This diatribe against YouTube recently appeared on the web site of a right wing lobbying organization with the innocuous name of “National Legal and Policy Center.” They are certainly correct that lots of copyright infringement happens on YouTube, but several of their arguments deserve response.
It is always odd to see a group that says it advocates small government and free markets swing so far in favor of stronger copyright protection, which, by its nature, is government intervention to distort the market. Copyright works to keep the price of knowledge goods well above the marginal cost of production in order to provide an incentive for creation. Because it creates an artificial monopoly, it must always balance the incentive created with the harm done to free competition. The National Legal and Policy Center makes no such analysis.
Instead, they simply assert that “Internet piracy” causes loses by the film industry of $2.3 billion. Such an estimate relies on lost “opportunity costs” and assumes that each unauthorized copy is equivalent to a lost sale – a very questionable assumption. It also neglects the other side of the equation; the potential economic and social benefits when consumers have lower-cost access to entertainment and to the “inputs” for new creativity. Not that we should encourage “free-riding,” but the economics are not as simple as these lobbyists suggest; there is no reason to assume that the price the entertainment industry wants to charge for its goods is actually the optimum price, given the artificial support of copyright law.
Finally, the article simply assumes that YouTube should be responsible for the infringing activities of its users. The current law, in fact, cuts the other way; the Digital Millennium Copyright Act provides a safe harbor for online service providers from such secondary liability in order to encourage innovation. That safe harbor, which has allowed a freedom for experimentation with fair use that has supported a wealth of new creativity, is being challenged in court by the entertainment industry. The issue is still unresolved, but once again, the desirable social balance is complex and requires careful negotiation, not mere finger pointing and accusation.
Equally simple-minded is the new campaign (PRISM) launched by the American Association of Publishers against public access for federally-funded research in health. The publishing industry lost in Congress earlier this year, when a mandate for public access to research funded by the National Institute of Health was included in an appropriations bill. Now they hope to reverse that loss by convincing the public that mandated access for taxpayers is “government interference.” Why it is not government interference for tax money to finance the research in the first place is not clear, except to note that publishers get a free ride on such research. The researchers, of course, are seldom paid for the articles they write based on the government-sponsored research, and publishers can charge outrageous rents to let the public see the results. Little wonder that they want to protect their golden goose. But the irony of accusing the government, which paid for the research, of wanting to free-load off the publishers, who do not, is a bit too much.
The debate on these issues is well documented by Peter Suber, here at “Open Access News.”