April 8, 2003  ·  Lessig

I was one of the “fretters” (as Declan called us) at CFP in New York last week. By “fretters,” Declan means people who “lose perspective” on issues like media concentration, and threats to privacy. “Perspective,” in turn, means recognizing the “tremendous difference” between actions taken by the government and those taken by private corporations. Who exactly doesn’t understand that difference isn’t clear from the article; nor is it clear for how long this “tremendous” difference will remain “tremendous,” as increasingly corporate databases are essentially the government’s (TIA). But no matter: whatever the threat CFP-ers were worried about, there’s apparently *still* nothing to worry about (as of course, Declan’s had this same line in his copy-buffer since I first met him at CFP97). The free choices of the market will allow everyone to choose any problem away (when we will get around to that happy set of choices, though, is not yet clear.)

Declan did criticize me for invoking “1970s rhetoric” when talking about media concentration. I’m still not quite clear what exactly that means. I was criticizing media concentration, which on any measure, is massively greater today than in any period in our history. In 1992, 70% of prime time television was produced by independent producers; today, 75% is owned by networks. There are 91 “major” TV markets; 80% of them are owned by 6 companies. In 1947, 80% of newspapers were independent; that number is below 20% today. In the 1970s, 10% of first run films in theaters was foreign; that number today is less than .5%.

Add to this concentration (1) the expansion in copyright terms, (2) the expansion in copyright’s scope, (3) the expansion in copyright’s reach [ie, to anyone with a computer], and (4) the explosion of technologies protected by DMCA-like laws, and you clearly get, imho, something to be concerned about. It *might* be that all this doesn’t matter, and no doubt, we should keep this in perspective, Declan. But from what perspective is this a happy story?

Anti-fretters are apparently convinced that everything’s just great because now we’ve got “satellite TV, satellite radio, DVDs, CDs, video-on-demand, hundreds of cable channels, movie rentals and … the Internet.” But of course, no one is saying there are fewer *outlets* for media; the claim is that there are fewer “independent” outlets for media. Six companies, which if the media cap rules are relaxed, could well be three.

Should we be worried about this? As I said to Nick Gillespie (whom I had not met before and who is brilliant), my bias has always been not to be worried. I’m a fan of Judge Posner. He’s done lots to slay “big media” myths. And in this contexts, as well as many, big is not necessarily bad.

But the more I hear from people who know something about what the process of creativity is actually like, the more I am concerned. Gillespie says the artists have always been whiners. Maybe. But the “innovator’s dilemma” applies to culture as much as to commerce. Yet we have more reason to be worried about its application to culture than to commerce.

Maybe there’s nothing to be worried about. Maybe the market will make it all turn out just fine. Maybe this really is the best of all possible worlds. Or maybe this is the one issue which my sparring partner has gotten right. As he testified when arguing against relaxing rules requiring independence in programming, he predicted “[t]hey would assert their fiscal authority in such a way that literally three people would have complete authority over what is seen in homes � a monopoly in television never before comprehended or tolerated in this country. … No one industry, no single entity, no group of enterprises ought to be allowed, by special grants of congressional privilege, to dominate the marketplace �. The losers in that ungainly arrangement are consumers��always, every time.”

Who is this defender of diversity and opponent of concentration? The amazing Mr. Jack Valenti.

  • Dan Sickles

    …we�ve got �satellite TV, satellite radio, DVDs, CDs, video-on-demand, hundreds of cable channels, movie rentals and � the Internet.�

    The Internet…just another distribution channel. That pesky two-way feature can be legislated away so that it can be a ‘proper’ consumer media type.

    Clue-free is care-free.

  • Karl

    Is there a link to a full text of that Valenti testimony? I’d like some context.


  • john g

    That was a nice finish.

  • http://www.technomanifestos.net Adam Brate

    Ah, the strange and beautiful dreamworld of the technolibertarian. I’ve always been baffled as to why giant, completely secretive corporations motivated purely for survival through profit are intrinsically better and safer than giant, secretive but forced by law to be accountable governments motivated by ideals of common good as well as self-survival.

    Especially when the corporations tie their existence to the support of the governments, through legal structures that allow them to maintain their profit sources and discourage or prevent competition.

    But then, this has all been better explored in Paulina Borsook’s Cyberselfish.

  • Lessig

    Paulina’s book is great. I’ll try to find a link to the congressional testimony. If I can’t, I’ll download it and post it.

  • Lessig

    So Valenti’s testimony is not online anyplace I can find. It would be great if someone could scan it (I’ll try to get it done), but here is the cite:

    Media Ownership: Diversity and Concentration, Hearings before the subcommittee on Communications of the Committee on Commerce, Science, and Transportation, US Senate, 101st Cong., 1st Sess (June 14, 21, 22 1989), page 611-14.

  • Karl

    Thanks for the cite. I’ve found a hard copy and will see what I can do about getting a copy up on the net.


  • http://www.aolwatch.org David Cassel

    About all those new forms of media. Surely someone’s noticed that many are owned by the same original handful of players. And that they’re often simply cross-promoting and re-purposing their original monopolies. Disney Radio plugs a Disney TV star; a FOX movie gets special promotion before FOX TV shows… Audiences who miss the movie then snatch it up on FOX’s DVDs and buy CD soundtracks.

    I mean, take a hard look at these new outlets. Nickelodeon’s “killer app” for the new distribution outlet is re-runs of Gilligan’s Island. While the outlet may be new — the content surely isn’t.

    And that’s a direct result of media concentration.