I can resist no longer.

For nearly a week, a letter by CEA's Gary Shapiro has been bouncing around the ether. It responds to remarks made by Warner Bros. Entertainment Chairman and CEO Barry Meyer at a luncheon last week; I praised Meyer here. Gary's response shows, once again, a fundamental difference in his view of creative works from most creators of those works. Below the jump I'll explain where he is erring with his definition of "freedom," but I'll begin by pointing out the very misleading way in which CEA put Gary's letter out there.

Last week I received an e-mail with this message:

Patrick,

Warner Brothers’ Chairman and CEO Barry Meyer recently spoke on Capitol Hill seeking legislation to restrict consumer access to innovative digital technologies. In his speech, Meyer placed blame for the digital consumer’s frustration on equipment manufacturers and misrepresented remarks made by CEA President and CEO Gary Shapiro at the 2007 International CES. Read Shapiro’s response to Meyer in the attached letter and his complete CES keynote at http://www.cesweb.org/docs/2007OpeningKeynote_Shapiro.pdf.

Regards,

William Bentgen
Communications Coordinator
Consumer Electronics Association

The message from Mr. Bentgen (whom I do not know) was full of inaccuracies, so I wrote this in reply:

William,

I was at the Meyer speech. He did not speak on Capitol Hill; he spoke at the Monaco Hotel, at the Directors’ Luncheon sponsored by the Directors’ Guild of America. Also, at no point in his speech was he “seeking legislation to restrict consumer access to innovative digital technologies.” Having remembered no such call, I went back over the copious notes I took and confirmed that he said no such thing. He did place blame for the digital consumer’s frustration on equipment manufacturers, but he was pointing out the truth that lack of interoperability is often a result of CE manufacturers; in fact, he noted his company at CES debuted a disc that it compatible with both Blue Ray and HD DVD.

It’s clear you weren’t at his speech and are not familiar with its contents. As a result, your e-mail is filled with inaccuracies. There’s nothing wrong with promoting Gary’s defense, given the fact that Meyer really lit into his CES speech, but spreading inaccuracies hardly helps Gary’s case. I’d strongly suggest you send a clarification out to your mailing list.

Best,

Patrick

Normally I don't reprint emails sent to me. However, I have not receive a reply, he has not sent out a clarification as far as I am aware, and it's been made clear to me that this was a blanket PR email, not a private one. I feel it's important to keep in mind that the PR effort to promote a letter where Gary Shapiro says he has been misrpresented was distributed in an email full of misrepresentations.

Now on to the Shapiro letter. There are many areas to criticize, but I'd like to focus on the middle of the 2nd page. Gary writes this:

We both agree that those who profit from the unauthorized, mass redistribution of content do so illegally. And we both agree that the creative community deserves fair compensation for its works, which are enjoyed by so many around the world. Where we apparently disagree is in how to treat ordinary, law-abiding citizens. Consumers should not expect free, but they do expect freedom -- the freedom to enjoy their lawfully acquired content when, where and how they want. That freedom is enabled by today’s digital world and should be embraced by the content community.

This is a common argument by Gary, and is part of a new coalition I have criticized. First, he tries to paint a world where only unauthorized use that leads to profit is bad. That is only one of the four prongs of Gary's favorite legal defense, "fair use," but he knows very well that use that doesn't involve profit can also be infringment.

But I'd like to focus on the "freedom" he claims here. He says consumers should have "the freedom to enjoy their lawfully acquired content when, where and how they want." Hmm. He says he wants the creative community to receive fair compensation for its works. Note he doesn't say he believes they have rights to their works. It sounds like he wants to take the EFF-Fisher models where some form of tax creates a revenue pool that funds artists. EFF is a supporter of his Digital Freedom coalition.

What Gary won't acknowledge is that, under present law, a creator has rights inherent with that creation, including the fundamental property right of exclusion. Under Gary's "freedom," once I buy, say, a DVD, I should have unlimited personal use of that movie, as long as I'm not profiting from that use. I fully understand that desire, and there is probably a fair price point for that access. But the creator of that work has the right to decide if such blanket rights should be offered. And the creator can also choose only to sell or lease certain rights (you can play it on any DVD player you like, just don't hack it and copy it to another device, for example).

Gary's "freedom" is in fact freedom from any business model for creative works other than all-you-can-eat, or as he says, "when, where and how they want." Public policy should not be used to give consumers what they want. Markets do that. If enough of the consumers Gary cites demand the "freedom" he's advocating, creators will step forward to meet that demand. In the meantime, we should allow numerous business models to launch, offering different rights at different prices, and see how consumers respond to those as well.