John G Bell
PEASM
Winter '04 - Bohmer, Hahn & Vavrus

Research Project

Concentration, Consolidation and Culture - the dialectic over extracting value from social resources in a political economy.

Collecting information is the first step toward knowledge,

but sharing information is the first step toward community

• Henry Louis Gates Jr.¹

... ‘O fruit divine,

Sweet of thyself, but much more sweet thus cropt,
Forbidden here, it seems, as only fit
For gods, yet able to make gods of men!
And why not gods of men, since good, the more
Communicated, more abundant grows,
The author not impaired, but honoured more?

• Milton's Paradise Lost²

The Gutenberg press and movable type revolution brought reading to the people. The computer revolution brought publishing to the people. The Internet brought broadcasting to the people with a recent study showing that about 44% of the people in the U.S. using the Internet produce static content for others.³ The existing media companies are based on the model that people are either consumers or producers, but not both, of information and culture. Further, media companies work to maintain and control the divisive relationship between producers and consumers for their own benefit. This exactly fails to understand the nature of culture and the trend of history democratizing the means of communication. Media companies are attempting to control culture as a private product. This view that culture is a commodity and should be marketized is the kind of neoliberal agenda to transform all areas of public life into economic spaces. This has disastrous effects on communities, disrupts the ability for culture to develop and disables social movements.

The debate over the relative value and utility of the public domain could be characterized as the debate over whether a glass of water is half full or half empty – either public resources are valuable to the extent that wealth can be extracted and controlled or the value is somehow intrinsic to the resources themselves and should be preserved in a pristine and unmolested state. However, there is an important dimension missed by the positions on either side. The primary advantage to a public resource is that it can be preserved for the use of all in such a way that extraction of value and wealth does not diminish the resource. The very utilization of the resource in a non-exclusive and planned way can actually increase the value of the resource itself over time, thus creating an ever increasing value to everyone over time. The public domain of ideas is one such resource.

In this paper I will examine the conflict over the way the realm of ideas should be utilized. I will talk about the concepts of the public domain and the public sphere and the dilemma of how to balance the need to incentivize creativity and benefit to society. To do so I will examine the historical movement toward increasing privatization of ideas and information, the atomized elements of communication between communities as culture. This is a movement to concentrate ownership of ideas toward private individuals through changes in copyright in the United States. From that examination, I will then talk about the consolidation of the means of communication within a cartel of media organizations. I will introduce some terminology useful for understanding the implications of a combination of concentration and consolidation to culture and political economy. I then will use historical examples to illustrate the way that concentration and consolidation change the ability to create community and culture. Finally, I will bring together several threads to support the conclusion that there is a third way to view the public domain as neither half full nor half empty, but as an example of a public resource that can be constantly renewed as an accelerating tool toward community and culture.

Copyright, Public Domain and The Public Sphere

In Article I, Clause 8 for the US Constitution, the authority for trademark, patent and copyright is provided.⁴ Copyright is legal protection for an author of a work of literature, music or art as a form of expression that provides to the author exclusive control over the use of that work for a period of time, after which the work moves to the public domain.⁵ Copyright is distinct from trademark or patents. Trademark is a way to protect terms and images used to distinguish products by one manufacturer from another and can be renewed indefinitely as long as the mark is used commerically.⁶ Patent is a time-limited legal protection for an invention, in exchange for public disclosure of that invention.⁷ The common element to copyright, trademark and patent is a balance between the granting of control and the public interest in ideas, symbols and inventions.

The balance within the idea of copyright has two primary features. First, it is a legal grant to a monopoly over a form of expression in order to encourage artists to create new works. Second, it is a non-perpetual grant so that the work will enrich the public domain after a period sufficient for creative remuneration via the first feature.⁸ The author of a work is granted a period of exclusive economic control over a work as a method of remuneration with the understanding that the work will eventually enter the public domain.

It is within the public sphere that the ideas from the public domain are exchanged. It is to the public domain to which ideas return when authors are no longer allowed exclusive economic exploitation. The public domain is the social store of ideas freely available to society.⁹ Examples of works in the public domain are the plays of Shakespeare and the Dialogues of Plato. The public domain is an element of the public sphere. The public sphere is the realm of communication where ideas and knowledge are exchanged by public society.¹⁰

Copyrights have been significantly extended in length. Originally the grant was common law but has been enacted as a Federal law and extended several times to the current length of 70 years beyond the death of the author.¹¹ Few works created after 1923 have entered the public domain.¹² The interests in rewarding living authors for original work have been replaced by the economic agendas of corporations and successors in interest. Corporate interests purchase from authors the exclusive grant to exploit works. Successors in interest are those with whom the exclusive grant transfers upon the death of an author.

The Copyright Dilemma and Society

There has been a steady pattern of change in the way that copyrights have been implemented that amounts to an evisceration of the public domain. There has been an ongoing battle over economic use of ideas, contribution to the public domain and finding a balance between public good and the needs of copyright holders.¹³ The combined efforts of creating balanced copyright legislation and the creative use of existing copyright grants are both tools in the toolbox of modern creative culture. Therefore, the balance of copyrights is a highly relevant dilemma to larger societal issues of culture and community.

Copyright policy has been tending towards creating perpetual rights to all works, but it's important to remember that copyright was developed to protect the ability of original authors and creators to profit from their work for a set period of time. It was a created protection and intentionally limited over time. The copyright holder was given a concession by the public that allowed them to hold their work out of the public domain for the purpose of profit to motivate the copyright holder to create. It was a concession by the public to encourage the creation of work that would later enter the public domain, a kind of patronage for the public good.

Turning copyrights into perpetual protection, and thus forever removing ideas from the public domain, breaks the quid pro quo pact between the public and the copyright holder made by the concession of copyright. In essence, this was a public concession of monopoly over specific ideas, a kind of corporate charter for the purpose of encouraging development and innovation. In exchange for the public benefit of invention and creativity, the author is granted a legally protected period of exclusive control for the purpose of economic exploitation as remuneration. This is intended to incentivize the act of creation by granting a delay between invention and that work entering the public domain for the purpose of allowing the author to economically exploit that work. This allows society to both benefit from creativity while rewarding authors in a way that does not require a direct system of patronage. There is a balance here that should be maintained, but a vast amount of work that is not generating profit for anyone is being held back from the public domain. There is not enough granularity in copyright policy to use anything other than the age of a work in determining whether it should pass into the public domain. In this instance, corporate interests over a small percentage of ideas that still produce profit are creating a copyright policy that destroys the way the public domain is expanded.

The steady loss of new information in the public domain has a substantial effect on the intellectual life of society. The public domain is a repository of information that is an integral part of the public sphere. The public domain of ideas is a toolbox of concepts, metaphors and methods that enliven and enrich the lives of everyone. This toolbox is available to the public sphere of debate and interaction. When these tools are not available, dialogue in the public sphere becomes less able to express new ideas and less able to provide a rich space for culture.

This loss of public idea space seems linked to a trend in physical space. The commons has been steadily eroded in favour of privatized gathering places. The obvious characteristic of this privatized space is convenience and the appearance of safety and comfort. The most important characteristic of this privatized space is that communication and dialogue are controlled. The commons is a “third place” which is neither work nor home, but rather a mediation between the personal and work spaces.¹⁴ This idea of the third place is explicitly part of the business plans of several large corporations, such as Starbucks Corporation.¹⁵ The co-option of public gathering spaces is a line item in the Starbucks corporate marketing plan, but this creates an untenable situation. For example, Starbucks and most stores do not allow candid photographs to be taken on their premises. This is simple example of a much larger issue that these private spaces cannot be expected to provide the same function as a commons where there is an expectation of free expression and exercise of liberty. If a public space prohibits the candid acts and speech of the public, then that space has a diminished and impaired cultural relevance and usefulness. In this same way, a world of ideas owned by corporations under perpetually extending copyrights cannot be expected to adequately substitute for a rich public domain.

The loss of the commons in exchange for privatized gathering space is part of an even larger trend that can also be seen in a general loss of meaning to our goods.¹⁶ People have steadily lost meaningful connections to the goods society creates and consumes. These goods are not just quanta of attenuated market value, but are containers for culture.¹⁷ There are rarely stories attached to the goods we exchange except perhaps as mementos of our consumerism. This is a serious disconnect between the elements of public life and the public. Not only has the growth of the world of ideas in the public sphere been stalled, but the ideas and goods that we exchange have lost deep meaning. Without a vibrant and rich public domain, we lose a sense of our own culture and place in the world and ability to function as a community.

The primary arguments against restoring copyrights are from large publishing houses and the entertainment industry, specifically Hollywood studios. They are trying to protect the profitability of properties that they have created and still actively pursue as franchises. The most prominent example would be the early Mickey Mouse cartoons by Disney, such as Steamboat Willie. That cartoon would have entered the public domain and been available for use by anyone for any creative purpose if the copyright extension acts had not gone into effect. So, there are large industries based on exploiting specific copyrights that are working to reasonably protect their legitimate business interests.¹⁸

These active copyrights are the exception not the rule. The plaintiffs in the U.S. Supreme Court case Eldred v. Ashcroft estimate that only 2% of the copyrights that have been extended are producing commercial value for the holders.¹⁹ Further, it should be pointed out that many of the firms in the entertainment industry benefit from the existing public domain materials at the same time they fail their quid pro quo obligation to the public domain. It was pointed out in Eldred v. Ashcroft that Walt Disney used public domain stories from the works of the Brothers Grimm to produce some of the most important works from his studio.

Oligopoly + Oligopsony = Oligonomy

When media companies act as sellers of ideas to consumers, they are act as an oligopoly, a market in which there are few sellers. These media companies are also a select and limited list of buyers of content from producers and as such act as an oligopsony, a market in which there are few buyers.²⁰ When these two effects are taken in combination, there is a oligonomy²¹ at work that holds the communication and development of ideas within a private and controlled market. There are a small and restricted number of booksellers, radio station owners, recording companies, TV station owners and movie chains. These media companies control the purchase of ideas from producers and control the sale of ideas to consumers. The combination of both oligopoly and oligopsony is an oligonomy. If one wants to purchase or consume ideas, one must go to this select list of companies. Since there is a limited number of sellers, the prices for which these ideas can be purchased are heavily controlled and conditioned. If one wishes to commerically exploit one's ideas, then this select list of companies must be approached. Since there is a limited number of buyers, the prices producers of ideas can negotiate are heavily controlled and conditioned.

An oligopoly is a form of cartel in which several firms such act like a monopoly but with the advantage of not presenting a single target for legislation or opposition. These cartels are incentivized, by a shared agenda and mutual interest, to “collude informally” to keep selling prices high in order to avoid the effects of outright price competition which would drive selling prices, and thus profits, down.²² These cartels would also be incentivized to keep costs down by the same informal collusion to lower the prices paid out as expenditures. Since these cartels in aggregate control the limited opportunities for buyers to buy and sellers to sell, they can determine their own level of profit. Predictably, the profit of the media companies, as both buyers and sellers, is maximized at the expense of both producers and consumers without regard to social good.

Michael Albert points out that the core of capitalism is private ownership over the means of production and means of allocation.²³ The private ownership of the means for the creation and allocation of culture and community is relevant for the persistence of social and economic reforms. In a market system, each party in an exchange attempts to gain advantage over the others and this “imposes on the economy pressures that subvert solidarity, equity, diversity, and self-management.”²⁴ This is how the marketization of the public domain destroys culture and community.

In the exchange of commodity value there is an expression of culture because commodity can be a container for culture.²⁵ If one party has extensive control of the purchase and sale prices as well as a monopoly on determining ownership and use, then this amounts to a fundamentally unilateral control over the benefit of a transaction involving that expression of culture. Albert notes that in a market, those entering trade possessing the most assets and trading from a stronger position enjoy an accumulation of disproportionate shares of benefit but also “increase[s] their relative dominance.”²⁶ When this accelerating dominance is taken into account, the expression of any culture but the dominant culture is disabled. This results in “cultural homogenization not cultural diversity.”²⁷ This dominant entity is the neoliberal agenda, as expressed by capitalist globalization, that creates “authoritarian state structures” within economies and politics extended to cultures.²⁸

Speaking about the capitalist model of publishing, Albert points out that the product “is a commodity to be sold for maximum revenue and produced at minimum cost.”²⁹ This is the functional relationship between the media cartel functioning in an oligonomy and the producers or consumers. The media cartel, by controlling in aggregate the purchase price and the selling price of information, can determine for itself what ideas are available for culture and more insidiously to attach commercial meanings to the ideas used to communicate. Even worse still is the way that these decisions are “overwhelmingly authoritarian” and paternalistic.³⁰

There are two apparently paradigmatically oppositional ways to view a resource. Within the debate over any public resource there are voices that say that the resource is good in and of itself, such as Peter Bohmer saying in lecture, on Feb 24, 2004, “species [of animals] have a value in and of themselves.” There's another voice that says that a resource is only as good as it is useful, such as saying: “A garden hose or guitar is valueless if no one uses it.”³¹ These views can be seen in debates over just about any social, community resource. However, there is an important conflict contained within the idea that a good is valued in how it can be useful. If the derived good extracts value in a way that destroys the initial resource, then the value of the resource is being expropriated in a way that makes it unusable by anyone else or by future generations. However, when the resource is used in a way that preserves the resource but also produces extracted value this does not expropriate the resource but rather merely appropriates. If the extracted value is eventually returned to the public resource for the use of others then this is not even appropriation, but rather something like propropriation, if you will, a temporary borrowing that results in greater social benefit. This melds the two views in such a way that the resource has both value in and of itself as well as being useful in a productive way without diminishing the resource itself.

In a market of ideas, if the public domain exists as a resource to community and culture, then it is possible to expropriate neither the means of production nor the allocation of culture. Examples of how this can work are the images of Santa Claus used for many marketing and cultural purposes. The value of the image and concept of Santa Claus cannot be expropriated, and yet there is undeniable usefulness to society contained within that expression of culture by community. Another example is the way in which fairy tales are used by publishers, Hollywood studios and countless families at the same time without specific ownership of the ideas or expressions. These are just two examples of how the public domain is a useful good that is not expropriated by specific ownership. The function of copyright allows temporary appropriation.

Michael Albert argues that “unless those who have productive property acquired it through personal sacrifice, the income they receive from owning the property is unjustifiable on equity grounds.”³² Not only is the extension of ownership of ideas beyond the lifetime of the author an example of this unjustifiable use of ownership, but it removes the ability of culture to amplify and accelerate the benefit of the ideas. When the production and allocation of ideas is controlled by a market, this creates a situation where one must accept the power inequity inherent in ownership or forgo the benefit and amplified benefit from utility of the ideas. This means that one must make a choice between limiting expression by refusing to use the commodified idea or to enable the expropriation of some or all of value from one's utilization of ideas toward the support of inequity. One is forced to aid and abet the process of expropriation in such a way that increases the value of the private good for the holder. Within the realm of privatized ideas, one must decide whether to use those ideas and become a tool of marketing or to not use those ideas and thus limit one's ability to communicate.

Corporate logos and slogans, on clothing or other consumer goods, extend this privatized idea space into the physical world by creating affinity groups based on market metaphors. One has to choose whether to express one's affiliation with the affinity group or forgo the utility of physical manifestation of these shared metaphors. These shared metaphors are linked to a wide realm of both connected ideas and correlated emotional states. These metaphors are heavily laden with meaning but have ambiguously broad implications. To not use these shared metaphors, either physically manifested or not, is to sacrifice the facility afforded by their use and one's ability to communicate effectively and efficiently to one's community. Brand loyalty also becomes interchangeable with culture and defines and limits one's possible relationship with one's community. These privatized shared metaphors can be, and often are, redefined by the controlling corporations in accordance with market needs, which completely removes one's agency from one's own connection to community. This puts not only one's connection to community but one's own identity at the mercy of market forces beyond one's control. Because these ideas are shared within community, they become privately owned culture leased back to the public. Therefore, the agency of individuals within that privatized culture is abdicated to the needs of corporate advertizing and marketing. The value of the commodity becomes a doppelganger of the value of public culture it once contained.

The division of culture and community into the classes of producers and consumers by the oligarchic cartels is linked reciprocally to the longevity of that managerial class within corporate media. The effect of the oligonomy is that the managerial class controls the purchase of ideas from producers and the sale of ideas to consumers. By keeping ideas from the public domain, isolated by private ownership in the hands of producers and successors-in-interest, the producers and consumers are kept distinct. By concentration, the culturally useful ideas are all controlled. Conversely, through consolidation of means of expression, the managerial middle controls access by consumers to ideas. The producer cannot sell to the consumer directly and the consumer cannot buy from the producer. Culture and community become functions of coordination and managerial brokering between producers and consumers.

Albert points out that “a corporation division of labor nearly always entails that actors have differential voting say over outcomes. Those at the top generally have more 'votes' then those at the bottom ...”³³ Those at the top are not always making free choices. For example, the theory of “Groupthink” proposed by Janis is that there is a strong function within authoritarian structures that produces faulty decision making.³⁴ Those at the top are not always making choices based on the best or complete information. This means that the part of the function of the managerial middle, between the actors on the top and bottom, is as the conduit for information that changes and influences decisions by the top. The other part of this function is to manipulate and create market demand within the public, and this is made more possible by the wide spread propagandizing influence of marketized ideas. This is something that Albert doesn't examine, but is important to understand the way in which the ownership classes can be and are manipulated by the managerial class. Within the context of an oligonomy, the function of control exerted by the managerial class over the ability for the producers and consumers to make decisions cannot be underestimated. The managerial control over purchase and sale within the market of ideas acts to disempower both consumers and producers.

The inequity from division of labor follows a 20-80 rule, with “20 percent monopolizing the best and most empowering conditions of work, and 80 percent largely or exclusively doing what they are told ...”³⁵ This division is played out within the context of cultural expression when “[t]he manners, lifestyles, dress, habits, and even language of the two classes come into opposition. The one class monopolizes information, training, knowledge, and the associated status and perquisites of expression and performance, plus all the income it can grab for itself via its inflated bargaining power.”³⁶ This mechanism which accumulates cultural power within a corporate division of labor can clearly be seen reflected in the way in which the production, allocation and consumption of ideas is controlled by the media oligonomy. Media oligonomy is able to determine for itself the extent of its power over the expression of culture. This oligonomy leads to a kind of planned economy of ideas over which both producers and consumers power over culture is expropriated by the coordinating class.³⁷

The rise of the managerial class over the exchange of ideas leads to some of the same fundamental disequilibriums noted by Albert in the capitalist manufacturing structure. The coordination class becomes authoritarian, exclusive and paternal toward the other classes.³⁸ If the expression of culture can only be done within the context of a marketized domain of ideas, then communication of culture becomes marketing. When the very building blocks of community, idea and metaphor, are privatized and manipulated, people do not have the ability to make “intelligent and responsible” choices for themselves.³⁹ This becomes a vicious cycle that self-justifies the paternalism and authority of the coordinating class.

Albert expresses the idea that “individuals rationally orient their preferences toward opportunities that will be relatively plentiful and away from those that will be relatively scarce.”⁴⁰ This completely misses the effect of control over community expression of culture. Within the marketized domain of ideas, individuals are not able to make choices that reflect perfect information about the market and their lives because they do not have that information. They are propagandized by the market toward choices that are beneficial to those already in power within the market. This is a feedback loop that reinforces the domination of the market by those in the coordinator or managerial class. More importantly this mechanism “disastrously distorts human relations.” ⁴¹

The Marketization of Ideas and the Loss of Culture

When the public domain is impoverished, ideas become marketing. When the public sphere is impoverished, culture becomes the market.

Michael Apple points out that there is a “vast social and ideological project” to marketize public life.⁴² While his examination is on the effects of marketization on education in the United States, the trends he points to are linked constantly to larger social transformations. The transformation of the world of ideas into a market is another example. Apple speaks of the way in which “common-sense” is changed, and this is a primary intersection of his examination and the way that media consolidation functions to dampen public life. The identity politics that functions around “the concepts we use to try to understand and act on the world”⁴³ require, tautologically, concepts. If the concepts we use, i.e., the elements of cultural expression, are owned as part of a market system, then the ability of real people to have conversations that are not part of their economic position is thwarted. The very conversations that people have become expressions of their identity within a market system as consumers of ideas over which they have little, if any, control or agency.

One claim made by Apple is that there is no such thing as a “neutral” knowledge that is not connected in complicated ways to relative power.⁴⁴ The ideas we have are significantly connected to our positions of relative privilege. Therefore, if our ideas are contained within a marketized sphere, our very ability to understand and interact with the world is turned into a commodity. Further, not only do our ideas, but the ideas we have about ideas, our emotional states and community itself becomes a commodity. The marketplace is expanded to every sphere of life.⁴⁵ Robert McChesney put it this way: “Instead of community, it produces shopping malls. The next result is an atomized society of disengaged individuals who feel demoralized and socially powerless.”⁴⁶

There is a key function of the market that appears to allow freedom of choice, but when the public sphere is marketized and ideas become elements of marketing, this can become control over ideas as, taking Apple's idea one step further, a coercive culture. This coercive culture works by combining the market with notions of appropriate behaviour to produce social control. The way people act is called freedom, but the very notions of what is possible are presented as market choices within the context of advertizing intent on creating appropriate behaviour.⁴⁷

The development of a “unifying, coercive patriotism”⁴⁸ in response to social crisis is the kind of social control implemented by indirect authority. There is an appearance of freedom to choose, but the very foundation of those choices is measured by the way in which the ideas and concepts are framed. An appropriate choice is advertized and that becomes the socially expected response. This is Apple's managerialism and the rise of Albert's coordinating class. The control of the public sphere creates a managerial class in charge of social control through the media which is intent on the kind of conversion of common-sense that “harnesses energy and discourages dissent”⁴⁹ necessary for the smooth functioning of the capitalist redistribution of wealth toward the elite, those already advantaged within the context of any exchange.

The ability to have a life independent of the market economy is bounded by the development of appropriate social behaviour. When the public sphere is taken away from community and marketized, the ultimate control over appropriate behaviour is in the hands of those with vested interests in the market itself. Those that benefit most from the market economy have the most control over both the ideas and the means of communication that would allow community to function. This language of the market, the metaphor of a free market, hides the structure of social darwinism. In social darwinism, social structures, communities and individuals are subject to a natural selection that puts them in relative differential positions of power appropriate to their own abilities and worth. The argument for a free market also implies that people approach their natural positions in life and are directly responsible for their own success or failure due to their ability to make correct market decisions. Both social darwinism and free market rhetoric assume perfect and honest competition and ignore structural systems of prejudice and privilege by pushing responsibility for injustice from the elites to the essential nature of the victims.

When media becomes the fulcrum for social control, the techniques used to control are similar to propaganda. “Intensify / Downplay” is a schema to understand this mechanism.⁵⁰ This is a pattern to understand persuasion and can be applied to advertizing and political rhetoric. Since the public sphere becomes marketized and the realm of ideas is inherently connected to issues of power, both advertizing and political rhetoric are relevant to the discussion of media as a tool for social control.

One way this schema is implemented is by the development and manipulation of common-sense notions of what is appropriate behaviour and information.⁵¹ Intensifying and downplaying behaviour and information allows for control to be exerted on the nominally free market. The individual choice is made within a boundary of appropriateness, with real social and economic consequences for iconoclasm.

When specific economic and social classes control a majority of the media, information, which is never neutral, takes on the agenda of that ownership. A striking example of this is the way in which the heavily concentrated ownership of media in Venezuela was able to hide, distort and dismiss the issues of popular importance during the coup initiated in 2002 by the military and elite business interests against Hugo Chávez. This propaganda function went so far as to create duplicitous media stories in the mainstream press of the United States.⁵² The Intensity/Downplay schema can also be seen when Noam Chomsky points out the amount of coverage of the tragic genocide in East Timor.⁵³

Another example of the way in which the media can be used to conflate ideas and to modify the public sphere's common-sense understanding of events is in the way that the terrorist attack on the World Trade Center in New York was linked by political and media efforts. This creation of public sentiment can then be used to advance partisan political agendas. In an editorial for the New York Times, Paul Krugman said, “The war was justified to the public by links between Saddam and Al Qaeda, and Iraq's possession of weapons of mass destruction. No evidence of the Qaeda link has ever surfaced, and no W.M.D.'s that could have posed any threat to the U.S. or its allies have been found.”⁵⁴

A CNN poll in February 2003, before the resumption of hot war in Iraq, asked whether respondents believed Saddam Hussein was “personally involved in the September 11 attacks?" Of those respondents, “72 percent said it was either very or somewhat likely.”⁵⁵ The inference was made by the public from the intensified rhetorical links between Iraq and al Qaeda made by the administration and conveyed through the media, even though there was no direct link made in that rhetorical frame.⁵⁶ However, the media downplayed or ignored opposition to this connection.

Several months later, Krugman points out that, “But Mr. Bush's advisers were greedy; they saw 9/11 as an opportunity to get everything they wanted, from another round of tax cuts, to a major weakening of the Clean Air Act, to an invasion of Iraq. And so they wrapped as much as they could in the flag.”⁵⁷ The agenda of the administration was the payload contained within the capsule of misdirection.

When the activist group MoveOn.org attempted to air a political ad critical of the Bush administration, they were refused access to the airwaves. They were able and willing to pay the money for the spot, but CBS refused to air the ad because it was not, in the estimation of CBS itself, appropriate. Further, The People for the Ethical Treatment of Animals were also refused access to that same audience. Conversely, the current administration itself had direct and indirect access to the public during that same period of time with two commercials that favorably mentioned the administration's policies.⁵⁸ When the media is able to determine the appropriateness of topics for debate in the media the public sphere is limited to corporate agenda setting. Not only will the topics allowed be set by a paternalistic process, but that process will be through a filter of corporate self-interest. The goal of the media then becomes not to reflect society, but rather to reflect a self-referentially appropriate notion of society within the framework of those parts of society likely to produce the greatest overall and long-term corporate profit. This is not even a free market of ideas, let alone a vibrant expression of culture within the public sphere.

In the face of “coercive patriotism,” Dan Rather is quoted as saying, in May 2002, that self-censorship in the media is the result when he told the BBC: “Now it is that fear that keeps journalists from asking the toughest of the tough questions... I do not except myself from this criticism... What we are talking about here, whether one wants to recognize it or not or call it by its proper name or not, is a form of self censorship.”⁵⁹

The control over the expression and exchange of ideas between producers and consumers is a mechanism where “generating more valuable output despite contributing less effort and enduring less sacrifice.”⁶⁰ The primary problem with marketizing the domain of ideas is that “markets don't measure the value of outputs in tune with the outputs' true social benefits.”⁶¹ The market cannot fully account for the accelerating benefit contained within the public domain of ideas.

The existence of the public domain is an attractive object for expropriation and extraction of value within the logic of the market. The public domain of ideas is a “common property resource whose productivity can be appropriated at little or no cost to the beneficiary as they are over-exploited at the expense of future generations.” Further, “the most effective profit maximizing strategy is often to maneuver at the expense of those with less economic power so as to re-slice the pie (even while shrinking it) rather than to work to expand the pie.”⁶² In other words, it's common-sense within the market logic to take value from the public domain and not give back to that resource.

Eben Moglen makes this point by saying, “It’s precisely because so much of human knowledge and culture in the 21st century no longer participates in the traditional microeconomics of price, asymptotically reaching towards a non-zero marginal cost, that we experience so much opportunity to give people what they never had before.”⁶³ The fact that there is exactly zero marginal cost to utilization of ideas in the public domain seems like nonsense to a market designed to only understand non-zero marginal costs. The market assumes that extractive value must come at the cost of diminishing the resource. This is what makes private ownership logically follow in a discussion of value. When value has zero or near zero marginal cost, the logic of private ownership fails.

When the logic of private ownership over ideas fails, the possibility is to reconnect producers and consumers in an exchange of ideas and return people to themselves by ending the appropriation of the mechanisms by which community communicates culture. This is an end to the same kind of estrangement about which Marx speaks when he says: “The positive transcendence of private property as the appropriation of human life is, therefore, the positive transcendence of all estrangement – that is to say, the return of man from religion, family, state, etc., to his human, i.e., social mode of existence.”⁶⁴

The opportunity is in recognizing that the difference between a public domain and a marketized domain of ideas is the difference between humanity and loss of humanity. Marx speaks of this when he says: “The less you are, the more you have; the less you express your own life, the greater is your alienated life – the greater is the store of your estranged being. Everything which the political economist takes from you in life and in humanity, he replaces for you in money and in wealth; and all the things which you cannot do, your money can do.”⁶⁵ Within a market, “[n]either buyers nor sellers can afford to respect the situation of the other.”⁶⁶ Sam Bowles explains that markets “also shape our culture.” He then goes on to say: “By economizing on valuable traits – feelings of solidarity with others, the ability to empathize, the capacity for complex communication, and collective decision making, for example - markets are said to cope with the scarcity of these worthy traits. But in the long run markets contribute to their erosion and even disappearance.”⁶⁷ The proof is therefore that markets shape our culture by destroying the very qualities which make community and culture possible.

When these values of community and culture disappear, then it should not be difficult to realize that democracy is also a victim of the marketized domain of ideas. With disequilibrium in power and influence, the dysfunction of “formal democracy” is increased.⁶⁸ Not only are the ideas themselves controlled and distorted in the attempt to influence actors to make choices against their self-interest but as Bowles observes: “The complex decision-making and information processing skills required of the modern democratic citizen are not likely to be fostered in ... markets ...”⁶⁹

Alternatives to Media Oligonomy

There are various positions taken by those working to restore a balance in copyrights between social benefit and the need to encourage and remunerate creation. The proposal by the plaintiffs in Eldred v. Ashcroft is to simply require copyright holders to pay a minimal fee, of $1 per year, to extend their copyrights beyond 50 years. Another attempt was made in House Resolution 2601, the Public Domain Enhancement Act.⁷⁰ Instead of a blanket extension on all works, the specific copyrights that firms or individuals wish to protect could be extended while other copyrights would be allowed to expire in a timely fashion, as was the original intention of the grant of copyright. Other groups are taking different actions within the structure of existing copyrights such as the work of the Creative Commons.⁷¹ The Creative Commons has developed several innovative licenses that preserve copyrights for the holders but open the property for the use of others in new and derivative works.

Another group involved in creative use of copyrights are the Free and Open Source Software movements. These are of particular interest to me because of my work in producing an Open Source library automation system, but also because I have used and continue to use Free and Open Source tools for much of my work in the high-tech industry. The Free Software Foundation⁷² has developed a creative license called the General Public License which is used for much of the Free and Open Source tools that are available. This license is one of several that are used by the Open Source Initiative.⁷³ Essentially, these projects use copyrights in a creative way that allows for software to be released, modified and re-released without destroying the copyrights on that work. These, combined with the Creative Commons, are ways for copyrighted work to evolve and grow in the public sphere of ideas.

This is significantly similar to the way that the scientific community has been sharing ideas and building on the work done by others. This technical community has used this exchange to expand the horizon of knowledge. Modern science would not have been possible without the free exchange of published information between researchers. This is further relevant to copyrights in that there is a period of protection until the work is published in scientific journals at which point exchange enriches of the community. The advance of science is also an example of how beneficial the ready availability of ideas and information can be to the evolution of society as a whole. In fact, even this exchange has crossed over into society as the dialogue movement. One of the luminaries is David Bohm⁷⁴ who's seminal works on dialogue sprung from the open and free exchange of ideas between himself and his colleagues in the field of Physics. This is an example of how a rich cultural development comes from the free exchange of ideas to the public sphere even in specific technical disciplines.

The public domain and copyrights are not mutually exclusive. It is possible to develop a copyright-holder friendly public policy while still enriching the public domain with much of the work now being withheld. Constructive efforts and suggestions have been made toward balanced copyright policy. The public sphere and corporate media ownership are not mutually exclusive. It is possible to to develop a profitable method of media ownership while still allowing for the development of a rich, vibrant sphere of community communication that reflects living, developing culture. The healthy function of the public domain and the public sphere results in significant cultural advancements. The free exchange of ideas and metaphors are the living language of the public sphere. Therefore, with due respect for the needs of copyright holders, a public policy that enforces expiring copyrights remain essential to the vitality of the public domain. Therefore, with due respect for the needs of media corporations, a public policy that enforces limits on media consolidation remains essential to the vitality of the public sphere.

The public domain is an example of a social resource that can be utilized without diminishing value. When work is placed in the public domain, in fact, the value of this social resource increases. The work within the public domain can be utilized at zero marginal cost which makes derivative works less and less costly to produce. This glass of water is neither half empty nor half full, but rather has the potential to be constantly more full with each use. The more one drinks from this glass, the more full it becomes. When non-exclusive value is created and returned to the public domain, the social good is produced in partnership with the temporary economic exploitation that remunerates creativity with ultimate social costs that constantly approximate zero. This public domain is the foundation of a vibrant public sphere, and a vibrant public sphere contributes and increases the value of the public domain in what is potentially an unceasingly accelerating social benefit. The choice in favour of this permanent beneficial renaissance should be clear. The alternative is the destruction of pubic good, community and culture. The realm of ideas is neither limited to the value that can be exclusively extracted from it nor is it merely a good in and of itself, but rather when ideas are preserved within the public sphere they become an inexhaustible source of additional cultural value and become the living language of culture.

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