When I consider the current state of American copyright law, I often think about the 19th century French economist Frederic Bastiat and his “Petition from the Manufacturers of Candles, Tapers, Lanterns, Sticks, Street Lamps, Snuffers, and Extinguishers, and from Producers of Tallow, Oil, Resin, Alcohol, and Generally of Everything Connected with Lighting,” usually referred to as the Candlemaker’s Petition.
Bastiat satirizes economic protectionism focused exclusively on producers at the expense of consumers. The Petition demonstrates the economic benefit that will accrue to candlemakers and others if only the government would do something about their competition.
We are suffering from the ruinous competition of a rival who apparently works under conditions so far superior to our own for the production of light that he is flooding the domestic market with it at an incredibly low price; for the moment he appears, our sales cease, all the consumers turn to him, and a branch of French industry whose ramifications are innumerable is all at once reduced to complete stagnation.
This competition is, of course, the sun, and the candlemakers don’t like it.
We ask you to be so good as to pass a law requiring the closing of all windows, dormers, skylights, inside and outside shutters, curtains, casements, bull’s-eyes, deadlights, and blinds—in short, all openings, holes, chinks, and fissures through which the light of the sun is wont to enter houses.
The Petition goes on to enumerate several economic benefits from blocking the sun from inside buildings, from the greater consumption of oil and tallow to an increase in agricultural production. They make a compelling case for how beneficial blocking out the sun will be—at least to the producers of certain products.
That such economic protection is absurd doesn’t mean we’re not awash in it today, especially with laws like the Sonny Bono Copyright Term Extension Act and the Digital Millennium Copyright Act (DMCA). These laws are obviously designed to benefit producers only, rather than “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries,” as the U.S. Constitution states. With those acts, the candlemakers got their way and the rest of us suffer.
Bastiat’s Petition may sound crazy, but no crazier than other producers who want protection. My favorite quote on the matter comes from Jack Valenti, the head of the Motion Picture Association of America in 1982 when he testified before Congress in hearings on the Home Recording of Copyrighted Works. Here he is raving about the impending demise of the motion picture industry:
We are going to bleed and bleed and hemorrhage, unless this Congress at least protects one industry that is able to retrieve a surplus balance of trade and whose total future depends on its protection from the savagery and the ravages of this machine…. I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.
The savagery and ravages of…the VCR! It’s easy to see how foolish Bastiat’s candlemakers sound because of the obvious absurdity of their request. Considering that the VCR has come and gone and Hollywood is still cranking out movies, Valenti’s dire warnings sound just as foolish in retrospect.
Today we’re more likely to hear about video or even ebook “piracy,” and we’re all supposed to be wary of these pirates who are potentially destroying some industry or another. Hence ridiculous laws like the DMCA, easily broken without getting caught and without damage to anyone, including movie producers. Or we see attempts by Elsevier to pass the Research Works Act to restrict the dissemination of publicly funded research, because doing supposedly harms producers like Elsevier.
Increasingly we see laws and policies designed to restrict the benefits of technology and thwart the good intentions of consumers and users of that technology. The battles surrounding ebooks and libraries provide another good example. Publishers, worried about protecting their industry even at the expense of their own consumers, create artificial restrictions on how ebooks can be legally acquired or circulated. That ebooks are licensed rather than purchased, loaded with easily circumvented DRM, and severely restricted in their circulation if they make it to libraries all demonstrate the fear of publishers. And thanks to the petitions of media candlemakers, they have the law on their side.
Things might be changing, though, because some publishers are looking less like hapless candlemakers as they adjust their strategies, especially for the academic marketplace. There are several examples now of ebook platforms and packages that don’t do their best to frustrate consumers.
Ebrary is one example. Although I teased them a bit when I demonstrated how to download an Ebrary ebook for the first time, in 18 easy steps, they do allow multiple users access to ebooks, which is what the model should be for academic libraries. If they would just extend the checkout time on their downloads, it would be even better.
More responsive to the needs of consumers and library users are policies like those from Springer or the new Palgrave Connect. Once a library buys an ebook from Springer or Palgrave, it can be downloaded DRM-free by whatever library users want it. They probably realize that most library users are well intentioned and aren’t interested in setting up file-sharing networks of scholarly ebooks, and that libraries want to give them money for useful products. Making things more difficult for consumers and library users doesn’t benefit the publishers. It just inconveniences and irritates everyone else.
Maybe one day we will see more general adaptation of sensible and consumer friendly policies regarding ebooks, both for individual and library customers. If that day comes, we’ll all be better off, even the publishers. Until then, we wait, and endure the ebook equivalent of the Candlemaker’s Petition.