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Digital Copyright and Con Fuzz Ling Rhetoric

Digital Copyright and Con Fuzz Ling Rhetoric

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Published by: Antonio Martínez Velázquez on Apr 26, 2011
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06/20/2013

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Those who criticize the industry‘s existing business model often point out the
inevitability of piracy or leakage. As they declare, the industry needs to share their works with
others if they don‘t want their contents stolen. While this argument is pragmatic and takes
seriously the challenges to providing effective enforcement of copyright laws in the digital
environment, it is unfortunately also wrong-headed.

The development of copyrighted content requires a lot of time, effort, and resources. The
need to provide incentives is, indeed, the reason why the copyright system is created in the first
place. By providing protection for a limited duration, the copyright system provides artists (and
often their financiers) with an opportunity to recoup the investment incurred in creating the
protected works. Because free riding will ultimately drive down prices and result in
underproduction of copyrighted works, such protection therefore generates sufficient incentives
for artists to create and disseminate works of social value.

As much as the copyright system has been criticized, it is important to remember that the
system has helped underwrite an independent copyright sector.94

As Neil Netanel observed, in
our democratic society where free speech and free press are paramount values, ―there remain
substantial benefits to funding the creation and dissemination of many expressive works, and to
funding them from sources other than state subsidy, corporate munificence, and party
patronage.‖95

If copyright is unavailable, artists will have to rely on other models, such as
patronage. That model, however, may limit our choices by rewarding primarily the creation of

92

See FISHER, supra note 29, at 78 (―[The major labels] had discovered (or decided) that it is more profitable to select a few
individual performers and musical groups, promote them heavily, and market their recordings aggressively than it is to spread resources
more thinly over a larger set of musicians. Consequently, only a few musicians received the exposure and support necessary to become
stars and to earn correspondingly generous royalties.‖). As Professor Fisher explained:
First, people (especially young people) consistently overestimate their chances of winning gambles, and their
tendency to do so is magnified when the prizes are highly visible and memorable. As a result, a teenage guitarist is
almost certain to exaggerate his chances of becoming the next Paul Simon, and a teenage actor will overstate his
chances of achieving the status of Robert Redford. Second, even if potential creators accurately assessed their
chances of great success, too many (from the standpoint of society at large) would enter the business, because each
one, when selecting his or her career, will pay attention only to the probability that he or she will succeed, and will
ignore the extent to which his or her entry into the profession will diminish the chances of all other contestants.
FISHER, supra note 29, at 79 (citing ROBERT H. FRANK & PHILIP J. COOK, THE WINNER-TAKE-ALL SOCIETY: WHY THE FEW AT THE
TOP GET SO MUCH MORE THAN THE REST OF US 101–23 (1996)).

93

Id.

94

See Neil Weinstock Netanel, Asserting Copyright’s Democratic Principles in the Global Arena, 51 Vand. L. Rev. 217, 227–28
(1998) (discussing how copyright law underwrites democratic culture by ―support[ing] a sector of expressive activity that is relatively
independent from the state‖).

95

Netanel, Impose a Noncommercial Use Levy, supra note 18, at 76.

DIGITAL COPYRIGHT AND CONFUZZLING RHETORIC

21

works preferred by the social elites, rather than the public,96

not to mention the oft-discussed

danger of getting government involved in the creation of art.97

Without copyright, we may not

have the same type of music or the same amount of diversity as we have today.98

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