Copyright Utopia: From Poverty To Wealth

Let's raise the ante: we live in a prison of artificial scarcity that impoverishes us all. If our children do not look back on this time as an IP dark age, it will be only because of our own failure of courage and imagination.

For example, imagine flipping a switch and instantly creating billions of dollars in wealth:

Today, we scrounge for IP. Consumers spend years carefully building a music collection of a few hundred albums. They watch movies parcelled out disk by disk from Netflix. If they want to read one of the 75% of books that is under copyright but out of print, they have it trucked in from a distant location by inter-library loan.

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The utopian alternative: if market-based copyright disappeared, then by tomorrow the same consumer could have every book ever written, every album ever recorded, every movie ever made, delivered instantly for the price of an internet connection.

This dichotomy demonstrates the social cost of market-based copyright: as long as we incentivise creation by allowing producers to charge consumers for each use, we necessarily lose the wealth created by each foregone copy.

How much wealthier, in billions or trillions of dollars, would our society be if every consumer's media library expanded to infinity? More speculatively, what new scholarship would emerge from a universal, searchable library? What new ways to explore and experience the universe of film and music would be created?

The two alternatives are not far apart -- at the extreme, we could move from poverty to wealth simply by dropping an existing statute.

Of course it wouldn't be that simple. If we flipped the switch tomorrow, it would destroy every existing media business model, from 100 million dollar movies to 25 cent newspapers. New models would take a while to emerge, and it's hard to predict what we would have lost once the dust settled.

That said, we still might be better off with no copyright law than the one we have now. The point is that our current system leaves vast wealth on the table, accessible to no one -- so much wealth that you can't reject even the craziest scheme out of hand. We should be bending over backwards to try to reclaim it.

I want to stake out this radical stance as a sort of North Star. For example, in class we tried to answer questions like, "can DRM technology and law enable online lending libraries, without eliminating fair use?" Much as I mistrust DRM, I have to admit that online libraries sound like a pretty cool idea; the impact of technological copy prevention, backed up by the legal strength of the DMCA, might indeed work a sort of revolution in the market for copyrighted works.

The big picture, however, is that this kind of question assumes that copyright will remain a market system, with rights negotiated between distributors and consumers on a use by use basis. It leaves the social cost of market-based copyright intact.

Let's not settle for such a paltry revolution.