Tushnet: Users and Consumers

Rereading the introduction to Julie’s paper, with its discussion of the choice of the term “user” over “consumer,” made me think again about Pamela Samuelson’s recent fascinating talk at the Washington College of Law, where she gave a keynote address celebrating the Glushko-Samuelson IP Clinic. She discussed copyright’s consumer protection functions, both current and prospective – the ways in which copyright is formulated not just to encourage and reward authorship, but to protect consumer freedom in small (first sale) and large (anti-monopoly, copyright misuse) ways. She convinced me that adding “protection” to “consumer” has rhetorical benefits in insisting on the dignity and legitimate interests of consumers. This would be more useful if we were in a political climate that was friendlier to consumer protection, but you can’t have everything.

As Samuelson’s talk went on, she ended up defining almost every limit in copyright as a consumer protection measure, including provisions that privilege libraries and schools. The major class of limits that Samuelson didn’t mention was the compulsory licenses that regulate business-to-business relations. Yet if, as she suggested at the talk, Sony is a consumer protection case because there Sony stood for end users’ interests and the library exceptions are consumer protection exceptions because the libraries help end users get access, I’d think the compulsory license provisions that allow mechanical reproductions, the antitrust decrees under which ASCAP and BMI operate, and the compulsory cable and satellite licenses would also qualify as consumer protection measures, since they also are intended to aid in both greater access and more equitable access to copyrighted works.

So, while I’m now convinced that we (copyright skeptics or minimalists) shouldn’t abandon the term “consumer” to the extent that it helps us make links with other doctrines that explain why infinite rights expansions for copyright owners are bad, I also think that it doesn’t commit us to specific rights, limits on rights, or privileges. Indeed, the question of what rights are good for users or consumers or what-have-you can always be answered with a copyright maximalist story, too: the market will provide, and the incentives of ownership will cause so much production that consumers/users will have more choice and more utility overall. (I think of this as the copyright version of the Laffer curve, but maybe that’s just me.)

There’s a structural parallel with consumer protection law – false advertising law finds nothing objectionable about suppressing information that’s useful to some consumers if it’s misleading to a substantial number of other, less sophisticated consumers. In other words, groups of consumers (and users) can have competing interests, something that Julie points out in the last paragraph of her piece. One argument for competing interests of users as users has been made by Landes and Posner, and earlier by Justin Hughes, that some audiences may have interests in fixed and non-reinterpreted versions of copyrighted works that are harmed by fair use, limits on the derivative works right, and entry of works into the public domain. I think this is silly, for reasons explained here, but the point is that identifying a particular type of person about whom you’re concerned, whether it’s author or user, is just the beginning of the analysis – at least for a consequentialist.

It’s here that Julie’s focus on process might help us skeptics and minimalists. By emphasizing the uncertainty and contingency of the processes that lead us to find and produce meaning – even if some parts of the production are not accidental, as David McGowan correctly points out in the first comment here – the concept of the situated user can push us to think about copyright’s dynamic effects in more than the basic “create incentives but don’t close off so much that future authors can’t create” way. But I’d also love to have Julie say more about the ways in which she sees users’ interests conflicting – is it just the Posner/Landes/Hughes story of conflict?

Comments

[Julie Cohen]

I can think of two main types of conflict that might be argued. The first is the one that Rebecca notes, which I agree is silly - individuals can readily distinguish the "genuine," those who want it will find it, and there are laws against passing off if that becomes a problem. Beyond silliness, the argument ascribes insufficient value to the reasons that users reinterpret culture. The romantic user's transformation, the postmodern user's subversion, and everything in between (performance, trivia books, fan fiction, etc.) are all ways of asserting agency within culture and power over the content of culture, and this is a very good thing.

The other conflict is the one that Joe Liu flagged in his Consumers article - this is the economic argument that more perfect definition of rights produces certainty produces confidence produces lower prices produces wider access. Joe doesn't subscribe to this argument in the fully-fledged, deus-ex-machina way that some economic theorists do, but simply notes that there may be a conflict between the interests of different groups of consumers, depending on whether they prize cheap access more than freedom to reinterpret. If Joe is right, then his answer frames a policy choice that needs to be made about how to balance competing goods. But I'm quite skeptical of the argument that the single most important variable in driving down prices and keeping them down is the perfect definition and enforcement of legal rights. There are a lot of other variables involved, and freedom to reinterpret will also drive prices down by introducing greater competition.