In my latest podcast (MP3), I read my May Locus column: Steering with the Windshield Wipers. It makes the argument that much of the dysfunction of tech regulation — from botched anti-sex-trafficking laws to the EU’s plan to impose mass surveillance and censorship to root out copyright infringement — are the result of trying to jury-rig tools to fix the problems of monopolies, without using anti-monopoly laws, because they have been systematically gutted for 40 years.
A lack of competition rewards bullies, and bullies have insatiable appetites. If your kid is starving because they keep getting beaten up for their lunch money, you can’t solve the problem by giving them more lunch money – the bullies will take that money too. Likewise: in the wildly unequal Borkean inferno we all inhabit, giving artists more copyright will just enrich the companies that control the markets we sell our works into – the media companies, who will demand that we sign over those rights as a condition of their patronage. Of course, these companies will be subsequently menaced and expropriated by the internet distribution companies. And while the media companies are reluctant to share their bounties with us artists, they reliably expect us to share their pain – a bad quarter often means canceled projects, late payments, and lower advances.
And yet, when a lack of competition creates inequities, we do not, by and large, reach for pro-competitive answers. We are the fallen descendants of a lost civilization, destroyed by Robert Bork in the 1970s, and we have forgotten that once we had a mighty tool for correcting our problems in the form of pro-competitive, antitrust enforcement: the power to block mergers, to break up conglomerates, to regulate anticompetitive conduct in the marketplace.
But just because we know where to find the copyright lever, it doesn’t follow that yanking on it hard enough will make it do the work of antitrust law.