02 July 2010

An (Analogue) Artist's Reply to Just Criticism

There's a new meme in town these days: “rights of the artists”. The copyright industries have worked out that cries for more copyright and more money don't go down too well when they come from fat-cat monopolists sitting in their plush offices, and so have now redefined their fight in terms of struggling artists (who rarely get to see much benefit from constantly extended copyright).

Here's a nice example courtesy of the Copyright Alliance – an organisation that very much pushes that line:

Songwriter, Jason Robert Brown, recently posted on his blog a story about his experience dealing with copyright infringement. Knowing for a long time that many websites exist for the sole purpose of “trading” sheet music, Jason decided to log on himself and politely ask many of the users to stop “trading” his work. While many quickly wrote back apologizing and then removing his work, one girl in particular gave Jason a hard time.

First of all, I must commend Mr Brown for the way he has gone about addressing this issue. As he explains on his blog, this is the message he sent to those who were offering sheet music of his compositions on a site:

Hey there! Can I get you to stop trading my stuff? It's totally not cool with me. Write me if you have any questions, I'm happy to talk to you about this. jason@jasonrobertbrown.com


Now, that seems to me an eminently calm and polite request. Given that he obviously feels strongly about this matter, Mr Brown deserves kudos for that. As he explains:

The broad majority of people I wrote to actually wrote back fairly quickly, apologized sincerely, and then marked their music "Not for trade."

However, he adds:

there were some people who fought back. And I'm now going to reproduce, entirely unexpurgated, the exchange I had with one of them.

Her email comes in to my computer as "Brenna," though as you'll see, she hates being called Brenna; her name is Eleanor. I don't know anything about her other than that, and the fact that she had an account on this website and was using it to trade my music. And I know she is a teenager somewhere in the United States, but I figured that out from context, not from anything she wrote.

After some initial distrust, the conversation starts to get interesting, and it turns out that Eleonor, although just a teenager, has a pretty good grasp of how digital abundance can help artists make money:

Let's say Person A has never heard of "The Great Jason Robert Brown." Let's name Person A "Bill." Let's say I find the sheet music to "Stars and the Moon" online and, since I was able to find that music, I was able to perform that song for a talent show. I slate saying "Hi, I'm Eleanor and I will be performing 'Stars and the Moon' from Songs for a New World by Jason Robert Brown." Bill, having never heard of this composer, doesn't know the song or the show. He listens and decides that he really likes the song. Bill goes home that night and downloads the entire Songs for a New World album off iTunes. He also tells his friend Sally about it and they decide to go and see the show together the next time it comes around. Now, if I hadn't been able to get the sheet music for free, I would have probably done a different song. But, since I was able to get it, how much more money was made? This isn't just a fluke thing. It happens. I've heard songs at talent shows or in theatre final exams and decided to see the show because of the one song. And who knows how they got the music? It may have been the same for them and if they hadn't been able to get it free, they would have done something else.

Which is, or course, absolutely spot on.

Mr Brown tries to explain why he disagrees using three stories. The first is about lending a screwdriver to a friend, who then refuses to give it back:

He insists that he has the right to take my screwdriver, build his house, then keep that screwdriver forever so he can build other people's houses with it. This seems unfair to me.

And he's right of course: it *is* unfair, because he has lost his screwdriver, which is an analogue, and therefore rivalrous, object. His sheet music, by contrast, in its digital form, is non-rivalrous: I can have a copy without taking his copy. Yes, there's the issue of whether he loses out, but as Eleonor pointed out, sharing sheet music is a good way to drive sales – it's marketing.

The second story concerns lending another friend a first edition copy of a book by Thornton Wilder; once again, the friend refuses to give it back:

Two months go by; there's a big hole on my bookshelf where "The Bridge of San Luis Rey" is supposed to go. I call my friend, ask him for my book back. He comes over and says, "I love this book, yo. Make me a copy!"

Again, we have the analogue element: this is a rivalrous object, and when the friend has it, poor Mr Brown doesn't have it. But there's another idea here: making copies:

the publishing company won't be able to survive if people just make copies of the book, I say, and the Thornton Wilder estate certainly deserves its share of the income it earns when people buy the book.

Here, the important thing to note is that people *can't* “just make copies of the book”. Yes, they can photocopy it, but that's certainly not the same as a first edition, which is not only rare, but comes with a very particular history. Even if you photocopied the text in order to get to know it, it wouldn't detract from the value of the first edition, which is a rare, rivalrous analogue object. And the Thornton Wilder estate has *already* been paid for the first edition, so there's no reason why they should expect to be paid again if a photocopy is made. And once more, sharing photocopies is likely to drive *more* sales of new editions – which will produce income for the estate.

The third story is even more revealing:

I bought a fantastic new CD by my friend Michael Lowenstern. I then ripped that CD on to my hard drive so I can listen to it on my iPod in my car. Well, that's not FAIR, right? I should have to buy two copies?

No. There is in fact a part of the copyright law that allows exactly this; it's called the doctrine of fair use. If you've purchased or otherwise legally obtained a piece of copyrighted material and you want to make a copy of it for your own use, that's perfectly legal and allowed.

And Mr Brown is absolutely correct – in the *US*. But here in the UK, I have no such right. So what seems self-evidently right to Mr Brown in the US, is in fact wrong in the UK. The reason for that is absolutely central to the whole argument here: the balance between the rights of the creators and the rights of the users is actually arbitrary: different jurisdictions place it at different points, as Mr Brown's example shows.

In fact, Eleonor touched on this in another amazingly perceptive comment:

I assume that because something that good comes from something so insignificantly negative, it's therefore mitigated.

The “something good” that she's talking about includes things like this:

Would it be wrong for me to make a copy of some sheet music and give it to a close friend of mine for an audition? Of course not.

What she is saying is that in weighing up the creator's rights and the user's rights, things have changed in the transition from analogue to digital. Making a copy of a digital object is a minimal infraction of the creator's rights – because nothing is stolen, just created – but brings huge collective benefits for users. And so we need to recalibrate the balance that lies at the heart of copyright to reflect that fact.

As Mr Brown's examples consistently show, he is still thinking along the old, analogue lines with rivalrous goods that can't be shared. We are entering an exciting new digital world where objects are non-rivalrous, and can be copied infinitely. Not surprisingly, the benefits to society that accrue as a result easily outweigh any nominal loss on the creator's part. That's why we need to ignore these calls to our conscience to think about the poor creator – even one as pleasant and sympathetic as Mr Brown – because they omit the other side of the equation: the other six billion people who form the rest of the world.

Follow me @glynmoody on Twitter or identi.ca.


Nick Barnes said...

He gets half his income from sheet music sales. Wow.

Stroppy Author said...

I agree in large part Glynn - and I never issue take down notices for my own (pirated) content because I believe piracy does drive sales. BUT if we don't protect creators at all, what will happen to those of us who don't have an academic salary or independent income but live on the income from our creative work?

If I am not paid anything for my books, I won't be able to write them. We will end up with a 'culture' created entirely by unpaid amateurs in odd free moments and that will be to the detriment of the whole of society, too.

I don't favour DRM, or coming down hard on sharing, and have said for a long time that there is no comparison between stealing a physical (rivalrous) object and copying a digital entity - though my publishers rarely agree. But we don't yet have a model which benefits both creators and consumers. Those six billion others are not ultimately well served by the end of the creative industries in exchange for a few months of digital cornucopia and free-for-all.

Glyn Moody said...

@Nick: well, different creators have different slices of the pie.

Glyn Moody said...

@Stroppy Author: of course, you're right: nobody wants creators to disappear. And despite appearances, that's what I'm trying to address in my posts: I'd like to help creators and their associated industries find a way forwards.

But that has to take place in the context of what is happening, not what those industries might like to happen. The shift from analogue to digital means that copies will be made, and that effectively everything will be available for free: DRM manifestly doesn't work, and the legislative medicine now being tried is probably worse than the "disease" it claims to cure.

So we need to look at what creators can use to make money. For authors, I suggest - absurd as it may seem - that it is books.

That is, *physical* books.

Why? Because they are scarce: as I said in the post, you not only can't make a copy of a rare first edition, even if you could, it wouldn't be authentic - it would have no history.

As an ex-publisher, I'm a big fan of publishers concentrating what they do well - publishing books and magazines - and not regarding digital as a threat but an opportunity. There's lots of evidence that people who download digital stuff go out and buy *more* analogue stuff than those who don't.

So why do we need to "protect" creators from this sharing: why not *promote* creators by encouraging people to share nicely - just like our mothers told us do. Why not develop a culture that recognises the difference between analogue and digital, between copy and original, and that celebrates and values the difference?

I think one of the biggest mistakes that publishers are making is trying to enforce analogue prices on digital artefacts. People are not stupid: they know that the latter cost *nothing* to make in terms of variable costs; they feel ripped off (which is why young people have little time for the recording industry).

Imagine publishers treating the public with respect - giving them the things that cost nothing to make as an encouragement to buy the things that do cost something?

Just a thought....

Janice said...

The artists have finally used his rights in good way. The entire article was very informational. I am very much greatful thnaks for this.

Cassandros the Elder said...

I would only add one thing to the concept of the other 6 gigapeople. If a creation has value in and of itself, the creator does not have to unleash it to the public at all. The fact is, however, that copyrighted creations gain their value by being appreciated by the aesthetic senses belonging to other people. And that's why you must take them into account.

To understand why some, me for example, find the current state of copyright so distastful, you need only consider that music we hear and love in our younger years, and which have become a part of us in very real ways, will never, ever, ever in our lifetimes enter the public domain. The consequence is that some monopolist somewhere will always own a part of our lives and be able to sell it to the highest bidder, usually to manipulate our behavior. How is that a fair trade off of benefits between copyright holders and consumers?

Glyn Moody said...

@tpegbert: good points. It is indeed shocking the fact that music from our youth is unlikely ever to be in the public domain in our lifetime: it's a sad demonstration of how copyright's quid pro quo has become just a sham.

Stroppy Author said...

@glynn I fully agree with your response, and have previously suggested that publishers give away digital copies with every paper copy sold. They think it a ridiculous suggestion, of course. Yet my bestselling title is also the most widely copied (even though there is no legit digital version - the pdf was apparently stolen from/by the Indian printers) - suggesting again that sharing does not reduce sales and probably drives sales.

It's true that creating a digital copy costs nothing if you have already created a paper copy, but of course if there is no paper edition the costs of editing, design, etc fall on the digital edition. And some (particularly academic) publishers would rather NOT print expensive books. That leaves them depending on an income from digital formats. I know they are wrong - but the creators are at the mercy of the dinosaurs.

I would much prefer digital copies to be free and paper copies to be paid for, but you only need to look at the hype and panic in the publishing industry, the 'death of the book' crap, to see why they think as they do. If they have been persuaded that people will prefer to read on their iPad than on paper, they will inevitably feel they have to charge for the digital version. It might take time for them to settle to the idea that people will still buy books. Some of my traditional publishers are cutting their lists by 50%, even though sales in children's books have risen during the recession. It all seems rather motivated by panic and ignorance...

Glyn Moody said...

@Stroppy Author: thanks for sharing that corroboration.

I fear that the publishing industry is ignoring the recording industry's painful experience - and thus, inevitably, is doomed to repeat it...

Christian Gross said...

Go for it! Copy it all you want...

Now here is a catch... What happens to the GPL? Oh yeah it goes out of force..

Hmm, let me guess you are for GPL, but against copyright?

You can't have it both ways!!!!

Glyn Moody said...

@SerpentMage: that's a very good point - thanks for raising it.

It's worth recalling why the GPL was drawn up: so that people could share the software that they used as they wanted. What stopped them doing that? Copyright laws. So if there were no copyright, we wouldn't actually need the GPL, because all software would be shareable anyway.

I asked RMS about this subject a little while back; this is what he wrote - addressing the issue rather more thoroughly:

"I would be glad to see the abolition of copyright on software if it
were done in such a way as to ensure that software is free. After all,
the point of copyleft is to achieve that goal for derivatives of certain
programs. If all software were free, copyleft would not be needed
for software.

However, abolishing copyright could also be done in a misguided way
that would have no effect on typical proprietary software (which is
restricted by EULAs and source code secrecy rather than copyright),
and only undermines the practice of copyleft. Naturally I would
be against that.

In other words, I am more concerned with how the law affects users'
freedom than with what happens to copyright as such."

I asked him how that might work in practice; here's his reply:

"It would be necessary to eliminate copyright on software, declare
EULAs legally void, and adopt consumer protection measures that
require distribution of source code to the user and forbid

Aaron Safer said...

When first reading about the blog my sister is featured in, I was stuck… As her brother I should take her side but as a composer I should be completely against what she is doing. It made me sit down and think about both sides of the argument. My conclusion is quite simple: Both are correct and both are wrong.

I agree with JRB about copyright laws prohibiting it, protecting one’s own work, etc. but some do not have a choice. The problem lies in that many composers think of this as an insult when really it is a compliment. Because music has evolved to be harder, and more impressive, it is also harder to obtain as there is more of it. Yes, it is very wrong to download it and only use it for personal gain, such as a concert that makes money, or a public performance.

I do recall that copyright laws are a bit grey in the area that is education. From what I understand with “fair use” and all that, is if it is for educational purposes… then it is not illegal. In that light, Brenna (Eleanor is her middle name, for some reason she does not like to go by her first name) is not wrong in HER use of it. She was wrong sharing it with those who might not have used it for education, but she always does.

Some forget that even though copyright laws protect the composer there are certain instances that do not need the expressed permission of the rights holder.

As a composer, educator, business owner, and performer, I always agree that copyright laws should be followed, but do not think that everyone who seems to be breaking them are actually breaking them. I do agree something has to be done with websites that make it easy for those who are not in school, using the copies for personal gain, to access them. Shutting down these websites though will only make things worse and make the culprits try even harder to access said works of art/literature. Maybe instead, people that are against such acts of illegality should push to have a username and password instituted so that the website must confirm the individual IS actually a student such as how Facebook did back when it first started up (you had to have a “.edu” email to sign up).

That’s just my view though.
-Aaron Safer

Glyn Moody said...

@Aaron: many thanks for sharing that viewpoint - as you say, you find yourself in a unique position.

What impresses me is that this conversation has been carried on in such a civilised way by *all* parties. So often these arguments degenerate into slanging matches.

Thanks for contributing to that.

Anonymous said...

@Stroppy Author

For digital copies i believe authors could have some success with the Threshold Pledge System http://en.wikipedia.org/wiki/Street_Performer_Protocol

it seems to be doing quite well for some people, here is a good site that uses it: http://www.kickstarter.com/projects/pioneeronetv/pioneer-one-pilot-episode-for-dramatic-series

saulgoode said...

Mr Brown should indeed be commended for the manner he chose to address the issue. Nonetheless, he exhibits an unequivocal sense of entitlement for dictating what others may or may not do with "his music" after it has been published, without questioning to any degree whether that control is justified beyond the fact that "it's the law".

While it is inherently appropriate to attribute authorship of the music to Mr Brown, the legal aspect of "ownership" and control of its disposition after it has been made public is precisely what advocates of copyright reform are calling into question.

The fact that an otherwise erudite and perceptive young girl does not view her sharing of this music as unethical is not owing to a failure of principles on her part -- indeed it is she who is applying the moral lessons that adults attempt to instill in children from their earliest stages of development: it is GOOD to share with others.

Eleanor is right to question a law which runs contrary to what she has been taught about sharing with others, and it is the responsibility of those who would that law be enforced to justify their reasoning to her.

It is time for the jingle-makers and story-tellers to re-examine their own scruples and address the inconsistency of the messages being presented to today's youths.

The ability to control whether someone can share a story or a tune with others is not an "entitlement" of its author or composer; it is a government granted monopoly that -- like all such government encroachment into the business of its people -- should it exist at all, needs to be justified and administered in a manner which addresses its ultimate benefit to society.

Radio and television broadcasters aren't "entitled" to exclude others from transmitting on their frequencies, utilities aren't "entitled" to exclude others from providing power and water to a region, and authors and composers aren't "entitled" to prohibit others from sharing their works. These are all government-granted monopolies which are only warranted to the extent that they benefit the public.

The creators of copyrighted works need to realize the true nature of their "entitlement", recognize the public's expectation that their governments administer copyrights in the most effective manner possible, and accept that this administration is an ongoing process. It is not unreasonable that copyright holders should have some their "entitlements" curtailed or abrogated altogether to accommodate the changing technologies of publishing, just as broadcasters have had to continually adjust and reduce their government-granted power and bandwidth assignments as transmission technology has been advanced.

The "Eleanors" of the world are correct to question the fairness of being prohibited from sharing, and to hold forth the expectation that copyright legislation be purposed towards providing for a more consonant society. That is their "entitlement".

Glyn Moody said...

@Saul: nicely put - thanks for that.