I wrote my first ever book review for a class this quarter. I may be a late bloomer when it comes to these critical “a book review is not a book report” genre, but now having had the experience, I think the world may be better place for my late entry (and perhaps better yet if I hadn’t attempted it at all). Book review is the blunt art of banging your head against the wall to see what words will bleed out.
How is it to actually read such a review? Let me know? My bloody review is here and also reproduced below the jump.
William W. Fisher, Promises to Keep: Technology, Law, and the Future of Entertainment, 1st ed. (Stanford, California: Stanford University Press, 2004).
“Fewer disputes, fewer lawyers, less social waste,” writes William Fisher in Promises to Keep. This sentiment captures in rough shape the thesis of Fisher’s book: that the film and music industries are in a crisis, their business models threatened by new technologies that power the Internet, that in this precarious situation the media industries have increasingly turned to litigation, legislation, and digital rights management (DRM) technologies to shut down the new distribution channels for creative content that the Internet makes possible, that their efforts have stifled the benefits – the promises – that technological progress makes possible, that despite these attempts, the ability of content creators and hence their incentive to create are imperiled, and finally, that it is possible to solve these problems by reforming the legal and institutional landscape. Towards this end, Fisher proposes three specific reforms.
Fisher’s clear favorite of the three is “an administrative compensation system” resembling a comprehensive compulsory license covering all possible uses of music and films. This system’s greatest strength is that it would significantly decrease the transaction costs associated with getting creative content from creators to users and money from those users back to said creators and all the intermediaries who made the exchange possible. In Fisher’s own words, “there is substantially less law in this model than any of the [other] models considered in” Promises to Keep and “society at large would benefit” from this drop off in the law and its expensive representatives, lawyers.
The proposed solution with “fewer lawyers, less social waste” is made all more credible by Fisher’s standing as a prominent jurist. Fisher is the Hale and Dorr Professor of Intellectual Property Law at Harvard University and the Director of Berkman Center for Internet and Society. The author’s legal background shines through in Promises to Keep, as so do his four year dedication to understanding the materials, his wonderful ability to relay what he has learned, and his commitment to persuading others to embrace his vision of what should be done to resolve the impasse in which content creators, media industries, technology companies, and consumers find themselves. While Fisher discusses at length the necessary legal changes that would need to happen to enable an administrative system of the kind he proposes to emerge, his focus on the law and its institutional details did not come at the expense of economic and technological analysis.
The first three chapters of Promises of Keep are devoted to describing first, the complicated economic relationships between the various creators and intermediaries that work to deliver music and movies to the end users, second, the technological innovations, i.e. the change from analog to digital encoding, the rise of compression standards, and the widespread use of the Internet, that together brought about the “entertainment revolution”, and third, the ways in which these innovations upended long-held business models in the music and movie industries. To be sure, the economics relationships, business models, and technological innovations were shaped by the prevailing legal climate, most notably federal copyright law. Fisher shows, however, that these considerations are important in their own right, and in fact, the law is often a tool used by parties involved in the media creation-distribution-consumption chain to resist or accelerate changes in economic arrangement brought on by technological progress. Seen in this light, reforms in intellectual property law are essential to “assist us in reaping the large potential benefits of the new technologies,” namely more efficient delivery of creative content via electronic rather than physical conduits, the diversification of creative content, and the increased participation allowed to consumers of creative goods, “while minimizing the concomitant problems,” namely the corrosion of established business models to reward and incentivize artists’ creations. However, legal reforms are only one part of any proposed solutions to the current crisis and any changes to the law must be judged on the balance they strike between the society’s ability to take full advantage of the entertainment revolution and the need for continued economic viability for content creation.
Indeed, the last three chapters of Promises to Keep consist of three different proposals that strike a different balance between these two interests. The first – the proposal to treat intellectual property as land property – most favors the media industries’ entrenched business models, while the last – Fisher’s self-described “the best of the possible solutions to the crisis” – most favors users’ ability to reap the full benefits of the entertainment revolution . In this last formulation, Fisher’s guiding principle is that the total revenues collected by an administrative agency to be distributed to current economic actors in the music and media industries should be just enough to “make creators, as a group, whole” (and cover the agency’s operating costs). Copyright law would be reformed so that all exclusive rights currently afforded to copyright holders would be rendered void, but current copyright holders would be compensated in some administratively determined amount every time their materials were used. The total compensation will cover losses current economic actors “have suffered – and will likely suffer in the immediate future – as a result of being deprived of their ability to enforce their copyrights in the new technological environment”. This compensatory amount will be collected from either income tax or taxes on devices used to enjoy creative content, e.g. CD burners, Internet access services, and file-sharing services. In return for paying these taxes, consumers will be free to use creative content in any way they see fit, thus enabling them to reap the full benefits of the new technologies, while individual creators and their intermediaries will be compensated based on the frequency with which their materials were used. Absent from the picture will be the costly tussles between the media industries, technology companies, and end-users to define and stop infringement of intellectual property, to deploy and evade DRM measures, to lobby for more stringent enforcement of copyright laws and to carve out additional exemptions from said enforcement . The result, in short, is to have “fewer disputes, fewer lawyers, less social waste”.
One may both debate the broad arc of Fisher’s proposal and quibble with the details of his administrative compensation system. (Fisher is too wily of an advocate to expect uniform assent to his argument, and in fact, admits freely that his proposal is a sketch with details to be filled out before implementation.) Whether a reader finds more or less to like in Fisher’s final recommendation, to the question, “did one learn something new that one wants to learn from this book?”, any reader interested in copyright law, the way that body of law shapes the business models of the entertainment industries, and the poor way in which those business models and our current copyright system have coped with changes induced by technology progress must answer “yes”. Judged by this metric of having new and relevant information to sustain the interest of the curious reader, Promises to Keep is an unqualified success.
Where the book is considerably less successful is revealed in the fact that its publication dates to 2004. Almost a decade has passed from when Fisher’s book met the public, voiced its thesis, and made its articulation for reform – and nothing along the lines of any of Fisher’s proposals has been adopted. Acrimonious litigation among copyright holders, technology companies, and by proxy, end-users continues apace. Executives from music, book, and newspaper publishing industries continue to issue alarming cries about the state of crisis in their industries. DRM measures continue to be deployed in movies and books to thwart users’ desires to space-shift content. Firms that bring to market new technologies for distributing creative content are still constrained, and even litigated out of business, by copyright holders. People who assume that “the law by and large tracks their sense of justice” continue to run the risk that a particular brand of the law, intellectual property, will confound their expectations. Put briefly, reforms of the kind Fisher proposes have not materialized. Against entrenchment interests, Fisher’s reasoned argument for change and his optimism in the capability of the involved parties to bring about such change seem out of place. Technology, law, and the future of entertainment hold out little hope for achieving the vision of “fewer disputes, fewer lawyers, less social waste”.