A False Declaration of Peace & The Anguish of Deception
by Neil Turkewitz
Jessica Litman recently published an article entitled: “What we don’t see when we see copyright as property.” I will leave it to others to address her theoretical discussion of the nature of property, and will focus uniquely on part l of the article in which she describes what she sees as an epiphany: that “It is becoming increasingly clear that the supposed copyright wars that copyright scholars believed we were fighting — nominally pitting the interests of authors and creators against the interests of readers and other members of the audience — were never really about that at all…If you follow copyright law, it can’t have escaped your attention that the community of copyright law scholars has been deeply polarized for the past 25 years. Some of us see ourselves as advocates for the undervalued interests of readers and other users; others argue that we need to increase the copyright protection we give to authors. Somehow, neither side gets around to saying, “gee, both of those would be worthy goals.”
It has become increasingly clear that the “copyright wars” were not about pitting the interests of authors and creators against one another? That’s hardly news — we in the copyright community have been highlighting for years that this was a false distinction, and that the interests of creators and users were much more aligned than the critics of copyright were asserting. It has been clear to us that this creator/user distinction was a deception employed by people defending the ability of companies to exploit creative labor. Simply put, members of the public (i.e. readers/consumers) have an interest in accessing materials that capture their attention. But they can only access that which has been created, and thus have a fundamental interest in ensuring adequate incentives for the production and distribution of creative works. And of course, creators are wholly dependent upon their audiences, without whom they are effectively silenced.
To think of the public’s interest in copyright as being limited to access is the first step towards a distorted view of the role of copyright and the real world aspects of the cultural marketplace. But for Litman, this artificial epiphany is a predicate for an even bigger deception — that once we peel away the fog of false wars, we understand that this is actually just a battle between intermediaries in which real creators have no stake in the outcome. She writes: “Instead the real conflict has been between the publishers, record labels, movie studios, and other intermediaries who rose to market dominance in the 20th century, and the digital services and platforms that have become increasingly powerful copyright players in the 21st.” She takes creators out of the equation completely. Why? Because it is essential for her narrative that we should stop focusing on enhancing responsibility of tech platforms, and look only into the relationships within the creative industries. And while she suggests that this is somehow a novel thought, it has in fact been a central talking point of the anti-copyright crowd for a long time.
Litman is right in observing that individual creators have sometimes not fared well given negotiating asymmetries between individuals and corporations, and that injustice and the entertainment industry are not strangers. I wrote about this some years ago. See for example:
“An effective and functional copyright environment is not a panacea; it does not on its own create global parity in the marketplace of ideas. But it does give individual creators a fighting chance, and an opportunity to compete. The ability to generate revenue from one’s creativity — to earn a living as a creator — is central to a society’s ability to foster cultural production. In its absence, dreams and creative lives perish. The moral and economic aspects of this equation are inseparable. We simply must ensure that all creators, regardless of their location, are able to enjoy the fundamental human right to choose the manner in which their creations are used as reflected in international law.”
I agree with Litman that our object must be to sustain creators, to enable them to create the works that make life meaningful for all of us. But for her to use the fact that there may be present inequities as the basis for asserting that somehow individual creators have no dog in the fight for greater platform accountability is both deceptive and wildly demeaning, ignoring mountains of testimony from artists about the importance of achieving reform of laws that allow tech companies to make money from the distribution of unauthorized materials. Litman tries to establish a false equivalence between parties with wholly different relationships to creators. In her account, everyone other than the artist is an “intermediary,” without regard to their relationship to the creator and the production of creative materials. But publishers, record labels and movie studios are not in the same position as internet platforms who have no contractual privity with creators. Say what you will about corporate owners of copyright — they do not believe that it is their right to use original expression without obtaining the rights therefor. Simply put, labels, publishers and studios are not “intermediaries.” They are involved in the creative process, and operate on the basis of contracts.
Litman offers fake epiphanies and poorly considered theories to justify exploitation of creative workers, and then has the audacity to pretend that she is defending the interests of creators. She ignores the direct representations of artists asserting their interest in reforming safe harbors, and — while proclaiming an end to hostilities, launches an offensive attack on the foundations of the rights critical to creative workers. She writes that “Bitter complaints about online consumer piracy were largely a prelude to efforts by large copyright owners to narrow the safe harbors for online services.” I can think of no more articulate and dedicated advocate for narrowing safe harbors than the independent filmmaker, Ellen Seidler, whose blog, VoxIndie, should be required reading. She was championing reform of safe harbors long before any major rightholder organization was doing so, and for good reason — she saw firsthand the impact of safe harbors and the irrelevance of notice and takedown on her ability to recoup her investment in filmmaking. Narrowing safe harbors has nothing to do with campaigns of “large copyright owners” and everything to do with creating a legal environment that empowers creators, whether they are independent DIY artists, or affiliated with major entertainment companies.
That actually gets at what I find most frustrating about Litman’s arguments here. She feigns empathy for the plight of creators while completely undermining their ability to determine how to present their works to the public, and how they want to direct their own lives. Digital technologies can empower artists that want to bypass traditional routes to market. But to operate as such, platforms must operate within the terms set by individual creators. If you want to empower artists, then give them an asset that has more value. The problems faced by individual creators are not unrelated to the fact that the individual property interest has little value in the marketplace. It is a largely unenforceable property interest. Our goal should be to give individuals the means to protect that interest.
Instead of empowering artists, Litman is locked in an existential battle that she pretends to eschew, and incomprehensibly pretends to side with artists by wholly ignoring their voices. Her peace offering is a transparent Trojan horse.
She writes: “The legacy intermediaries seem to be incensed that service providers and platforms are collecting a large share of the revenues earned by copyrighted works. They’ve invented a catch phrase, the “value gap,” to describe their complaint, which is that the newfangled intermediaries have too much bargaining power and are able to use that bargaining power to negotiate lower license fees than the legacy intermediaries believe that they should pay.” She is just in love with this concept of intermediaries, and of course “legacy” intermediaries are infinitely worse than their contemporary counterparts. So I have a suggestion. Why not listen to artists themselves? What do they think? Stop pretending they are disinterested bystanders. They are not, and listening to what they have to say will introduce a much needed reality to a misleading and hyper partisan defense of the status quo. It strikes me that far too many copyright skeptics “have too many opportunities to take advantage of creators and too few reasons to refrain from exploiting them.” At a minimum, we must call them out when they do so… maybe someday they’ll stop.