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Techdirt: The Myth Of Finding A 'Balance' In Copyright Laws:

It never fails. During various battles over copyright laws, someone will come along and present themselves as wanting to be the "moderate" provider between the warring parties of "users" on one side and "copyright holders" on the other side, declaring that what's really needed is a good "balance" in copyright law that is fair to both sides. News.com has just such an article about the ridiculous new Pro-IP bill. However, as we've discussed before, that's the wrong way to look at it. The more you focus on balance, the more useless your recommendations are. That's because the whole idea is based on a faulty premise that the interests of copyright holders and users are not aligned.

In fact, if structured properly there's no reason that the interests of both sides can't be perfectly aligned, making both sides happy without either having to "give up" something. If you can create a bigger market where both sides come out of the situation better, then there's no balance necessary at all. Balance is only needed when both sides come out slightly worse off. This is even more true these days when the entire dichotomy between "content creators" and "content consumers" has blurred. These days, most people are both content creators and content users. In fact, one of the great things about the internet is that it's completely knocked down the barrier between the two, and helped make it easier than ever to create content the same way content has always been built: by building on other ideas that are out there.

So rather than trying to look for "balanced" solutions that make both parties somewhat worse off, isn't it time we recognized that copyright doesn't have to be a zero-sum game with winners and losers? If you get rid of the restrictions that copyrights artificially impose, you create a non-zero-sum game, where everyone can be better off. It may seem a little trickier for copyright holders, as their business models change, but it expands the overall market for their products while opening up tons of new business models that allow them to profit at a greater rate without pissing off users. Meanwhile, users aren't restricted. So, let's toss out the idea of creating a lose-lose situation around "balance" and focus on building win-win situations that get rid of artificial restrictions and focus on bigger opportunities for everyone.

Exactly. I have been saying this for years. No one knows what "balance" would look like. The proper way to run a regulatory system is to decide what its goals should be and ask whether each move or change enhances or retards progress toward that goal. That's not "balance" between poles of interest. It's a performance-based and values-based approach.