Law in the Internet Society
At first you said, after adding the "disclaimer" below, which does nothing to make the essay in any way better, that "substantive reworking [was] on hold." Now you have removed that statement. Should I conclude that your sole final revision for this essay is the "disclaimer"?

An Intellectual Step-back in "Creative Efficiency": Re-examining Art as Delicate Conversation

Let's inject nuance into a thesis: for non-functional goods with zero marginal costs, property rights are bad as they lead to inefficient distribution. Disregard of traditional property-based exclusion rights thus leads to superior distribution.

*DISCLAIMER* Although the above thesis appears very similar to something Professor Moglen laid out in class, it's not. It's a strawman of my own creation.

My paper will argue for a reexamination of the word "efficient." Surely, it doesn't just mean "reaching the most people possible."

Non-functional goods are rich, wonderful things. We can poeticize endlessly about their power to lay raw emotion to an unbound medium (music, film, etc.) and thereby enable brilliant minds to engage in sensual conversation - that is, a conversation among the senses, unencumbered by the limits of human-invented language. To be sure, Terry Gilliam and Igor Stravinsky aren't speaking english; they're speaking art. Accordingly, we shouldn't measure efficiency based on the volume of their voices and the number of minds their voices consequently reach (quantified via viewer/listener numbers), especially where downstream distortion perverts, dilutes or otherwise mispackages their communicated emotions and thusly produces a disjointed conversation. We should instead measure efficiency based on the clarity and technical precision with which (in this example) Gilliam's and Stravinsky's voices are transmitted, following their hopes and intentions. To illustrate: if Gilliam declared that Brazil needed to be watched on acid, that should be respected (in order to achieve harmonious conversation between Gilliam and his audience - an optimal producer-consumer efficiency); likewise, if Stravinsky declared that the Rites of Spring should have no attachment to cartoonized rodents, that wish too should be accorded respect. After all, the producer (music composer, film director, etc.) is the best judge of his senses. These senses belong to and are uniquely accessible by him; producer-generated art is merely a best though imperfect means of sensual articulation.

Remember, these are non-functional goods. With functional goods, it's okay if the message changes as it's being communicated, because the purpose is functional - to instruct, inform, or something. With non-functional goods, If I yell out "The British are coming" in heaping exclamation, it might get transformed to a hushed "I hear the British are on their way" as word makes it way - but the message nevertheless conveys, and we can all adequately prepare for British invasion. Nevermind the fact that a hushed "I hear the British are on their way" is neither eminently quotable nor viscerally poignant.

By contrast, non-functional goods are not primarily designed to relay a functional message (e.g., caution regarding the Brits). Some minor tweaking in the producer-designated means of transmission means the producer's senses are thus not accurately conveyed, which thereafter means that any resulting conversation is disjointed - and moreover, inefficient under the framework I've laid out.

Examples follow:

In the realm of music:

The case of concept(ual?) albums

There are musicians who might like their songs to be heard start to finish (Pink Floyd's The Wall, The Beatle's Sgt. Pepper's, Radiohead's OK Computer), as this would give the work a particular conceptual unity. Chopping up songs into mp3s and encouraging their piracy seems to undermine this wish. Perhaps this means the musician's vision isn't "efficiently" distributed, although deconstituted fragments of it are.

Accidental leakage

Consider perpetually in-production albums (like Dre's Detox). Clips have been leaking to the interwebs for nearly ten years. If listeners know they are getting unfinished, often purely experimental cuts, that'd be okay; but certainly some users think they're getting 'the real thing.' As such, fans throughout the globe often receive and package together drastically different variations on a single album - and form drastically different impressions. This whole arrangement seems anarchic rather than efficient.

In the realm of film:

Watching 5d cinema.. on an iPhone

Certain films are firework-heavy and therefore are best appreciated in proper theatres (I'm defining "best" subjectively, as in, most in accordance with the producer's intentions). It seems, however, that with the easy of file-sharing, many would-be theatre-goers stay at home and watch (summer blockbusters) on their laptops. Avatar is now the most heavily pirated movie, despite the great concern James Cameron gave to tying his film around the latest technology in theatrical display. I feel that "film" is more than just sounds and images - and I'd argue that film-going is a rich communal experience. Much of that is lost via piracy, and this loss perhaps represents a distributional inefficiency.

AMITABBBBHHH (or, Bollywood's cultural identification)

Bollywood is all song-and-dance. Mumbai theatres are designed with this in mind. The audiovisual systems are crazy advanced; the bass literally thumps through your skin, and the screens reach wall-to-wall, floor-to-ceiling. The architecture itself is a sight - a gorgeously gothic reminder of India's history under the Brits. All this for $4 or so. Moreso than in America, piracy is a huge concern in India. And as it gets easier to obtain watchable-quality copies of Bollywood films, I fear that less Indians will find the strength to get out and see a film in a theatre. As this occurs, Bollywood's crucial distinctive feature of flashy song-and-dance numbers will go uncommunicated - even if these films technically reach a bigger, broader audience.

Concluding thoughts

It would be glib to read this paper and dismiss it as overly preoccupied with "semantics." I've given significant attention to frameworking what "effiency" means within the context of distributing non-functional goods in the (perhaps naive) hope of preempting this concern. Nevertheless, let me reiterate: art is our way of accessing the genius of a Gilliam or Stravinsky (or a John Lennon, Dr. Dre, James Cameron, Karan Johar), who might otherwise have difficulty channeling their genius through human language. After accessing that genius, we may critically engage with it - we may engender lovely conversation. But our goal in this effort is not to grab at the cheapest and earliest available scraps and project them worldwide; that's reappropriation, not conversation, and it forgoes a lot.

Property rights matter. In at least one respect, they safeguard "artistic integrity." And as I've tried to suggest, "artistic integrity" is more than just fodder for copyright apologists.

All that's left now is a bit of poeticizing (weighing pros/cons), but that's best left for a follow-on post.

-- By AnilMotwani

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r9 - 04 Sep 2012 - 22:02:12 - IanSullivan
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