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

From Yochai Benkler - Wealth of Networks
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The Argument By Krista Carver


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, not just for information outputs. Even Benkler does not seem to want to wholly switch to a commons-based regime for all outputs, 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 that 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 production for 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.

By Krista Carver

Counter arguments

Copyright is not a civil right

In the section "A Response to the Inefficiency Point", you say that: "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.". This comparison is not apt, as The Self-Incrimination Clause is a civil right - copyright is not.

We do not try to optimize "Freedom of Speech" for economic efficiency. But laws regarding the trading of stocks, should be optimized for economic efficiency - such as rules to disallow insider trading. We should, in the same manner, optimize copyright law for economic efficiency.

Does your solution really address Benkler's concerns

You write that: "This solution addresses Benkler’s most compelling concerns ...". However, I do believe that some important concerns are addressed only in a limited way.

Firstly, I agree that the inefficiencies, which stems from above marginal pricing, are alleviated when poor people buy with subsidies. However, the inefficiencies still exists with respect to non-poor people. And they also exists if the subsidies do not cover 100% of the price.

Secondly, one of Benkler's concerns is that the law benefits marked-based production, at the expense of commons-based production. See chapter 11:

"The intention is not to criticize or judge the intrinsic logic of any of these legal changes, but merely to illustrate how all these toggles of institutional ecology are being set in favor of proprietary strategies, at the expense of nonproprietary producers."

and chapter 12:

"The second economic point is that these expansions of rights operate, as a practical matter, as a tax on nonproprietary models of production in favor of the proprietary models."

Only marked-based produces will benefit from the subsidies - not commons based, as they receive no royalties.

Thirdly, I agree that your suggestion do help poor people with access to other peoples works. However, this is not just about consumption, it is also about production. As Benkler points out the input to information production is other information: chapter two:

"The other crucial quirkiness is that information is both input and output of its own production process.
In order to write today's academic or news article, I need access to yesterday's articles and reports.
In order to write today's novel, movie, or song, I need to use and rework existing cultural forms, such as story lines and twists. "

How will your subsidies help the poor person, get the right to use other copyrighted information in his own productions? I find it difficult to see how this would work in a practical manner. It may be that he can get some company to pay for them, in expectation of a return. However this is only possible if it is a commercial production. Secondly one of Benkler's concerns is the centralization of media power, which this company would be part of. See chapter 6 - Basic Critiques of Mass Media:

"There have been three primary critiques of these media: First, their intake has been seen as too limited.
Too few information collection points leave too many views entirely unexplored
Second, concentrated mass media has been criticized as giving the owners too much power"

I would add that Krista Carva also mis-represents Locke who specifically places limits on property. If one sees that a 'property right' leads to something 'spoiling', then Locke would deem this as beyond a persons 'share'. In relation to copyright, the analogy for me is clear; where copyright leads to under-utilization of information, then it is beyond what Locke would attribute as property...

"30. It will, perhaps, be objected to this, that if gathering the acorns or other fruits of the earth, etc., makes a right to them, then any one may engross as much as he will. To which I answer, Not so. The same law of Nature that does by this means give us property, does also bound that property too. "God has given us all things richly." Is the voice of reason confirmed by inspiration? But how far has He given it us- "to enjoy"? As much as any one can make use of to any advantage of life before it spoils, so much he may by his labour fix a property in. Whatever is beyond this is more than his share, and belongs to others. Nothing was made by God for man to spoil or destroy. And thus considering the plenty of natural provisions there was a long time in the world, and the few spenders, and to how small a part of that provision the industry of one man could extend itself and engross it to the prejudice of others, especially keeping within the bounds set by reason of what might serve for his use, there could be then little room for quarrels or contentions about property so established."