Castle Calls Out Congress On Safe Harbor

Attorney and blogger Chris Castle writes in The Huffington Post that it is the government’s responsibility to define the intent of safe harbor provisions in the 1998 Digital Millennium Copyright Act. Arguing common-sensically that these safe harbors could not have been designed to shield massive and repeated infringements, like the volume that exists on YouTube, Castle says that it is time for the government either to close this gaping loophole or to state that, yes, the intent of safe harbors in the DMCA was indeed expected to foster the 350 million notice and takedown requests Google receives in a single year.  Writes Castle:

“The one thing that nobody thought was that it was the intention of Congress that there would be ad networks, multinational corporations and international piracy rings whose business model is in large part built on exploiting a loophole in that safe harbor. What once was a reasonable exception is now tainted as a massive loophole that the government has done little to nothing to correct.”

Meanwhile, William Buckley at FarePlay has launched a petition demanding Congress close the safe harbor loophole and make take down mean stay down.  As I have stated multiple times on this site, the narrative that rights holders abuse the DMCA notice and take down provision to silence criticism or infringe speech in any way is a gross distortion from reality.  These incidents of abuse or improper take down are in the single to low double digits; examples cited are often not even in the U.S.; and these incidents are dwarfed by hundreds of millions of legitimate notices that must be sent and re-sent by rights holders futilely trying to use an outdated system that was designed to be a reasonable, cost-free means of enforcing their rights.

To view and sign the petition, go to

Posted in Copyright, Law & Policy | Tagged , , , , | Leave a comment

Copyright Doesn’t Restrain Culture – Part II

“Shorter copyright will encourage artists to keep on creating new work, will allow  new art forms (such as mash-ups) and will stop big businesses from relying on large back-catalogues rather than investing in new content.”   The Pirate Party UK —

The above statement by the UK Pirate Party, which is not alone in advocating a ten-year copyright term, is consistent with the attitudes expressed by Internet-industry backed coalitions and various academics, who claim that copyright is in dire need of “rebalancing” for our digital times.  In Part I of this essay, I tried to stick to refuting only the assertion that copyright has ceased to be appropriately distributive of existing works in the digital-age; arguing that it no more functions as a barrier to access for the consumer today than it did before the technological revolution.  In Part II, I’ll try to stick to the matter of copyright as generative (i.e. as an incentive to create and distribute new works) because we are meant to glean from statements like the quote above that copyright has ceased to be generative in a way that is compatible with the 21st century market.

What is at least helpful about this otherwise naive statement is that it neatly presents three types of creators and three generalizations about each type. It includes an assumption about individual, professional artists; a statement about the value of amateur and new-media creators with an implicit reference to the creation of all derivative works; and it contains a rather rote attack on corporate rights holders, which make easy targets for critics who are ignorant of the interdependence of entities both large and small within the creative ecosystem.  So, inasmuch as I want to find this kind of declaration dismissible, it does at least provide a valid organizing principle for addressing the subject.

Professional Creators

The idea that a drastically reduced copyright term will “encourage artists to keep creating new work” is probably the most offensively flawed statement too-often made in favor of radical reduction of copyright terms.  Because even a casual observation of artists—either contemporary or past—should reveal two basic facts about them:  the first is that some artists are highly prolific while others will produce just one, or only a few, works of note; and the second is that all artist are by nature self-motivated to express all of the work they have within them as long as circumstances permit them to do so.  This is part of what makes them artists in the first place, and it is presumptuous to believe that by recalibrating copyright terms, we would more effectively incentivize, for instance, a novelist to produce a fourth book as if she would otherwise rest on the laurels of her first three because she is so comfortably sustained by the length of her copyright terms.

Even to consider the incentive of copyright in this way is to completely misunderstand the motivation of the artist (or the scholar for that matter) to create works—to say nothing of misunderstanding the foundation of copyright.  With its pretense toward humanism, this view treats the creator as though he is an orange and copyright a machine that, with the right settings, will more efficiently squeeze out the maximum available juice.  (And where else would such an ugly, anti-human idea originate other than the coldly efficient, big-data crucible of Silicon Valley?) The artist creates because he has something to say, and he stops creating when he feels he’s said it and/or when life poses other obstacles to his work. Even if copyright terms were perpetual—and this is neither practical nor constitutional—it is both illogical and entirely rejected by historical evidence, to assume that an artist will stop creating simply because some initial body of work can sustain him financially. To the contrary, it is the dream of most artists to have the freedom to do nothing but produce new works, though only a minority are fortunate, talented, and popular enough to realize this dream.

So, even if consumers are morally comfortable with the idea of stripping the creator’s ownership interest in her labors a decade or so after publication (and I think this makes people sound a bit like jackals), the idea that these restrictions will foster an incentivizing pressure on her to keep producing is rejected both by history and by common sense. Because, the most likely circumstance in which the artist will produce a new—and potentially great—work is one in which  previous work is still paying some consistent dividends through a regime of licensing built upon copyrights. Whether those dividends are modest or millions is commensurate with the popularity of the work(s) and, therefore, fair in market terms. So, the relative wealth or poverty of any particular artist is as irrelevant to the discussion of copyright as a generative mechanism as it is just simply nobody’s damn business.

In fact, it is just as rational to argue that in a paradigm with radically short copyright terms, that once an artist attains a level of financial comfort, his incentive to distribute new works could easily be diminished.  Because the cynical assumption made by the statement above is that the artist only enforces his copyright interests for the sake of money.  Yet, we have ample evidence that many artists—especially the ones who already have money—frequently care more about uses of their works for aesthetic, social, or political reasons rather than financial ones.  As we saw with the issue of expanding compulsory licenses for musical works in remixes and sampling, several well-to-do artists came forth to say that no amount of money would be worth having their works relegated to a permissionless market in which they would be compelled to allow their music to become vehicles for potentially the most vile, hate-mongering speakers in society.

Now, consider how fast—as the pundits like to remind us—our culture is moving thanks to the Internet, and recognize that not all re-use, remix, and redistribution is culturally positive. This is what I called in Part I the “don’t-read/burn” aspect of digital life, which overwrites information very quickly.  In this rapid-remix market, we sometimes risk losing distinctions among unique voices until we end up with what Jaron Lanier calls “one book.”  Copyright terms may seem unreasonably long to some—and I don’t really know what the ideal length should be—but it also happens to be the case that copyright boundaries help preserve uniqueness among voices and works, including the contexts in which they may be used; and these distinctions in themselves are actually generative for the larger community of professional creators.  (This is emphasized in Joseph P. Fishman’s Harvard Law Review paper Creating Around Copyright.)  So, in a paradigm with incredibly short copyright terms, if an author sees that, in less than a decade, her voice may be “remixed” into oblivion, or used by speakers she finds odious, or merely exploited to sell toothpaste, what incentive does she have for putting a new work into the world, especially if she does not need the money?  Perhaps no incentive at all.

Building Upon Works

In Greek mythology, Mnemosyne (Memory) is the goddess mother of the nine Muses.  And I’ve always loved this metaphor because of course neither artistic nor scholarly work is purely divine (or inexplicable) inspiration but is also always built upon experiences as well as what has already been expressed or discovered by other mortals .  And the tension (i.e. balance) in copyright, I believe, is the same tension in the individual creator, who cannot always be sure whence an expression comes — either from his memory, in which he shares in the collective consciousness, or from his transcendent and inexplicable nature that makes his voice unmistakably his own. Because we do know when we’re listening to Jimi Hendrix play the national anthem, don’t we?

And because building upon what has come before is a well-established part of the creative process—because artists themselves throughout history admit to knowing how to steal—the argument is often made that modern copyright tips the scale too far toward a presumption of “originality,” supposedly resulting in a kind of intellectual land grab whereby a minority of creators and corporations now own and charge rents for too much of the fertile ground necessary for creative endeavor. Nevertheless, by some miracle, literally millions of creators can simultaneously and independently produce new works while only very occasionally create conflicts of copyright.  And this is because copyright has proven to be remarkably elastic in its ability to grant ownership to a particular expression without preventing the creation of a vast number of adjacent, similar yet distinct, expressions.

Among professional creators—and not just wealthy ones—a system of licensing (and sometimes just asking permission) continues to support remixes, samples, remakes, and derivatives, while fair use doctrine still provides copyright exceptions for uses of works that have a wide variety of cultural and social benefits.  The professional creator has a number of options within the context of copyright for building upon existing works to create new works, yet the reformers’ rhetoric on this aspect of the creative process would have us believe that volumes of existing works have been entombed and fossilized, untouchable by new creators.

On this subject, it should be noted how often the same, limited examples are cited. For some time, it was felt that Sherlock Holmes naturally “belonged to the commons.” And as of a decision in 2014, the character is now in the public domain while ten of Conan Doyle’s stories remain under copyright. But whether this is right and just on a philosophical level, this change does not mean the market will support any greater abundance of Holmes works than we have enjoyed to date.  In filmed entertainment, for instance, a creator would have quite a challenge to compete with the current modernization starring Benedict Cumberbatch; and the production values on that series far outweigh whatever licensing deal was necessary to initiate the production.  At the same time, consumers have enjoyed (or not) an ample supply of Holmes-inspired works, like the show House, which require no copyright obligation whatsoever.  In short, creators have long been free to create all the clever detectives they can imagine, while only a very narrow definition of Holmes was actually protected.  And we shall see if volumes of great works will now pour forth that could not have otherwise existed with the original source under copyright.

In this same vein, it would be interesting to look at the novels of Jane Austen, which have been in the public domain since before the 20th century, and to compare the modern works based on these book that would have had some copyright obligation against those works inspired by her novels that would have been non-infringing in any way. And then, it would be interesting to look at the total number works that the public seemed to enjoy and want to keep extant.  I may be wrong, but my hypotheses would be that market forces and quality of work are primary factors, and that terms of copyright have very little to do with the success of various Austen and Austen-inspired new works.

Remix and the Consumer/Creator

The new market that supposedly demands substantial reform to copyright is one in which the contemporary audience no longer comprises passive consumers of works but rather active fans, who want to engage with media by touching it, remixing elements into mash-ups, fan-fictions, memes, satirical videos, etc.  While these activities are abundant and can contribute to our collective culture in various poignant and amusing ways, I suspect the the majority of consumers—even the digital natives—are still generally of the old-school, passive variety and that it’s probably an exaggeration to describe the “new consumer” as one who is constantly engaged in remix.  Additionally, while there are indeed millions of UGC expressions uploaded every day, only a fraction of these are actually viewed by more than a handful of people, so the extent to which the massive volume of remixes and mash-ups is contributing to our culture may also be somewhat exaggerated by the copyright reform crowd.

It seems more accurate to say that these new forms of expression represent a combination of both amateur and new-media, professional works; and so it is false to portray all of these derivative forms of expression as non-commercial.  For instance, I just watched one of Anthony Vincent’s videos—appropriately Halloween themed—in which he sings “Thriller” in the style of 20 different famous artists.  Vincent has done several of these videos; he’s freakishly good at the impersonations; the recording and mix sound professional; and I certainly hope he’s sharing in the ad revenue generated by the millions of hits he deservedly gets for his work.

But the reason I bring up this example—and there are many like it—is that the song “Thriller” is almost certainly covered by broad license agreements that YouTube entered into in 2013 so that a large library of popular musical works may be used on the platform to distribute User Generated Content.  This is just one example of a new licensing model that conforms to the contours of the new market without requiring any change whatsoever to copyright law. And all parties are well served in this case.  The music rights holders share in the revenue on the new platform; YouTube’s interests are preserved along with its advertisers; Mr. Vincent gets to turn his talent into a fresh, marketable expression without any cost or burden to seek a license on his own; and the public gets to enjoy and share his videos.

Regarding works like movie mash-ups, the licensing becomes a little more tricky due to issues like the right of publicity for actors, who can theoretically sue a studio for considerable damages under existing labor contracts, if they feel the studio hasn’t done its job to stop a misuse of their likenesses.  Nevertheless, many of the major filmed-entertainment studios have shown that they understand the social, and even marketing value of the mash-up, and new licensing models continue to emerge in order to foster these works—again requiring no change to copyright law.

The Kids

When it comes to purely amateur, non-commercial (site-owner monetization notwithstanding) expressions—like our kids playing around with media and sharing it with their friends via YouTube—even if some reform to copyright were necessary for this purpose, it is unlikely that length of terms would be the correct area of focus.  As with passive media consumption, many (if not most) of these expressions tend to use contemporary works that would be under copyright, even with much shorter terms; so the claim in the pirate party quote that shorter terms would help foster or sustain these amateur expressions is either purposely or carelessly misleading.  It is also not necessary to broaden fair use doctrine to accommodate these expressions.  Despite the fact that non-commercial users, like Ms. Lenz with her dancing baby video, become the poster-children for reform, the reality is that amateur users are not typically on the radar of major rights holders. The filmed-entertainment studios’ primary focus, for instance, is to remove full versions of their movies and TV shows from platforms like YouTube, and this has nothing to do with new creative works one way or another.

Where a conflict is most likely to occur with various amateur expressions is actually with an individual or independent creator, who simply does not want a work used in a particular way.  But just as copyright has functioned in a pre-digital context, these are case-by-case circumstances that do not inherently demand overhaul of the legal framework simply because there is now a larger volume of uses that can be publicly distributed.  In fact, I suspect most artists don’t necessarily mind—and often rather enjoy—these amateur expressions themselves, even if they might technically infringe; but the artist may very much mind a site owner hijacking their revenue, which is what ends up happening with a platform like YouTube for music. At the same time, when a high-profile use manifests that an artist finds offensive—like Donald Trump using Neil Young’s “Rockin’ in the Free World”—at least a portion of the general public tends to show support for the wishes of the artist, even when the artist might be technically wrong about his application of copyright.

The point is that, overall, it appears that both the amateur and the amateur-turned-pro, who are creating derivative expressions on new platforms seem to be coexisting with current copyright fairly well.  There will always be exceptions, but these exceptions do not demand radical reform or justify chronic vilifying of rights holders, which is unnecessarily divisive.  And that brings us to…

Corporate Creator/Rights Holders

Before responding to the criticism of this class of rights holder in the pirate party statement, I wanted to refer back to the example of Anthony Vincent and YouTube’s broad licensing agreement with the major music rights holders.  Because it turns out to be rather handy for both new creators like Mr. Vincent and for his audience, that such a large catalog of works can be licensed all at once through negotiation among a limited group of entities. If the rights were held only by the original authors of each work, this would be considerably more cumbersome.  Of course, I recognize that a similar result could be achieved by stripping rights altogether from creators and/or drastically limiting terms, but that “solution” circles back to the discussion about possibly harming the incentive to create and disseminate new works, all for the sake of cannibalizing existing works.

Of course, cannibalizing older works is kind of what the pirate party statement accuses the corporate rights holders of doing, and this is a fairly common criticism, even among people who don’t give copyright more than casual attention.  As addressed in Part I, major rights holders of large libraries may seem like hoarders to some, but the financial incentive supported by their ownership rights also makes them rather good stewards of these materials, which can be costly to maintain, as is the case with classic motion pictures.

Still, the accusation here—just like the one lobbed at the individual artist—is that the corporate creator would invest in a greater volume of new works if it were not able to rely for so many years upon the profitable redistribution of its legacy catalog.  Of course, this assumption doesn’t make any sense for two reasons that should be obvious:  the first is that any company, whether it produces automobiles or TV shows or winter coats, must continue to provide fresh offerings if it is to remain relevant in its market at all; and the second is that the revenue derived from large catalogs provides part of the funding to invest in new works.

Presently, one might accuse the major film studios of narrowing their big-screen offerings—namely to tent-pole, franchise products—but this industry response to market changes has nothing to do with the present copyright regime, except of course, for the way in which piracy has played a role. Meanwhile the explosion of some great works being produced for the medium we historically call TV are all backed and produced by corporate creators of various sizes, including the majors.  The volume and quality of these works, which represent a new golden age of the small screen, belies the claim that corporate rights holders are sitting on their fat catalogs rather than producing anything new. At the same time, the primary force stifling traditional investment in an even more diverse range of products is the increased risk incurred by the tech-fueled devaluation of all creative works in all media.

The expectation that media should be free or unrealistically cheap, the willingness of consumers to insist upon this by simply taking what they want, and Web enterprises (both legal and illegal) capitalizing on the free-media feeding frenzy, has far more to do with investors’ flight to safety than anything related copyrights as a barrier.  Naturally, film studios, record labels, and publishers are going to back more safe, big-franchise types of works now that projects, which might previously have been modestly profitable, are more likely to lose money in a market of devaluation.  And because this is just one result of 15 years worth of circumventing copyright, it is hypocritical to the blame this legal framework for any dearth of traditional investment in riskier projects.  Instead, I see artists all the time, who easily would have been backed by a label, studio, or publisher 10-15 years ago, but who are now crowd-funding new work. People may see this as exclusively progressive, though the results are actually mixed for both the creators and the works. But in any case, the copyright status quo is not the catalyst to these market changes, while circumventing copyright has absolutely been catalytic.

Finally, it is absurd, in this context, for the word corporate to be used exclusively as a pejorative, or as shorthand to mean only the big movie studios, publishers, and record labels. As I have pointed out many times, a vast number of works are produced by small groups of venture partners that are all incorporated.  Nearly all filmed-entertainment is produced by independent production companies that are co-dependent with multiple entities, including the big studios. YouTube and Amazon and the advertisers that make Web 2.0 function at all are big corporations. So, what are we really talking about here?

The bottom line is that society wants creators to have careers because they are most likely to produce their best works in markets and systems in which they are able to make careers out of their labors. In this sense, every creator, or group of creators, is a small business in need of some type of investment, and this invariably leads to some level of corporate involvement, all of which is built on a foundation of ownership in intellectual property.  No matter how models and markets may evolve, to suggest that this foundation for creative industry is now—because we are in the digital 21st century—suddenly a wall barring growth of creative industry is such a radical assertion that its proponents should be held to a very high standard of proof.  Or they could stop saying it because it just isn’t true.

Posted in Uncategorized | 9 Comments

Copyright Doesn’t Restrain Culture – Part I

Among the premises commonly stated to argue that we must “rebalance copyright for the 21st century,” we find two widely spread and oft-repeated generalizations, both of which are false.  The first generalization is about access, which proposes to speak for the consumer and implies—or explicitly declares—that copyright acts as a barrier to the diffusion of cultural works.  The second generalization concerns the creation of new works and proposes that copyright acts as a barrier to derivative and new works, that it stops new creators from building upon existing works, which is inarguably an essential—even unavoidable—part of the creative process.

The fundamental problem with both of these generalizations is that neither the consumer’s nor the creator’s experiences, practices, or behaviors largely support the assertions being made.  Nevertheless digital-rights activists, pundits, and academics continue to repeat these messages as though they are common sensical, observable truths; and further, they tend to conflate the two interests—consumers and creators—despite the fact that these are generally separate subjects with regard to copyrighted works.  As such, I’m presenting the following as a two part-part essay. Part I will address the first generalization about consumers, and Part II will address the second generalization about creators building upon existing works. And, although I understand that it is very popular to say that “we are all creators now,” that there is no longer a line between creator and consumer, I believe this is also not true in the market overall. In Part II, I will address the hybrid consumer/creator, but for the sake of clarity, Part I concerns only those people who consume works and have no interest whatsoever in creating even so much as a minor mash-up. After all, this is almost certainly how we can describe the majority of the market we honestly call consumers.

Part I – Access and the Consumer

Statements made about copyright limiting access are typically—one might even say purposely—phrased in high-minded, aspirational tones.  They involve words like culture, enlightenment, democracy, information, and education.  The assumption is that copyright terms are so long, that prospective consumers of important and valuable works have difficulty gaining access to them—or at least difficulty relative to the speed of the Internet.  This paints a picture in which copyrights keep great works under lock and key, thus starving society of the many rich, cultural experiences to which we are the rightful heirs as stated in the intellectual property clause of the Constitution.

Of course, one of the simplest, initial answers to this charge is that the lion’s share—by a substantial margin—of the works that are pirated via the Internet, are mass-appeal media, which have been produced only very recently; this includes works like motion pictures or hit TV shows that have not yet been officially distributed by their producers.  So, even the most tamely-worded proposals to reduce copyright terms to roughly a decade on the grounds that this would be “more in synch with the 21st century,” are naive at best, and outright lies at worst.  Or as Robert Levine puts it (and I have quoted him on this before), “It doesn’t matter if copyright is Life plus 70 or Life pus 50 years, because on the Internet, copyright lasts about ten seconds.”

With regard to older works (classics), the reformer’s view, which says these belong in the public domain sooner, is actually more elitist than its proponents would like to believe.  It assumes the majority of the market actually cares to have access to these works, which is a typically liberal leap of faith that wants to lead even the most stubborn horses to water.  I know that sounds snobbish, but it’s quite the opposite.  I don’t think less of my neighbors because they don’t likely give a damn whether or not the entire oeuvres of Bergman or Fellini are available via legal streaming, but that they are eager to watch Game of Thrones, Sons of Anarchy, The Walking Dead, and sports.  To the contrary, they represent the real market, while it is only a handful of us oddballs who might choose to make an evening out of re-watching Fanny and Alexander.

So, to put this in exaggerated terms, it wouldn’t really matter to a very large portion of the market if the works they don’t care to access had perpetual copyrights or if the works they do care about had ten-year copyrights because most consumers want to access current works immediately, and they will acquire them—either legally or illegally—regardless of copyright terms. And because most of the works they do want are current, these are also widely available through legal means.  So, in this regard, it is dishonest when the voices who say, “You can’t stop piracy,” or “Piracy is a reaction to scarcity,” happen to be the same voices who say that copyright terms should be shorter.  One cannot argue in favor of both theft and shorter terms at the same time without sounding ridiculous.

Meanwhile, long copyright terms are probably the most effective mechanism by which to preserve classic works that at least some portion of the market does want to access, and in formats in which they prefer to experience them. Maintaining licensing regimes funds necessary restoration, remastering, fresh translation, publication, distribution, and other labors necessary to produce fresh editions of media that are desirable to the market for a large number of classic works. (Because if one is going to make an evening of an Ingmar Bergman film, one does not to watch some crappy digitization of it on YouTube.) Yet, nearly two years ago, the Duke University Center for the Study of the Public Domain released an article, devoid of any clear thesis, complaining rather strenuously that a list of great works, including Bergman’s The Seventh Seal, remained under copyright as of the start of 2014.

Naturally, I’m using Bergman as an example that could stand for any classic work of art or scholarship, and I wonder now, as I did in my rebuttal to that Duke post, what exactly does one want to do with The Seventh Seal other than to watch it? Which, by the way, is currently possible via Hulu, Amazon, or iTunes.  So, not only does the copyright barrier not exist for the consumer in this case, but the narrative that is constantly repeated, even by scholars we’re meant to take very seriously, tells a double-fiction—first, by implying that there are scores of disenfranchised people hungry to watch this classic film; and second, that those who do want to see it are unable to do so.  Yet, here I sit, three dollars and about four button clicks away from watching Max Von Sydow play chess with Death, if I want to.

Of course, any number of readers can produce the title of an obscure work that is either difficult or nearly impossible to find.  But this has always been a challenge for the true enthusiast of a particular genre or artist, and its singular nature is again its own rebuttal to the claims made by copyright reformers that “the public” is underserved by the current IP regime. A tiny minority cannot necessarily represent “the public,” and the legal system can wholly anticipate and serve every unique desire. But again, for the true enthusiast in pursuit of an obscure work, the most sustainable preservation mechanism is likely going to be one that is built on a foundation of licensing.  While random digitization by amateurs ripping DVDs, etc. may have the momentary appearance of “making works available,” it is a very poor—and entirely unreliable—form of preservation.  For instance, MGM’s long-term interests in its library of famous musicals is the mechanism that maintains the prints and quality reproductions of Singin’ in the Rain, not YouTube and certainly not Putlocker. But in any regard, the more niche the interest of the consumer, the more we are talking about such a small fragment of the consumer market that it seems irrelevant to any practical debate about copyright terms acting as a general barrier to access.

Also, despite the fact that many classic works of art and scholarship are either in the public domain or cheaply accessible, the promised enlightenment that is supposed to follow as a consequence often looks a bit like a fading 60-watt bulb. For instance, in a bizarre moment of afflatus in May 2013, anti-copyright’s would-be prodigal son Derek Khanna stated on Twitter that people should not read The Great Gatsby because it is not yet in the public domain.  This still elicits a Scooby-Do double-take to consider his logic, which advocates a specific illiteracy as a symbolic protest against copyright terms, despite the fact that this particular novel is so widely available that one is apt to trip over a discarded copy in a city park.

Nobody can justifiably argue that readers lack access to the works of Fitzgerald because of copyright terms. Meanwhile, I’m sure these works are available illegally right now, but that does not necessarily mean any more people are reading them than they were 20 years ago. In fact, Gatsby itself is probably being assigned to groaning high school students at this very moment, including at least several who will keep up the American tradition of taking their access for granted and dodge the reading altogether. And, for that matter, we seem to be witnessing a new phenomenon in American colleges whereby certain students are refusing to engage with various assigned classics because some theme, topic, or language offends their own special snowflakyness.  All of which is to say that I suspect that with every new work that might be made more available by “rebalanced copyright,” we may simultaneously see new social and cultural reasons for consumers to disenfranchise themselves from works anyway.

The reality is that we have more works legally and affordably available than at any time in history, plus an entire black-market that trades in making works available for free.  Yet, it is hard to find much evidence that this river of media has produced a more fertile society comprising a cultural literacy that extends beyond whatever is trending in any given moment.  Last week, my kid’s middle school had a Dress as a Movie Character Day recently, and so my daughter (because she’s my kid) went as Charlie Chaplin. By midday, at least twenty schoolmates asked who she was, and some thought she was Adolf Hitler. I find this extraordinary. With all the information that’s available right now—all of it entirely unaffected by copyright—how do middle-class American kids get to be 13-14 years old and not at least recognize an icon like Chaplin’s Little Tramp — to say nothing of knowing what Adolf Hitler looked like? These are hardly images of arcana.

In another example, my eldest in college, taking a required American civics class, reports that several of his fellow students had no idea Germany was recently divided East/West, and they had also never heard of the Cuban Missile Crisis.  How?  Are these not digital natives who have grown up with “the world of knowledge at their fingertips”?  It is preposterous to claim that their ignorance on these basics of general knowledge is because Google hasn’t been allowed to digitize enough content due to copyright constraints. So, can anyone rationally argue that accelerating the progress of works into the public domain has anything to do with a broader literacy?  If these kids are missing certain fundamentals, it’s because of other reasons—mediocre schools and family influence being the most likely—that have nothing whatsoever to do with copyrights.  Ironically enough, I think my generation may have acquired more cultural literacy just watching Looney-Tunes cartoons on one of a dozen TV networks than many a digital native has gained from all the “access” he supposedly has today. After all, our Bugs Bunny “scarcity” was a primer in world history, music, film history, Shakespeare, art history, literature—and in a certain Wile E. Coyote way, basic physics.

This is not to say, of course, that there isn’t literacy to be found in contemporary media. Writer Daniel Starkey offers a very frank article about growing up poor and committing petty larcenies in order to have some of the things the kids around him had.  Entitled Piracy Gave Me a Future, Starkey’s main thesis is that media piracy provided him with access to a literacy he might otherwise never have had.  He writes,

“Deus Ex was the first game I’d seen that listed its primary influences, which included philosophers like Hobbes, Voltaire, Locke. They were wealthy men, to be sure, but learning about their work set me on the path to learning about sociology, about history, about how much all media is one long chain of slightly modified ideas, with each new link adding a new twist or perspective. The game’s themes also spoke to some of the most personal concerns of my life, including economic class, injustice, about the disempowered fighting against a wealthy ruling class.”

And this is exactly the kind of anecdote the copyright “reformers” like to cite in order to prove the purpose of their agenda.  But I would counter this with two points.  The first—as I have already indicated—is that Starkey pirated works that were current and, therefore, would still be under copyright even with very short terms; and the second is that exceptional individuals like Mr. Starkey have throughout history found ways to educate themselves beyond the barriers of their circumstances. Those barriers are usually financial, cultural, or political while having very little to do with the specifics of intellectual property laws. After all, there are millions of kids whose parents bought them Deus Ex and who did not take from their gaming experiences the kind of life lessons that effected Starkey’s future. But it is the market of those millions of paying customers and the legal framework for development and distribution of the game that provides the foundation for producing Deus Ex in the first place. (It should be noted that Starkey’s article does not make any kind of mention regarding copyright reform; he is merely sharing his own introspection.)

The critics claim that copyright creates “artificial scarcity” in a time when technology demands abundance.  They say we live in a “read/write” culture today, but this is only a fragment of the larger picture because I think we also live in a “don’t read/burn” culture, in which whatever is viral (ergo profitable) continually overwrites the kind of fundamentals of cultural literacy referred to above.  One need only look at the state of our politics to see that my kids’ schoolmates aren’t the only ones who seem to have no knowledge of basic, historical facts and are living out Santayana’s axiom.  Yet, organizations like the Electronic Frontier Foundation like to draw circuitous lines from a creator’s enforcement of his copyrights toward a slippery slope into political censorship. This was in fact the crux of one statement after the Ninth Circuit Court ruling in Lenz v UMG.  As posted on the EFF site, attorney/activist Corynne McSherry says the following:

“The decision made by the appeals court today has ramifications far beyond Ms. Lenz’s rights to share her video with family and friends. We will all watch a lot of online video and analysis of presidential candidates in the months to come, and this ruling will help make sure that information remains uncensored.”

Aside from the specific rebuttal we might make to McSherry’s assertion that a rights holder can use DMCA to effectively censor a candidate or criticism of a candidate—because she can only be referring to very specific and rather unlikely circumstances—her larger point would be laughable if it were not so depressing.  Have the hyperbolists at EFF not noticed that our digital-age, 140-character politics have become more reminiscent of the volatile, populist, and naive 19th century than anything akin to the revolutionary promise of a more progressive 21st? Remix isn’t just some fun thing the kids do with a song and some video clips, as Mr. Lessig would tell us, remix is also what’s happening to truth, to science, and to journalism that’s trying to stay relevant in a world moving faster than the speed of real investigation. So, it seems to me that we could hardly detect censorship in a public debate so utterly devoid of facts, reason, statesmanship, or even solid reportage in many cases. Yet, the EFF would have us believe that it will be some musician taking a video off YouTube that will in some way harm our political process. If anything, it may be the musician who’s the only one making any sense.

This is not to say that social and intellectual progress is not being made in many areas, or that digital technology does not play a significant role in that progress—only that copyright terms (or patent regimes for that matter) are not acting as a barrier to that progress. For all the anti-IP rhetoric, these regimes are probably as generative as they have ever been, and I sincerely doubt there is any measurable evidence to prove that the copyright system is holistically out of synch with the 21st century and the digital market.  It’s just one of those things that sounds true and may even look true on the surface, but probably isn’t true if we really study the matter carefully.  If anything, the present reveals that the general consumer has ample (legal) access to more works than he can realistically experience.  At the same time, there are myriad social reasons why consumers do not access any number of works of art or scholarship, and it seems hardly reasonable to blame the rights of the artists and scholars for that.

In Part II, I’ll address the assertion that contemporary copyright is out of synch by acting as a barrier to the creation of new works.

Posted in Copyright, Digital Culture | Tagged , , , | 11 Comments

GroupM Announces Major Step in Anti-Piracy Effort

As I reported this February, the advertising industry announced a new initiative led by the Trustworthy Accountability Group (TAG) called the Brand Integrity Program Against Piracy.  That post outlines the basic principles of the program, but suffice to say, this is a voluntary effort by the major brand advertisers to keep their high-value ads off exploitative sites, whose traffic is derived by media piracy.

In what will likely prove to be a significant step forward for this program, the world’s largest advertising conglomerate, WPP’s GroupM, today announced that it will require its partners to use TAG-certified, anti-piracy services.  GroupM handles $106 billion in media for its clients according to Adweek.  Writes Lauren Johnson, reporting on this news for that publication, “Such fraudulent sites rip off advertisers in two ways: They sell ads against copied content, or they set up botnets that infect computers with viruses that drive huge numbers of clicks on ads.”

While many pioneers of the Internet did not envision that its design would ultimately serve the purpose of advertising, there’s no question that’s how it is designed today.  Just about every declaration we hear about the Internet’s power to [insert platitude here] is backed entirely by the revenue derived by marketing and advertising.  Every “new model” recommendation to authors of creative works—whether valid or not—is in one way or another predicated on advertising revenue.  Web 2.0 is a media business.  And whether or not everyone thinks this is the best possible use of this technology is secondary to the fact that the value in this market should be inoculated against the toxicity enabled by the technology.

Piracy is too often treated as either neutral, beneficial, or prescient; and it is assumed that the only victims are giant corporations, which can afford to lose a few sales.  GroupM’s progress in this initiative demonstrates that widespread piracy actually poisons the entire value stream that drives the Internet as we know it today.  And anyone who still thinks that to be anti-piracy is synonymous with being anti-technology should take a gander at this video from GroupM’s agency Mindshare.

Posted in Advertising, Piracy | Tagged , , | Leave a comment

The Lenz Case is Victim Shaming Says Orlowski

Andrew Orlowski, writing for The Register, has done the best job so far of placing the “Dancing Baby” case (Lenz v UMG) in its proper context — as part of Silicon Valley’s broader strategy to strip individuals of their rights.  Not just professional creators of copyrighted works. All individuals.

“If Big Tech can get the public to cheer as they disenfranchise themselves, then victory will be all the sweeter.”

“Understanding the “Dancing Baby” case properly – to see why Silicon Valley has gone to war – requires you to look beyond the specifics of a baby dancing on YouTube to the underlying legal issues being contested. Silicon Valley has doggedly kept this case running for eight years and it isn’t doing so for fun. It wants to extend its own power and diminish everyone else’s.

For some readers, looking beyond the immediate absurdities of the case is tough to do. If a case highlights a legal absurdity, then it follows that the law must be repealed. But we don’t repeal accountancy fraud laws because they’re technically complex or murder laws because sometimes the wrong guy gets caught. Before we repeal a law, we must find out if there is an underlying justified grievance or issue of justice. So a response of “scrap this law” is a serious intellectual cop-out.”

Read the full story here.

Posted in Uncategorized | 13 Comments