A horse is as good as a wink to a blind nod

by Neil Turkewitz

I just read “To curb dangers of media consumption, let’s reconsider copyright law by Martin Skladany, who, according to his bio, is “associate professor of intellectual property, law and technology, and law and international development at Penn State Dickinson Law.” I may be going out on a limb here, but it may be the worst “academic” piece I have ever read. I seriously don’t know where to begin — it is mostly just an assemblage of random thoughts and magic words that form no comprehensible narrative. The author, no fan of copyright as evidenced by the title of an earlier published work (Big Copyright Versus the People: How Major Content Providers are Destroying Creativity and How to Stop Them), seems to be suggesting that copyright protection is to blame for serving as an incentive to create too many works which then demand attention. But having read the piece a few times, I can’t say for sure whether this is truly his thesis. But let’s explore this together, shall we?

To begin with, he observes that “Americans on average each day spend far less time on social media — under two hours. — than they do on corporate entertainment, at over 9 hours.” But is this actually a distinction? Isn’t social media “corporate entertainment,” whatever that is supposed to mean. More to the point, what is the point? We consume a lot of media, both through traditional and non-traditional means. We access content at home and on the move. We are a society glued to screens/devices one way or another. And professional rather than amateur content tends to drive engagement and constitute the bulk of consumption. So, let’s “agree” that “traditional media” continues to be important in today’s society without regard to the modalities employed to access it. What next?

Here’s the truly astounding thing — this consumption pattern gives rise to the following observation: “This is, in part, because our excessive copyright law provides Hollywood with massive financial incentives to flood the market with polished entertainment that people binge on, which prevents us from spending more time volunteering or going to social events.” I’m not making that up. Read it a few times…and then read it again. For the life of me, I can’t make any sense of any aspect of this, so don’t know how to start to examine it. Let’s start with the economics. If “excessive copyright laws” resulted in “flooding the market,” then laws of supply and demand would suggest that copyright works would diminish in value due to an excess of competition. But the “massive financial incentives” to which Skladany is referring is not something extrinsic to market value (like subsidies), but market returns. I fear that he doesn’t understand the basic operation of markets. If you want to maximize financial returns, producers limit supply — they don’t “flood” markets. Interestingly, most of Skladany’s fellow copyright skeptics generally, if inaccurately, blame copyright as providing the means to restrict supply, not as a modality for generating a super-supply. Skladany appears to think that excess consumption is driven by the existence of too many creative works. In his world, copyright is being too effective as an engine of free expression.

And that leads to his even more bizarre suggestion that the range of cultural productions incentivized by a copyright law that offers excessive incentives “prevents us from spending time” in more socially useful ways. He writes: “Thus, excessive copyright protection has turned art — which is meant to inspire us intellectually and support us emotionally, to enable us to cope with the uncertainty of life and the finality of death — into a glossy corporate weapon that Hollywood wields to effectively imprison vast swaths of society. “We the people” are “doing time” in front of a screen.” I generally avoid criticizing arguments as being elitist given that accusations of “elitism” frequently masquerade a faux-populism and can represent a rejection of expertise, but this is too much. Putting aside the nonsensical suggestions of connections between copyright and media consumption, how exactly does Skladany justify the notion that art is uniquely designed to “inspire us intellectually and support us emotionally, to enable us to cope with the uncertainty of life and the finality of death?” Art at its best certainly does this, and I endorse the notion that the arts generally, and poets in particular, are, as noted by Shelley, “the unacknowledged legislators of the world.” But to suggest that the arts exist merely to inspire and not to entertain is insulting and preposterous. And again, what’s the point? I lost the thread. Copyright creates excessive incentives to create…what gets created is shit…and this shit is divisive. Following along?

Then this: “If all citizens were artists, broadly defined, our politics would be more equal and just, since we would all contribute collectively to our culture and political system. We would have the cultural equivalent of direct democracy…While representative democracy may be the best we can hope for politically, we must do better than a representative culture…One would think that the idea behind copyright — providing monopoly protection to artists as a financial incentive to create — would apply equally to all citizens, not just primarily entertainment multinationals and an elite group of artists. That is, however, as naïve as to imagine that everyone has the same ability to give campaign contributions and, hence, has an equal say in politics.”

Ordinarily I would spend some time exploding the notion of copyright as monopoly, but in this piece, that is the least of the author’s sins, and I just don’t have the time. Skladany rues that we are not all creators. That would be nice. This notion that we are all creators in the read/write culture of the 21st century is a common talking point of the anti-copyright movement — that since we are all creators, there is less reason to protect creativity since it is all around us. In general, this is employed to demonstrate the lack of vitality of copyright in the 21st century. I addressed this at some length in this piece.

But Skladany’s recapitulation of this fable is even odder given his assertion that the problem with copyright is that it is too effective, not that it is an irrelevant part of a modern information landscape. And he confuses copyright and markets completely. Does copyright mean that everyone has the same ability to gain consumers for their stories? Of course not. Copyright respects ownership — it doesn’t guarantee an audience.

I addressed this relationship in this piece from a number of years ago: “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.

As far as I can tell, Skladany’s essential argument(sic) is summed up by his suggestion that our “extreme copyright system…primarily incentivizes only the most sensationalized media and entertainment while providing little succor to serious report and art.” The problem is that this follows none of the traditional contours of what one might call “argument” inasmuch as it merely states a conclusion unrelated to any thesis supported in fact or theory. I happen to agree with Skladany that we spend too much time in front of screens and that we miss out on meaningful connections and an appreciation of things that are more than mere diversions. We consume too much candy, and we should break ourselves of those habits. One of the things that can help is to stop celebrating the value of ubiquity and to refocus on the transcendent. And ironically, one of the most powerful tools in our arsenal to achieve this is copyright. Sadly, creators are effectively prevented in too many instances from exercising their rights, leading to artificial ubiquity and a loss of precious (not in the financial sense) scarcity that would permit greater reflection and meaning. Copyright is the path. Not the solution, but a part of it. Based on the role of consent and the ability to say no regardless of the desires of the crowd. Part of the foundation of a society that rejects the enforced collectivism of the Singularity.