Speta: A Telecoms Analogy (and a Question)

Picking up on Fred von Lohmann’s comments, the important thing for me is the way in which the paper advances the conversation about how users actually act, and of the value (economic and otherwise) of what they do.  I see an analogous debate in telecoms.  In the past, one could see the Hush-a-Phone revolution as a parallel to what Julie is talking about.  Prior to this, AT&T controlled  both the telecommunications network and the equipment attached to the network -- and, by extension, the uses of the network.  And regulation was almost entirely focused on the carrier -- were the rates reasonable but sufficient to allow a return on investment (etc.).  The idea of the “user” was someone receiving the service the carrier offered.  Regulation ensured (or tried to ensure) that the user got this at a reasonable price, but that was (largely) as far as the user was considered.  The FCC's Computer II rules codified what the D.C. Circuit began in the Hush-a-Phone case:  a rule that the user of the telecommunications network could attach to the network anything it wanted (such as a fax machine or a radio extension), as long as it didn't harm the network.  This injected the "user" into the telecoms debate and allowed the user to make use of the network for new purposes.  In Julie's terms, it allowed users the freedom to "play" with the network (or at least the bandwidth provided by the network).

Today, the analogous debate is over "network neutrality" rules -- rules that would codify the rights of broadband users to use their connection for any application they wished to run (for example).  (See Tim Wu's paper.)  Advocates of these sorts of rules talk about play and innovation and speech – things very similar to the values Julie is talking about.

Now, I'm not an advocate for network neutrality rules, because I think, in the current environment, they are more costly than beneficial, and because network owners should have lots of incentives to allow users to create new ways to use the networks (because that increases demand for the network).  But, and here's the interface with Julie's paper, I tend to think that network neutrality rules make more sense the more one is convinced of the persistence of market power among network providers (although even then there are good arguments against).  So, the predicate question (for both Julie and Fred) is why does the copyright system systematically interfere with users' ability to play?  Copyright may sometimes confer market power vis a particular work.  But there is lots of copyrighted and non-copyrighted material that might be substituted and lots of market practices that might allow play.  To take only one, well-known example, Lucasfilms seems to have come to the place where they allow and encourage fan films, which are clearly inside the derivative works right, so long as they aren’t commercialized.  For another, think of all the ways that on-line games (worlds) allow users to customize their persona and even environments.

Comments

[Joe Liu]

Jim, I think that the question you pose to Julie and Fred (and all of us) is a really interesting one. Underlying the question is the assumption (which you make express) that copyrighted works can act as good substitutes for one another. You see this assumption also in the cases making the satire/parody distinction.

But I wonder whether this assumption reflects, in Julie's terms, an economic user perspective. To the economic user, one movie may act as a reasonable substitute for another. If Shrek 2 is sold out, I'll go see Spiderman 2 instead. (Or, more realistically for me these days, if Chicken Run is sold out, I will go see Wallace and Gromit instead). If I can't parody Star Trek, I will parody Star Wars instead.

But this assumption may not hold true for a situated user. Consider, for example (and here, I am dating myself), the mix tape. People develop strong attachments to specific songs, based on their life experiences at the time. If I want to make a mix tape, one song may not adequately substitute for another. (See, e.g., the discussion of the finer points of mix tapes in Nick Hornby's "High Fidelity"). Similarly, if I want to parody Star Trek, a parody of Star Wars may not be an adequate substitute.

So for users engaged in expressive play, one copyrighted work may not adequately substitute for another. (Jeb Rubenfeld makes this point in discussing why "I strongly resent the draft" is not an adequate substitute for the message worn in Cohen v. California). I think this is particularly true given the degree of nuance sometimes found in cultural play, where the choice of a target may carry with it a lot of expressive overtones.

While none of this would give rise to market power in the economic sense, I think it does explain why some see a greater need to be able to appropriate a particular copyrighted work.

[Bill Barth]

What Joe said! :)

I'd also like to note that there really isn't all that much non-copyrighted work any more, at least not much that's interesting to situated users who'd like to make uses of items of their culture rather than 6 generations ago's culture.

[Fred von Lohmann]

You said:

[The Hush-a-Phone decision] injected the "user" into the telecoms debate and allowed the user to make use of the network for new purposes.

Just as I mentioned in my earlier post, the "user" here depends on technology innovators to act as their proxy in the post-Hush-a-Phone world. In other words, the shape of the environment for technology innovators was an important mediator in the "injection" of users into the telecom debate via the Hush-a-Phone ruling. Users, in turn, grabbed hold of the capabilities made possible by the new technology and did things the innovators never expected (as William Gibson famously put it, "The street finds its own uses for things.").

So, to return to your question (why does the copyright system systematically interfere with the users' ability to play), I'd respond that the scope and nature of copyright law's incursion into innovation policy powerfully conditions the users' ability to play in the first place. To the extent copyright law hems in the kinds of features a company may include in a PVR (to take Julie's ReplayTV example), it also hems in a users ability to "play" with TV.

Which brings us back to the need for a fresh consideration, for the sake of users, of the ways copyright doctrines (fair use, secondary liability, remedies) encourage or chill innovators. Julie's paper adds momentum to that project.

[Lydia Loren]

As Joe clearly articulated earlier in this thread, the non-substitutable nature of copyrighted works in certain situations does not give rise to the type of market power that type is the concern of the law, but it does give rise to a type of "cultural power." Market power itself is not a bad thing, abuse of that market power can be. Similarly, I would agrue that "cultural power" itself is not a bad thing, but abuse of that cultural power can be.

So, what would constitute abuse? Certainly attempting to silence critical speech about the work would count. Generally speaking fair use does a decent job of curbing that potential for abuse. But the story of the situated user may point to other potentials for abuse of such cultural power.