Study On How DRM Harms Free Expression

from the free-speech-or-copyright? dept

We've been seeing a growing realization about the clear conflicts between copyright and freedom of expression -- an issue that has often been brushed aside, but in a world where nearly all communication suddenly is covered by copyright, it becomes a much bigger issue. Michael Scott points us to a UK-based study that doesn't focus on copyright and free expression specifically, but on DRM and how it limits free expression in the UK. While this may not seem directly relevant to copyright law, it absolutely is, especially with the push for global laws that make any circumvention of DRM -- even if for legal uses -- illegal. As such, DRM that prevents freedom of expression is using copyright law to back that up, which can be a violation of First Amendment rights (yes, I recognize the First Amendment is a US issue, and this study is in the UK, but it's likely the results of the study apply to the US as well).

The study says that there hasn't been a catastrophic blockage of free expression, but clearly some had occurred, even though technology measures could have allowed the expression without seriously compromising the purpose of the DRM. More importantly, the study found that those who were stymied from performing legal expression due to DRM rarely used mechanisms provided by UK law to complain. This isn't that surprising, but it does make an important point: gov't officials are probably unaware of how much legal activity is stifled due to DRM, backed via gov't enforcement of copyright laws. While there are many other areas of study to be done around these issues, this is a worthwhile study in looking at how copyright and free expression can conflict.

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Copyright As An Engine Of Free Expression?

from the need-to-delve-a-bit-deeper dept

I recently bought a copy of the new book by professor Neil Netanel called Copyright's Paradox. From what I've heard and seen so far, it looks like a well-balanced book that explores what's good and what's bad about copyright. It's on the stack of books to read, so I haven't had a chance to dig into it yet (and might not for a few months at this rate). However, Netanel has been blogging a bit about the book over at The Volokh Conspiracy blog, and reader David Puglielli wrote in to ask if I had any thoughts on his latest post, where he discusses copyright as an "engine of free expression." This is half of the book's premise, and he promises to tackle the other half in a future post. Basically, the overall premise of the book (similar to what we've noted) is that any reasonable thinking person admits that intellectual property (in this case copyrights) has both benefits and costs at the societal level. The question is whether the downsides (the costs) outweigh the upsides (the benefits). In the post linked above, Netanel focuses on the benefit side of the equation -- which is the encouragement of free expression. Basically, expression is good and if there's monetary incentive then we should get more expression -- and that's a good thing.

However, as Netanel also notes, clearly copyright is not the sole driver of expression. He points to the internet as obvious proof that many people create content with no intention of ever enforcing a copyright -- and, in fact, noting that more content is being created than any person could reasonably consume. He then argues that copyright provides an additional value and benefit above and beyond what would be created without copyright, saying that he lays out the reasons why in the book. When I read the book I'll have to explore those in more detail, but there is one troubling point that I find in the blog post. In discussing that incentive to create, he notes:

"Many works require a material commitment of time and money to create. Examples include numerous full-length motion pictures, documentaries, television programs, books, products of investigative journalism, paintings, musical compositions, and highly orchestrated sound recordings constitute such sustained works of authorship. It is generally far too expensive and time-consuming to create such works, let alone create with the considerable skill, care, and high quality that the best of such works evince, to rely on volunteer authors. Nor are alternative, noncopyright business models necessarily more desirable than copyright. For example, we might not want our cultural expression to be populated with product placement advertising or devalued by treating it as a mere give-away for selling other products."

I'm hopeful that he at least challenges some of those assumptions more thoroughly in the book, because it seems to open on the assumption that content that is produced without copyright in mind doesn't necessarily require time and money to create. While I recognize that this is just a short blog post, it also simply brushes aside all alternative business models as not "necessarily more desirable than copyright." That's a big assertion that may not be true at all. It rests on the assumption that in the absence of gov't granted monopolies, the free market would be less efficient at figuring out how to allocate resources to create additional expression. You can make that case, but it should require some evidence, considering how rare it is for central planning to beat an open market in the long run (the short run is a different story).

Also, in picking out one example to make his point, he uses a very negative connotation concerning content used as advertising and suggests that any kind of give-away of content "devalues" the content. This is incorrect on both accounts. While most people don't think of it that way, content has always been advertising for something. So complaining about cultural expression being negatively impacted by it being advertising is inaccurate. It's always been that way. The question is really just about what it's advertising (and how upfront it is about what's being advertised). As for the question of "free" content devaluing the content, again, that's incorrect. Value and price are two separate things. Something given away can be quite valuable (especially if it makes another product worth paying a higher price). So while I agree that copyright acts as an incentive for certain types of content to be created, I think it's worth exploring in more detail whether copyright really functions better than other business models in creating the best incentives. Hopefully the book delves deeper into this (or he'll do so in a future blog post).

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