Self-Perpetuating Copyright Enforcement

One of the most powerful emotional tricks used by the copyright industry against those seeking to reduce the term and reach of copyright to more rational levels is to invoke the poor starving artists who would suffer if this were to happen.

The fact that the vast majority of creators earn most money soon after producing their work, and relatively little years later, means that taking copyright back to the original 14-year term specified in the Statute of Anne would have minimal effect on them, but it's an undeniably clever pitch.

In reality, the copyright industry couldn't give two hoots about the artists it feeds off, as the following makes clear:

RIAA spokesman Jonathan Lamy previously told TorrentFreak that the ‘damages’ accrued from piracy-related lawsuits will not go to any of the artists, but towards funding more anti-piracy campaigns. “Any funds recouped are re-invested into our ongoing education and anti-piracy programs,” he said.

If the copyright industry *really* cared about the artists, this money would go straight into their deserving pockets.

Moreover, this "re-investment" in anti-piracy programmes makes such actions self-fuelling: the money supposedly gained for those poor starving wretches, is actually used to fund the next action, which funds the next action, and so on.

This means that the copyright organisations have a real incentive to choose a strategy that privileges heavy-handed enforcement over new business models. The latter might result in creators getting paid more, while the former ensures that the fat-cats running the enforcement machine continue to lap up the cream....

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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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The Copyright Debate's Missing Element

There is certainly no lack of debate about copyright, and whether it promotes or hinders creativity. But in one important respect, that debate has been badly skewed, since it has largely discussed creativity in terms of pre-digital technologies. And even when digital methods are mentioned, there is precious little independent research to draw upon.

That makes the following particularly significant:

Doctoral research into media education and media literacy at the University of Leicester has highlighted how increased legislative control on use of digital content could stifle future creativity.

The Digital Economy Act 2010 alongside further domestic and global legislation, not least the ongoing ‘Anti-Counterfeiting Trade Agreement (ACTA)’, combines to constitute a very hard line against any form of perceived copyright infringement.

Research implies that these pieces of legislation could stifle the creative opportunities for youngsters with tough regulation on digital media restricting young peoples’ ability to transform copyrighted material for their own personal and, more importantly, educational uses.

The key phrase here is "young people", because they are using content, including copyrighted materials, in quite different ways from traditional creators. As the researcher commented:

“There is a growing risk that creativity in the form of mash-ups, remixes and parodies will be stifled by content producers. With no clear ‘fair use’ policy, even when it comes to educational media production we are in danger of tainting many young people’s initial encounters with the law."

The current approach, embodied in the Digital Economy Act and elsewhere, risks not only stifling the younger generation's creativity, but alienating them completely from any legislation that touches on it. (Via @Coadec.)

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Why Creativity Needs Shorter Copyright Terms

In response to a tweet of mine about shortening copyright to stimulate creativity, someone questioned the logic. It's an important point, so it seems useful to do some thinking out loud on the subject.

First, I should probably address the question of whether *longer* copyright stimulates creativity. The basic argument seems to be that longer copyright terms mean greater incentives, which means greater creativity. But does anyone seriously think about the fact that their creations will still be in copyright 69 years after their death? It won't do them any good, and probably won't do their descendants much good either, since the income at this point is generally close to zero.

Indeed, speaking as an author, I know that practically all my income from writing comes within the first couple of years; after that, it's dribs and drabs. If my copyright were cut down to even five years, it would make only a marginal difference to my total remuneration.

Now, clearly I'm not JK Rowling, but the point is, neither are 99.99999% of authors: I know from talking to other run-of-the mill writers that the same holds for them, too. So in practical terms, reducing the copyright term would have little effect on the money that most creators earned as result.

But let's look at the main part of my claim: that reducing copyright's term would encourage creativity. This is based on the rough syllogism that all artists draw on their predecessors in some way; making more prior creativity available would allow more artists to draw on it in more ways; and so this would increase overall creativity.

For the first assertion, look at history. Painters once began by mixing paints in another artist's studio, then drawing unimportant bits in his (usually his) works, learning how to emulate his style. Then they gradually painted more important bits in the style of that artist, often doing the low-cost jobs or rush jobs that he didn't have time or inclination to execute. Then, one day, that apprentice would set up on his (usually his) own, building on all the tricks and techniques he had learned from his master, but gradually evolving his own style.

Today, would-be artists tend not to become apprentices in the same way. Instead, they typically go to art school, where they learn to *copy* the masters in order to learn their techniques. Often you see them doing this in art galleries, as they strive to reproduce the exact same effect in their own copy. It teaches them the basics of painting that they can then build on in their own work.

In music, something very similar happens: journeyman composers write pieces in the style of the acknowledged masters, often copying their themes and structure very closely. This is true even for extreme geniuses. For example, in order to learn how to write in the new early classical style, the eight-year-old Mozart arranged three piano sonatas from J C Bach's Op. 5 as keyboard concertos.

Mozart also "borrowed" entire themes - most famously in the overture to The Magic Flute, where he takes a simple tune from a piano sonata by Clementi, and transforms it. Some composers did this on a regular basis. Handel, in particular, was quite unscrupulous in taking themes from fellow composers, and turning them into other, rather better, works. Moreover, the widely-used form of musical variations is based generally on taking a well-known theme and subjecting it to various transformations.

That was in the past, when art was an analogue artefact. Copying took place through trying to reproduce an artistic effect, or by borrowing musical themes etc. Today, in the digital age, copying is not such an incidental act, but central to how we use computers. When we access something online, we copy it to our computers (even audio streaming has to be assembled into copies of small chunks of sound before we can hear it).

Digital plasticity - the ability to compute with any content - makes the clumsy copying and learning processes of the past trivially easy. A child can take a digital image of a work of art and cut and paste elements of it into his or her own work; anyone can sample music, distort it and mix it with their own; texts can be excerpted and juxtaposed with others drawn from very diverse backgrounds to create mosaics of meaning.

All these amazingly rich and innovative things are now very easy to do practically, but the possibilities of doing so are stymied by laws that were drawn up for an analogue age. Those laws were not designed to forbid artists from learning from existing creations, but to stop booksellers producing unauthorised copies - a totally different issue. The idea of using just part of a work was not really a concern. But it is today, when the cut and paste metaphor is central to the digital world. That is why we need to reduce copyright to the bare minimum, so that the legal obstacles to creating in this new, inherently digital way, are removed.

If we don't, one of two things will happen. Either we will fail to realise the full creative potential of computing, or else the younger generation of artists will simply ignore the law. Either is clearly unsatisfactory. What is needed is a copyright regime that is balanced. That is far from being the case today. As the media industry (sic) ratchets up copyright terms again and again, creation has become subservient to the corporation, and the creators are cut off from their past - and hence future.

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The Internet's Infinite Exploitation

Talk about opening your mouth and putting your foot in it....

Here's Michael Lynton, Chairman and CEO, Sony Pictures Entertainment - yes, the one who famously said:

"I'm a guy who sees nothing good having come from the Internet. Period."

Realising that this was not the most astute statement, he's back, desperately trying to spin. Here's a sample:

But, I actually welcome the Sturm und Drang I've stirred, because it gives me an opportunity to make a larger point (one which I also made during that panel discussion, though it was not nearly as viral as the sentence above). And my point is this: the major content businesses of the world and the most talented creators of that content -- music, newspapers, movies and books -- have all been seriously harmed by the Internet.

Well, no: music, news, films and books and the people who create them are all thriving; what *isn't* thriving is the old way of providing access to them - things like Sony Pictures Entertainment.

Anyway, let's pass over that and hear what the man who insists "I am not an analogue guy living in a digital world" has to say:

Contrast the expansion of the Internet with what happened a half century ago. In the 1950's, the Eisenhower Administration undertook one of the most massive infrastructure projects in our nation's history -- the creation of the Interstate Highway System. It completely transformed how we did business, traveled, and conducted our daily lives. But unlike the Internet, the highways were built and operated with a set of rational guidelines. Guard rails went along dangerous sections of the road. Speed and weight limits saved lives and maintenance costs. And officers of the law made sure that these rules were obeyed. As a result, as interstates flourished, so did the economy.

Well, I have to confess that sounds pretty analogue to me. The Internet doesn't need "guardrails", because there are no safety issues. In particular, there are no lives or maintenance costs to save. It's a completely bogus analogy, trying to draw on a romantic image fromthe past livened up with a little fear-mongering about those lives that need saving.

But the real give-away is the following:

without standards of commerce and more action against piracy, the intellectual property of humankind will be subject to infinite exploitation on the Internet.

What a wonderful phrase: "infinite exploitation on the Internet" - a perfect description of *precisely* what humanity needs. The inability to provide that "infinite exploitation" is precisely why the current system ought to be superseded. And finally, the fact that this glorious possibility is meant to be a *criticism* of the Internet shows that poor Mr. Lynton is indeed an analogue guy in a digital world - worse, one whose mind keeps bumping up against his own, internal guardrails.

Update: Don't miss Mike Masnick's even more thorough debunking.

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Grizzly Bears with Chainsaws for Hands

That's the creators of the Internet, in case you were wondering. (Via Boing Boing.)

Creators' Rights in the Digital World

As something of a "IP minimalist", I obviously need to think about how creators are rewarded for their work in a world with little or no copyright. This post offers some possible answers, and links to an interesting document (available as both an HTML or PDF file).

The latter is by no means perfect - some of its facts are wrong - but it provides an excellent recent history of interwined worlds of open content and copyright, as well as plenty of links to important further materials. (Via LXer.com).