Responding to Copyhype’s “Copyright and Buggy Whips”

Terry Hart at Copy­hype crit­i­cizes the “buggy whip” anal­ogy often used by copy­right crit­ics to dis­par­age the con­tent indus­try.  Hart makes some fair points, but I found that he largely mis­in­ter­preted the anal­ogy and thereby ignores its cen­tral point.  Though it would be best to read his post in full to get the entire con­text, here are some per­ti­nent quotes:

The buggy-whip anal­ogy […] describes a busi­ness that refuses to adapt in the face of tech­no­log­i­cal inno­va­tion. When auto­mo­biles replaced horse-drawn car­riages, buggy-whip man­u­fac­tur­ers either had to change their busi­ness mod­els or risk obsolescence.

How are con­tent indus­tries like buggy-whip man­u­fac­tur­ers? It’s not like they are mak­ing some­thing no one wants. Peo­ple haven’t switched entirely to new forms of enter­tain­ment; peo­ple haven’t to a large extent embraced alter­na­tives to the con­tent cre­ated by tra­di­tional indus­tries. […] To put it another way, if media indus­tries are mak­ing buggy-whips, and buggy-whips are obso­lete, why are peo­ple pirat­ing buggy-whips?”

I responded in a com­ment, but wanted to repro­duce it here for my archival pur­poses as well as to invite your own thoughts.

Here it is:

I think you are con­flat­ing the con­tent with the con­tainer, and so your attempt to extend the anal­ogy in this way is itself inac­cu­rate. To speak through the anal­ogy: Peo­ple are not pirat­ing buggy-whips, they’re pirat­ing trans­porta­tion, which the buggy-whip mak­ers dom­i­nated until the auto­mo­bile intro­duced a new and bet­ter means of trans­porta­tion. This seems the more cor­rect anal­ogy: the buggy-whip mak­ers are try­ing to make peo­ple buy buggy-whips to start up their new auto­mo­biles, instead of chang­ing their busi­ness into mak­ing auto­mo­biles or auto­mo­bile components.

In other words, the “buggy-whip” is the exclud­abil­ity that is inher­ent to the phys­i­cal ver­sions of con­tent in film, discs, and paper. The con­tent indus­tries are try­ing to main­tain or arti­fi­cially cre­ate exclud­abil­ity via DRM, DVD release win­dows, and other means. That seems more like efforts at pro­tec­tion rather than innovation.

Peo­ple aren’t demand­ing new forms of con­tent; as you say, they are chomp­ing at the bit for the con­tent that artists are pro­duc­ing. But they are cer­tainly demand­ing that the means of buy­ing and access­ing that con­tent evolve with the times. Con­sumers are not in arms against con­tent cre­ators; they are in arms against the con­tent pack­agers and con­tent ped­dlers.

I agree that many new dis­tri­b­u­tion and mon­e­ti­za­tion mod­els are unproven, and it would indeed be fool­ish for the con­tent indus­try to throw all their eggs in any sin­gle new bas­ket. But the trend seems pretty clear that mon­e­tiz­ing exclud­abil­ity won’t last in the dig­i­tal age, and so fil­ing suits against those who are mov­ing ahead in that trend will result only in pyrrhic vic­to­ries at best.

I agree that piracy is not inno­va­tion. But nei­ther is try­ing to futilely import phys­i­cal exclud­abil­ity into the dig­i­tal land­scape while suing your cus­tomers along the way. No, piracy is not inno­va­tion; piracy is a sig­nal that con­tent indus­tries are not meet­ing the needs of their con­sumers. It seems to me entirely accept­able for the con­tent indus­tries to be cau­tious in tran­si­tion­ing to this new and devel­op­ing new busi­ness envi­ron­ment, but it seems to me entirely unac­cept­able for them to try to cling to and arti­fi­cially sus­tain an envi­ron­ment that is quickly fad­ing into history.

I’ll admit that my response is reac­tionary and per­haps under­de­vel­oped, but hope­fully it raises some fair points for debate.  Your thoughts?

Image used under a Cre­ative Com­mons BY-NC-ND license cour­tesy of Flickr user AldoZL.