A Copyfighter’s Musings

Finally read “Spectrum Abundance and the Choice Between Private and Public Control” by Stuart Benjamin.  He’s pretty convincing, and, while not making me want to go to totally private control, does make me want a mixed policy at least at first.  Here are my notes, with limited commentary:

-Doesn’t seem to be arguing that spectrum commons won’t work, although he is skeptical.  He is arguing that a government created one would be less inefficient that providing large allotments to private owners, who would create a commons if it’s desired.

-Two points about commons, using spread spectrum. You need:
 Smarter devices – strong computational abilities, can transmit at low power and still get through.
 Cooperation gain – which means that devices act as retransmitters. Instead of having cell phone base stations installed throughout the city, you just have everyone’s device act as a mobile base station.

Problems: what if people choose to transmit at higher power? what if people do not share their devices (think of people turning off their shared folder on Napster – it was a drain on your machine’s resources)?
Solution: Standards.

Commons advocates arguments against private property allotments (according to him)
 1.  Transaction costs – you’d have to buy up so many slices of the spectrum to create privately a commons network.  And “holdout costs” – people waiting to sell to bid price up.  Benjamin’s response: these are not inherent in private ownership, just in dividing spectrum into small pieces.
 2.  Large allotments will not lead to spectrum commons. They won’t be able to make money, so they won’t do it.  Benjamin says: charge for access, or put fee on the device.  If we’re in a competitive market, and these commons are really more efficient, someone will create them. (Makes an interesting point. If commons can carry more users, you can charge less per user.)

Government v. Private Control – how do we evaluate it?
 1.  Smart engineers – need to have access to people most up on the tech, best access to info. (Note: he’s speaking as an economist.) Governments are controlled by constituencies, many of which will want to see spectrum fail. Private = competition and profit motive to get best info.
 2.  Putting the engineers to work – need people who are going to want to make the best choices, continually innovated.  Want to be able to make quick changes to adjust to new technology.  Profit motive is key here, government doesn’t have it.
 3.  Anticompetitive concentration of power – inefficient uses and pricing.  Benjamin wants restructuring of spectrum (opening more up to auction, including broadcast television’s and the military’s spectrum, approximating a “big bang” auction of all exiting rights) and then selling off enough to create many abundant networks. Not sure how he came up with his numbers here, or if the amount of abundant networks he thinks are sufficient will actually be so.  It would be unlikely that any one company would buy all spectrum, and you could set limits just in case, or maybe a common-carrier sort of approach.  Try to promote as much as healthy competition as possible. That’s good for reducing monopolies, but also for optimizing system capabilities.  Systems will differentiate, try out new technologies.    Also, less monopolies because interconnection will be desirable. Interesting idea: the only situtation where a monopolist is guaranteed is if you let the government handle everything. Then the question is, is that a beneficial monopoly? What happens when government has to work with private company and there’s rent-seeking?
  I think he makes a good point here – if you consider the history of the FCC, you know how screwed up government spectrum regulation has been.
 4.  Value of a Free Network
  a) Free of charge – Benjamin says you need to have a broader conception of cost. What about opportunity costs, the lost ability to create a different non-commons use? (What’s a specific use that won’t work?) Also, why should the government subsidize this?  All communications networks seek this sort of subsidy in some wya.
  b) Serve us as citizens and prevent filters – how is this really going to come about? why can’t this be created by private networks? Government will still be affected by private actors.  Are these arguments simple paternalism? (I agree with him as far as any theory that treats everyone as too dumb to like commons networks is probably a bad theory.  The concentration of power problems are more serious – it’s making sure that spectrum is distributed in a neutral fashion, in a truly competitive environment.)

Should government distribute in large bands?
 If abundant networks not most efficient, giving large bands will be bad because hard to disaggregate. Need some way to balance.

Filed by Derek Slater at 2:45 pm under Big Ideas
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Quick, ultimately silly question: would you allow legitimate infinite copyright in exchange for actual fair use rights and no exclusive right to derivatives?

This question came to mind after reading Matt’s interaction with one of the copyright-equals-my-Property types.  My first problem with any of these discussions is that I have no idea what “their property” actually means. 

Does that mean the expression itself?  All of it, at all times? So exact quoting is out of the question?

What about my property? You may own the music, but I own the CD.  Do you get to tell me how to use my property in my own home?  If you made the music, does that also mean you own my CD player?

That bit is a good rejoinder to people who try to use Locke to justify their moral reasoning.  But, the fact of the matter is, it doesn’t matter if the moral rights theory doesn’t come from Locke or any other major western philosophy that this country was built on. If people want to believe that, fine, and I’d like to spend minimal time convincing them otherwise.

Here’s how I look at things, from a moral rights perspective: Even if those moral rights should/do exist, one at least must concede that they don’t gel with other parts of American law, particularly free speech and private property rights (your music, but my cd).  Now, we could change American law to fit one’s intellectual property theory, but that’d be absurd.  So what we have to do is fudge it. 

From a moral rights perspective, finite copyrights is fudging it, but not necessarily bad. It’s too hard to balance the public interest, interests that exist in the rest of the law, with “all rights reserved”; because the law has trouble with laying out for ALL cases where only some rights should be reserved, we have to have an accompanying time of no rights reserved.  (I’m not advocating this justification, just imagining one from this position.)

You have to add a little bit for the copyright holder, trim a little bit off here for the public, shape it into something reasonable.  It’s not perfectly one theory or the other, but it’s what we have to do.

Then the question is, where do you balance it.  And, when people accept that there needs to be some balance, they see that the property interest they want most is the distribution and public performance rights.  For some others, it will include derivatives – but even for them, there’s a wide variation between how much coverage that should be.

The general point: I’m tired of the moral rights camp, but I’m also tired of arguing with them about their theories. If we can meet them half-way, that’d be pretty cool, because, right now, we have illegitimate infinite copyright, with ill-defined traditional contours of fair use and of the idea/expression dichotomy.  For the most part there is no balance.

Update: Matt responds – I don’t think we’re that far off, even though he thinks I’m laying into moral rights advocates. So I commented back.

Filed by Derek Slater at 2:36 pm under Big Ideas
Comments Off on Even If It’s Your Music, It’s My CD