Law in the Internet Society
-- AdamMcclay - 21 Nov 2008

Of the conversations we have had, none had particularly raised a skeptical eyebrow for me until our discussion of non-functional zero-marginal-cost goods. As I followed it, the argument seemed to be that the question of how the goods – in our example, music – are distributed is wholly divorced from the question of how the producer gets paid. I accept this. Putting aside for the moment the question of economically compensating the creator of a non-functional good, it is certainly the case that anarchism in distribution will make the good available to more people more quickly. Two easy examples are the nominally legal Rapidshare, which is better than iTunes or a record store, and Project Gutenberg, which has demonstrated that even books can be transformed to a frictionless, zero-marginal-cost form.

But as it stands today, the distribution of the goods still starts with someone paying money for the right to consume them. Someone subscribes to the Showtime network and records new episodes of Californication in order to put them on Rapidshare; Project Gutenberg still obtains a hard copy of each book. However, with the abolition of copyright, this first step would be eliminated. Musicians would put upload their songs directly to Rapidshare and its ilk; authors would type their novels directly into Project Gutenberg. My question is, why would they do this? Artists need to eat too. If no one need compensate the artist for his work, how does the artist buy lunch?

A way for me to begin thinking about this problem comes near the end of Upton Sinclair’s The Jungle, where a “philosophic anarchist” explains his ideal for a post-revolution society. The passage jumped out at me because of its similarity to some of the arguments we have made in class, particularly where the anarchist is described as believing “that the end of human existence was the free development of every personality, unrestricted by laws save those of its own being.” Regarding artists, the anarchist explains:

Of intellectual and moral things…there was no limit, and one could have more without another’s having less….[T]here would be established a simple system where each man was credited with his labor and debited with his purchases....[R]omance novelists would be supported by those who liked to read romantic novels….If any one wanted to work or paint or pray, and could find no one to maintain him, he could support himself by working part of the time.

This anarchist erroneously describes intellectual and moral things as having no limit, even though in 1906 these products did have a marginal cost. Because art in 1906 was not frictionless, it makes sense that Sinclair, via his anarchist, posited a system where people who wanted to consume art would pay for it, each by each. In his system, there is no excess art, and if there is not enough demand to support the artist, he can get work producing a functional good part of the time.

Today it is different. Sinclair’s anarchist has actually become more correct—non-functional goods are now frictionless and unlimited. According to the argument made in class, this means that consumers of art need not pay each by each, or indeed at all. Perhaps if no one pays for art, then the 2008 artist, like his 1906 predecessor, could work in a slaughterhouse to pay the bills. But the thrust of the in-class argument seemed to be that people would pay the artist anyway. That argument was two-pronged. First, the point was made that an individual in the online community, if his transactions are public, will pay for some of the art he consumes so as not to be know as a free-rider. And second, examples were provided of free cultural and moral products that are supported by anonymous voluntary donations: the Metropolitan Museum of Art, National Public Radio, Wikipedia.

I must not understand the first point correctly; it seems a grave invasion of an internet user’s privacy, which contradicts values expressed elsewhere in the class. So the point was really that art can survive on voluntary contributions from users. I see two problems with this belief. The first was briefly raised in class: a possibility that, with all barriers to entry removed, the market will be flooded with low-quality, unworthy art. This is frankly not a possibility that concerns me; because the art takes up no space, people may be free to produce inferior nonfunctional goods at no cost to society, and I may simply avoid them. For example, I am not compelled to watch every video on YouTube? .

My second objection is that I do not believe non-functional goods can depend solely on small voluntary contributions from ordinary individuals. What may work, though, is some modernized version of the patronage system that prevailed during the Italian Renaissance. Today, instead of the Medici family, the patrons might be non-profit organizations, funded, as non-profits are, by a mix of tax dollars, major contributions from wealthy private citizens, and voluntary contributions from ordinary citizens. Artists, if they wanted to be paid for their art, would need to apply to be sponsored by one of these “patrons”—a process similar to applying for a grant. The application could include samplings of the work, and an explanation of why it deserves sponsorship. This system would not preclude anyone else from creating art and distributing it for free, but it would provide a centralized switchboard for compensating artists financially, while at the same time serving a gatekeeper function with respect to quality. An artist with the patronage of one of these organizations would be a good artist, and fully supported. Other artists may support themselves in the slaughterhouse while developing their work in order to gain patronage; in the meantime, consumers are free to enjoy those artists’ work while the artists themselves enjoy the fruits of attribution. This patronage system seems like a way to make the ideas from our class discussion even more feasible. It would not displease Sinclair’s anarchist, either.

Perhaps you could distinguish between your "patronizing" non-profits and PayPal? aggregating the payments of donors. Or maybe "gatekeeping for quality" turns out to mean getting for donors what they want to support. In which case the fiscal intermediary and the editor with a nearly mechanical eye on the popular consensus are the same. To the extent that they are different, their differences do not preclude mutual simultaneous existence. Which means that these and many other forms of aggregative support for creative endeavor will exist.

Which is why, as I keep saying, this "how will artists get paid?" question is less interesting than it looks. You have struggled all the way from skepticism to believing you have invented the answer by taking one of a thousand relatively short and easy roads. Amazon selling DRM-free music is taking another.

At a minimum I think you should strengthen the essay by taking another look at the issue raised above: whether you are really saying anything other than that intermediaries can amplify the coherence of donations, as NPR and the Metropolitan Museum and Carnegie Hall do now. That might lead you to asking whether the voluntary sector is as small as you think it is. That in turn might cause a major rethink. But how far you want to go is up to you.


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r2 - 30 Nov 2008 - 16:23:39 - EbenMoglen
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