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

Thanks,
J.

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.

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