WASHINGTON — Here at CISAC’s 2nd World Copyright Summit, YouTube Chief Counsel Zahavah Levine declared she had just learned of an illness from which she suffers — copyright gridlock. The term came from the previous speaker, Columbia Law School Professor Michael Heller, who argued that gridlock on intellectual property rights is stopping innovation and harming artists. Yes, these arguments continue to be made, and by academics no less. Not surprisingly, most speakers here have instead emphasized how creators and creative industries are in fact powered by rights. When asked by an audience member if he was advocating the ask-forgiveness-rather-than-ask-permission model, Heller didn’t deny it, and said that entrepreneurs should be free to act in the best interests of the “market” (a market without property rights of substance, kind of a Twilight-Zone market) and not let holders of rights stand in the way.

This is of course the model of YouTube. This is the third time I’ve heard Ms. Levine complain about how hard it is to pay rightsholders for performances on her site, even though nobody asked her to permit the airing of copyrighted works to begin with and it would be a significant stretch of the safe-harbor provision to say she has a “right” to air others’ works without permission, when in fact the law requires her to take them down whenever notified.

Heller kept comparing creative works to physical industries such as airports and runways and automobiles and highways. This is a peculiar perspective on the unique craft of creation, but so be it. I’ll go ahead and embrace this new post-gridlock world of Heller and Levine, the conflation of physical and intellectual property.

They advocate responding to consumer demand. Well, the last I heard Oprah Winfrey was very popular, so popular it’s rare to see her last name listed with her first. I saw once that she lives in a magnificent mansion. Her front yard is larger than most public parks. I would think that many of her legions of fans would like to visit her estate.

I intend to bring a construction crew onto her front lawn and build a nice visitors’ center and a parking lot. At that point, I’ll offer the public tours. I’ll charge $10 for a tour of the grounds, $20 for a tour of her home. Yes, she has property rights over her lawn and her home. But Heller has conflated intellectual property with real property, and he’s said that where there is consumer demand, the property-rights gridlock that blocks that demand from being met should be broken through. Levine’s YouTube has taught us how.

Now Ms. Winfrey may not be happy with my actions. But look. My operation will only take up a small fraction of her property. My tours will only run a few hours every day, most likely while she is at her studio or magazine office. I will pay fully for construction and for the tour guides. I’ll even handle my own utilities for the property. And I will gladly share a portion of the revenues I generate from the tours.

So what happens if Ms. Winfrey declines? Perhaps she wishes to keep that property to herself. Perhaps she only wants to open it up to friends, on her terms. Perhaps she recognizes the wisdom of providing tours — many Lords in the U.K. do it now for some pocket change — but wishes to manage the process herself or choose to whom to outsource the job. Perhaps she’d like to supervise construction of the visitors center and the parking lot.

Sorry, Ms. Winfrey. We need to break through this property rights gridlock. You need to accept public demand and agree to receive whatever money I decide to give you. Trust me, it will be better than what you’re getting from me now, which is nothing.

I’m waiting.

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This entry was posted on Tuesday, June 9th, 2009 at 12:14 pm by Patrick Ross and is filed under copyright law, creators, licensing, market forces, property rights. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.