such as patent and copyright, are 1) inefficient; 2) unfair; and 3) not needed to encourage production. Id. at 36-37, 303. I contend Benkler is incorrect as to premises two and three.

A Response to the Inefficiency Point

I concede that charging for one’s information outputs is inefficient, since, once the information is produced, the marginal cost of an additional person using the output is zero (Benkler uses War and Peace as an example). Id. at 36-37. While it would be efficient for Tolstoy to give away his book, efficiency is not everything. Most rights are inefficient. For example, it would be more efficient to abolish the Self-Incrimination Clause and require guilty defendants to turn themselves in, but we nonetheless keep it. Therefore, even though rights are inefficient, this is not a convincing reason to abandon them.

Benkler’s Fairness Critique

Secondly, Benkler argues that a strongly proprietary regime is “unjust.” Id. at 302-03. According to Benkler, proprietary regimes deny poor people informational necessities because producers charge high prices for outputs, and therefore proprietary regimes are less fair than commons-based regimes, which grant free access to all information outputs. See id. at 303, 307. I contend that 1) this argument proves too much; and 2) commons-based regimes treat producers unfairly.

The Argument Proves Too Much

First, all proprietary rights lead to some form of unequal distribution, so if unequal distribution were a sufficient reason to switch to a commons regime, such reform would be warranted across-the-board. Even Benkler does not seem to want to wholly switch to a commons-based regime, however. See id. at 308 (discussing the “acceptance of market economy as a fundamental component of free societies”). Therefore, unfair distribution is not a sufficient reason to switch to a commons-based approach to information outputs.

Furthermore, commons-based regimes go too far in attempting to address inequity: they do not merely grant free access to those in need, but also grant free access to rich people. Benkler is correct to the extent he argues denying poor people the basic informational necessities is unfair, see id. at 303, but it does not follow that proprietary rights themselves are unfair. Subsidies could provide the basic necessities and would avoid a windfall to rich people while still recognizing labor through rights. This brings me to my next point.

Commons-based Regimes Fail to Adequately Recognize Labor

A commons-based regime does not sufficiently recognize labor/responsibility. Cf. id. at 303-04 (discussing how some justice theories do not account for personal responsiblity). The creator may have invested much time, money and effort into producing the information output. See John Locke, Second Treatise on Government. It seems ludicrous to say that Tolstoy should receive nothing for his work while others should have free access to it; this would allows others to free-ride on Tolstoy’s efforts. Furthermore, free access would prevent producers from making a living. As Terry Fisher notes, even if some people would produce for free, this does not mean it is fair to create a regime that requires this outcome. See Fisher’s October 25, 2004 posting to Lessig’s Blog. Therefore, information producers should have proprietary protections to recognize their labor and allow them to make a living.

Proprietary Rights are Necessary to Incentivize Production

Patent and copyright are necessary incentives for information outputs. First of all, as Benkler acknowledges, Benkler at 40, patent protection is absolutely crucial to the biotech industry. See Federal Trade Commission, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy 81 (October 2003). Thus, commons-based regimes cannot provide adequate incentives, at least in some areas. Furthermore, even if some people will produce information outputs without proprietary protections as an incentive, like Benkler suggests, see Benkler at 105, others might not. For example, without music copyright, some musicians would be willing to play for free and some could garner sufficient profits from concerts. See Fisher’s October 25, 2004 posting to Lessig’s Blog. Nonetheless, the lack of incentive may halt the production of musicians who cannot rely on either option. See id.. For example, a composer who relies upon royalties for his income may be forced to get a different job.

My Suggestion: Combine the Existing Creative Commons Model with Subsidies

The “Creative Commons” initiative coupled with subsidies to provide basic informational necessities for the poor is an ideal system. See Benkler at 455-56. The elective option of Creative Commons licenses enables more efficient use without requiring authors to labor only for the benefit of others. People who need incentive to produce can still make a living, while others can give away their work if they choose. This solution addresses Benkler’s most compelling concerns while preserving important facets of a proprietary regime.