WKRP and the Tragedy of the Anti-Commons

The tragedy of the commons occurs when no one has the right to exclude users of a resource and, as a result, the resource is overused. The tragedy of the anti-commons occurs when many people have the right exclude users of a resource and, as a result, the resource is under-used. Case in point:

From Amazon’s review of the DVD of WKRP in Cincinnati:

One of DVD’s most requested titles, WKRP in Cincinnati is a blast from the past and an absolutely golden oldie. But this first-season set is bound to cause static with fans who have eagerly anticipated its release. Because of pesky music rights, the songs don’t remain the same. “Hot Blooded” is not playing when mild-mannered newsman Les Nessman (Richard Sanders) puts on a toupee in anticipation of an awards-dinner date with bombshell station receptionist Jennifer (Loni Anderson). It’s “Beautiful Dreamer” and not “Fly Me to the Moon” that chimes when Jennifer’s doorbell is sounded. Any number of generic songs have replaced the contemporary and classic rock so vital to WKRP, which is, after all, set at a radio station…

Wikipedia explains

Music licensing deals cut at the time of production were for a limited amount of time (approximately ten years). In addition, the show was videotaped rather than filmed because it was cheaper to get the rights to rock songs for a taped show. Once the licenses expired, later syndicated versions of the show did not feature the music as first broadcast, but rather generic “sound-alikes” by studio musicians to avoid paying additional royalties. In some cases (when the music was playing in the background of a dialogue scene), some of the characters’ lines had to be redubbed by sound-alike actors….

Notice that no one really gains here from the surfeit of copyright, not even the copyright holders. Is Foreigner really better off by excluding listeners from a few well-timed seconds of Hot Blooded?  On the contrary, a little youthful nostalgia adds to demand. But the copyright holders, each in their eagerness to profit, raise the transaction costs of producing the whole product so much that it either isn’t produced at all or is produced, as in this case, in a way which greatly reduces consumer value.

WKRP in Cincinnati is not that important in the grand scheme of things but it is an illustration of how copyright  and patent thickets can impede innovation.

Hat tip to Michael Heller’s excellent The Gridlock Economy.


This is not an example of innovation being impeded. There is no innovation.

It would be better phrased as a reduction in the quality of life, in the case of denial of access to creative works.

Or simply a deadweight loss.

It helps if you don't take everything literally and take a less myopic view of the point being made. Being obstinate and obtuse doesn't make anyone look smart.

The innovation is in the business model. The idea of buying a series on DVD didn't exist at the time WKRP was on the air.

Talk about deadweight loss.

This is the same reason that the wonder years hasn't been released on DVD. At least wkrp has been released...

The WKRP vs. WPIG softball game episode was one of the funniest moments in television.

The copyright holders do not allow this one so they can legitimately request other ones (with higher willingness to pay) to pay them royalties. They may very well gain from this strategy.

The Turkey drop was priceless.

"I swear, with God as my witness...."

"Oh, the humanities" ...?

I actually met Gordon Jump in 1992 when he was playing the Maytag Repairman. I got him to sign my high school year book with "As God as my witness, I thought turkeys could fly."


Resource under-used? Not true. It is used exactly as intended - by its owners. Freedom to draft contracts trumps any anecdotal evidences that sometimes somewhere really bad contracts are created. Freedom to own a property trumps any anecdotal evidences that some people can use some property in a different, perhaps in some sense "better" way. I can imagine that 10-20 homeless people could live in my house in Connecticut. Is my resource under-used?

Um, but there are, as a matter of fact, limits on property rights and contracts. You can't charge planes to fly above your land. You can't oblige your neighbours to never let an atom of a polluting substance float across into your land. Eminent domain exists because of hold-out costs on assembling large quantities of land. You can't sell yourself into slavery, or sign up for a marriage where divorce is impossible.
Perhaps you might think that you should be able to to do all these things. And there certainly are quite a few reasons to think that eminent domain is way too open to political abuse. But as a matter of reality, the world differs from you on this one.

Oh, Tracy, the world was different just a hundred years ago and I am sure will differ from you and I a hundred years from now.

On contracts: non-compete and non-disclosure agreements are a form of limited and voluntary slavery. You can even interpret voluntary marriage as selling yourself into a lifetime slavery - which continues, to a degree, even after divorcing your spouse. I can't charge planes to fly above my land, but I certainly can enter into a voluntary contract with plane owners whereby I charge planes to fly above my land - if I, for example, provide certain services.

A hundred years ago, copyright was for a limited time as intended by the Constitution.

Fifty years ago, most artists were screwed out of payments for the work that made them famous and that defined the radical changes in music - real innovations - but since copyrights have been extended and expanded and "innovation protected" we haven't seen the excitement and change and real innovation of the 20s, 30s, 40s, 50s, and 60s.

The defense we most often here is these rights are needed to ensure we have the new innovations in music of the 20s to 60s when innovation was harmed because the artists got royally screwed, and today we have the protection needed to keep music and art boring to ensure a small number of artists get rich from their monopoly hold on the rights system.

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Copyright was intended to be a temporary monopoly granted to a holder for a limited amount of time, in order to promote a public good... In no way, shape, or form, was copyright intended to be "Intellectual Property".

Copyright is a privilege granted by the state, with the expressed purpose to benefit the society at large... it is not a human right. When copyright becomes destructive to the public good, then public good should always take precedence.

Some people think it a bit "unserious", bit it really does help to think if IP as 'imaginary property'. It drives home that these are artificial rights, and helps remind non-lawyers why there are such huge differences between copyrights and patents. (Trademarks should not be understood to be any sort of property, imaginary or not, but, sadly, the law is drifting there.)

One could make the case that all property rights are "artificial" and exist only through government fiat.

Actually, most property rights stem from possession, and the commitment and willingness of the owner to secure and/or defend the property. Or do you register your shoes, or your sofa, and all your property in your country?

I would think if you left an expensive watch unattended in a public place, the police wouldn't likely be interested if someone took it. If someone tried to attack you and steal it from your wrist, the police might be interested, not so much in defense of your property rights, but in defense of you.

It's not true that "no one gains" from this situation -- presumably the studio musicians were paid for their substitute music.

That still doesn't mean this is a good idea, mind you....

"It’s not true that “no one gains” from this situation — presumably the studio musicians were paid for their substitute music."

Isn't this a form of the broken window fallacy?

The broken window fallacy never implies that the broken window is bad for the glazier.

I'm not sure how you just lumped patents in there at the end. patents and copyright are two totally different animals, and here you have an entire article about copyright, and give a 1 liner at the end lumping patents in. It's very weak, demonstrates very little understanding of copyrights and patents.

But I've definitely seen transaction costs for negotiation of patent rights drive people to use less efficient or nice crypto mechanisms over more efficient, nicer ones that would involve a potentially complicated negotiation for terms to use. (Though this is often a problem of administrative boundaries--the guys designing the system are far away, in chain of command terms, from the guys who would have to negotiate the patent rights. Then the relevant transaction cost isn't just negotiating between your company and the patent holder, but also negotiating between your department and Legal.)

As the Director of R&D at a tech company, I can directly confirm that we regularly avoid patented technology that has the potential to solve problems efficiently, simply because the cost and time involved in negotiating access to even see if we can make use of their technology. It's far too big of a risk and much cheaper to invent something else in house. The transactional costs are legitimizing Not-Invented-Here syndrome.

The perverse effects can be similar. There's lots of patent cases where a certain machine or drug never gets commercialized since 20 different patents are guarding their tiny turf.

Can you be specific on this. Which machines never got commercialized because of patents?

If copyrights would expire like patents, the rights would have expired ten years ago--putting the entire show (not just the background songs) into the public domain.

Agree. The thing that’s critical is that we must rein in length of copyright. We are moving toward perpetual terms. That combines with the above to say that no one will ever see WKRP again.

I might wish for other improvements, but the cleanest solution is “strong but short” copyright. Let them play these games for say, 50 years, and then put it all in public domain. Let WKRP show up on Library of Congress or Google video servers after that.

50 years isn't short. Perhaps you meant 5 years? Nobody makes a decision on what to publish based on the revenue they expect to make 6 years after release -- it's a windfall if it exists, but usually it doesn't to any substantial degree. The market is extremely front-loaded -- if you haven't covered your costs in 2 years you're not going to, and everyone knows it, so the short-term sales forecasts are key.

Freedom to own a property trumps any anecdotal evidences that some people can use some property in a different, perhaps in some sense “better” way. I can imagine that 10-20 homeless people could live in my house in Connecticut. Is my resource under-used?

Moving a bunch of homeless people into your home interferes with your use and enjoyment of your home. Releasing a show like WKRP in its original form does not in any way interfere with the copyright holder's use and enjoyment of his property. This point has been made so many times in so many places that I'm astonished to see anybody still trying to argue the specious analogy between physical and intellectual property.

Note also that the key point in Alex's post is not that people don't want to pay a reasonable royalty for using the copyrighted material; they are more than willing to do so. The problem is that there are so many individual copyright holders that the cost of negotiating with them all individually is prohibitive. As a result, the good doesn't get produced, and nobody is satisfied: not the viewers who would like to buy the show in its original form, not the producers who would like to sell it to them, and not even the copyright holders, who would like to get paid a royalty for the use of their work.

Note also that the key point in Alex’s post is not that people don’t want to pay a reasonable royalty for using the copyrighted material; they are more than willing to do so. The problem is that there are so many individual copyright holders that the cost of negotiating with them all individually is prohibitive.

This seems like it could be easily solved by a central registry with rates fixed by statute. No negotiation because the rates are fixed, and no need to transact separately with dozens of individual owners because the registry takes care of calculating the amount, dividing it appropriately, and finding the rights holders to give them their shares. Administrative costs would drop precipitously.

On the other hand, sometimes the copyright holders *don't* want to get paid a royalty for the use of their work; they'd rather not have their work associated with the particular new work. A negotiation-free system would prevent them from doing that. I think the overall effect of such mandatory licensing would be to the benefit of society, but some might disagree.

I doubt Foreigner even owns the copyright of their song "Hotblooded" anymore.
But the point is made. The companies that do own these songs would be better served if they allowed the music to be used on WKRP DVDs.

Perhaps, but they also face the same transaction cost problems as their would-be licensors. How much of a high-value employee's time are you willing to spend on a few hundred dollar transaction?

The Wonder Years still haven't been released on DVD for the same reason. And when Tour of Duty came out, it had virtually all of the original later-'60s music stripped out and replaced with atmospheric East Asian studio music. No "Paint It Black" as the theme -- lame.

To provide a pet example of the phenomenon, 2 hilarious minutes of BBC Radio's original production of "The Hitchhiker's Guide to the Galaxy" were cut from the CD release due to the inclusion of music from Pink Floyd and The Beatles which could not be substituted since they were the subject of the very funny dialogue.
At least they were still able to use the theme song (originally by The Eagles).

The basic problem is that the copyright period is too long. The vast majority of profit from a new work is realized in just a brief initial period: perhaps 2 or three years for most entertainment. For purposes of encouraging the production of new works, we don't need a copyright period much longer than that.

I've watched the Muppet Show on disks and didn't notice any missing songs. I guess licensing songs is harder to work out than licensing recordings of songs.

OK, I commented too soon. Looking it up, it appears that many songs were dropped from the Muppet Show disks.

A similar issue hit the DVDs of MTV's Daria. They used their wide broadcast license to put together a contemporary music soundtrack for the original run of the series, and were able to license approximately .1% of it for the actual home video release. This killed a couple of jokes in the series that relied on the background music for setup (like an REM parody scene), and the replacement music just... isn't very good in general.

This is very much an issue on DVD releases of television shows today. The licensing agreements still do not cover DVD inclusion in many cases. This is especially harmful for the re-watching experience of television shows featuring teenagers and college students, where the currentness and timeliness of the music often makes substitution seem inappropriate and awkward.

"WKRP in Cincinnati is not that important in the grand scheme of things"

Shut your mouth!

"thirtysomething", the 1987-91 domestic drama television series only released on DVD in 2009-10 looks like another example of a product delayed by multiple music copyright issues. Is this delay a record?

Am I the only one who does not follow Alex's logic here? How does the DVD producer's decision to offer (what at least Alex considers) a lower quality good equate to probative transactions costs? There seems not to be anything to prevent the DVD producer from renegotiating here. They just didn't't want to pay.

Both the tragedy of the commons and the anticommons are about transactions costs, not willingness to pay, right?

Okay, there are two sets of costs here:
- The money actually paid to the copyright owner by the user of the copyright. Call this the IP cost.
- The money and time that the copyright owner and the user of the copyright spend agreeing on what the IP cost is, and how to pay it, and paying it. This is commonly called the transaction costs. For example, if you put a cheque in the mail, then you spend a bit of money on the cheque and the envelope and the stamp, and a bit of your time. The person who gets your cheque doesn't get that value, it goes to your bank, the stationery shop, and the post office. Now those costs are pretty minimal.
But let's say that you have 100 people to track down and negotiate with, you don't know their names, so you need to spend resources tracking that down, then their lawyers are going to have to talk to your lawyers, and it all starts adding up. And this is money that doesn't go to the copyright owners.
In this situation it's easy to see that the DVD owner might be willing to pay IP costs, but not IP costs + transaction costs.

I completely get your point about transactions costs multiplying fast with the number of parties to a transaction:


The thing is, that whatever those costs were, they weren't prohibitive in closing the deal for the original series. Granted it might be harder to find a few of the copyright owners ten or more years later. But that's speculation, and I don't see anything in what Alex cited that suggests that it was these costs (rather than what you call "IP costs") that resulted in the decision to produce with different music.

A new episode of a television show on a major network has a much larger content budget than the DVD reissue.

Is the tragedy of commons about transaction costs or rather about well defined property rights?

There is an entire field of academic research dedicated to defining and classifying transactions costs. Williamson and Ostrom shared a Nobel in 2009 for work in this field. The blurriness of the definition of property rights in some cases is categorized as a transaction cost. Williamson's classic formulation divides transactions categories of frequency, specificity (how dependent is value on particular contractual relationship?), and uncertainty -- and the blurriness I think you're talking about would fall in the last.

Darn autocorrect. By probative, I meant --prohibitive--

This is a complex problem of multi-owner rights, not unlike getting some landowners together to sell their property to a new developer who wants to make something else of it. Hold up problems, etc.

I am waiting for someone to create a contingent auction space for this: the buyer puts up a site, posts his maximum willingness to pay for the entire package, and the component parties bid and form coalitions to get the project done through a comibinatorial auction. If no set is complete, the buyer takes the biggest set he can work with and builds around it to get a finished TV show.

Or maybe something like a industry-consortium that grants licenses similar to "performing rights" for music played in bars etc.


Or, you could all, as sellers of the component part, agree on a dictator to allocate what each part of your project is worth--arbitration; or you could use a formula, such as consumer panels, to value the components and have the sellers agree to take based on the consumer valuation percentages.

". . . it is an illustration of how copyright and patent thickets can impede innovation"--as if we needed *another* illustration!

"Hot-blooded" was by Loverboy, not Foreigner. Geez.

Eh? http://en.wikipedia.org/wiki/Hot_Blooded

Perhaps you were thinking of Hot Girls in Love.

Sorry - that's The Kid is Hot Tonight. My bad.

The same thing happened to Northern Exposure when it came out on DVD. It was a bummer.

" . . . it is an illustration of how copyright and patent thickets can impede innovation." This is a ridiculous statement. What does the inclusion (or not) of a particular recording as part of the release of a DVD of a decades-old program have to do with "innovation"? There is little to no innovation involved in re-releasing DVD recordings of existing works.

Even more ridiculous is the suggestion that the publishers of the DVD, who are no doubt releasing it for monetary gain, should be permitted to include works for which they have not negotiated and paid license fees - i.e., so the DVD publisher gets paid for releasing copies of an existing work, but shouldn't have to pay the artists whose works are featured in it??

Finally, calling "Hot Blooded" an underused resource might be the most ridiculous statement - seriously, how can you characterize such an over-played, extensively sync-licensed recording "under-used"???

Copyright is a complex topic, but if you must publish over-simplified observations on the topic please make comments that are at least logical . . .

"WKRP in Cincinnati is not that important in the grand scheme of things"

How dare you assert such insulting things? Have you no sense of decency?

I'm all for idea behind "The High Cost of Free Parking" and making people pay for the eyesore and inconvenience, but it's a pain in the ass to pay, and why do I feel so "taken" to pay $1.00/hour? Or better yet, why do I feel many 'negative hedons' for a measly 0.50 Euros to take a piss in public rest area in Europe?

Two other (excellent) series that suffer from the same problem are HBO's Dream On and Showtime's The Chris Isaak Show.
The former featured clips from old movies and TV shows, and most of it has never been released (including the later years when it really hit its stride).
The latter is hamstrung by "live" performances by various artists who guested on the show.

Larry Lessig's Free Culture has a similar, and perhaps better, example in which a company was trying to put together an artist-centered compilation with clips from movies, shows, bio, interviews, etc. What they found was that it was next to impossible to even determine who all of the copyright owners were. Registration is/was not required so it's impossible to know from a clip who might have associated rights. For the ones you guess, it's next to impossible to track them down. Now multiply that against an actor's lifetime of films and interviews. (I believe Clint Eastwood was their first project.) In the end, you won't know if you got everybody covered until you release it and see if somebody sues.

And who ends up paying for all of that inefficient searching and litigation risks? The consumer. The problem here isn't so much the copyright principle as it is the inefficiency of the automatic system. Registration and expiry would do well to help innovation and consumer value, while at the same time increasing the value to the artists. With easier and cheaper products because of efficiency improvements, more consumers would buy it and the artists would hence get paid more.

What is innovative about re-releasing a 20 year old sit-com?

I really think the commons/anti-commons analogy is seriously flawed because it is almost meaningless.

Taken together, the analogies say that depending on who has the right to use some resource, the resource can be either overused or under-used. That doesn't say anything very useful.

If you think a resource is under-used, you claim it is the tragedy of the anti-commons. If you think a resource is being overused, you claim that it is the tragedy of the commons.

Charles Stross sort of mocked this situation in his book Glasshouse. One of the plot points was that copyrights enforced by DRM made the last half of the 20th Century (and the first half of the 21st) disappear from history - that more was known about the first half of the 20th Century, and the last half of the 21st Century than anything between.

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