These changes are of two sorts: the scope of concentration, and its nature.
Changes in scope are the easier ones to describe. As Senator John McCain summarized the data produced in the FCC's review of media ownership, “five companies control 85 percent of our media sources.”[25] The five recording labels of Universal Music Group, BMG, Sony Music Entertainment, Warner Music Group, and EMI control 84.8 percent of the U.S. music market.[26] The “five largest cable companies pipe programming to 74 percent of the cable subscribers nationwide.”[27]
The story with radio is even more dramatic. Before deregulation, the nation's largest radio broadcasting conglomerate owned fewer than seventy-five stations. Today one company owns more than 1,200 stations. During that period of consolidation, the total number of radio owners dropped by 34 percent. Today, in most markets, the two largest broadcasters control 74 percent of that market's revenues. Overall, just four companies control 90 percent of the nation's radio advertising revenues.
Newspaper ownership is becoming more concentrated as well. Today, there are six hundred fewer daily newspapers in the United States than there were eighty years ago, and ten companies control half of the nation's circulation. There are twenty major newspaper publishers in the United States. The top ten film studios receive 99 percent of all film revenue. The ten largest cable companies account for 85 percent of all cable revenue. This is a market far from the free press the framers sought to protect. Indeed, it is a market that is quite well protected—by the market.
Concentration in size alone is one thing. The more invidious change is in the nature of that concentration. As author James Fallows put it in a recent article about Rupert Murdoch,
Murdoch's companies now constitute a production system unmatched in its integration. They supply content—Fox movies. . . Fox TV shows. . . Fox-controlled sports broadcasts, plus newspapers and books. They sell the content to the public and to advertisers—in newspapers, on the broadcast network, on the cable channels. And they operate the physical distribution system through which the content reaches the customers. Murdoch's satellite systems now distribute News Corp. content in Europe and Asia; if Murdoch becomes DirecTV's largest single owner, that system will serve the same function in the United States.[28]
The pattern with Murdoch is the pattern of modern media. Not just large companies owning many radio stations, but a few companies owning as many outlets of media as possible. A picture describes this pattern better than a thousand words could do:
Does this concentration matter? Will it affect what is made, or what is distributed? Or is it merely a more efficient way to produce and distribute content?
My view was that concentration wouldn't matter. I thought it was nothing more than a more efficient financial structure. But now, after reading and listening to a barrage of creators try to convince me to the contrary, I am beginning to change my mind.
Here's a representative story that begins to suggest how this integration may matter.
In 1969, Norman Lear created a pilot for All in the Family. He took the pilot to ABC. The network didn't like it. It was too edgy, they told Lear. Make it again. Lear made a second pilot, more edgy than the first. ABC was exasperated. You're missing the point, they told Lear. We wanted less edgy, not more.
Rather than comply, Lear simply took the show elsewhere. CBS was happy to have the series; ABC could not stop Lear from walking. The copyrights that Lear held assured an independence from network control.[29]
The network did not control those copyrights because the law forbade the networks from controlling the content they syndicated. The law required a separation between the networks and the content producers; that separation would guarantee Lear freedom. And as late as 1992, because of these rules, the vast majority of prime time television—75 percent of it—was “independent” of the networks.
In 1994, the FCC abandoned the rules that required this independence. After that change, the networks quickly changed the balance. In 1985, there were twenty-five independent television production studios; in 2002, only five independent television studios remained. “In 1992, only 15 percent of new series were produced for a network by a company it controlled. Last year, the percentage of shows produced by controlled companies more than quintupled to 77 percent.”
“In 1992, 16 new series were produced independently of conglomerate control, last year there was one.”[30] In 2002, 75 percent of prime time television was owned by the networks that ran it. “In the ten-year period between 1992 and 2002, the number of prime time television hours per week produced by network studios increased over 200%, whereas the number of prime time television hours per week produced by independent studios decreased 63%.”[31]
Today, another Norman Lear with another All in the Family would find that he had the choice either to make the show less edgy or to be fired: The content of any show developed for a network is increasingly owned by the network.
While the number of channels has increased dramatically, the ownership of those channels has narrowed to an ever smaller and smaller few. As Barry Diller said to Bill Moyers,
Well, if you have companies that produce, that finance, that air on their channel and then distribute worldwide everything that goes through their controlled distribution system, then what you get is fewer and fewer actual voices participating in the process. [We u]sed to have dozens and dozens of thriving independent production companies producing television programs. Now you have less than a handful.[32]
This narrowing has an effect on what is produced. The product of such large and concentrated networks is increasingly homogenous. Increasingly safe. Increasingly sterile. The product of news shows from networks like this is increasingly tailored to the message the network wants to convey. This is not the communist party, though from the inside, it must feel a bit like the communist party. No one can question without risk of consequence—not necessarily banishment to Siberia, but punishment nonetheless. Independent, critical, different views are quashed. This is not the environment for a democracy.
Economics itself offers a parallel that explains why this integration affects creativity. Clay Christensen has written about the “Innovator's Dilemma”: the fact that large traditional firms find it rational to ignore new, breakthrough technologies that compete with their core business. The same analysis could help explain why large, traditional media companies would find it rational to ignore new cultural trends.[33] Lumbering giants not only don't, but should not, sprint. Yet if the field is only open to the giants, there will be far too little sprinting.
I don't think we know enough about the economics of the media market to say with certainty what concentration and integration will do. The efficiencies are important, and the effect on culture is hard to measure.
But there is a quintessentially obvious example that does strongly suggest the concern.
In addition to the copyright wars, we're in the middle of the drug wars. Government policy is strongly directed against the drug cartels; criminal and civil courts are filled with the consequences of this battle.
Let me hereby disqualify myself from any possible appointment to any position in government by saying I believe this war is a profound mistake. I am not pro drugs. Indeed, I come from a family once wrecked by drugs—though the drugs that wrecked my family were all quite legal. I believe this war is a profound mistake because the collateral damage from it is so great as to make waging the war insane. When you add together the burdens on the criminal justice system, the desperation of generations of kids whose only real economic opportunities are as drug warriors, the queering of constitutional protections because of the constant surveillance this war requires, and, most profoundly, the total destruction of the legal systems of many South American nations because of the power of the local drug cartels, I find it impossible to believe that the marginal benefit in reduced drug consumption by Americans could possibly outweigh these costs.
You may not be convinced. That's fine. We live in a democracy
, and it is through votes that we are to choose policy. But to do that, we depend fundamentally upon the press to help inform Americans about these issues.
Beginning in 1998, the Office of National Drug Control Policy launched a media campaign as part of the “war on drugs.” The campaign produced scores of short film clips about issues related to illegal drugs. In one series (the Nick and Norm series) two men are in a bar, discussing the idea of legalizing drugs as a way to avoid some of the collateral damage from the war. One advances an argument in favor of drug legalization. The other responds in a powerful and effective way against the argument of the first. In the end, the first guy changes his mind (hey, it's television). The plug at the end is a damning attack on the pro-legalization campaign.
Fair enough. It's a good ad. Not terribly misleading. It delivers its message well. It's a fair and reasonable message.
But let's say you think it is a wrong message, and you'd like to run a countercommercial. Say you want to run a series of ads that try to demonstrate the extraordinary collateral harm that comes from the drug war. Can you do it?
Well, obviously, these ads cost lots of money. Assume you raise the money. Assume a group of concerned citizens donates all the money in the world to help you get your message out. Can you be sure your message will be heard then?
No. You cannot. Television stations have a general policy of avoiding “controversial” ads. Ads sponsored by the government are deemed uncontroversial; ads disagreeing with the government are controversial. This selectivity might be thought inconsistent with the First Amendment, but the Supreme Court has held that stations have the right to choose what they run. Thus, the major channels of commercial media will refuse one side of a crucial debate the opportunity to present its case. And the courts will defend the rights of the stations to be this biased.[34]
I'd be happy to defend the networks' rights, as well—if we lived in a media market that was truly diverse. But concentration in the media throws that condition into doubt. If a handful of companies control access to the media, and that handful of companies gets to decide which political positions it will allow to be promoted on its channels, then in an obvious and important way, concentration matters. You might like the positions the handful of companies selects. But you should not like a world in which a mere few get to decide which issues the rest of us get to know about.
Together
There is something innocent and obvious about the claim of the copyright warriors that the government should “protect my property.” In the abstract, it is obviously true and, ordinarily, totally harmless. No sane sort who is not an anarchist could disagree.
But when we see how dramatically this “property” has changed—when we recognize how it might now interact with both technology and markets to mean that the effective constraint on the liberty to cultivate our culture is dramatically different—the claim begins to seem less innocent and obvious. Given (1) the power of technology to supplement the law's control, and (2) the power of concentrated markets to weaken the opportunity for dissent, if strictly enforcing the massively expanded “property” rights granted by copyright fundamentally changes the freedom within this culture to cultivate and build upon our past, then we have to ask whether this property should be redefined.
Not starkly. Or absolutely. My point is not that we should abolish copyright or go back to the eighteenth century. That would be a total mistake, disastrous for the most important creative enterprises within our culture today.
But there is a space between zero and one, Internet culture notwithstanding. And these massive shifts in the effective power of copyright regulation, tied to increased concentration of the content industry and resting in the hands of technology that will increasingly enable control over the use of culture, should drive us to consider whether another adjustment is called for. Not an adjustment that increases copyright's power. Not an adjustment that increases its term. Rather, an adjustment to restore the balance that has traditionally defined copyright's regulation—a weakening of that regulation, to strengthen creativity.
Copyright law has not been a rock of Gibraltar. It's not a set of constant commitments that, for some mysterious reason, teenagers and geeks now flout. Instead, copyright power has grown dramatically in a short period of time, as the technologies of distribution and creation have changed and as lobbyists have pushed for more control by copyright holders. Changes in the past in response to changes in technology suggest that we may well need similar changes in the future. And these changes have to be reductions in the scope of copyright, in response to the extraordinary increase in control that technology and the market enable.
For the single point that is lost in this war on pirates is a point that we see only after surveying the range of these changes. When you add together the effect of changing law, concentrated markets, and changing technology, together they produce an astonishing conclusion: Never in our history have fewer had a legal right to control more of the development of our culture than now.
Not when copyrights were perpetual, for when copyrights were perpetual, they affected only that precise creative work. Not when only publishers had the tools to publish, for the market then was much more diverse. Not when there were only three television networks, for even then, newspapers, film studios, radio stations, and publishers were independent of the networks. Never has copyright protected such a wide range of rights, against as broad a range of actors, for a term that was remotely as long. This form of regulation—a tiny regulation of a tiny part of the creative energy of a nation at the founding—is now a massive regulation of the overall creative process. Law plus technology plus the market now interact to turn this historically benign regulation into the most significant regulation of culture that our free society has known.[35]
This has been a long chapter. Its point can now be briefly stated.
At the start of this book, I distinguished between commercial and noncommercial culture. In the course of this chapter, I have distinguished between copying a work and transforming it. We can now combine these two distinctions and draw a clear map of the changes that copyright law has undergone.
In 1790, the law looked like this:
Publish Transform
Commercial © Free
Noncommercial Free Free
The act of publishing a map, chart, and book was regulated by copyright law. Nothing else was. Transformations were free. And as copyright attached only with registration, and only those who intended to benefit commercially would register, copying through publishing of noncommercial work was also free.
By the end of the nineteenth century, the law had changed to this:
Publish Transform
Commercial © ©
Noncommercial Free Free
Derivative works were now regulated by copyright law—if published, which again, given the economics of publishing at the time, means if offered commercially. But noncommercial publishing and transformation were still essentially free.
In 1909 the law changed to regulate copies, not publishing, and after this change, the scope of the law was tied to technology. As the technology of copying became more prevalent, the reach of the law expanded. Thus by 1975, as photocopying machines became more common, we could say the law began to look like this:
Publish Transform
Commercial © ©
Noncommercial ©/Free Free
The law was interpreted to reach noncommercial copying through, say, copy machines, but still much of copying outside of the commercial market remained free. But the consequence of the emergence of digital technologies, especially in the context of a digital network, means that the law now looks like this:
Publish Transform
Commercial © ©
Noncommercial © ©
Every realm is governed by copyright law, whereas before most creativity was not. The law now regulates the full range of creativity—commercial or not, transformative or not—with the same rules designed to regulate commer
cial publishers.
Obviously, copyright law is not the enemy. The enemy is regulation that does no good. So the question that we should be asking just now is whether extending the regulations of copyright law into each of these domains actually does any good.
I have no doubt that it does good in regulating commercial copying. But I also have no doubt that it does more harm than good when regulating (as it regulates just now) noncommercial copying and, especially, noncommercial transformation. And increasingly, for the reasons sketched especially in chapters 7 and 8, one might well wonder whether it does more harm than good for commercial transformation. More commercial transformative work would be created if derivative rights were more sharply restricted.
The issue is therefore not simply whether copyright is property. Of course copyright is a kind of “property,” and of course, as with any property, the state ought to protect it. But first impressions notwithstanding, historically, this property right (as with all property rights[36]) has been crafted to balance the important need to give authors and artists incentives with the equally important need to assure access to creative work. This balance has always been struck in light of new technologies. And for almost half of our tradition, the “copyright” did not control at all the freedom of others to build upon or transform a creative work. American culture was born free, and for almost 180 years our country consistently protected a vibrant and rich free culture.
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