Commoditization and the Law

-- By KateVershov - 14 Feb 2008

Introduction: Holmes and Legal Terminology

One of Holmes’ most resonating remarks in “The Path of the Law” warns the reader not to confound morality with law. He proposes banishing all words of moral significance from the law altogether, while urging lawyers to partake in economic analysis. However, Holmes does not acknowledge the extent to which economics itself is morality-laden. In a society suffused with Lockean precepts of ownership, labor, and property it is unsurprising that instead of turning to oracles, we now turn to economists for answers. The increasing rhetoric of commoditization is particularly evident in discourse about copyrights. Meaningful copyright reform will only come to pass when the dialogue embraces multiple disciplinary approaches.

University of Chicago Enlightenment

After a full day of intense (and often inane) textual interpretation of the fair use doctrine, Randal Picker, a professor at the University of Chicago Law School, postured himself as the practical breath of fresh air at the Fair Use Symposium last week. He energetically ran up and down the stairs of the auditorium while flashing PowerPoint? at the audience. The emphasis of his presentation was that digital rights management was beneficial to the consumer. According to Picker, the consumer will pay less for a song that only plays on his stereo, but will not play on his computer, and if he so chooses, he can pay more for the upgrade. In the same vein, DVDs that will only play in certain regions minimize consumer costs because their distributors will be able to gauge market demand and adjust promotion plans accordingly for subsequent regions. When questioned about the wisdom of treating creative works like real property, he quickly asserted the tragedy of the commons.

The problem with Picker’s assessment is that music is not simply an object of commerce to be bartered and traded to the highest bidder. Music’s value transcends any economic framework. People seek solace, hope, and inspiration in music. Music becomes embedded in an individual’s identity. Try saying the Beatles were “just a band” in a crowded room or quantifying the consumer surplus from owning Revolver. New research has even been published about how the ability to have music on-the-go has altered the way people interact with public spaces and mentally reshape their landscapes. This is to say nothing of the fact that unlike traditional commodities, music is a non-rival good whose scarcity is artificially created through legal fiction. Hardin, an ecologist who spent his life warning the world about human overpopulation, would have scratched his head if he were listening to Picker.

Picker really expected that his presentation would yield a moment of epiphany for the audience and that suddenly, consumers would believe that their “utility” would be increased if they could no longer buy a song, but could buy “a right to play a song on a stereo.” Even if one were to mundanely purchase a refrigerator with a sales agreement that read “I will only put food purchased at Safeway inside this refrigerator,” everyone would laugh. Why was no one laughing at Picker?

What Property-Talk Has Wrought

The reason the audience was not laughing was because the language of commoditization is pervasive with regard to music. The RIAA claims that anti-piracy enforcement allows the industry to “ invest in new bands;” “illegal downloading of music is just as wrong as shoplifting;” “music has value and there are right and wrong ways to acquire it.” When the RIAA sues college students, they call them “ thieves ” and “ pirates ” with the same moral indignation as if the students were stealing bread out of the mouths of children. Their tactic is “if we say it often and loud enough, maybe someone will believe it.” It works. Consider Michael Hegg, a juror in the Jammie Thomas’s copyright infringement case. Hegg, who admits to having never been online, said that the jury was convinced that Thomas was a “pirate” to whom they “wanted to send a message.” He stated that “I think she thought a jury from Duluth would be naïve. We’re not that stupid up here.”

The Dangers of Economic Rhetoric

The problem is that the RIAA is not just seeking restitution and damages for the artists they represent. Frighteningly, it is insidiously propagating a particular world view where the distinction between commodity and culture becomes blurred. Marx’s commodity fetishism conceptualized workers’ alienation from social interaction, identity, and their own activity as the result of producing objects that became market commodities. Communism aside, Marx’s fears have been borne. Consider Richard Posner, who concludes that “’the prevention of rape is essential to protect the marriage market…and more generally to secure property rights in women’s persons’” as if bodily integrity were a fungible object. The danger of this sort of rhetoric is clear, yet the same sort of apprehension should also accompany the language of the RIAA. In both cases, commoditization is perilous because it attempts to encapsulate concepts in economic terms whose values are inherently rooted in so much more than just market price.

Artists should certainly be compensated for their work. However, copyright law was designed “to promote the Progress of Science and useful Arts,” not just to decide who gets a cut of profits when. In considering copyright reform, the economic analysis must be just one of many frameworks employed in order to fulfill the Framers’ goal for copyright law. Questions about how to maintain a creative commons deep enough from which other artists can seek inspiration, the best way for listeners to interact with music, how to define new art media and what value to assign them cannot be answered by economists alone. A consilient understanding of copyright law must begin by laying aside economic rhetoric and examining other approaches. Failing to do so, considerations of free speech, information access, and a public domain will find no forum in this debate. Without breaking free of a single framework, there can be no radical vision for a better future.

Conclusion

Without acknowledging a framework beyond economics, the rhetoric of the music industry will prevail and copyright reform will be stalled indefinitely.

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Margaret Jane Radin, Market-Inalienability, 100 Harv. L. Rev. 1849 (1987).

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• Of course people laugh at Picker all the time, Kate. They just weren't attending a bullshit conference put on by the enemies of freedom under the guise of supporting fair use. No one seriously believes in DRM in the music industry anymore, even inside Carey Sherman's RIAA and the cohort of thugs it represents. DRM damn near delivered their entire industry to Steve Jobs, and so they now recognize that lock-in for the "consumer" also represents potential bottlenecking by someone other than the "producer/promoter/distributor," which is the role they must keep if the industry is to remain intact. The DRM wars have moved to larger file sizes, and to upstream control by ISPs (which idiots--including on this faculty--believe to be the problem of "network neutrality").

• One small problem with your approach is demonstrated by the citation to a piece written a generation ago by Peggy Radin, who has ceased to have anything to do with these issues because her points of view are obsolete. Not wrong, just irrelevant, because the prevailing conceptual language of the forces that disbelieve in the ownership of ideas has adopted freedom of thought, rather than inalienability, as the direction of travel relevant to the changing techno-social environment. At marginal cost = 0, for one thing, the immorality of exclusion is more straightforwardly visible, and the economic paradigm breaks down, so the problem isn't one of inalienability but rather of preventing the oppressive prevention of sharing. Peggy's inquiry still has validity as the organizing principle of investigation in other areas, but its effect on copyright is now negligible.

• The issue is no longer copyright reform. There are those who believe abolition is the only sensible long-term approach (I am one). There are those who believe instead that private reordering of the system, through the free software and creative commons ideas, will remodel almost all the global "copyright" industries, so that each in turn operates on commons production based around voluntary relinquishment of some copyright rules, in return for protections for commons built around copyleft and reciprocal licensing rules. (I am also one of these, in that it is my work, theoretical and practical, which is the largest single proof of the concept currently functioning in world society.) In this view, legislation only peripherally affecting the behavior of copyright (like "open source" parity or preference rules in the acquisition of software by government, and "open science" rules concerning the licensing policy to be chosen when papers reporting government-financed research are published) becomes the dominant force in shaping the knowledge economy, and copyright, rather than being reformed, fades into insignificance. Either way, whether through abolition or through ouster by the superior attraction of private reordering, the era of copyright is nearly over.

• So what's the point of worrying about whether people are thinking about music as an economic activity or an art form? In some culture or other, music is neither. It's purely sacral, or vernacularly profane, or in some other way is either less or more material, differently or not at all blessed. But the bitstream's technological properties are dissolving those cultural distinctions, even as we speak, as the Net begins to join up all the minds of humankind, without any delimitation as to previous cultural background. I shan't bother pointing again to the dotCommunist Manifesto; I'll just say that people noticed a while back that a certain quality of European technology and the social arrangements it helped to produce was the tendency to eliminate cultural distinction. Oddly enough, concern for the maintenance of some non-commoditized view of music turns out to be in the way of change rather than furthering it.

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