Setting the Wayback Machine to 1995: "Cheap Speech and What It Will Do": Poor Consumers

[This is an excerpt from my 1995 Yale Law Journal article "Cheap Speech and What It Will Do," written for a symposium called "Emerging Media Technology and the First Amendment.) Thirty years later, I thought I'd serialize the piece here, to see what I may have gotten right—and what I got wrong.]

When I say the new technologies will shift power to listeners, I mean of course listeners who can afford the new technologies. But what about consumers who can't buy a computer, a digital recorder, a printer, a cbook, and an infobahn hookup?

Music: Poor consumers should benefit from electronic music delivery. Even if they can't afford the hardware, they should be able to buy their music from public vending machines.  While it may cost more to buy from these machines than it would to buy from home, it should still cost less than it does now. Of course consumers will still need devices that play these recordings, but there's no reason to think they'll end up costing more than about what CD players do now.

Short Opinion Articles: Opinion articles may be different. Home delivery of selected opinion articles will work because subscribing to the articles and getting them each morning is easy. If your favorite columns are there on your printer when you wake up, you'll read them. But if you must go every day (or even every week) to a public terminal, select what you want, and wait for it to print, the result will be much less useful to you. And the cost of such public access may be a good deal higher as a proportion of the normal price than it would be for music.

On the other hand, this system might not be much worse for poor people than the existing one. People who can't afford the needed computer hardware might also be unable to afford a $200-per-year subscription to The Los Angeles Times. And with over eighty percent of all U.S. households owning VCRs,  the affordability of home electronics to even the not-so-rich shouldn't be underestimated.

Books, Magazines, and Newspapers: Books, magazines, and newspapers are a still different matter. It's easy to imagine public terminals that download such materials—especially books and magazines—onto your cbook.  They won't be any harder to use than a bookstore is today, and the text itself will be cheaper than it is in a bookstore. The cbook itself may be a sizable upfront investment, however, and it may be particularly hard to afford for parents of small children, because the children may be likely to break it or lose it.

The new technology may also require a rethinking of a substantial subsidy the government now gives readers: public libraries. Even if electronically distributed books cost much less than books do today, many people would still prefer to borrow the books for free.

How would libraries be able to lend electronically distributed books? Under the model I described above, a "book" will no longer be a tangible item, not even, say, a floppy disk. To buy a book, you'd just download it onto your cbook. If a library, though, downloads the book for you, you haven't borrowed the book-you've gotten it permanently, a clear copyright violation.

But even if a library tries to better emulate the economic effects of conventional library lending—embeds a three-week expiration date in the electronic data, and refuses to lend the same book to more than one customer at a time—this would still violate copyright. Copying electronic data onto a computer, even in a way that has the same market effect as lending of paper books by today's libraries, is a copy and almost certainly an infringement. While Congress can change this scheme, copyright owners may lobby hard against it. They already look with envy at some other countries' copyright laws, which provide for a royalty to be paid every time a book is lent.

On the other hand, the new technology may greatly decrease many of the costs of running libraries—shelf space, reshelving, and so on. Some accommodation might be reached in which authors' organizations agree to some blanket licensing agreement, or to changes in the copyright law. The money saved by libraries on paper books could be spent to compensate authors on a per-loan basis.

Used bookstores, another place where people today can get books cheaply, will also run into problems in the cbook age. It's not copyright infringement to resell a paper book, but it almost certainly would be infringement to copy a book from your cbook disk to someone else's, even if you delete the original.

Changing the law to allow copy-and-delete transactions—on the theory that they're just like selling a tangible copy—may be unfair to authors. Used book sales today have a limited effect on new book sales, because used books are less desirable than new books (they're often worn and torn), and because used bookstores often don't have large or well-arranged stocks. But if used electronic books could be sold, they could substantially undercut sales of new books: Used electronic books are as good as new ones; national electronic used bookstores could have a huge selection; and obviously they wouldn't need a lot of clerks to keep the books in sorted order.

Authors could legitimately complain that allowing sales of used electronic books will cost them much more than allowing sales of used paper books does today. {They've made exactly this complaint about sales of used CDs. In fact, CD distributors tried to pressure stores not to sell used CDs, steps that led to a restraint of trade lawsuit and ultimately a settlement.} A legislative or contractual compromise could be reached—for instance, a royalty could be imposed on each resale of a used electronic book—but it might not be easy.

Video-on-Demand: Finally, video-on-demand probably will not, once it's a mature technology, be particularly burdensome even for relatively poor people. While it might require new TV equipment, and again the infobahn connection, there's no reason to think it will eventually cost much more than a TV, a VCR, or a telephone—staples of American homes—do today. This is especially true because video-on-demand is as good an advertising medium as commercial TV.