On Being a Luddite

Carriage HouseIf you say anything publicly critical of the Internet, there’s a good chance some technobrat on Twitter will call you a Luddite.  The simple irony is that the word Luddite in this case is being misused, which is something the would-be accuser might discover for himself were he to look it up on the Internet.  In this excellent article on Smithsonian’s website, for example, Richard Conniff confirms that we critics of Web utopianism are indeed following in the tradition of the original Luddites, who were highly proficient users of the machines they destroyed but critical of how those machines could be used to ill purpose by powerful interests.  If anything, the Luddite protest in 1811 by English textile-workers has more kinship with the spirit of Occupy Wall Street (coincidentally of 2011) than with technophobia.

Of course, it is in the nature of the English language for word meanings to change with use, so there’s nothing linguistically wrong with calling someone a Luddite who you believe to be anti-technology.  But the revisionist history inherent in this particular semantic shift is relevant because there is a great deal wrong with both the intent and the implications of this over-used and unexamined pejorative.

To scrutinize technologies from a broad perspective, including matters of law and policy, is anything but an endeavor toward an anti-progress agenda. To the contrary, policy sometimes promotes technological advancement to the scorn of one set of interests or constrains it to the frustration of another.  One need look no further than the brewing battle over gun regulation to see this in action right now. A high-capacity magazine is certainly a technological upgrade;  but to some Americans, it is a useless improvement except in the hands of professional soldiers or mass murderers, while to other Americans, access to this technology is a matter of civil liberty.  We see this all the time:  one man’s freedom is another’s industry run amok.  Either way, it’s a safe bet that no matter what policy emerges, neither position will be wholly satisfied.  Welcome to democracy.

A glance at the mundane technologies around us reveals that the advancement and adoption of progress almost always requires a balance among free enterprise, civil liberty, and regulatory policy.  Even something as innocuous as the CF lightbulb has raised libertarian hackles to near incandescence (yes, I went there) over the right to use whatever bulbs they want; but it’s a given that the vacuum filament variety will soon be phased out as a matter of both personal habit and public policy.  When color television was ready for mass consumption, the federal government instituted the standard we know as NTSC, which required the color signal transmit in a manner that owners of black and white TVs could receive it.  This was never the best quality the technology could have delivered — some engineers call it Never Twice Same Color — but it is an example of public policy constraining technology in order to avoid disenfranchising citizens from news and information based solely on their financial means. In case you’re just tuning in, that’s the government protecting free speech and access to it by keeping the technologists in check.

I was thinking about this balancing act while working on an old carriage house that sits on the property where I live.  As far as records show, this house belonged primarily to village doctors beginning in the early 19th century and up to at least the late 1960s, so  the presence of the carriage house is explained by the fact that its early, physician owners made house calls by horse and buggy.

Taking care of historic structures is an exercise in both the practical and the abstract. One must simultaneously consider past, present, and future in a way that is neither simple nor purely academic and sentimental. Fortunately for me, my best friend Craig is a professional conservator who works on historic buildings for the National Park Service; so unfortunately for him, this means I get his help wrangling with my old structures in exchange for beer.

Historic building conservators deal with philosophical questions as much as with the technical means of preservation; and the perennial question seems to be one of value (i.e. why something is preserved in the first place).  “Preserving old buildings for the sake of sentiment alone,” Craig says, “is like advocating technological progress solely for the sake of making something new.”  An apropos simile in this context.  What we preserve of the past implies the question of what we protect from the future. There is nothing inherently anti-progress about this question unless progress must exclusively mean to leap without looking.

Lining the ceiling of the ground floor of the carriage house are a number of ceramic knobs that were used in a wiring system known as Knob & Tube, outdated by the turn of the 20th century but still found in active use in some historic homes, much to the frustration of new buyers. It occurs to me that building code makes a pretty good example of public policy working hand-in-glove with technological advancement. K&T WiringWhile it isn’t a perfect system, the principle applies that soon after a more efficient, safer, better way to do something emerges, it becomes mandated by law. At the same time, we continue to learn by not entirely erasing the systems and structures that tell the stories of the past.

The last time I was personally called a Luddite was in reaction to my recent post about my kids and online piracy.  This is fairly typical of the techno-utopian response to those of us who believe systems like copyright remain something more than outdated ideas waiting to die like K&T wiring.  The more complex irony in this familiar ad hominem is that, just like puzzling the maintenance of a 150-year-old barn, we contemporary “Luddites” are actually taking a much more expansive view of the future than our detractors.  Perhaps this has something to do with the fact that, like our namesakes of 1811, we filmmakers, musicians, photographers, authors, designers, etc. are expert users of the technologies we’re not afraid to criticize.

Workspace of a Technophobe
Workspace of a Technophobe

© 2013, David Newhoff. All rights reserved.

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135 Responses to On Being a Luddite

  1. M says:

    I really liked this post, it was very thoughtful. I like how you look at things more abstractly than most.

    I think you’ll see that the industrial age disrupted the order of things. The Luddites weren’t the only people disenfranchised, but the aristocracy (the “intelligentsia” of the time) was utterly decimated. To the point where the aristocracy, the single most powerful class of people for thousands of years, seems nothing more like a historical curiosity today. The industrial age created entirely new social classes more powerful and rich, although less numerous, the capitalist class. It also ill fated movements against these “bourgeoisie” social classes (eg. Marxism).

    But overall, the industrial age while significantly reducing the quality of life for some, and vastly improving the quality of life of others.. overall the industrial revolution improved the quality of life for the majority of people.

    Likewise, the information age has its share of winners and losers. But it has more winners. It may be hard for you to see this now, I think we are close to the lowest point economically for content producers, but it will get better as business models are restructured around the reality of the situation.

    • David Newhoff says:

      M-

      Thanks very much for you compliments and, as always, for adding to the discussion. Certainly, it’s fair to compare the industrial revolution to the information revolution; and I think you and I have discussed the ups and downs of disruption through which there are always winners and losers, as you say. There is nothing inherently unfair about this; it’s just the march of history. What is not possible, of course, is for any of us to predict with certainty what the world will look like in 30 years, although I’m reasonably sure guys like Kurzweil and Brin are a bit overconfident in their abilities to see the future. Financial success has a way of affirming bad ideas along with the good, but I digress.

      It’s not that I or others with my point of view are blind to possible new economic models so much as we have yet to really hear or see any that are not the whimsical fancies of people who have a vested interest in promoting them. While people talk about “new business models,” there really is no way to argue (although Masnick certainly tries) that online piracy, for example, represents a model. And almost the only people saying that it is are not producers of any kind. I believe that, if we carry the utopian view on this matter to its logical conclusion, it means that all “content” is destined to become exclusively subservient to advertising. That in itself could be an economic savior for some creators, although I’m not sure what it suggests about the fate of the work itself. Not all the possible paths are doom and gloom, of course, but I do feel compelled to comment on what I perceive as destructive right now; and I consider the messages coming from the Web industry as blindly destructive in ways that go beyond copyright infringement.

      I think if you’re going to take a macro view of history, you have to accept that technological transformations bring both new prosperity and new deprivations, great new enterprises but also new opportunities for exploitation. Look at the cotton gin, which was immediately pirated by the way because Whitney wanted too much money for it. Without it, there would have been no American cotton industry, no need for slavery, no Civil War. All Whitney tried to do was solve an agricultural problem. History is full of unintended consequences, of course, but now we live in an era when the Whitneys of our day presume to predict social transformation on a grand scale that just so happens to make them billionaires in the process. I happen to think that’s worth keeping in check.

      Additionally, as per my comments to Thinkaboutit, our relationships to technology literally change our nature. Kurzweil sees the extension of himself in his machines as exclusively positive to the extent that he fully expects to resurrect his dead father. Lanier, who is one of the architects of these systems, says that we’re in the process of destroying human qualities that are worth preserving. So, while it’s reasonable to say that this is simply a new era, I don’t know that there’s ever been a technological transformation quite like this one in which whole societies are adapting on an hourly basis to their machines, where it is sometimes hard to tell if the human or the machine is in charge. Of course, I find it incredible that I can look something up in a matter of seconds or talk about Africa with filmmaker friends who are on the ground in the moment; but I think we also have to keep in mind that this technology creates 4Chan, privacy issues, a new kind of ADD, some of the ugliest behaviors in human interactions, paranoia, and a host of opportunities for massive crimes that can be committed from a desk chair.

  2. Pingback: Friday’s Endnotes – 01/25/13 | Copyhype

  3. James_J says:

    People who chant “Find a New Model” from the roof-tops and comment-bottoms are those rationalizing their own behavior. As they say this, you are actually watching them rationalize in real-time…

    They put their own illegal behavior into a head-space that is no longer ‘their’ doing, but the failing of someone else. It’s not up to ‘them’ to do a thing… it is up to the victim to stop the mob from running up to strangers and kicking them in the back of the head. By repeating the ‘new model’ BS, they take the finger that should be pointed directly at themselves and turn it out the world.
    To this, i have my own finger… pointed to the sky; surrounded by an otherwise clenched fist…

  4. Jennifer says:

    I’m a self employed writer and digital artist of the starving variety. I sell e-books off my website and my audience has been steadily growing over the past year. I expect to double my income next month with a new publication.

    I actually don’t think that content producers will be forced to give things away free (and rely on advertising), for two reasons.

    First, people are still willing to pay a reasonable price for a reasonable product. I eavesdrop on my customers and hear comments like, “Here’s this book I found…and it only costs $4.99!” Another time, a customer offered to share a free copy of my book with their online buddy, and the other person replied, “No, I want to support the creator.” I don’t have download limits or IP address restrictions in my store, and from what I can tell many people choose to download their purchased book multiple times (I would guess onto multiple devices). I also don’t put any DRM on the books because I believe that it causes frustration that leads to a sense of self righteous indignance followed by piracy (I know the feeling firsthand). In short, my site is wide open to piracy, but I’m not seeing problems yet. The one time that a customer posted large excerpts of my book on the web (an act which I authorized on the book’s copyright page) I got a huge traffic spike and sold six times as many books as I would on a normal day. Other people post my comics all over the net (which I encourage), and this usually draws people to my site, where they can spend money. The “liberated” content that people give away on my behalf acts as bait on a lure. I expect this sharing; I consider it as I draw up my business plans. In short, I think if the average creator is realistic, fair, and treats customers well–giving them convenience, quality, and control over their purchase–then piracy need not be a dream killer.

    The second reason that advertising will probably not ever be my primary means of subsidence is that even if I *did* have to give everything digital away for free (which I doubt), people will still want real world things that cannot be easily reproduced. 3D printing will soon make it possible for ordinary people to sell almost any kind of plastic, metal, glass and wood merchandise to customers. From jewelry to action figures to cookie cutters, a creator has many options for selling things. There is also the personal touch to consider; a signed book, personalized piece of artwork, or handmade craft will be more valuable to a fan than a “mass produced” 3D printed object. This is something I intend to move into soon via the Shapeways 3D printing service.

    Finally, I think some piracy is good and necessary. I can’t afford anything but the bare necessities of life, and since I don’t make a habit of piracy, I miss out on most of popular culture. I can’t afford to buy new books, read scientific journals, see movies, download movies, or download music. Fair’s fair, and if you can’t afford the good things in life you shouldn’t steal them. But I sure feel sorry for people in developing countries who are locked out of science and art by high prices and the lack of a global internet library. I had a hard time writing my book because I couldn’t afford to buy the materials I needed for the research.

    I’ve resolved that all my books will enter the public domain before I die.

    The most ironic thing about my position is that I’m 99.9% sure that I could increase my income fivefold in a year if copyright protection were limited to 10 years. I’m pretty sick of the whole system, and if the Pirate Party ever comes knocking at my door, they can expect a donation, even if I have to pay them in pennies.

    • David Newhoff says:

      Jennifer, thank you for taking the time to comment. I’m always glad when a content creator shares his/her point of view.

      I’m glad you’re doing well or feel you’re about to do well. Yours is certainly not the only story of its kind out there. I think authors in particular can make the DIY P2P model work up to a point, if for no other reason than writing does not require an outside investor or high degree of capital expenditures. It’s also a natural medium for “connecting with fans.” I interviewed musician Matthew Eebel, who is so far surviving by the same basic model, fortunate that his style of making music is very self-contained, he’s good at connecting, etc. But even he hints that the honor system, which is essentially what you’re describing, works only so well. There are a few points for consideration that don’t refute your approach at all, but that you might consider in the big picture:

      1) First and foremost, copyright is about choice. You finish a book. Your decision to self-publish or take the manuscript to Random House or give it away or throw it in the river is your right, and the law says that nobody has the right to make that decision for you. Separate from arguments over copyright terms, how you might feel about publishers, etc., I happen to think this civil right is not a trifling matter. Moreover, I happen to think that even if we are to amend the copyright system, that it should not be done at gun point and at the insistence of criminal organizations or even legit organizations who just so happen to profit wildly from infringement.

      2) With regard to DIY and P2P, all evidence indicates that it doesn’t work past a certain scale and level of popularity. With all due respect to your writing, which I don’t know and wouldn’t presume to critique in this forum, you’re simply not famous enough for piracy to be a problem yet. In fact, at your scale, I’ve no doubt it’s an effective loss leader. It’s possible that piracy never will be a problem for you, even if you attain millions of readers worldwide, but does that mean we should ignore the entrepreneurial models for which it is a problem? Forget Sony for a minute. Small, independent record labels invest in bands and musicians who become wildly popular, popular enough to make a decent living, but too many “fans” download the music for free or get hold of leaked albums before release. The labels fold and the artists either give up or remain hobbyists well past middle age. Anyone who says that they just have to adapt is outright lying because the person who says this has exactly zero experience creating, promoting, or selling the work.

      3) On the subject of scale, I can say with certainty that what happens to music will be worse with motion pictures. In fact, we already see the effects in different ways. Making a film is the opposite of writing a book; even a small project takes a bunch of skilled professionals and an infusion of money. The DIY models that are getting films made are not necessarily making their creators a living. To the contrary a DIY film project is usually a calling-card that shows talent you hope will be noticed by a production company or studio that has the resources to work with you and pay decent fees. What happens to the small record labels can also happen to the independent film production company, only it will happen faster because there’s simply more labor involved. Now, we can say “Great! No more crappy $100 million tentpole movies,” most of which I don’t go to myself; but guess what films are the most popular via the pirate sites? If people don’t like these films, they shouldn’t pay to see them or steal them. But here’s what happens in reality: Hollywood has adapted to piracy in the way big companies do, and now the studios will generally only make $100 million blockbusters because there are still enough people willing to see these spectacles on the big screen on opening weekend. This shrinks the overall diversity of investment opportunities in film, even among the indies, and it leaves the DIY team who did well with their little film facing a much tighter investment market overall. The indie mantra of “make it for under 4 million” is more like “make it for under 1 million” now. That may sound very reasonable to people who don’t know production, but as that number continues to come down, it means more highly skilled people working for free or for rates out of synch with the cost of living. This means the enterprise becomes a hobby and not a business. Make no mistake, the implicit arguments of many people promoting piracy as a model think you should write as a hobby and do “real work” for a living. That brings us back to that civil right of choice. I think it should be up to you, if you can sell enough of whatever you make.

      4) As for the advertising thing, it’s just simple math. There are really only two ways to monetize media — sell it directly or fund it through some sort of sponsorship. Of course, it’s often combination of both. I point to advertising in general, though, because that’s the economic engine of the web for the most part. Traffic is worthless unless it can be sold to advertisers. So, if all media is destined to be delivered in this way and, as Masnick et al, say that you should abandon the idea of selling your work, this leaves advertising as the only revenue stream they could possibly propose as an alternative. Of course, the catch is that in this scenario, you’ve ceded control without having any particular say in the matter. It’s more complicated than that, but this response is already epic.

      5) On the subject of culture, affordability, and piracy, again I’ll say that the majority of piracy is committed by people of means who are gobbling up popular stuff like tentpole movies and chart-topping songs. I’ve seen the culture/science/poor people arguments before, but these are out of touch with what’s really happening. For one thing, poor people in foreign nations often don’t have high speed Internet connections; great computers, iPhones, etc. Depending on how poor and where we’re talking about, the daily acquisition of clean water is likely of greater concern than getting to a computer to see the new Batman movie. Follow the money. Pirate sites exist as a business, and they make money mostly through advertising that targets middle-class westerners watching the same popular stuff as just about everyone else. If that were not the case, it wouldn’t be profitable for the site owners.

      As for access to things within our privileged world, I have said in posts and in comments that there isn’t much evidence that people are any more cultured, educated, or talented since the Internet than they were before the Internet. There’s more legally free data on, say, science out there than you could effectively consume, while living your life. In fact, if you had all the money in the world, you could never read, see, listen to everything unless you were immortal and didn’t need sleep, food, or to do your own work. The problem, I believe, is that the Internet age creates this illusion that you can and should access it all, which actually triggers an anxiety that is anything but a healthy relationship to culture and knowledge. As a writer, you know that your unique lens on your personal experience, whatever that experience, is what matters. I’m sure you have favorite authors who never lived to see the digital age. Is their work or world view dimmed because they didn’t have the Internet? To the contrary, unique voices are as much a result of what the individual does not have as what he/she has.

      It is certainly your right, Jennifer, to donate to the Pirate Party, although I’d mention that in principle, the pirates already take without asking.

      Kind regards and best of luck with your work,

      DN

      • M says:

        “There are really only two ways to monetize media — sell it directly or fund it through some sort of sponsorship”

        The sponsorship angle works fairly well for science. Government funds a ton of research, with revenues that are probably more than the entire music and movie industry makes combined.

        I’m not necessarily endorsing the same system for art and culture, but it should be investigated more now that the old “artificial scarcity” model isn’t working as well as it used to. As technology improves, it will put people from all walks of life out of work. We HAVE to deal with this at some point. I want creatives to be successful (I consider myself one of them, so it’s entirely altruistic), but looking to past for a solution is not going to work.

      • David Newhoff says:

        M -

        Government funds science in ways and for reasons that are, of course, not applicable to the arts. I assume I don’t need to enumerate the differences here. As you know, I don’t agree that there’s anything artificial about scarcity. You could eradicate copyright tomorrow, and you still won’t have time (and I hope interest) in consuming everything.

        Regardless, I think it goes without saying that forward is the only direction in which we can move, however, progress does not necessarily demand overhaul or destruction of systems that are still relevant. To the contrary, progress tends to be based on cycles of developing new ways of building on fundamentals. The basics of farming, for instance, aren’t fundamentally different than they were centuries ago, despite all the agricultural science and technology that’s been developed. The modern farmer still deals with the same challenges as his ancestors, and we’ve seen a backlash against the BT industry that proposes too radical a change to those systems. I don’t think BT intended to create the Organic industry, do you?

        So, while we may agree that there’s no choice but to look forward, I’m wary of the tone, the sources, and the premises of many proposals to amend the copyright system. When it comes right down to it, I still don’t know what “innovation” is being stifled; and if some innovation really is being stifled, then eliminating copyright seems like the only rational goal of the presumptive innovators. In reality, I think it’s reasonable to expect there will be a legislative battle and that, perhaps when negotiations are done, terms will be rolled back to something like life plus 40, let’s say. Then, what? After Masnick and Co. share high fives and champagne to celebrate their “victory,” what changes in the real world? What new businesses come online as a result? So, far every prediction I’ve heard or read is utterly vague.

        All that said, I’m glad you consider yourself a creator and that your concern about these issues are in the service of that. It beats futurists, bloggers, etc. just making a name for themselves while having no skin the game.

  5. Jennifer says:

    Thanks for the link to your Matthew Ebel interview; it was an interesting piece, and I enjoyed his music. Writing (and cartooning) is indeed unique in that you don’t need any special equipment save perhaps for a stylus. I don’t really do any connecting with the fans or advertising though, save for through the art itself.

    1. Amending the copyright–I agree creators should have control over their work for a limited period of time. I would wager we disagree on the amount of control, but that’s another issue. It’s too bad that the copyright is being amended by force so to speak, but given the power of the entertainment industry, I doubt it could have happened otherwise. Unfortunately, this short sighted war will have long term consequences for creators: the public is now losing sympathy for artists and respect for the law. I haven’t researched Prohibition, but I suspect that our current copyright regime is more ineffective and unpopular than that well-intentioned, ill-fated war on alcohol. Prohibition didn’t work at all, but it did a handy job of breeding organized crime. Nowadays people learn to use the darknet, Tor and VPN.

    2. As for the DIY approach, it’s true–there’s only so much one person can do. But in terms of scalability, Ebel noted at the end of his interview that he has to do the same amount of work whether he gets 100 VIP members or 1000. That’s the principle I follow, and it basically ensures unlimited scale with no additional effort. Anything I produce that can’t be infinitely reproduced forever with ease is just a shot in the arm, a quick pick me up without lasting value. (But I don’t know enough about the musical world to comment, so I’ll leave the rest of this alone.)

    3. I run a hobbyist game design team in my spare time, so I’m aware of how many people it takes to create a serious production. While I feel sorry for the Indie movie designers, it may simply be that there’s no winning hand for them right now, at least not using traditional approaches. (Again, I don’t know know enough about the indie film world to comment.) Our game builds off the popularity of another famous game series (yes, we have a third party license from the company for nonprofit use) and I suspect that I could crowdsource the game bit by bit, level by level, using funds procured from the passionate fans of the original game series. I could probably even make it profitable for the original company via the same fan donation system they’re currently using to support an MMO in their series. But it’s never going to happen because that would mean lawyers. And so the maddening complexity of the copyright law will keep me a hobbyist game designer for now.

    4. I think there’s a third option: Give your media away free (or cheaply), and sell merchandise. Not just the standard t-shirts, coffee mugs and bumper stickers either, but everything under the sun. True, you’ve ceded control of your work, but you’re still making money. Movie theaters don’t make their money off of movies–they make it off of their overpriced concession sales. They actually suffer from “food pirates” who sneak food and drink into the movie theater despite the rules. I can understand you don’t want to be forced to cede your rights to control your work, and I’m uncomfortable with losing control too. But it’s a price I personally I am willing to pay. There are a lot of good things about giving your work away for free: Wider distribution. More lives touched. More people helped. Free translations and audiobooks. And I won’t go into the pros and cons of fanfics. ;)

    5. Sure, most people who pirate in America and Europe are well heeled. My younger sister is a nice, smart, hard-working honor student applying for an artist/animator job at a game design college. She pirates TV shows. And yet, she hacked up $30 to buy cartoon compilations from her absolute most favorite webcomic, despite the fact that she can read the comics for free online. As a teenager I innocently downloaded my first and only torrent (“Holy smoke, there’s a great TV series just up on the internet for FREE!”) on dial up internet. It look like nine hours, and when finally the download completed, I had a torrent file that I couldn’t figure out how to open. Thus due to computer illiteracy I was prevented from a youthful life of IP theft. I just don’t buy into the stereotype of selfish, entitled, lazy pirates sitting in their basement guzzling free media. Pirating doesn’t trigger peoples’ consciences any more than driving two miles over the speed limit does. “Oh, I’m naughty, but it doesn’t really hurt anyone except some selfish, greedy multinational corporation that overprices their products and probably employs Chinese slave labor anyway,” people say to themselves. And as for pirating sites, I’ve used programs like Rapidshare and Megaupload to store my personal files as well as the files for the game I work on. It would make me unhappy if they went away. (In fact, the new deal Dotcom is offering made me wonder if I should move our game assets from Dropbox to Mega. But Mega doesn’t have an offline option, so it won’t fly.) As for citizens of poor countries not being able to use the internet, it’s only a matter of time before they can. Cell phones today, internet tomorrow. If we don’t deal with the problem now, we’ll have to deal with it in twenty years. And maybe poor people don’t need Batman, but they do need English skills (Duolingo), educational programs (MOOCs), AIDS prevention training (someone will make an app for that in Swahili), Google Maps (see the disaster in Haiti), and CAD designs they can download for their 3D printers, which consume scrap plastic found at the local landfill.

    As for people being more cultured, talented, and educated after the Internet, I guess I’d have to say I feel the internet has accelerated my development in all of those areas. Thanks to the Internet I’m learning Italian and reading the classics–I’m pretty sure I wouldn’t have done any of these things without the ease and convenience of Duolingo, Librivox, and Project Gutenberg. Talent? (Illegal) fanfic sites encouraged me to hone my writing skills, and free tools enabled by collaborative internet projects (GIMP, Inkscape, Blender) encouraged me to develop art skills that went beyond drawing and painting. Education? I can now look up a fact instantly on Wikipedia or the free PLOS journals, browse entire tutorial manuals, etc. Previously I would have been forced to go to the library and check out a book on a subject I was interested in. If they didn’t have what I needed, I would have to wait three weeks for the resource to come. And. I would only have access to that resource temporarily–if I needed it again for reference, I would just have to order it again and wait another three weeks. Not exactly an efficient way to absorb knowledge.

    Well, we don’t agree on a lot of things, but thanks for giving me all this food for thought; you made me think things through in a way I hadn’t before. I do appreciate having my preconceptions challenged by a polite, thoughtful person. Too bad more of the internet can’t be like your blog. :)

    • David Newhoff says:

      Thank you very much, Jennifer. Maintaining a polite dialogue means a great deal to me, so I appreciate your comment. I’ll spare you and other readers a point-by-point response, as we’ll both go well into thousands of words. In a nutshell, I’m glad there are many ways in which these technologies work for you personally and in your career; and I don’t know anyone who takes these matters seriously among my like-minded colleagues who would have it any other way. The only things I’ll respond to are the merchandise premise and the characterizations you mention in #5.

      Regarding merch selling, there are several flaws with the premise, not the least of which is that it’s a little obnoxious when wealthy technologists tell a group of working-class or struggling artists, “Hey, you need to be in this extra business here because that’s what suits our design for the Web.” That aside, I would suggest reading what indie musicians or labels say because the consensus seems to be that it just doesn’t add up, especially for a labor and capex intensive business. You may discover that it works very well to turn Jennifer into a brand, that you can sell things related to that brand, and that sales of the creative work becomes almost negligible. I think it’s a hard hill to climb, though, and just because it might work for you or the next creator, it will absolutely not work for something like filmed entertainment.

      I can’t tell from your quote by the hypothetical pirate site user if you’re supporting or rejecting that belief about piracy not hurting anyone besides multinational corporations, etc., but it is certainly a belief I have heard espoused, which is both flawed and entirely beside the point. Good, bad, or otherwise, the motion picture and major music industries are like any other major business that produces a product; and they employ a lot of middle-class Americans who have very specialized skills that require years of training, practice, and professional development. Filmed entertainment has, at times, been the second largest U.S. export I believe. These are tangible industries we’re talking about messing with in the service of, as yet, unfounded theory. It’s not that I don’t think there’s room for discussion, learning, and transformation; but simply dismissing the matter as “the studios get what they deserve” is, I believe, carelessly skipping over a lot of complexity.

      Anyway, I promised not to blather on, so I won’t. Again, thank you for reading and for sharing your thoughts. I hope you continue to be part of the conversation here.

      Cheers!
      DN

  6. Jennifer says:

    I don’t mind your long posts; they’re fairly interesting, so why not? ;)

    Re merchandise–there are companies that sell media solely because they want publicity for their toy sales. Bionicle is an advertisement for Lego action figures. Transformers is likewise a toy advertisement. There was even a failed movie “Battleship” aimed at selling the game Battleship. Not to mention Polly Pocket, My Little Pony, et al. Such media wouldn’t even exist if it weren’t for the merchandise it was meant to support. (Granted, I think the toy companies will eventually be gutted by “toy pirates” and their 3D printers soon, but not for another ten years at least.) Right now there’s a guy selling his own unique 3D printed toys off of Shapeways. If he gets big enough, he may be willing to pay for a few flicks to popularize his toys. The artist could take a cut of his toy sales as their revenue. Will this sort of symbiosis work for everyone? No, but it may for some.

    I have my doubts about whether or not the merchandising approach has actually been tried. Whether I go to a corporate website store or a little Indie store, the products I see offered are inevitably the same: coffee cups, beverage containers, shirts, mousepads, posters, and books. (Generally overpriced; such is life.) But if you go to DeviantArt and see what the fans are doing, they’re making plushies, costumes, prop mockups, designer spatulas, action figures, Lego sets, chess sets, necklaces, computer games, curtains, etc. And underneath their creations you see comments like “I want one of those!” and “Aaaagh! I’m throwing money at the screen but nothing is happening!!1!” The ancient Greeks wanted Hercules and Odysseus on their pots and jewelry–modern humans are no different about modern heroes. Right now DeviantArt, Youtube, and Fanfiction.net are the ones making money off this fan labor. It doesn’t have to be that way: an artist could start a store and say, “Hey fans, why not get a license from me and sell your work through my official store with my blessing?” But I think such ideas are almost anathema to most.

    Re piracy–I don’t believe in pirating either from rapacious multinational corporations or from Jane Doe Artist. I’m only trying to explain how average people perceive the piracy situation. We talk about “pirates as thieves” and often they genuinely are. But most people are never going to buy into our largely self-taught moral code because they have been small-time pirates all their lives anyway–mostly offline, but increasingly online: “I can share my physical book with my physical friends, so why is it wrong to share my digital book with my digital friends?” “I watch free TV is the real world, so what’s wrong with watching free TV in the virtual world?” The war against piracy is all too often an attempt to impose artificial moral standards on people’s consciences for things they have been doing all their lives. It’s sort of like the European settlers saying to the Indians, “You sold us this land, and it’s our property now so you can’t do anything with it–only we can.” But the Indians saw land as something to be shared collectively by everyone, not controlled by one particular person. The Europeans pushed their view of property on the Indians by force, but they could not rewrite the values inherent to the Indians’ collectivist culture. Likewise, creators can enforce their view of copyright through legal coercion, but they can’t rewrite the values inherent to ordinary peoples’ real world culture. Mothers don’t take their children’s drawing of Spider-man and say, “Tommy, I know you mean well, but it’s wrong to draw pictures of things that belong to other people.” No, they put the child’s picture on the fridge, and in a few years the child becomes a teenager who doesn’t see anything wrong with posting their Spider-man video mashup on Youtube. When they get a DMCA takedown they think, “What jerks. This copyright stuff is nuts.” And everyone commiserates with the poor pirate for the injustice dealt to him by selfish, unreasonable copyright holders. As a result of this battle against common sense, creators are not only losing the moral high ground and eroding respect for the laws meant to protect them, but actually alienating the audience. (How far has the MPAA and RIAA gotten with their “it is better to be feared than loved” policy?) If copyright law is not going to lose the public’s respect, it needs to become more reasonable and fast, because copying is just getting faster, easier, more common and yes, more fun.

    Ten years ago I had no hope of becoming a self employed writer; when the odds of getting published are 100,000 to 1, why bother trying? But now, thanks to the internet I can survive off writing, if only in a small way. Ah, but the internet also produces piracy, which is harming my fellow creators’ means of life, and (if you are right) may one day harm me. Turn over my ticket to success, there’s thousands of failures on the other side. Someday, the course of the technological river may shift again, and this time it may be me that is left high and dry, while others rejoice in new opportunities. It really wouldn’t surprise me at all, with the rate of technology being what it is. What can be done about such things? All one can do is try to get by as best one can.

    • David Newhoff says:

      First of all, my apologies to you and to others for the continued moderation of comments. I’ve changed the settings a few times to allow comments to appear automatically, but WordPress has its quirks, and I haven’t had the time to unravel why this change isn’t working.

      Of course the merchandizing piece of many popular shows, etc. is the lion’s share of many of these businesses; but the entire enterprise is based on intellectual property rights. Without the licenses or copyrights, there is literally nothing to sell. That aside, it just isn’t a relevant business model for most creative works and, in my personal view, most of the best creative works. I think it’s important to distinguish between how the Web can be used by creators like you as a free billboard vs how the Web is used by wealthy entities to potentially limit how far you can go in your career. Take indie filmmaker Lena Dunham, who experimented with small pieces and put them out on YouTube while in college. Then, she made a splash with Tiny Furniture, which led to a deal with HBO for the show Girls. This is a success story that wouldn’t exist without the Internet (her own words) but also one that wouldn’t exist without an HBO to invest in her. In between, the film Tiny Furniture itself is the only product. There’s no merchandise to be sold that’s of any consequence; and this is true of pretty much every novel, indie film, and non-fiction work out there. The work is the product, an it’s not a lack of imagination on the creators’ part when they can’t see the merch angle. Can you imagine plush toys and tee shirts based on the novels of John Irving? The Owen Meany action figure with real annoying voice! Jokes aside, a lot of the best work in any medium exists solely as its own product and to be experienced solely for its own sake; to devalue that is a huge step backward for art.

      On the subject of piracy, I make a clear distinction between the average users and the corporate interests. The person using the torrent site or whatever is, in my opinion, not a criminal but is not entirely thinking through his/her actions (see post on what I’d tell my kids about piracy). The site owners themselves, the advertisers, Google, and the payment processors on the other hand are absolutely fair game to lump into various definition of “thief” because that’s what it is when we profit off someone’s labor without his or her permission. In fact, we actually call it slavery, and while that word may sound overblown, I’m not the only one to make the reference, and I don’t think it’s unfair in this case. So, it’s two distinct topics for me — one of holding wealthy, corporate interests responsible in a very real way, but a different matter of social responsibility among users. We have plenty of analogous scenarios in everyday life. One I often refer to is chocolate, the majority of which is harvested in Ivory Coast by a lot of child slave labor. For the Nestles and Hersheys of the world, we might have one message that holds their feet to the fire; but for the individual consumer, it’s merely a matter of choice that does or doesn’t jibe with one’s own social conscience. You probably make choices like buying fair trade goods or recycling that you know don’t make a huge difference coming from you alone, but you make them anyway and hope that others do the same.

      As I see it, what’s happening is that enterprising creators like you see value in the technology (i.e. “I couldn’t do this without the Web’) and because of this, you’re predisposed to accept messages coming from the Web industry that promote some very extreme headlines like “copyright destroys free speech,” “the media conglomerates want to control everything,” “don’t let them censor the Web,” and so on. Then, of course, we have history like the RIAA lawsuits in the 2000s that don’t help at all. But amid all the mess, I and others believe Google, for instance, is saying, “Look, Jennifer, at the opportunity we provide,” while it is simultaneously very cagey about deriving revenue from, or ideologically supporting, mass infringements that harm artists and industries that could very possibly benefit you in a few years when your enterprise grows. Go back to the Lena Dunham example and diminish HBO’s ability to invest in her because they’ve lost too much revenue to piracy. It’s not that anyone wants to remove the YouTube part of the equation in her success story, only that it is not okay that these massive corporations ought to be allowed raid the other end of the process in the name of “freedom.” Even worse, they’re doing this while telling you “it’s your Web,” which is technically true but functionally less true when we look at it. One company owns more than 90% of search and advertising worldwide; that’s a measure of control and influence that would make John D. Rockefeller quake.

      You bring up colonialism as a simile, but from my perspective, the real invaders in this story are Google, The Pirate Bay, etc. It’s not that the RIAA or MPAA are without their flaws, but I believe in keeping perspective. I’m not going to judge the RIAA in 2012 for lawsuits it initiated in 2003 just like I no longer care what long-dead Jack Valenti said about the VCR in 1982. In Internet time, that’s beyond ancient history, and I find it amusing that the the technologists who live according to Moore’s Law get away with these references as though they’re still relevant. That said, you’re right that the big industries have made errors that have tarnished public opinion of copyright, at least among people roughly 35 and younger. I still think the majority of today’s electorate doesn’t actually care at all about copyright, and this is a next-gen issue. And there are plenty of people who think the terms are too long but who also know that the messages coming out of Silicon Valley are a lot of self-serving nonsense that does real harm.

      My hope would be to ask people like you to take the broadest possible view, assume all corporate interests deserve skepticism, and to question whether the messages you receive are serving you or serving the ones doing the talking.

      • monkey says:

        I’m replying to this comment because I can’t read the squished ones very well :)

        Don’t get me started on Kevin Smith. Smith griped about how Red State was snubbed at the Independent Spirit Awards last year, which is his right but I couldn’t believe he trashed the other movies as “faux indies.” Never mind that many of the other movies were produced by the same companies that helped start Smith’s career – what was not mentioned was that as a director with an established fanbase he had the luxury of funding and distributing his movie himself, something most indie filmmakers can’t do.

        As well, what seems to be missing from the discussion is that piracy won’t affect the big movies that much, but it will eventually be fatal not just for indies but for non blockbusters of any kind. 20 years ago, there would be no reason why a movie like Silver Linings Playbook this year or The Descendants last year would have to be indies; nowadays it would be unheard of for a major studio to make movies which aren’t aiming at $100 million gross.

    • monkey says:

      There are a few problems with the merchandise model that David hasn’t mentioned:

      1. Most of the “media” you mentioned as selling toys is either juvenile or outright terrible. If the future is more Battleship and Transformers movies, god help us all.
      2. Not all media is translatable to merchandise. I don’t want to clutter up my place with Umberto Eco Tshirts or Philip Seymour Hoffman action figures, and I doubt most of their fans would, either.
      3. Switching to a merch model means replacing a lot of decent paying middle class jobs (not just in the production but distribution of media – movie theatre employees, video store clerks, etc) with low paying manufacturing jobs often in other countries.

      And frming this in terms of fan fiction or mashups is frankly disingenuous. There is a big difference between putting up a mashup and a whole movie unaltered.

      • David Newhoff says:

        Thanks for joining the chat. Actually I did address many of those points, albeit from a slightly different perspective, in my response this morning. In fact, I made a similar joke with regard to John Irving action figures. With regard to things like Fanfic, etc. I think we have to keep making distinctions between opportunities for artists to self promote and ways in which piracy diminishes their opportunities to go beyond promotion. For better or worse (and it’s worse in my opinion), 50 Shades of Gray apparently started as fanfic. I couldn’t keep reading it myself, but its sales still support all those jobs to which you refer. South Park started as viral video, and Jennifer is right about Red v Blue, which is a brilliant series and a great example of symbiosis in which creators are doing something wholly original with characters belonging to a business entity.

        NOTE: Yes, I originally typed “A Thousand Shades of Gray.” Somewhere between A Million Little Pieces and a lack of coffee, I produced A Thousand. Happens.

        While I suspect you and I share a common view about piracy in general, I’d want to be careful to identify legitimate value propositions that do exist for creators. This should not be confused, however, with any notion that I’m throwing in with Lessig’s preposterous celebration of rank amateurism as a new economy.

      • monkey says:

        I’m not against fanfic in the slightest. What I bristle at is the notion that the antipathy that *some* creators have towards fanfic is presented as the whole of the copyright issue, when people are putting up unaltered versions of whole movies and defending it as “fair use.”

        I admit I didn’t see your John Irving example, I guess were on the same wavelength. :) But on a more serious note, I find it troubling that authors are being told “go on the lecture circuit” which both a) cuts into time when one could actually be, y’know, writing and b) punishes authors who would rather let their words speak for themselves. Not every author can be Cory Doctorow,

      • David Newhoff says:

        Absolutely. Aside from the fact that it’s just plain rude for millionaires in one industry to tell a professional in another line of work, “Get a second job to make up for the damage our business does to you,” it just doesn’t work. Not every author is Doctorow like not every filmmaker is Kevin Smith. To suggest that every artist must somehow become a brand or engender a cult of personality is actually limiting the diverse range of artists and creative works. I want to experience the work of the reclusive geniuses and the tragically flawed human beings, whom we may not “Like” through social media. I guess it’s lucky Salinger wrote before they invented Twitter.

  7. Jennifer says:

    Sure, I don’t think merchandise is a one-size-fits-all strategy. But it is an option #3 that exists besides pure advertising and pure content sales. And I think most people err on the side of offering too little merchandise rather than too much.

    Lena Dunham’s success story is certainly one way to get in. But, you can also look at the Red vs. Blue series, which received no financial support save for an assurance from Bungie (the people who made Halo) not to sue them for infringement. Now both the Red vs. Blue team and Bungie are making money off the show, which is up to Season 10. As Red vs. Blue grows, their techniques have improved–better music, CGI, etc. Essentially they started off cheap and added what they could afford. It remains to be seen how big and elaborate they’ll get, but the fans seem happy.

    Re slavery– I can see where you’re coming from, but I think the word is still a bit off. Slavery requires two conditions: 1.) That you profit off of someone’s labor without paying them, and also 2.) That you force them to work for you against their will. I’d say condition 1 is satisfied, but not 2. You can enslave the artist, but not the art. It’s more like stealing someone’s car and putting it to work in your service than kidnapping the driver and forcing them to drive you around. I’d say theft is the better word, though by no means exact.

    Site owners, advertisers, Google and payment processors–well, this is a tricky issue. It goes back to the old issue of, “It is better for nine guilty men go free than for one innocent man to be punished?” Suppose there are four pirates on a site for every six legitimate users. Do we punish the six along with the four? Suppose the ratio were half and half? What if my team had been storing gamefiles on Megaupload when it was shut down? The problem with killing the big players is that it saves the property of some at the expense of the property of others. Do the innocent deserve any consideration from us or are they just acceptable collateral damage?

    Or, what about the idea of sorting pirated content out from regular content via some sort of algorithm? I’m afraid I agree with Google that this is impossible to do accurately. If a bot can’t crack a Captcha, then how can we expect it to understand fair use? Heck, nobody understands fair use except the judge making the final decision. Yet fair use does technically exist, and it’s just as lawful as copyright. I can’t support the idea of bots depriving some of their lawful rights in order to protect the lawful rights of others. This may sound strong, but I believe that “robot justice” in its current form makes a mockery of the principles laid down by our elected representatives in a manner even worse than piracy. We expect criminals to abuse the rights of others, but when the agents of justice do it? A policeman who steals is doubly scorned.

    Do today’s electorate care about copyright? I think they do. They don’t have vocabulary for it yet, but they’re experiencing more and more hassles as the big players tighten their grip on their assets. One of my friends recently complained bitterly about how games ae locked down with DRM that makes them three times as annoying to play as the hacked pirated version–which of course is easily obtainable on Pirate Bay. As a writer I hear people griping about paying $9.99 for an e-book when everyone knows they cost $0 to reproduce. A hobbyist writer friend of mine told me she thought copyright should be totally done away with. In short, I hear complaints about copyright-related things from people all the time. Meanwhile, the open source movement and Creative Commons continue to grow in favor with the government, the schools, and the computer industry. All of these impressions are milling around randomly in peoples’ heads, and few see the single thread uniting all these elements. But, since everyone from Youtube to the RIAA to the major ISPs are trying to teach the populace what copyright infringement is (and often providing a very one-sided story), I’m not sure how much longer people will remain in the dark. Did you see the law Canada passed recently that shrinks penalties to the $100 – $5,000 range and allows noncommercial use of copyrighted material in user generated content with attribution? That’s what I expect to see next. After that will come the interesting legal problem of defining “noncommercial,” because people will stretch the definition to the limit with donation buttons, ads, paywalls, sales of unrelated/original merchandise, barcode-stripped fanfics, promotions for semi-related products, etc.

    Beyond that, we’ll just have to see.

  8. monkey says:

    In 1972, when Richard Nixon asked Chou En Lai about the impact of the French Revolution, Chou allegedly answered that it was “too soon to tell.” History has a long curve, and I think since we’re facing a state of near total environmental collapse that the jury’s still out on the industrial revolution.

    However, there is already quite a bit of evidence that the tech revolution is nowhere near as beneficial to everyone.

    As well, there seems to be a quasireligious faith in technological change as being 1) always right 2) always in one direction and 3) inevitable. jaron Lanier’s warnings about “lock-in” of certain aspects of technology seem very relevant. The idea of all content being free and copyright disappearing is not a fait accompli.

    • David Newhoff says:

      On these points we are in total agreement. It goes beyond quasi-religious at times into full-blown cult. Don’t know if you saw my post At World’s End.

    • Well said, Monkey. It reminds me of my cousin who once told me that he didn’t hate technology–in fact, he enjoyed using new tech. He just did not like it to be shoved down his throat or to be told that it would solve every one of his problems and make him breakfast in bed.

  9. Jennifer says:

    Re Battleship and Transformers–
    I’m a huge Transformers fan and I sure didn’t like the Transformers movies–but a lot of other people did. Fact is, the majority of the population has no taste buds, and I don’t mean that in a snotty way. Taste buds take awhile to grow. When I was learning to write, I enjoyed reading stuff that was quite low quality–it was all the same to me. Now when I try to read low quality fanfiction, it’s like a composer trying to listen to a seven year old practicing the violin. Many people tend to picture the public as being the drill sergeant who screams, “I expect you to be the best of the best! Anything less is failure!” but I see the public as a laid back teacher who gives B grades to students who actually deserve Cs. An experienced artist can pick out the difference between “good” and “great,” but “good” is usually enough to make the average reader happy provided that the author has at least one strength in their favor (cool plot idea, or great characterization, or good grammar, but not necessarily all at once). If you don’t believe me, go to fanfiction.net, find a fanfic with ten chapters and a bunch of reviews, and read them. I can almost guarantee that the reviews are raves about the story’s brilliance and the writing quality is mediocre at best. My own 14 year old writing used to be mediocre and people e-mailed me compliments. Nor is this seemingly incongruous liking for mediocrity limited to fanfic sites and inexperienced writers. I can contentedly watch poorly animated kids cartoons for hours that have plots based around things that would only be probable to 10 year olds. Why? Because the scriptwriters got the interpersonal drama right and wrote in brilliant characters and wonderful repartee. Their successes compensate for the show’s absurd failings in other areas. I’ve heard that 50 Shades of Grey is pretty bad (I heard people call Twilight a bad Mary Sue fanfic, so I guess 50 Shades of Grey is a worthy successor) and yet people obviously don’t care. Think of Star Wars Episode 1 – Beautiful technical execution–not well received by the audience.

    So, I do find Lessig’s argument about amateur creativity as a new economy plausible, if only because a lot of amateur creativity I see is frequently better than the official stuff franchises put out. For every mediocre “official book” that makes money for its franchise, I see about 100 excellent fanfics that aren’t making money for the writers (and 1,000 fair and poor fanfics that might probably couldn’t make money, at least not enough to support an artist fulltime). I think that a lot of great, good and even mediocre artists are being held back from full-time and part-time employment by the current copyright laws. Sure, fanfic/fanart/etc are different from outright distribution of the original materials–I’m not arguing that piracy is fair use. And I don’t hold up mediocrity as an example that should be emulated. It’s just a stepping stone to better things, that’s all. I might also add that many books which were scorned in their time (Tarzan, Dracula) are now praised as classics.

    As for the merchandise model moving labor to sweatshops in poor countries, I’m happy to say that I think the reverse will actually happen. 3D printers (which has been called “the third industrial revolution) make local manufacturing cheaper and more convenient than offshore production.

    I suppose I see technology like making a painting. Sometimes you add something that is, upon further reflection, an ugly feature. You can either try to get rid of it and put things back the way they were, or you can keep adding stuff so that the ugly feature actually harmonizes with the rest of the painting.

    • monkey says:

      Hmm… Actually, Dracula was well received critically but not a major commercial success upon its initial release. It’s a classic Long Tail phenonemon, one that probably wouldn’t be possible withou copyright benefits. Tarzan (the first book anyway) got some decent reviews as well.

      That said, the frustration is among those who do not write fanfiction, or even something in a hit genre. There seems to be less opportunities for something that is truly new to break through. Interestingly many of the now established classics and best sellers were in genres that were either moribund or nonexistent. Few could imagine a children’s fantasy being madly popular before
      Harry Potter, a sci fi movie breaking records before Star Wars* or beat post inspired rock selling before Dylan. If the next Pynchon has to add zombies to his or her novel, or the next Scorsese has to add CGI monsters to his or her movie or the next Tom Waits has to do a gimmicky video to get noticed, our culture is not in a good place.

      *when Star Wars was first released, many Fox executives couldn’t understand how a movie with only one major star in a supporting role could possibly be a hit. It’s easy to tut-tut this attitude now, but the fact is that predicting the truly revolutionary in entertainment is nearly impossible.

    • David Newhoff says:

      Actually, Jennifer, when I referred to Lessig’s “celebration of amateur culture,” it’s something different from what you’re talking about. Essentially, you’re describing the ways in which access and connection can help an individual, fledgling creator grow; and there’s nothing wrong with that. I would encourage just about anyone who has an instinct to create to give it a shot, and if digital technology provides inspiration or confidence or valuable critique, so be it. It goes without saying, of course, that not everyone has something to offer that is either critically or commercially of any value. In fact, it’s a certainty that only a finite number of creators in any medium will manifest the magic combination of skill, ideas, execution, and consumer appeal, not to mention the fortitude to keep working against rejection, doubt, and the everyday challenges of survival. Still, there really is such a thing as mastery of a craft, and it isn’t a snobbish thing to say this or to pay attention to the editors and critics whom the digiterati would have us recast as nefarious “gatekeepers.”

      The truth is there has always been great, brilliant work and lighter pulp; and the masses have so far tended to buy the pulp. This isn’t going to change because of the Internet. It’s possible that niche creators will find niche audiences large enough to sustain them, but what will sell in the millions will continue to follow the same principles as today and in the past. Either that, or deconstructing copyright will kill the incentive and capacity to create great works or even mass pulp, and we’ll be left with a homogenous slurry of hobby work.

      Regardless, Lessig is really just playing shell game with the subject of remixing, presuming to say that “copyright criminalizes our kids,” by which he tends to mean kids goofing off with remixes of licensed material to make mashups, etc. on YouTube. Fanfic is a bit like a mashup, although I understand there are distinctions we could make. Either way, Lessig is really pointing to something that hardly anyone really cares about at this point. For example, David Lowery, who writes The Trichordist blog and takes aim directly at pirates and advertisers doesn’t give a damn about some girls singing a Camper Van Beethoven song in a video they’ve posted on YouTube. Just because Prince is kinda out there on the litigious edge doesn’t mean most people are really focused on the kinds of infringements Lessig and his devotees like to turn into banners of righteousness. That and he totally misrepresents JP Sousa’s intentions in one of his more famous presentations, but that’s a gripe for another day.

      Funny that you bring up The Phantom Menace because that film for me is where Lucas stopped being a filmmaker and became, like his villain, more machine than man. I disagree that it was a beautiful technical execution because it was technology for its own sake that forgot to serve a story and characters. Also, and Hayden Christensen is like watching a cinder block think.

  10. M says:

    The best idea IMO is to have a universal capital, ie. money people get just for simply being born. Call it robot-provided welfare if you want. Maybe require people to do a few years of community service to get it first, and lower the community service requirement towards nothing as technology does away with more and more human labor.

    • David Newhoff says:

      Check out the piece from Big Think I posted in today’s Tuesday Tech. The subject is why we will still work.

      • M says:

        There is no way around the fact that technology is eliminating jobs, the current system relies so much on distributing wealth via human labor in a world where human labor is not very valuable.

        I’ve witnessed entire industrial plants with people in control rooms literally watching monitors. Literally. Watching. Monitor. For eight hours a day. Not doing anything at all. Why? Is it cause they are lazy? No, because the entire plant is controlled by a computer that never really makes mistakes (they are just there “in case”). But really, people are starting to realize there isn’t much to justify people sitting around watching gauges on monitors all day. Besides, this is a waste of a human’s existence.

        I’ve also witnessed companies starting to get wise on this sort of thing, and seriously, every week in industries I write software for there is a round of layoffs. It’s like clockwork. Not cause these people getting laid off are not hard working, but because quite frankly they are not needed. They simply are not needed to for the organization to do business. Company profit goes up, company employment goes down. That’s how it works these days.

        I’m sick of people saying “technology creates jobs”. Technology creates jobs FOR PEOPLE LIKE ME. It doesn’t create jobs when I replace people with software. It destroys jobs. But that’s not a bad thing if you react to it properly!

        The problem is our leadership is so unbelievably delusional they don’t seem to see this problem at all. Their reaction to layoffs is to lower spending! LOWER SPENDING!!! We have to get rid of that “deficit” somehow, right?

        There doesn’t seem to be a single scientist or engineer running the government, FFS the science committee chair is a creationist! You can’t make this up. This problem requires non-conventional solutions and we have creationists running our science programs in this country.

      • David Newhoff says:

        There is no question that technology is ending jobs — at least certain jobs. That’s just one of the reasons I’m so adamant about protecting things that only humans can do, like create art. I know, in theory, that a machine can be thought to create art but only if it is to be enjoyed by another machine or a human who has lost his humanity. It’s like the problem I read about years ago regarding orchestra conductors dealing with string players trained in Asia to be technically perfect but without any soul.

        As for governance, I agree that there is too strong and anti-science, religious core out there; but these leaders are sadly reflective of their constituencies. As for Smith himself, I’m not too worked up about his role yet only because I haven’t found solid evidence that his fairly soft remarks about ID are reflective of his actual beliefs. I’m not saying he isn’t a bona fide, Christian zealot, I just don’t know that to be true yet. Of course, I haven’t checked recently to be honest.

  11. Jennifer says:

    I think it’s too soon to say that machine art has no soul. :) Is photography soulless? “No, because a human being framed and chose the picture.” But then are the photographs taken by a space probe or a robotically-driven telescope soulless? Yes, but they nevertheless produce powerful images that clutch at my emotions. Sunsets and wildflowers are not influenced by any human hand, but this art “made by the hand of God” is surely beautiful. Or how about “art” that consists of pieces of toast nailed to the wall? Soulless, or not? Fact is, I’ve seen machine art that affected me more deeply than some human art. I think “true art” is in the eye of the beholder, not in the work of art itself.

    Remixes and fanfiction are essentially the same thing in different forms of media. A remix artist takes some portion of one or more original pieces and mashes it with other pieces. A fanfic artist takes any of the following and mashes them together: copyrighted plots, copyrighted characters, copyrighted canon universes, copyrighted song lyrics (“songfic”), copyrighted poetry/verse/literature (an appropriate little snippet at the top of each chapter), other copyrighted fanfics, other fanfic writers’ copyrighted characters, etc. In a fanfic I’m currently working on, I infringe no less than three copyrighted works, not counting acts of infringement on those characters which are sufficiently delineated to allow for separate copyright protection. I also mashed in another fanfic plot (with permission from another creator) and dozens of ideas which were originally invented long ago by fans and subsequently adopted widely within the community as “fanon,” which is the modern equivalent of folklore. To top it off, the story that I’m writing has been done and redone literally dozens of times by other fans over the course of 28 years. Are parts of my story original? Of course; the bulk of it is, even in comparison to the interpretations of the fics produced by dozens of other fans. If you gave a beginning writing class the task of writing a five page version of “The Ugly Duckling” you would get 20 more or less unique interpretations. One of them might be better than the rest, and assume a semiofficial (but not legally enforced) supremacy. Ask any folklorist, and you’ll find that all mass culture was was produced in this this way for most of human history. And it continues to be created this way too, because there is now fanfic that continues the original epics, i.e.: “This is a pre-Odyssey pre-Iliad story. It takes place a few years before the Trojan War. Though I can’t really prove that this is how the story of Penelope and Odysseus begins I say they have to start somewhere so this is how I figure it happened.” Do you know who the modern Odysseus is? James Bond. But he is “owned” and it is illegal to tell stories about him. That’s just wrong.

    Incidentally, mashers and fanfic writers are not necessarily kids goofing off online. I’m acquainted with fans of pretty much every age bracket–many of whom are (much) older and more talented than me. I don’t think even the kids view their craft as just casually playing around. It’s fun, sure, but it’s also a real endeavor for them, no matter the age level.

    As for the question of whether not anybody cares about whether remixes are legal or not–well, those who are making them sure care. One survey of fanfic writers found that they had a better-than-average knowledge of the copyright law and generally disapproved of it. That same paper claimed that fanfiction.net is one of the 250 most visited sites on web. Fanfiction.net is supported by ads, fyi, and thus would be a prime target for efforts to curb piracy. Yet none of the writers would be considered a pirate in the typical sense of the word, and none of them make money from their work. A lot of civilians could wind up dead in the war against piracy.

    As for the relationship between pirate sites and advertisers–like I said, it’s blurry. Is it right to take away the property of 60% of benign users in order to stop the 40% who are pirates? Suppose that a site has 600,000 benign users and 400,000 pirates (one million users total). And let us further suppose that those pirates are abusing the works of 10,000 artists. Is it right for the 10,000 artists to take away the property of the 600,000 honest people in order to stop the pirates? At what point does this amount to unfair domination of the majority by a minority? For this reason I very much fear that someday people will begin to view copyright holders as oppressors rather than victims. These blanket punishments have the potential to do harm as well as good.

    I guess I’m not worried much about the idea of great art being replaced by mass hobbyist mediocrity. I’ve seen superb, saleable art being done by hobbyists without hope of financial gain. They create for love of the subject, for the appreciation they get for their work, and for pleasure in the act of creation, not money. I’m not saying that creators shouldn’t ask for money or don’t deserve to be paid. I just don’t think that great art will die out if copyright loosens up, or that tons of low quality art will somehow drown out all the high quality art. In fact, the more that bad artists practice, the better they will get. I bet that the overall amount of great art will go up, if only because more poor artists will be able to grow up to become great artists someday.

    Does the internet help new ideas break through or hinder them? In the writing world, originality is certainly growing by leaps and bounds. Page and word length requirements are going the way of the dodo, and the lines between genres are vanishing as people step outside the formulaic requirements enforced by the publishing houses. The story itself is again achieving primacy over the formatting and overhead cost requirements. The digital revolution has been a good thing for originality in my area of art.

    I would actually argue that copyright didn’t help Bram Stoker much (he was dead when his book took off, and he didn’t come back as a vampire to claim his rights). As for Tarzan’s copyright, it has actually been used to stifle one new work that I know of (and of course, the Tarzan trademark is eternal). This is of course after Burroughs has been dead, like, forever. So, the Long Tail didn’t benefit these creators so much as their heirs. Copyright length should be dramatically curtailed.

    Re the Phantom Menace–agreed; what I meant by noting its “technical” flawlessness was that special effects dominated the show as opposed to plot or characters.

    • David Newhoff says:

      Art, by definition, is made by humans or it has literally no value whatsoever as art. A sunset is not art and neither is an image taken by a machine, no matter how moving. If a security camera catches a heinous crime, the images may trigger strong emotions, but they will not be art. This isn’t my opinion. It is the definition of art that it requires the human hand and very often that we are able to recognize the fingerprints. This is why there’s a difference between a pretty good cellist and a virtuoso. Likewise, no it is not too soon to say that a machine does not have a soul. I am not a religious person, so I use the word soul metaphorically, but whatever a soul is, our machines do not have them except in our sci-fi imaginations. There are those who hope to blur these lines, to hasten the technological singularity, but there is a reason that incomprehensible event is referred to even by its proponents as “the end of the human era.”

      I’m pretty well versed in the history of folklore, and your references to it are, I believe, more in line with what Lessig is talking about. Couple of problems, though. The first is that even if fanfic writers aren’t making money off infringement just like users of torrents aren’t, money is changing hands, sometimes big money, and it’s going to the site owners if there are ads being served. Fanfic is obviously trickier than something as clear cut as a list of U2 songs or motion pictures, which is wholesale theft and exploitation. Period. Fanfic seems to blur the lines between discussion, fair use, and infringement, although my experience with it is generally through my son who did some writing in that area for a while. Still, to assert that James Bond is public property now because the Internet has recreated a campfire for folklorists is, well, anti-progress, and a narrow view of copyright, if for no other reason than copyright isn’t exclusively about money.

      Frankly, my short, unfriendly answer is to stop whining. Fanfic writers should feel free to teach themselves to write using existing works, but if they want to take the craft seriously, they’ll just have to create something original and leave James Bond alone. Copyright does not stifle artists, it provides the legal framework for people and businesses to invest in their works. All artists create for the love of the work, and those who are fortunate to live on their work tend to produce great work when given that freedom. Beyond money, though, if we turn everything back into folklore, we dilute the individual hand of the artist, which is exactly what Jaron Lanier is warning against in You Are Not a Gadget.

      As for pirate sites and advertising, the line is not blurry, and I don’t know who you mean is a benign user. If you’re talking about storage, there are so many alternatives to what was MegaUpload that I’m not sympathetic. Beyond that, if the core business of the enterprise is criminal exploitation (that’s what piracy is) and the sideline is something beneficial and neutral, well too bad. When mobsters go to prison, their legit operations shut down, too.

      Again, none of this is to diminish ways in which the Web is beneficial to you, but you have to admit that even you don’t yet know where your career is heading or how some of these evolving issues will affect you. Copyright terms may indeed shorten, although they will not go down to 10 years, and neither should they in the opinion of, well, 200 years worth of jurisprudence on the subject. So, if they shorten by 30 years, then what? The goal of the community you support is to eradicate the law, and that will indeed be a step backward for art.

      P.S. Forgive slightly brusque tone. A product of rushing more than anything else.

    • monkey says:

      I have to totally disagree on your examples. Stoker’s copyright *did* benefit his family, and frankly I don’t see anything wrong with that. The book sold, he wanted them to get the money, what’s wrong with that?

      Similarly ESB’s copyrights stifled new Tarzan novels, but it didnt stop Marvel comics from making Ka-Zar, Jack Kirby from creating kamandi (Tarzan + Planet Of The Apes) or even George Of The Jungle.

      ESB’s other creation, John Carter, was of course also under copyright for a long time, meaning that not just anybody could do a
      John Carter comic or movie. so how did that effect things? We got Buck Rogers, Flash Gordon and Star Wars – in other words a whole new genre. Similarly, NPP (now DC) owned Superman, which prompted others to come up with their own. true, NPP sued Fawcett claiming Captain Marvel was a ripoff, but that doesn’t change the fact that we got a lot more creativity than had Superman been public domain.

      As well, if you look at public domain material that is still used today it is often simply republished without any new creative input. Publishers would rather just reprint the old material at a cheap price than pay an author to do something new.

    • monkey says:

      While David was a little curt, I have to agree that the legitimate users shouldn’t offset the pirates. Legitimate users have other options.

      As well, it’s simply the case that advertising money going to those who didnt create the material is exploitative.

    • monkey says:

      Sorry for replying again,I remembered something else :)

      Again, nobody can write their own James Bond. However, the Bond ownership does not extend to stories about English spies. Robert Levine makes the same point except with Bruce Springsteen and songs about New Jersey. He also points out that contrary to
      Lesig Disney did respect other people’s IP, buying the rights to Bambi, Mary Poppins and 101 Dalmations.

      And again, if James Bond were PD tomorrow there would not be a rush to publish 007 fan fiction. Instead, every publisher would go out and publish their own editions of the originals, providing work (maybe) to cover artists but no one else.

      • David Newhoff says:

        You raise a good point about the monied interest in rolling back copyright. It’s not about fostering new derivative work — that’s the story they feed people — it’s about repackaging and selling what’s already popular in its original forms. Of course, this is classic, huckster logic because if copyright ceased to exist tomorrow, there would be an immediate glut of suddenly legal sites trying to monetize whatever they could lay hands on. Guess what that does to the value of each site and, therefore, the advertising? When parasites kill their hosts, the parasites die, too.

  12. James_J says:

    Ever since machines were invented (complex or simple) there have been people that lost a job. This is nothing new; and most of the time it is considered progress in the grand scheme of things.

    But… at the same time, the person(s) who invent new things and processes (you know… creators) won’t be replaced by a machine anytime soon. Intellectual property, and the thinking man are (at least in my country) the countries greatest assets.

    What we are seeing with the exploitation of the last decade is neither progress nor is it on par with ‘machines making a trade obsolete’. Quite the opposite actually; on both fronts…
    Creative content is in greater demand than ever… just that the due payment is being hijacked by unscrupulous tech companies and individuals.

  13. Jennifer says:

    The discussion of art and soul looks like it could be headed into a murky opinion zone, so I think we’ll just have to disagree there. :)

    James Bond isn’t public property, but I nevertheless believe it should be legal to write stories about him if fair conditions are met (see the new law in Canada I mentioned). Further, I think that James Bond should enter into the public domain much faster than is currently the case. One of the American Pirate Parties is advocating to set copyright back to its original 14-years-after-publication length. The European Pirates only favor 5 years, which I favor. I have a writer friend who wants copyright law done away with altogether. The tide is turning, and conditions that once favored the lengthening of copyright bit by bit now similarly favor its reduction.

    Folklore, a bad thing? Heh. Call me a Luddite, but I don’t really think that this ancient artform, which is no doubt hundreds of thousands of years old, is somehow inferior to our newfangled modern system of owning art. Then too, most fanfic writers I’ve observed do indeed take their craft seriously. The originality of one’s topic really has nothing to with an earnest desire to excel. People perform best when they have a love for their subject, whatever that subject may be. Would you give any artist the advice to stop making art about the subject that makes them passionate, and instead make art about something they don’t care about? Who knows what makes a particular character or story so attractive to a writer that they would wish to commit dozens of hours to creating new stories about it? Let people write about what they love most, and they’ll be serious and strike to do their best.

    Not all artists like copyright or see it as a good thing. I could name five other artists of my acquaintance who either pirate shows & music online or express disgust at copyright. Three of these people are pursuing employment in the art world. In my particular case, copyright stifles both my business and my creativity. You’ve suggested, perhaps correctly, that if/when I get bigger, I will have to worry about piracy. But what I see right now is that the overly stringent copyright law is (dramatically) limiting my creativity and economic opportunities. I’d rather be wildly successful and worry about pirates than unknown and nonpirated, which is why I view copyright as the greater of two evils. The trouble with being rich is that you have to worry about thieves. But no one would suggest that we try to stop thieves by making it hard for people to get rich. Yeah, copyright law is its present form is definitely good for some artists. Just not for me and a few people I know.

    Re Megaupload–the problem is that most internet users are unacquainted with the niceties of piracy-based sites. There are alternatives to Megaupload, sure. But who knows which ones are “legit”? The last time I uploaded a file using one of these services I just did a search for the “top ten free file hosting” services. Then I picked one that didn’t require me to create an account, because I didn’t want to fuss with another log in. It isn’t as though people say to themselves, “Hm, where shall I store my files? Shall I use a legitimate source, or one that bases a portion of its income on piracy?” You could say, “Tough, they should know better,” but I don’t really think that’s fair, because vast swaths of the population are computer illiterate.

    I used to work as a handywoman at a ministorage, which is basically a bunch of connexes and buildings where people can rent out a personal storage unit. Sometimes the customers would go off to another state without paying their rent, and the owner of the ministorage would take their junk as reparation for nonpayment. Part of my job was to clean up the junk and prepare it for the annual garage sale. People keep some interesting stuff in their storage units–in fact, I was told that at some other ministorage places, owners had found dead bodies in the storage units. The owner of my ministorage was a nice guy. If we found a family photo album when were cleaning out a unit, he would set it aside so that if the renter came back some day, he could have it back. The owner needed to recoup some of his lost money, but he chose not to throw away these priceless family memories. Nowadays people’s family memories are all stored in the form of digital photos. When my computer was threatened by a virus I reacted like an owner whose house is on fire: “What haven’t I backed up? Oh no! The photos of my old cat! My stories!” It was the computer equivalent of rushing into the flames to save the family heirlooms.

    Suppose that there was a dishonest ministorage owner who worked for the mob. 4 out of 10 of his storage units were used to house bootleg DVDs; the other 6 were let out to legitimate customers as a front. Well, one day the police caught up to the mobster and seized the ministorage. All the bootleg DVDs were taken away and burned. The police also took all the stuff in the 6 customer storage units, family photos and all, made a giant pile, and burned it. The pit of sin was eradicated off the face of the earth. And artists everywhere rejoiced that justice had been served. The 6 legimitate customers watched the happy artists celebrating. But when they looked down at the ashes of their possessions, their faces grew dark and troubled.

    The problem here is that the ratio of legitimate legitimate users to pirated artists is probably something like 10,000 to 1. When the wishes of a tiny minority are served at the expense of the wishes of an overwhelming majority, it creates an imbalance of interests that typically resolves in favor the majority’s wishes. But if the minority refuses to compromise, then the majority will eventually either rewrite the law to favor their interests, or else ignore the laws completely. The minority may choose to tighten their grip over the majority, but all this really does is create a build up of resentment and cause people to become more clever about subverting the “unjust” laws. Prohibition is a good example of this.

    The problem with the Stoker example is that the gobs of money didn’t start pouring in until after he was dead. Yes, it benefited his family in the end, but copyright was not intended to serve the needs of a creators’ heirs–it was intended as an incentive for the creator, and to benefit the progress of the science and arts. Even if the length of copyright was brought down merely to life, creators would still be able to make money on their work and pass the money on to their children as an inheritance. It is not necessary for the creator to pass the rights to the work itself down to their children.

    As for Tarzan and his derivatives, what Marvel et al did there is called “barcode stripping.” It’s the same thing as what Fifty Shades of Grey did to Twilight. But I would argue that barcode stripping doesn’t actually create diversity. The same diversity in genre, feel and story happens naturally anyway, whether or not the names of the original characters are used. One sees this in fanfiction and fanart all the time. One writer will tell stories about Tarzan and Jane’s married life, another will tell adventure tales about Tarzan in Pellucidar, another will parody the genre, or tell a story about Tarzan’s son, or his friend, or a totally new character. Barcode stripping creates the illusion of diversity, but in fact the same diversity can be achieved while retaining the old names.

    When I look at the material in the public domain and even the copyrighted domain, I see mountains and mountains of new work being created. Go to fanfiction.net and check out the thousands of fanfics spawned from public domain books: http://www.fanfiction.net/book/ Or go to DeviantArt and do a search on public domain books by title. Pride and Prejudice: 2,489 fanfics, 9245 art pieces. Jane Eyre: 312 fanfics, 2690 art pieces. Romeo and Juliet: 208 fanfics, 36904 art pieces. Phantom of the Opera: 10,608 fanfics, 63247 art pieces. Clearly, when work enters the public domain it does *not* result in mindless copying–rather, it drives a huge engine of creativity. On DeviantArt, anyone can sell their pieces for money, including those people who have uploaded 19,072 pieces of copyright and trademark violating Tarzan art. DeviantArt doesn’t carry advertisements, either–they have much the same business model as Amazon. The only reason fanfic writers don’t publish and sell their thousands of pieces of fanfiction on Amazon.com is that they know they would get sued and lose their house, as well as initiate a crackdown on the James Bond fandom. Fear is the really only thing holding this back.

    Thanks to the public domain, thousands of artists (both individuals and corporations) are legally making money from older works. There are new Sherlock Holmes fan stories/art and new Sherlock Holmes TV shows. No one complains that all this new stuff is “killing” Doyle’s original classics, or that fan artists and authors are competing with the companies making Sherlock Holmes TV shows to drive them out of business. There are a bazillion Sherlock Holmes versions, too–Modern Holmes in Britain; modern Holmes in America with Watson as an Asian female; a clone of Holmes in the 22nd century with Watson as a robot and Lestrade as an attractive female sidekick; Holmes as a retired beekeeper teaching an apprentice to do detective work. These widely varying mutations are essentially the same thing as Ka-Zar, George of the Jungle, etc., only in this case the original names of the characters were retained. Meanwhile, you can go to any number of websites and download all the Sherlock Holmes stories gratis. Holmes is dead, long live Holmes? In this particular case, absence of copyright didn’t kill profits, wipe out art, dilute the original work, or result in any particular bad consequences. In fact, it seemed to result in benefits for everyone.

    As we’ve seen in the case of DeviantArt, thousands of illegal artists are making money off derivatives of modern copyrighted works. Some copyright holders may see this as a bad thing, but purely in terms of the interest of creating art, it appears to be a boon. I should add that I’ve been fanwork improve drastically on the original material, so I don’t think parasitism lowers quality at all. I also wouldn’t be worried about the best work being lost in a swamp of monetized websites. There will always be rating systems, favorites, Google, and word of mouth to bring the cream to the top and send the dregs to the bottom. True, some derivative work will become more popular than the original work, and perhaps even draw money away from the original creator. (After all, Fifty Shades of Grey outsold Twilight.) But I see that as valid marketplace competition, and also a good way to maintain interest in aging artwork and introduce new fans to the original work. Would the Twilight author be getting a windfall on her older books if 50 Shades of Grey had kept the names of the original characters? I bet she would have. And if she had been smart enough to license the copyright and take a 10% cut of the profits, she could be raking it in. There are some artists that don’t like it when other people make fanfiction or fanart from their stuff; that’s fine, I don’t blame them. But studies find that many artists don’t mind it, and many even like it. The numbers of those who accept it are only going to rise, because fanfic and fanart are exploding, and the fledgling fan artists of today are the mature published artists of tomorrow. I would be fine if people wrote fanfic about my work. In fact, I would offer fan licenses and help the best ones edit and sell their work. (I’ll know which ones are best because of the ratings and comments they get.) If they succeed, more money for me and my original stories. If they fail, I lose nothing because their work will sink into obscurity. So I think derivative work is great.

    • David Newhoff says:

      I’m sorry, Jennifer, that I simply don’t have the time to get into a point-by-point response to all of that. Moreover, for each of your examples, I could write a counter-example, and we’d be doing this instead of our work. Although, granted I’m older and probably have more on my plate. I do think, though, that as you clearly take these issues seriously, you might read other opposing views from some serious people — Terry Hart, Jaron Lanier, Robert Levine, Chris Ruen, etc. It seems to me that most people look at complex issues through the relatively narrow lens of their own experience, which is normal but not always conducive to good policy. I assert that you see nothing but possibility in the digital age and only obstacles in systems like copyright. This makes sense from your point of view, but I would encourage you to recognize that opposing points of view are not merely stuck in old habits or a just bunch of big corporate monopolists.

    • David Newhoff says:

      One thing I will add, however, is that the world I know best is the film business. This is historically the most derivative of all the media, especially the mainstream stuff. Yet in over 100 years of expansion and development, copyright has not really stymied progress in any significant way. More to the point, just about every film that has ever moved me emotionally (likewise the ones that are critically acclaimed) are the ones that are the least derivative. It’s a funny contradiction taking place right now. Indie artists (in film anyway) sometimes think copyright is a barrier even though the work they want to do is so original that this doesn’t make any sense. There’s a weird set of disconnects happening in the broad dialogue — people complaining about Hollywood’s mainstream stuff, but viewers want to see mainstream stuff for free, and some fledging artists want to create derivatives of mainstream stuff while criticizing the big industry for doing the same thing. None of it makes much sense to me. You can’t write a story for sale using James Bond? So what? As Monkey said, you can still write a story about a British spy with your own twist, and that’s what should be done, if for no other reason than Bond is a cold-war character whose time has really come and gone; and we only need to look at some of the neo-Bond films to know that the franchise has in some ways beaten this dog-eared character to death. It seems to me if you have a new spy who is a relevant metaphor for our times, he can be named just about anything, no?

      I’m writing a new script right now without the slightest thought that I might run into a copyright infringement problem. There is not one story I can think of working on that would raise this issue. The medium of cinema is highly derivative, ritualistic, and formulaic; but there are as many unique possibilities as there are individuals who wish to give a go. Copyright provides the legal framework to allow this to flourish, not the other way around.

    • monkey says:

      I’m not sure what’s so wrong with what you call “barcode stripping.” The point remains that you can write your own James Bond, just don’t call it that. As well, Dracula’s copyright did not prevent others from making vampire fiction and movies. Your argument seems to be that stripping the names somehow makes fanfic less valuable, both artistically and even financially. That implies that the IP has value, so why not have the original creator or their family benefit?

      Your examples of Twilight and 50 Shades show the reason for copyright, because if James had published it with Edward and Bella the only way she could benefit from it is through copyright.

      As for things entering in the public domain, I’m sorry, but ive witnessed this personally. There are publishers who do nothing more than reprint old material, often with little regard to content. Hell, there are even publishers who print “guidebooks” on different subjects that are nothing more than wikipedia articles. These publishers operate on a low cost model, and that does not leave room for paying the author. It will do nothing – nothing – for authors to eliminate copyright.

      Finally, about MegUpload: the legitimate users (and let’s face it: there’s very little evidence that the split would be 60/40 in favour of legitimate users) would be victims of MegaUpload, not an unjust law.

      • M says:

        Oh please. MegaUpload was a victim of an out of control government prosecution and delusional elements in the content industry. Much like Aaron Swartz was.

        I always find this “guilt by association” argument fascinating. If cloud storage providers are liable for what their users do with the service, why aren’t more entities involved in the profit chain liable? Why not send the anti-terrorist force to arrest the data center staff? How about the company that produces the servers? How about the company that producers the hard drives? How about the electric company providing service to the data center? They are all profiting, they must be punished!

        Why stop there? Sites like MegaUpload are just small layers ontop of the capabilities of the web and the Internet itself. Really, as far technology ingenuity goes, there is nothing hugely special about transferring and storing files as a service. The 99% complexity belongs at the lower layers. So, why not arrest the developers of the Internet, who’s open technology is a bigger component of sites like MegaUpload, and without, this would not be possible? Unless you think Kim Dotcom is a genius computer scientist and could have reinvented all the complexity involved in packet switching and resource discovery simply to run a trivial file sharing service on.

        Let’s just generalize this better. Lets arrest anyone and everyone who did business with the entity that does business with the entity that does business with on a service where some people did bad things, times infinity.

        Or is that just a “sounds like a plan, but we aren’t there yet (need to build more jails)”?

      • David Newhoff says:

        I’m sorry, but I find that position purposely myopic. Kim Dotcom made millions by exploiting people. There’s no gray area there I’m willing to entertain even for a moment. I’ll discuss ideas and big issues, but I won’t equivocate on the premise that piracy is criminal and extremely harmful. As for the larger view you espouse, it is certainly your prerogative to believe the government and content industry are hand in glove in a grand conspiracy, but I think that is a misread of the landscape and one than is blinding people to actual threats in the world. Of course, we’ve both said these things before.

      • M says:

        Exploiting who and how? He ran (and still runs, as of a week or so ago) a file sharing service, basically a website where you can go and upload any file you want to share with as many people as you want.

      • David Newhoff says:

        Have you read my recent posts? You know what my answer will be. MegaUpload did not make money by providing free storage for people’s personal and business files. That would be a stupid enterprise because it could never make money. People “shared” ripped and stolen motion pictures, music, books, games, etc. in the millions so that millions of users could download these things for free. Dotcom made millions of dollars from the traffic and thus the advertising revenue. So, the exploited would be EVERYONE who performed work on the creative products being used by Dotcom to make money. Like I say, there really is nothing you can say to me in Dotcom’s defense that I’m going to take seriously. I want to have polite discourse, but my courtesy does not extend to the Dotcoms of the world. These are straight-up pigs who trade in unpaid and involuntary labor. Put it this way, Al Capone provided more of a service than torrent and pirate site owners do. Capone was a cold-blooded killer, but at least he wasn’t stealing from Canadian whiskey makers, and he was providing something people couldn’t get legally at any price.

      • M says:

        Dotcom provided a service that allowed anyone to upload a file and share it with other people. It’s basically, a pull version of e-mail (and yes, e-mail can be used to share illegal information).

      • David Newhoff says:

        Sorry, that’s a technicality that has been tried and ruled upon by the courts already; and I wholeheartedly agree with the courts. You want to claim that the innocent are being swept up with the guilty, but I don’t see anyone as particularly innocent here other than a minority of people who maybe used the legit front being put up by MUL as a storage locker. It sounds nice to say “share with other people,” but the profitable part of what was being “shared” did not belong to anyone doing the “sharing.” I am not entitled to share the contents of your liquor cabinet with my friends, but if I did, it would be less of a crime than what MUL was doing. (I’m on a booze thing tonight) I honestly cannot fathom how anyone can see this any other way. I understand that belief is a powerful force, but I don’t understand thinking this particular matter of torrents and piracy through and coming to the conclusions you do. It is, of course, your right; and millions of citizens may well be determined to invest in the Dotcoms of the world the status of visionary or even freedom fighter. For me, I am confident that this is pure folly, just as I am sure that my gun-rights activist neighbor is no freer with an arsenal of AR-15s than he would be with one pistol or than I am, apparently incarcerated by own lack of firearms.

      • M says:

        It’s literally just a service anyone can go and upload a file, get back a link they can then share with other people to download that file. That’s what the site offered (and what the new site offers, with some added features).

        You can go to mega’s website right now and trivially upload a file from your hard disk. They’ve made it incredibly obvious (right on the front of the home page) and simple this time around, I suppose. Certainly he has improved his web design significantly.

      • David Newhoff says:

        No. It’s a tool for committing mass copyright infringement. But let’s stop going in circles.

      • M says:

        That’s really strange, because I just uploaded a file to MEGA right now, and got back a link as I described..

        Here is the file I just uploaded, “For David.txt”:

        https://mega.co.nz/#!J0VzkASb!cmAx217wg58ud0Yr9kCRsgwK9pEFfp5sKKX_jv9DaTY

        You could download it if you wish, I’m pretty sure it contains no illegal information.

      • David Newhoff says:

        I’ve already answered this. Just because these “services” can be used for legal exchanges, that’s not what makes the thing its money. You’ll forgive me, but I’m signing off soon and WP still refuses to allow comments to appear without moderation. One of these days, I’ll have to find the two hours to figure out why.

      • David Newhoff says:

        But before I go, I failed to mention that I’ve been in the video business for like ever. As such, I send and receive a lot of big files. Presently, I use YouSendIt, Dropbox, or private FTP servers. None of these easy-to-use services offers me lists of stolen movies I can download next to ads with scantily clad chicks meant to entice me to go to other websites selling mail-order brides or apps or other sites of diversionary interest. None of that. Just interfaces for securely uploading big files to my colleagues.

      • monkey says:

        They’re not “guilty by association.” They’re victims of Dotcom (as well, I can’t see why they can’t get their data back).

        But if you, say, invest in a company that turns out to be fraudulent, you’re not going to jail but you’re probably not getting your money back. That is no reason to not prosecute the business.

  14. monkey says:

    Also,there is an elephant in the room here: Google, Facebook and even MegaUpload succeed based on their own IP, namely their programming. Where are the Information Wants To Be Free zealots trying to liberate the most valuable IP on the planet, namely the Google algorithms?

  15. Patrik says:

    M Wrote: “Exploiting who and how? [Kim Dotcom] ran (and still runs, as of a week or so ago) a file sharing service, basically a website where you can go and upload any file you want to share with as many people as you want.”

    Either you have no idea how Megaupload worked, or you’re purposely ignoring the true nature of the business model because it doesn’t square with your agenda of ‘sharing.’

    Megaupload had an affiliates program. Since you’re the tech/science/humanity’s savior-type guy, I presume you already know what this means, but I’ll lay it out. If you joined MU as an affiliate, then you could make money based on the amount of times your particular files were downloaded. Basically, you were employed by MU to draw users to your files, or more specifically, to the *ads* that ran alongside your files, and in return for bringing in more eyeballs to view the ads you received a share of the ad revenue. On one hand, this *could* be a boon to musicians, if they were popular enough that their own files attracted enough people to actually make more than a penny. Unfortunately, the kind of artists this could help don’t have nearly the audience to make this a viable profit scheme. Even a very popular artist would still be limited only to her specific recordings, thus denying her the scale needed to actually accrue any substantial income.

    HOWEVER, if an affiliate uploaded, say, the new Hobbit movie, he could actually make quite a bit of money from the millions of freeloaders seeking a rip of that movie. And if he could also upload hundreds of works created and funded and *marketed* by other people, he could leverage scale that he has no legal right to in order to make more money. The money was not small change either, especially considering that the uploader is not on the hook for any of the production costs that actually funded the movie into existence. Ellen Seidler’s blog has photos of forum conversations where affiliates posted their payment records and some of them were making in the tens of thousands of dollars.

    http://popuppirates.com/?p=1810

    I don’t think that fits anyone’s definition of ‘sharing,’ regardless of how liquid the meaning of the word has become these days. MU’s “business model” bordered on inducement to commit a crime.

    As for the legitimate files of those users who decided to go into business with a criminal enterprise, I’m inclined to say “tough cookies.” “Buyer beware” isn’t just a cute case of alliteration. If those users who lost their files don’t think that’s fair, then I suggest they look into the Bernie Madoff scandal and remember that these days, you always vet your business partners.

    All the uproar over the supposed legitimate files on MU would ring a little less hollow if these same people could be bothered into a tizzy about all the other instances of this same thing happening in the meatspace. Assets merely involved in the commission of a crime are seized all the time. It’s standard procedure. For example, the owner of the theater in Colorado where the shooting occurred during The Dark Knight. That theater only just reopened a couple of weeks ago. The owner, who had nothing to do with that crime, lost his ability to do business as well as losing any income he stood to make during the closure, not to mention the employees who found themselves out of a job, all because his property had become a crime scene through no fault of his own. (Which leads to me wonder if there’s insurance against things like mass murders causing a closure?) Also, as a corollary to the piracy discussion, consumers were denied entertainment options. (Oh, the HORROR!!!)

    And besides all THAT, another thing that people should always remember in this day and age: if your file doesn’t independently exist in at least THREE separate locations, it is no more permanent than a breath in the breeze.

    • M says:

      So because he paid people who upload content to the service, like iTunes, YouTube and many other services do, he’s criminally liable? You are proof that all the content on these services are totally kosher under copyright law?

      Keep painting MegaUpload as some kind of criminal enterprise but the fact is, there are THOUSANDS of websites that I wouldn’t even say have a vaguely similar business model, but an IDENTICAL business model. They weren’t original or unique at all.

      Dotcom’s “crime” was that was fat, arrogant, and flaunted his cash. Oh and he didn’t “buy” the required Congresspeople^H^H^H^H^H “lobbyists” required to do business in the United States. He’s learned his lesson I’m pretty sure. Better luck next time, Dotcom.

      • David Newhoff says:

        M, I’m not sure why you would pick this blog of all places to assert that iTunes is the same model as MUL, when it so absolutely is not. A user of iTunes cannot upload content to which he does not own the rights. In fact, a content owner actually has to spend some money and effort to be able to distribute via iTunes. You can’t just upload at will. YouTube is a completely different model — a mix of legal content, some of which is popular enough to earn its owners a share of ad revenue; a ton of just stuff; and a healthy measure of illegal content with varying degrees of monetization from zero to quite a bit. We can’t have an engaging dialogue here, if we’re going to go in circles on things that are simple matters of fact.

        Also, not for nothing, but the Web industry outspends entertainment on lobbying by a considerable margin. Also, not a matter of opinion.

        What is a matter of opinion, of course, is that Kim Dotcom’s crime is being fat and obnoxious. I’m pretty sure we’ll be going after the skinny, good looking, and charming online pirates, too.

      • M says:

        “A user of iTunes cannot upload content to which he does not own the rights.”

        That’s questionable.

      • David Newhoff says:

        That is a classic creator v creator dispute, the kind that has been going on since before Steve Jobs hacked his first telephone line. It has nothing to do with what we’re talking about or the design of legal distribution systems like iTunes. This isn’t some game of semantics and half-baked technicalities. The lines between legal and illegal models are very clear, very sound, and have the weight of court decisions supporting them. You’re really not going to make any progress in this forum trying to demonstrate shades of gray between an iTunes and a MegaUpload. There is no comparison between the Glee case and some random user ripping a DVD of Xmen or whatever and uploading it to the torrent universe. To suggest otherwise is ridiculous. Did you read my last post equating this kind of exploitation with slavery? I’m not in any way kidding with that language. Does it sound like I see any gray here?

        Again, I welcome opposing points of view, particularly those based on personal experiences and expertise, but this line you’re pursuing begins to sound like you just want to believe what you want to believe regardless of the facts. Argue that Kim Dotcom is a champion of free speech, and we’ll disagree philosophically. But argue that MUL and iTunes are the same business model, and there’s really nothing to discuss because it just isn’t true. So, we end up with this “yes it is/no it isn’t” exchange that’s kinda going nowhere.

      • M says:

        Creator vs creator? What did Glee create exactly?

        Tell me David, what exactly stops someone from uploading a track to iTunes that they don’t own the copyright to? Does Apple have the mysterious isCopyrightInfringement(D) algorithm?

      • David Newhoff says:

        There’s nothing mysterious about it. Read the process for distributing via iTunes. Go ahead and rip a DVD and try to upload it to iTunes. In fact, try uploading your own video to iTunes. You won’t be able to do it. iTunes requires a whole application process that includes verification you have the rights to what it is you hope to sell via their service. Why am I telling you what you can look up for yourself?

        Glee’s producers created a show called Glee. There are always authors, etc. with claims, both legitimate and illegitimate, that someone has boosted their work. This case, like all that have ever been or will be in the future, will be sorted out through arbitration or in a court. I hope it’s decided fairly, but it has nothing to do with the illegality and immorality of MUL.

      • M says:

        It _is_ shades of gray. There is no black and white here in copyright law, or in this debate. There is no totally illegitimate services or totally illegitimate. Even monkey over there admitted that people used MegaUpload for totally legitimate purposes.

        There is no magic bullet to enforce copyright. I see a constant attempt to frame this debate as a debate of absolutes, and a constant attempt to ignore the supreme difficulty of determining copyright infringement that not only services like MegaUpload have, but ALSO “legitimate” services like what Apple and Google offer.

      • David Newhoff says:

        Nope. I think I’ve made it abundantly clear that on the subject of torrents, pirates, etc. I see no shades of gray whatsoever. I’m unwilling to bend on that point and think Kim Dotcom deserves prosecution. And no magic bullet is required to address the issue of online piracy, although we can simply take the laziest and most selfish possible attitude toward it today and pay the price in the future.

        Copyright as a whole system is another matter and one that is far more complex than simply addressing online piracy.

      • monkey says:

        Seriously?

        Whether you like it or not, Glee created a new audio track that ripped off Coulton. To compare that to uploading whole movies unaltered is beyond disingenuous.

        It’s possible that some bad actors are uploading stuff they don’t own to iTunes. However, they do so with no knowledge from ITunes. Can you really not see the difference?

      • David Newhoff says:

        It’s pretty hard to upload stuff that isn’t yours to iTunes and may be impossible. For sure it’s impossible to just upload at will. iTunes sells products like any retailer. It is, therefore, liable for its supply chain.

      • M says:

        I’m not going to argue with about how great piracy is, or how technologists want to screw the creators, how pirates are “sticking it to the man”, or whatever. Those are simply pointless misconceptions that I don’t care to endlessly debate.

        I want to find a real, workable method for ensuring creative people can get paid. If that is “enforcing copyright better”, then explain how to enforce copyright better. I’ve dedicated a lot of time in showing that copyright CAN NOT be enforced better, I’m 90% convinced it is not possible. But that’s only because I have yet to see anyone argue the contrary opinion in any coherent manner.

        From the pro-copyright crowd, it’s always something about the attitude of pirates (piracy doesn’t just hurt the man, or piracy is theft/terrorism/some other nasty thing) or arguments about validity of copyright itself (copyright is not a monopoly, copyright is not scarcity, but if it is, scarcity isn’t bad, read some post from guy 200 years ago, he liked copyright! etc. etc.). Even if I didn’t agree with that stuff (and I don’t totally disagree), it doesn’t matter. The politicians in power agree with that stuff, there is no need to convince anybody about the validity of copyright or how piracy is bad. It’s just a waste of time.

        You don’t need to convince me that copyright is a good idea, or pirates may often have stupid justifications for piracy. Lets assume that is just fact.

        When I’m interested in sane copyright enforcement, one that doesn’t take the view that anyone building an Internet business is an adversary.

        Go ahead and blog about your solution to online piracy. I’ve yet to find one that I feel would actually work, short of “disable the Internet”. While you are at it, explain in TOTALLY OBJECTIVE TERMS, what makes a file sharing service illegal. Congress can’t seem to do that, but that’s not saying much, right?

      • David Newhoff says:

        Obviously, you’re asking questions with a variety of answers; and if you’re legitimately looking for a way to see workable copyright in the digital age, I’d ask how much time you’ve spent really listening to the pro-copyrigtht community beyond assumptions about the MPAA, etc.

        That aside, though, there are legal, cultural, and political aspects to the whole mess; so it’s never just about a mechanism or a law because the law has little value if people don’t support it. A legal scholar I was talking to in DC recently said that (and I’m paraphrasing) law is about what isn’t dynamic, what we as a society agree doesn’t move (e.g. I bet we’ll keep homicide and shoplifting in the criminal column). So, we can’t have a debate about mechanisms when we’re literally debating the rightness or wrongness of an enterprise like that of a Kim Dotcom. I and others say that his business is dedicated to profit by infringement and, therefore, easily deemed illegal. In fact, there is legal precedent for this with Napster, Grokster, etc. So, it’s not quite so gray as you imply.

        What to do about it is the second question, but not one that can be answered when people try to bring the conversation back to the question of rightness or legality in the first place. That’s the shell game that’s taking place. Say stop the pirates through legislation, and the opposition cries “free speech;” say stop it through technology, and the opposition cries “can’t be done;” say stop it by going after advertisers and payment processors, and the opposition says, “it isn’t illegal, it’s good for creators, it’s innovation, etc.” So, we go right back to step one.

        So, if you’re honestly looking for sanity in enforcement, you have to decide what, if anything, is not a moving target (i.e. what we agree is illegal). In totally objective terms, you can call MUL a “file sharing service,” but the objective fact is that description and claim is merely a front for the profitable side of the business, which is mass infringement and has been defined by precedent as illegal. The mechanisms are another matter, particularly when the infringers are based in foreign countries.

        So, if you’re saying, “I’d stop piracy if I believed it were possible,” that’s one thing. If you’re saying, “It’s not clear “file sharing” in this context is illegal or even harmful,” that’s a completely separate matter that negates the question of how to stop it. It’s too oversimple to just look at a complex, 200+ year-old system and say, “It doesn’t work, we should change it” without first agreeing on what doesn’t move.

        While I know I’m stepping into it here, if you look past the hype (and I am not the only person to say this at all), SOPA was a remedy that was heading in the right direction because it really was focused directly on foreign-based, infringing sites like MUL, TPB, etc. But the Web and tech industry got hold of that bill and transformed it into something it never was. Read Chris Ruen’s “Freeloading,” which contains unambiguous admissions by the instigators of how they tactically approached so-called “grassroots” protest. The utter dysfunction of that protest is half the reason I jumped into this battle in the first place — not just on copyright but on sanity in governance in general. There is literally no faith left in any system right now, and while people may think this is emancipating, I happen to think it just delivers society up to the highest private-interest bidder. Right now, that’s Google & Co.

        So, you may think I’m not directly answering your question, but it’s because we’re currently in an environment in which the question can’t be answered, which worries me more than anything. In a nutshell, we can only have a sane conversation about modern copyright when sanity returns to the room. Hence I focus on cultural assumptions being made by the next generation — things like “piracy sticks it to the Man” or “piracy is good for culture” or “copyright stifles innovation.” All this nonsense has to go away before we can have a sane dialog about what does and doesn’t work in real terms, but we have more than a decade’s worth of accretion and animosity to cut through. I’m not extremely hopeful but do have a penchant for tilting at windmills.

        I will add, though, that I think it’s a very bad mistake to lump all Internet enterprise into one thing, as though an attack on an illegal Web-enterprise is somehow an attack on the entire Internet itself. That doesn’t make any more sense in cyberspace than it does in the physical world, and it is a misconception we have to get past. If we’re going to treat the Web as this extension of society, then it has to be a functional extension. That means law enforcement against uses of the Web that are harmful, and these exist to commit crimes more serious than copyright infringement. That’s part of the reason I think it’s so dangerous to treat all things Web as somehow sacrosanct.

      • M says:

        You don’t see it, but you guys are fabricating the controversy around copyright to begin with. I sit here and I read of the pro-copyright bloggers defending copyright with these huge essays, I can’t help but get the impression that copyright is controversial. Copyright was NEVER hugely controversial. Do you see people writing these huge treatises about shoplifting? Bank robbery? What do you need to spend to much effort “justifying” copyright?

        So get to the point. You think copyright enforcement isn’t working, come up with a solution to make it work. I want real solutions to this problem. You can’t convince people that your solution is acceptable? Well sorry, that is democracy. You have to have a solution that works and is acceptable to a large number of diverse stakeholders, it’s not optional.

        You can’t do that? Well abandon hope, because you have none in this fight. That’s life. Change your occupation to one level less than Kim Dotcom, wherever that is (it’s not clear were the law stands, and nobody wants to make it clear, which obviously will lead to corruption), and bask in your Olympic sized jacuzzi (just don’t post too many pictures on Facebook). Or just be the old man that yell at clouds all day. I like a lot of your blog posts, especially ones that read like you actually have a real interest in futurism and the consequences of technology. But sometimes when you have concrete problems and piracy you need to come up with concrete solutions if you want to win.

      • David Newhoff says:

        I appreciate that you like the broader posts about the direction of technology, but I have to say that I see the copyright battle as a component of that subject. In fact, one of the reasons copyright interests me is because it is central to how we make decisions about law, culture, and technology. Copyright has served as a tool for some of the most important free expression ever to emerge, and I happen to think it’s careless just to toss it aside because a bunch of 16 year-olds like to get their music for free. It wouldn’t be the first time my fellow countrymen have the foresight of moles. I remember how the majority had a good laugh along with Reagan when he took down the solar panels Carter had put on the White House in order to make a point about the importance of investing in alternative energy. Ha! Preposterous! I bring it up because Reagan’s “take now, pay later” approach reminds me a lot of the free culture crowd.

        I’m not sure what to say about the accusation that the copyright battle is fabricated when hosts of activists, bloggers, lawyers, etc. are arrayed in a well-funded assault on the law itself. You may be right that society will decide, in its usual half-assed reading of the landscape, that copyright is obsolete and that there is no point in bothering to discuss it. I believe that will be mistake, and I stand by that belief. I’ll turn your argument around. I can show you how copyright has created wealth, jobs, and cultural diffusion. Show me how it’s stopping innovation with an honest definition of that word. Innovation has to involve real growth, job creation, tax revenues, etc. It can’t just be some whimsical theory.

        Still, with piracy it isn’t exclusively about a single mechanism. I think of it as more akin to environmentalism — an challenge that requires a combination of law, technology, and public will. So, yes, I think there is value in talking to the generation that uses torrent sites with regard to their cultural and moral perspectives. I will say there’s nothing I write on that subject that I wouldn’t say to very close friends in that age group and who I know to be users of these sites.

      • M says:

        And more into the black and white thing, there is no contrdiction between:

        “I support copyright, but I don’t support the government maintaining a blacklist of websites that people can’t go to.”

        “I support copyright, but I don’t believe in mass monitoring the population to find copyright violations.”

        “I support copyright, but I don’t support condemning a single mother and her child to a lifetime of poverty because she got convicted of sharing 24 songs online.”

        The amount of people who have the following ideas (and don’t consider them hyperbole) are MUCH higher than the people who flat out don’t support copyright. In fact, even from the people who don’t support copyright, the reason they don’t support is apathy from copyright enforcement.

        There is this obvious cognitive dissonance between pro-copyrighters, who are all about COPYRIGHT.

        And anti-copyrighters who are mostly about COPYRIGHT ENFORCEMENT. Go read up some Techdirt articles, there might be some philosophical arguments against copyright every now and then, but 99% of the arguments are along the theme of “copyright enforcement running amok”.

        Maybe because it’s just really really hard to justify copyright enforcement, and easy to justify copyright, and I agree with that completely. It’s a lot easier to justify copyright without bringing up enforcement, but unfortunately, the whole copyright argument ends up being a red herring that most people can see right through these days.

      • David Newhoff says:

        I think if you want to find a sane approach that you might want to test some of the assumptions inherent in those statements against other rational voices you’d consider the opposition. For instance, you won’t find many defenders of RIAA lawsuits of 2003, etc., but let’s move on and talk about reality 2013. I happen to think TechDirt is smug, obnoxious, vague, and utterly in the service of the Web industry, which is why it spends a lot of time doing exactly what you’re accusing me and others of doing — fabricating demons in the copyright war. Most of what they point to is either anomalous or just plain wrong. They’ll find any opportunity to show you the bogeyman in the industry or the government, which is laughable in contrast to the insidious nature of the very industry they serve.

      • M says:

        In the clarifying the law thing is extremely important. As it stands today, there is no way to know if I start an Internet enterprise, that I will be violating the law. You can be like, “don’t make MegaUpload”, but what attributes of MegaUpload were illegal?

        The presence of illegal content? Well shit, put the entire Internet population in jail.

        The ability for people to publish content? That would put pretty much every Internet company in the level of illegality. Twitter, Google, Facebook, Tumbler, Wikipedia, you name it.

        Not doing enough to stop piracy? They wen’t above and beyond the DMCA, and allowed copyright holders direct access to remove files with no opportunity for the users who owned the files to counter-notice. And shit, I thought all I had to do was support the DMCA, not something with nothing even resembling due process at all. Maybe make this practice of allowing content holders to arbitrary remove files from providers through extra-legal means illegal. But somehow I doubt this was the reason.

        Higher a bunch of lawyers and accountants to vet every file someone uploads? That doesn’t scale at all, I don’t think even giants like Google can afford that.

        Have good web design? Yes, MegaUpload _looked_ seedy. I won’t deny that. The web design looked like something from a shitty hacker movie. It made the site “feel” illegal. The new Mega new clean startup-approved HTML5 based design doesn’t have that. And impressions are everything. But that’s a silly thing.

        Don’t flaunt your cash with stupid pictures of yourself doing expensive things? Sure, but again, silly as hell. If I’m legitimate, I should be able to do whatever I want.

        Only advertise major and respectable brands? See above.

        What am I missing here? If you could add some ideas that would be great. Although you aren’t Congress or a judge, having ANY clarification what-so-ever would be great.

        Because without a coherent legal system, you have a system that easily bends to corruption and the will of big corporations. This is a situation where I think Google and Facebook with their high powered lobbyists absolutely love, but little tech startups do not.

      • David Newhoff says:

        Actually, the definitions used are much more narrow than that, and you’re repeating the Jimmy Wales fallacy of the SOPA blackout day. It has nothing to do with appearances or “seediness.” You can produce and distribute legal, non-exploitative, adult pornography that offends 80% of the population if you want. Totally legal, protected by free speech, etc. even if it offends lots of people.

        The vagueness to which you refer simply doesn’t exist except as political maneuvers by Google, etc. who want to promote a very different agenda and, frankly, a very different world view. Still, Napster was shut down, and yet the Web and free speech continue to exist. To say that we can’t thwart a KickAssTorrents without threatening Facebook is a fallacy. If they’re beyond the reach of the USDOJ, that’s what SOPA was meant to address. It was very targeted and narrowly written. It was killed by an industry on false grounds used to scare a public that didn’t know what the hell it was protesting.

        So, a new specific? As per my last post and much of the focus of the Trichordist, we’ll focus on US advertisers whose money is going into the pockets of these site owners. This requires no legislation has nothing to do with Facebook or Twitter or even YouTube. It’s simply reaching out to business leaders and saying, “Hey, your advertising is exploiting American workers in other industries.” If we slow or stop the cash flow to the pirate sites, they cease to have a reason to function. Of course, much of their cash flow comes from other, utterly seedy enterprises, but that’s a subject for an upcoming post.

        Legal systems are always subject to corruption, but corruption is even more insidious when it masquerades as populism. That’s what I think we’re looking at here.

        (Apologies, but I’ll be away from the computer for a while.)

      • M says:

        So you are just going to dismiss the concerns of THE ENTIRE TECHNOLOGY INDUSTRY as irrelevant or fake and that’s that?

        Remember what I said about democracy? You can’t play this game of demonizing every big player in technology and pretend they have no valid arguments. By doing this, you are validating everything Techdirt says about the content industry.

      • M says:

        @David,

        I’d also appropriate you’d answer the question. Suppose I have a file sharing website right now on website and I’m one click from hitting the “publish” button. Typical stuff, people upload files, and are able to share them with other people.

        What would I need to do to ensure my site is legal? Is there any set of legal guidelines anywhere an Internet enterprise can follow? How do I become Facebook and not MegaUpload? Shouldn’t this sort of thing be simple?

      • David Newhoff says:

        It’s false to characterize what I’m saying as demonizing the concerns of the entire tech industry, but if you choose to see it that way. Your choice. I think the tech industry deserves as much scrutiny as any other.

        As for the difference between FB and MUL, it looks pretty simple to me. I don’t see anybody talking about indictments against Zuckerberg for copyright infringement, do you? Seems to me you’re inventing a confusion that doesn’t really exist. YouTube would be a better example, but I really am leaving the computer for a while, and YouTube is a whole other can of worms. There is, however, a difference between casual infringement and dedicated to infringement. That has been defined and is, perhaps, still being defined. But it doesn’t take a legal wizard to tell the difference between Pintrest and Torrentz. Look at the language used in Napster or Grokster for guidance.

      • M says:

        What _is_ the legal difference between PInterest and Torrentz? I am not trying to be coy here, it’s not inherently obvious to me. What makes what Torrentz does illegal, and what PInterest does legal?

        Seriously, just articulate the difference. If it’s i
        nherently obvious it shouldn’t be difficult.

      • David Newhoff says:

        This non-lawyer’s answer is that Pintrest is not a conduit for free downloading of songs, books, movies, etc. that are supposed to be paid for even if some of the material up there does technically infringe copyright. The enterprise causes measurable harm to those who have produced those products. You don’t go to Pintrest and find – “Captain America” DVDRip Codec x and so on. That’s not sharing, that’s stealing and was defined as such in the case against Napster. For a lawyer’s answer, I’d recommend Terry Hart, Chris Castle, Bill Rosenblatt, etc.

      • M says:

        “This non-lawyer’s answer is that Pintrest is not a conduit for free downloading of songs, books, movies, etc.”

        And photographers are chop suey these days right? So what you are saying, as long as my service only could facilitate the infringement of the works of photographers, it’s kosher. It’s like like photography is any hard or anything, especially professional photography. Right?

        Do you want me to show how trivial it is to use PInterest to violate photographers’ copyright? I would call the majority of stuff on PInterest a violation of their copyright as is. Unless you think all the crap people scrape from the Internet is their own work.

      • David Newhoff says:

        No, I think Pintrest is problematic and deserving of scrutiny. I do not, however, believe it satisfies the legal definition of “dedicated to infringement.” The sharing is a challenge, but it also the kind of sharing that I think is unstoppable. That does not, however, justify a conclusion that MUL et al are the same thing and likewise unstoppable. I feel very bad for professional photographers in the digital age — ditto serious journalists — but this strays into a larger discussion of the pros and cons of the Web in general beyond just matters of copyright.

    • M says:

      They are a pirate site because they “X”.
      Or they aren’t a pirate site because they “Y”.

      X or Y, that’s all I need.

  16. M says:

    David,

    Do you think it’s fair that every time you produce something as a filmmaker, you basically have to consult a team of lawyers (who still can be wrong) about the inherent legality of what you are doing? That if they are wrong, you could have anti-terrorist (anti-blasphemy?) force drop down on your house and arrest you no matter where you live?

    Then why is it fair to hold software engineers to this standard? If you can’t give me a straight answer on how to totally stay within the confines of the law, that’s what you are doing David. And it’s incredibly unfair. And you just want to wave your hand and say it’s all irrelevant?

    This is the kind of stuff we had to deal with, for the last 15-20 years. We’ve had academics threatened for publishing research, that didn’t seem to agree with the authorities opinions of the law! And this is all fair, right?

    • M says:

      I’m not even asking for free speech or expression, which software __is__. I am a creator, and I deserve to write software and conduct research without being censored, no matter what you think. That would nice, but I’m not under any illusion that software engineers will ever get the same rights as musicians or filmmakers.

      I’m asking for a coherent legal system I can actually follow to ensure I can self censor my software to comply with your changing information restriction ideas. But, I can’t even get that!

      It truly is insane. I’m surprised you can’t see this. But yourself in the shoes of a software engineer, what would you do? Play Russian roulette and hope for the best? Hire lobbyists? Move to a country with better freedoms? What?

      • monkey says:

        Good grief, what could that possibly have to do with uploading unlicensed material?

        If you commit plagiarism or piracy, you are likely aware of it. If you make a derivative work and think you have a legitimate case that it is original, you can mount a Fair Use defense when you have your day in court. Plagiarism is civil law (I believe), piracy is criminal.

        Presenting something unaltered thats not your own and monetizing it is completely different. It may not be theft but its at least fraud.

      • M says:

        So explain why Google is still up? You want me to show how trivial it is to find ANYTHING with Google? Why is MegaUpload worse than Google? MegaUpload didn’t even have any search feature, how the hell could it even work as a piracy site without Google’s help? Google Google Google.

        Either you figure out some consistent, understandable way to separate the MegaUploads from the PInterests, Googles, Facebooks, etc. or you just start flat out admitting that the technology industry and the Internet needs to be shut down. Or you can just say uncensored search must go away, or Web 2.0 websites. Say something.

        I know some of you want the latter, or at least to shut down Google and maybe Bing if it gets big enough. You can admit it.

        You guys know the situation is braindead, that there are huge companies that are just as culpable if not more against your own invented standards. But outright coming out with it would make you look like a bunch of radical Luddites and you know it.

        But hey, it’s starting to come out. I even saw a recent article in the Trichordist that opted for “bombing the Internet”. That’s at least progress towards some kind of piracy control, right?

      • David Newhoff says:

        I’m still not clear why you don’t accept that the courts have made this distinction already. This is settled law, which is why none of the sites we’re talking about operate in the U.S. You can read the decision in Napster, if you’re looking for language.

        And Lowery has a biting sense of humor. I wouldn’t take the bombing thing too literally.

      • monkey says:

        Actually, Trichordist is suggesting hitting them (even google) where they hurt: ad dollars.

        And I ask again, only slightly facetiously: with their contempt for copyright (and they are anti copyright, not just enforcement) why doesn’t google make their own algorithms free?

        “Invented standards?” What does that even mean?

      • monkey says:

        And do you have a link to that Trichordist article?

    • David Newhoff says:

      Actually, your assertion isn’t true at all and it’s indicative of the way in which you seem to look at copyright exclusively from a proprietorial perspective. Most of the time copyright is just that — a right that is respected among creators, investors, etc. The opponents of copyright tend to make hay out of abuses in enforcement, which nobody I know disputes have happened. But to your basic argument, shall we throw out all the good copyright has fostered in light of really a handful of cases?

      I’m writing a script right now without the least concern about its copyright implications. If I want to write one called The Catcher in the Rye with a protagonist named Holden Caufield, though, I’ll have to deal with copyright. No problem.

      None of this, of course, has anything to do with addressing what are effectively leeches on honest business enterprises. Can we agree on that at least?

      • M says:

        So tell me what legal guidelines I should be following to ensure the software I write doesn’t break the law? Do I just hire tons of lawyers and hope for the best? What if I can’t afford expensive lawyers? Do I just give up writing software?

      • M says:

        Also just to add, the chances of you getting sued accidentally for copyright as a filmmaker are very small. If your work is largely original, you’ll be fine. It’s still a risk to be a filmmaker, because you could get accused of stealing someone elses work even though you didn’t, but since copyright protects specific expressions, the chances of this is extremely low.

        This is NOT TRUE for software. The kind of restrictions on what software you can create are much more extensive and more vague. You can write your code, line by line, totally by yourself, using your own ideas, and everyone everyone agreeing that is was your code.

        And you’d still get the anti-terrorist force rappelling off your house. All if you didn’t follow a legal system that nobody seems to understand, even high powered lawyers. It’s literally like playing Russian roulette. It’s not fair.

      • monkey says:

        “and you’d still get the ant-terrorist force rappelling off your house.”

        (Citation needed)

      • David Newhoff says:

        I won’t presume to know much about the software industry, although I have certainly heard complaints that sound reasonable. So, that industry can work toward a solution. As for your comments on film, what you’re referring to barely scratches the surface of copyright infringement, and I’m not going into all the permutations of rights etc. in that industry. Suffice to say, the remedies for claims to authorship are generally handled within the industry via arbitration in order to avoid lawsuits. Copyright generally applies to a whole movie, and almost the only ways to infringe on a whole movie is to either use a franchise you haven’t licensed (e.g. Batman) or make ripped copies and sell them in a black market.

        This latter infringement applies to MUL et al who are selling access to unlicensed copies in a black market paradigm. Just because the exhibitor doesn’t charge the viewers (and even goes so far as to get the viewers to steal the products being exhibited) this does not fool the courts that the stolen material is being converted into profit and harming the creators of the work. In effect a torrent site is converting volumes of stolen IP into traffic which is then converted into cash from ad sales. Facebook doesn’t do this; it hopes to convert social traffic into targeted ad sale dollars. YouTube is a little bit of everything, which makes it more complicated. The site unquestionably benefits from infringement, but there are questions as to how much, how often, and what we might expect them to do about it. That said, there’s no getting past the fact that Google would really rather skip the whole conversation and have the public come to the conclusion that copyright is outdated and a threat to the Internet, to innovation, and to freedom itself.

    • David Newhoff says:

      I don’t mean to ignore your software engineer question. I just really am running around with intermittent attention to the computer.

  17. Patrik says:

    M wrote:
    “So explain why Google is still up? You want me to show how trivial it is to find ANYTHING with Google? Why is MegaUpload worse than Google? MegaUpload didn’t even have any search feature, how the hell could it even work as a piracy site without Google’s help?

    Let’s go back to your problem with Pinterest and Facebook and them being like MU. Neither of those sites offer a paid option where a user can share in ad revenue for his pageviews in a totally unregulated and unmonitored environment.

    When you start to consider that anybody can monetize their traffic through Google’s Adsense program without any sort of oversight, or that third parties can unwittingly sublease their ad dollars out to pirate sites through channels that ultimately trace back to Google advertising programs, you might *finally* begin to grok the problem.

    And your constant concern over software design seems overblown. As far as I know, your fear is being treated like the people who have been prosecuted for running a service, not for the actual coding. Correct me if I’m wrong. Code all you want, but if you then plan to monetize that through soft promotion of illegal activity while you look the other way, expect repercussions.

    On another note, you seem to go on about democracy, but I don’t think you understand what that entails. Obviating laws unilaterally is not a democracy. Nor is doing so any kind of civil obedience. You want to change the landscape then you do it through awareness and legal channels. This American obsession with violent revolution over trifling issues is a sickness. You are more a victim of the Big Media message than you even realize.

    • M says:

      But Google does, and Google is not illegal, in fact, there are so hilariously not illegal a full blown multi-year federal investigation of their business practices revealed nothing of note. I’m sure you are aware of the FTC investigation.

      So what is you are saying in reality is that I can’t start a competitor to Google. That’s not a fair legal standard. But to be sure, I’m sure Google loves you. Patrik and Google, BFFs!

    • M says:

      It also reminds me a bit of DRM, the kind of self serving stuff tech companies sell to content companies (“to fight piracy”, which we all know DRM is pretty ineffective at). But it sure is useful in creating walled gardens so can lock their content on their own platforms, keeping people locked into their devices as their vendor-specific media libraries grow, giving the tech company more leverage against both the content producers and consumers themselves. You’re being bamboozled.

  18. Jennifer says:

    Sorry for taking so long to respond; stuff happened.

    Re Bond–There was an interesting comment by a professor who had been using the original Twilight version of 50 Shades of Grey to teach about fanfiction. This is what they said: “I think once you change the names, take it out of a community that shares characters and imagery, and present it for sale as a stand-alone novel (or three), it really changes the reading experience—and not necessarily for the better.” Essentially some fanfic can be barcode stripped and some cannot. Imagine, for instance, that you have a story about a poor boy “John Generic” with some curious abilities. The youngster is “discovered” by people with the same abilities and adopted; now he can be safe and well cared for at last. And he will go on to have great abilities. The end. That story would have a whole different significance if the character’s name was Anakin Skywalker, wouldn’t it? You can retell the Odyssey in such a way that it doesn’t refer to any of the characters or events in the Iliad. And the result is a worse story.

    I also find that having a “common folklore” creates new opportunities for storytelling. Have you noticed how TV series get “deeper” in the second and third season, with more digging into the characters? Episodes can also be made more humorous and complicated because the audience knows what to expect from the characters and understands why a situation is so ironic or absurd. (Everyone knows that Indiana Jones hates snakes. So it’s funny that his son fears scorpions.) By contrast, each nonderivative work must stand alone, and therefore must be a swiss army knife where characters are introduced from scratch, their plight is explained, the rules of the universe are laid out, and the plot progresses to a finale. With fanfic and later season TV shows, the characters and universe are already defined, allowing a creator to simply focus on a goal like “solve the mystery” or “delve into the backstory.” Rather than being a swiss army knife, a fanfiction is a single devoted tool focused one particular aspect of a story. This also allows for faster-moving plots, which is particularly handy for action and adventure writers.

    Another interesting thing about fanwork is that it keeps a work of fiction ever young and relevant. One 80s TV show I know of has an growing fan community despite the fact that new episodes haven’t been produced for over 20 years. The original TV show had the characters using floppy disks and worrying about the Soviets. Modern fanfics have the characters using internet and worrying about terrorists. (In fact, there were a number of fanfics where the characters react to 9/11.) Derivative works thus allow authors to comment on the events of their time. In a similar way, I recall one Sherlock Holmes series set during WWII where Holmes helped catch Nazi spies. The intro started off, “Holmes is an immortal character…” Why did they use Sherlock Holmes rather than a generic detective? Easy, because everyone knows and loves Holmes already–he’s a national icon. A generic substitute simply wouldn’t have the same meaning.

    As for the public domain, the fact that publishers are cheaply distributing Wikipedia and other writings is proof that the system _works._ That’s what the public domain is for–to make knowledge and art cheaply accessible to everyone. Today I wanted to read a book that could have helped me fight a major medical condition which may very well kill me someday. The book was put out five years ago, and obviously it’s not in the public domain like the European Pirate Parties would like it to be. No, it’s still copyrighted and selling for $14 per e-book. I couldn’t afford that, so instead I read some free articles on the book’s website and browsed what I could via clever manipulation of Amazon’s “Look inside this book” feature and the Google Books summaries. If someone owns property that contains a river, and there is a drought, he is still perfectly within his rights to prevent people who are dying of thirst from trespassing on his property. Isn’t he? Copyright is quite literally killing me. And no, I didn’t steal a copy of the book.

    The internet could let us build the greatest library in the history of mankind, which would have immense benefits for scholarship and make opportunities for *everyone*–not just those who can afford to pay. By holding back universal access, our enormously prolonged copyright promotes ignorance and all the evils and suffering that come with it. The reason the public domain exists is to benefit the public. It doesn’t seem to be doing that anymore. A copyright of five years allows creators to reap compensation for awhile–I support this, by all means!–but not forever. A short copyright is the way it should be.

    Fair use is a joke. The courts have made so many fine and tenuous distinctions that nobody knows for sure what counts. As for getting copyright permission, it’s a major hassle–and thus I use copyrighted snippets in my book without permission. It’s obviously fair use, but will that matter when I’m stuck paying legal fees to defend my rights in court? I’m just hoping that I don’t get caught by copyright gestapo. Security through obscurity.

    Re Megaupload–I recall an interview with Kim Dotcom at some point where he claimed that 50% of the files that were stored on Megaupload were either downloaded 0 times or 1 time (I can’t remember which). This to me suggests “substantial noninfringing use.” All those people who uploaded seemingly legal files clicked ads too. And don’t forget that Megaupload allowed people to buy premium accounts. Bottom line is that I won’t believe any claims that Megaupload was purely a pirate site until I see numbers to prove it. Also, the Napster decision that 99.9% of use must be noninfringing was unrealistic on the court’s part. And I’d have to agree with M that copyright infringement is rampant on social networking sites. Pretty much every user steals a copyrighted photo or artpiece for their avatar. Furthermore, as Facebook et al get more advanced and file storage/upload/download become easier and cheaper, people *will* start uploading movies to Facebook. It’s only a matter of time.

    But I really didn’t want to argue whether or not Megaupload is or should be illegal. Point is, what about all those millions of legitimate users who got their property taken away in order to save the property of artists? Is it good policy to please 10 artists at the cost of alienating 1,000 average people–who vote? At this rate creators will rapidly expend the goodwill of the public. Sooner or later the war against piracy will awake a sleeping giant.

    What I see among copyright-reliant industries is a desperate hunt for a magic bullet that will stop piracy and set everything right again without having having to radically rewrite the law. This is like a patient with heart disease pleading, “I don’t want to have to make broad lifestyle changes. I love smoking, I hate exercising, and I don’t want to give up junk food. Can’t you just prescribe me a pill that will instantly make me healthy again?” The pill is a myth, but there are of plenty snake oil salesmen who hold out hope that an instant cure can be achieved without a dramatic lifestyle changes:

    “Here, try this DRM. Here, try a new, stronger, harsher, broader law that will stop piracy. Here, how about a filtering system? Here, just choke off the advertising.”

    The DRM is hacked within days, but the patient refuses to acknowledge that the pill isn’t working. A strict filtering system is set up that detects specially fingerprinted copyrighted files, and soon the pirates create an easy-to-use program that adds random noise to files so that they won’t be detected. But the patient tells himself that the cure will work one day, if he just tries harder. A new harsh law is made to stop piracy. The new law is ignored en masse by the younger generation or protested on the streets, but the patient tells himself that the pill is making him feel better even though he’s beginning to experience nasty side effects–i.e. widespread encryption, public resentment, and darknet adoption. Finally, advertising, yes, yes, a cure at last! But then a technology breakthrough arrives that make movies just as easy and cheap to distribute as pictures. And the costs of running a torrent site plunge. Meanwhile, the growing adoption of Bitcoins allows for anonymous internet payments, and people decide that paying a $10 donation every year for free access to the vast, free, nonDRM-crippled content on Pirate Bay seems like a pretty good deal compared to spendy subscription services that have just 10% of the selection they want plus a ton of annoying restrictions. But by this time a new cure will be found! And so the patient continues to pursue vain hopes. They choose to ignore their increasingly painful symptoms and refuse to make lifestyle changes even as technological, societal and market forces converge on the ultimate heart attack: A bitcoin-enabled version of Napster running on the darknet that allows unlimited free downloads of every piece of media every created. Essentially, an illegal global library.

    I don’t see in any point in pretending we can keep copyright law as it is. Anyone can see that the situation is just getting more and more untenable. Countries that refuse reformation eventually create revolution, and that’s basically what is happening now. It would be better to reform the law immediately and try to save what respect for copyright remains. Continuing to hold onto false hopes simply means that reform will happen later anyway, but by that time copyright will be despised and there will be little respect left for the needs of creators in the public eye.

    1. The copyright length must be brought down dramatically.
    2. Noncommercial derivative works must be allowed.
    3. DRM must be eliminated.
    4. Libraries must be allowed to hold copies of media for use by the internet public.
    5. Costs of digital products must be lowered to reflect market expectations.
    6. Fines and punishments must be reduced dramatically.
    7. Websites and services must be given stronger assurances of immunity for user actions.
    9. There needs to be a central registry and an automatic licensing system.
    8. Copyrights must be registered to be valid.

    The copyright law will face extreme challenges as technology progresses over the next few decades. 3D printers and scanners is an obvious but huge one. What is less obvious is that recent developments in mind reading technology, robotics, two way mind-machine interfaces, and brain prostheses mean that we could soon be looking at _copyrighted thoughts_. That isn’t supposed to be legally possible because a work isn’t copyrighted until it is fixed in a tangible medium, but now the intangible is becoming tangible via computers. None of these technologies is something that I would consider science fiction at this point. I own a _kid’s toy_ that can read my mind such that I can manipulate a ball by thought alone. A company is producing a headset that will allow users to control cellphones with their thoughts. This read only stuff is just the beginning, and right now the best mind-reading/writing technology (i.e. technology that can tell when you think specifically about President Abraham Lincoln or that can send a videocamera feed to your brain) is expensive, uncomfortable, poor quality and physically invasive. But that will change. In the end game, our fallible memories will be supplemented by photographic (computer) memories. Hear a song on the radio? It’s yours forevermore. Watch a movie in the theatre? You’ll never need to watch it again to remember every detail. At that point, copyright is doomed, because merely looking at a copyrighted piece of art will create a perfect, permanent memory (copy) of it in the viewer’s mind to be replayed at will.

    Frankly? What we are facing isn’t the final battle to preserve copyright and art for our children and grandchildren–it’s merely a teeny, tiny squabble against the first boss on level 1. The murky lines that we see now will seem someday seem nostalgically simple and clear cut. In fact, I would say that copyright will become extinct within the next 100-150 years.

    That said, I do favor keeping it around a longer. It’s best to cut reliance upon copyright little by little, so that people can adapt. I give it 10 – 20 more years in its present form if reforms are implemented, but then it will probably be time for another big rewrite.

    • David Newhoff says:

      Well, Jennifer, I don’t agree with the majority of what you just said, but am curious…What is the name of the book? Or is that too revealing about a personal medical matter? Regardless, I’m sorry about the condition.

    • monkey says:

      If you want to write fanfiction and the creator objects, try to convince them otherwise. It’s no basis for changing copyright laws. Is it too hard to lobby the EON people to make Bond fanfiction? If so, that’s tough luck.

      Five years? Well, there goes the Long Tail. As Jaron Lanier points out, a lot of academic texts (more likely in the arts or sciences that don’t change a lot, like mathematics) sell steadily over many years. Are you going to deny the authors their due if it doesn’t sell immediately?

      You missed the point about public domain and wikipedia. Your example of a medical condition is rather extreme, and has nothing to do with what I’m talking about, I’m talking about how freeing up James Bond will not result in more fanfiction being published, just more cheap copies of the existing Bond books.

      (An aside about wikipedia: a long time ago I read a criticism of the Body Shop line of skin care, etc. Body Shop used to boast that they didnt test on animals, but someone pointed out that they didnt say tht they used materials that had *never* been used on animals. Similarly, wikipedia relies on material that had been developed by others)

      “Point is, what about all those millions of legitimate users who got their property taken away in order to save the property of artists?”

      Have they, though? Even if they did, that’s no reason not to prosecute. As I wrote before, they are victims of Dotcom, and their own imprudence in not choosing Dropbox or one of the countless other storage services that don’t rely on piracy.

      As for your mind reading technology, good luck on that. With resources rapidly depleting resources I seriously doubt the nanobot future will happen. In any case, I don’t see the twin needs of creators to have control over their creation and benefit their creation going away anytime soon.

      And I’m not trying to make this personal,but phrases like “copyright Gestapo” are simply offensive.

      The main problem with piracy is that it shows that anyone can profit as long as they don’t fairly compensate their “suppliers.” That’s an immoral business model.

  19. Jennifer says:

    Thank you for the kind words, David. (I guess I’d rather not go into it “in public” so to speak.)

    Monkey–

    Bond fanfiction–I fear there are all kinds of problems with asking the corporations nicely. At any rate, it’s easier to lobby a government once and forever than to lobby 10,000 corporations, one at a time.

    Long Tail–Governments are funding creative commons textbooks because they’re sick of buying $$$ new textbooks. As for the textbook publication companies, they’re going the way of all publications companies: down. It also appears that textbooks (and school as we know it) are becoming a thing of the past, see for example Duolingo and the Khan Academy.

    Public domain–I agree a shorter expiration term will resort in more cheap books being published. But, it will *also* in more new literature being published. The two things are not mutually exclusive, and I think they are both beneficial to society. Btw, e-book pirates are most commonly 30+ year old women; not the expected pirate demographic. But this is what happens when there’s no safety valves (libraries, used book stores, etc.) and the only convenient legal source is a brand new, fully priced digital book.

    Megaupload–I can kinda see where you’re coming from, but at the same time, it’s kind of like saying, “He shouldn’t have left the house unlocked. He deserved to get robbed.” I don’t think a victim–no matter how stupid, gullible, or careless–really deserves to get hurt. Then too, the most common passwords in use are still “password” and “123456.” The world is full of people who don’t know much about the internet. How many computer users do you think have read a single article on the topic of “how to avoid pirate sites”? 0.03% maybe, I’d guess? I bet more people care about buying dolphin safe tuna than about avoiding pirate sites. But again, my point is not really whether it is right or wrong to inflict harm on innocent people in the process of punishing guilty people. My question is, “Is this policy wise or unwise for the long term survival of creators?” It’s not a victory when we anger 6 voters for every 4 pirates that get taken down. If a user comes to believe, “Those stupid artists made me lose all my family photos,” that’s not going to win hearts and minds. If we continue to win battles like this, we’ll soon lose the war.

    Mind reading–Sounds like we’d be getting off topic if I tried to go into this. We’ll just have to see what happens. :)

    Copyright Gestapo–I’ve always found WWII fascinating. (Ah, Godwin’s law is fulfilled…) I’m not hiding Jews in the attic, but I do live in fear of being found and punished severely for infringement activities that 99.999% of nonlawyers would regard as perfectly innocent. Why is this? If you look into the techniques the Gestapo used, there are actually many parallels with our modern piracy scenario. Essentially the Gestapo had the job of maintaining a culture of terror intended to repress a numerically superior group of people who were represented most dangerously by the various underground movements. Similarly, major copyright holders seek to intimidate a numerically superior group of people who are represented most dangerously by the pirates. We could also go into the usage of widespread surveillance, disregard for due process, accusation based justice, arbitrary enforcement, “blanket” mass punishments, disregard for official legal channels, bullying, censorship, the enforcement of privately created “laws” that don’t exist on a book, disproportionate punishments, discouragement for exercising one’s rights, and a desire to instill populace-wide fear through dramatic examples (“Download a song and lose your house!”). These kind of symptoms often pop up when a minority is trying to quash the widespread tendencies of a majority; you can see them repeated in all sorts of situations, from civil rights movements to prisons to the Soviet Union. Even if only 1 in 1,000 people can realistically be punished, that punishment must be horrible enough to strike dread into the hearts of the other 999. But don’t get me started on this subject or I’ll go on and on. But I certainly don’t include anyone here in under that term. Sorry if I offended, monkey–it wasn’t intentional. As you can see, the major copyright holders wore out my goodwill long ago.

    • David Newhoff says:

      Jennifer –

      I figured you wouldn’t want to say and, of course, respect your privacy. I know the feeling of not being able to afford things you need and have been down to my last dollar more than once in my life. That said, I believe, both in context to that medical book and with regard to your statements in general, that you tend to look at copyright as a mechanism for punishment rather than as a civil right or a system for incentive. It’s interesting that you use the same argument to defend Kim Dotcom against what you perceive as unjust prosecution that the entire Web-tech industry uses to justify piracy. In other words, the argument too often amounts to, “If you’d just do business differently, we wouldn’t steal from you.” Or to quote Paul Newman as Butch Cassidy, “If he’d just pay me to stop robbin’ him, I’d stop robbin’ him!” Humor aside, this is unsupportable logically, morally, and functionally. It is propaganda pushed by wealthy interests and supported by people who choose not to take any responsibility for their personal role in mass theft. This segues to your next points about Gestapos (and I do think it’s important to drop such incendiary language, even though I also think Godwin is a bit of a tool)…

      While I support a healthy measure of cynicism when assessing the motives of any organization, whether private or public, I cannot understand failing to apply this universally. The idea that major copyright holders are aggressors maintaining tyrannical rule over the majority is one that has been carefully cultivated and financially supported by an even more powerful and more insidious group of corporate interests. Go ahead and fear and loathe Disney all you like; but Google logically deserves ten times the scrutiny as it is wealthier, more invasive, and more politically influential worldwide. In the short term, this is about money, and the profit motives of much of the Internet industry are in conflict with copyright. Hence, they take this message to the people, people who like getting their candy for free via torrents, and people who are convinced that their entrepreneurial dreams depend on changing the laws. You obviously believe in this latter promise and have invested heart and soul into it, which is fine. I would suggest, however, that you consider that in the big picture, Google and Co. don’t give a damn about your success in the same way the diet book promoter doesn’t really care if you lose weight. All that matters to him is that you buy the book.

      In the long-term this is about ideology, and as I have stated in posts, as Lanier has warned, a cult-like ideology of some powerful interests. You seem to fear slippery slopes in terms of justice and power, which is reasonable. I would argue that I am more fearful than you. The vision of many of these tech leaders is literally a technological utopia, which I perceive as dystopian. Ray Kurzweil was just made Director of Engineering at Google, and I frankly find his vision potentially dangerous and certainly dehumanizing. Copyright is a battle in a much bigger war, and I see more hazardous slippery slopes by taking the tech industry view on the matter. Copyright says the individual matters. The Internet says the crowd matters — for now. But one doesn’t need to be Bradbury to image how that morphs rather quickly into the premise that the machine matters. And I’m sorry, but that’s too often how engineers see the world, where the individual becomes a line of code that either is or isn’t conducive to the whole. And of course crowds have a way of turning into mobs like the one that attacked Anita Sarkesian for speaking her mind.

      I’d bet, Jennifer, that our finished pictures of a better world would look very similar; but I honestly believe you’re being sold a bill of goods by people and businesses who wield power and influence you may be overlooking. I don’t justify the RIAA lawsuits of the 2000s or Jack Valenti’s bullshit about the VCR. I just think every person and every entity will act in its own interest; and with that as a premise, it becomes easier to question the arguments made for or against a particular cause.

      • monkey says:

        Actually, your mention of crowds/mobs is interesting, because the Nazis in fact started as a mob…

      • David Newhoff says:

        Equally frightening is that the party was democratically elected. I certainly don’t want to fulfill Godwin’s Law and get ourselves off on a Nazi-fest, but that is just one classic example of why there is not necessarily “wisdom in crowds.” What I think people fail to realize is that the tendency to follow a crowd is really the most dangerous thing of all. Look at the recent comment on my new post by Roger. When we see this repeated, oversimplified, and generalized outrage over the same litany of what are actually very complex issues, that’s mob-think. And any mob can be moved to do horrendous things because every mob believes itself to be righteous. At the center of any riot, there are zealots; just outside this core, we find the opportunists; and outside that ring is the great rabble of angry villagers just following the crowd and providing the zealots with the audience they require.

    • monkey says:

      ” At any rate, it’s easier to lobby a government once and forever than to lobby 10,000 corporations, one at a time.”

      It may be easier, but is it right? Is it fair to rob creators of a chance at a livelihood so that you can write about your favorite characters? I’m sorry if this is harsh, but depriving the Internet of Bond fanfiction is nowhere near as tragic as depriving the world of future Ian Flemings.

      Duolingo and Khan Academy, rather like the TPB as library analogy, require the goodwill and free labor of crowds. In other words, a kind of technocollectivism that ultimately makes a few richer and everyone else poorer. If that’s the future god help us.

      As a bookseller, I can tell you that reverting to PD will not help authors at all. How can it possibly? Even if a publisher is willing to publish a new author in that situation (and I can’t see why they’d bother if there’s already free material that doesn’t require editing or even consultation with the author) how can the author monetize (ugh) their work? And don’t say merchandise, because that s a desd end.

      “He shouldn’t have left his house unlocked” funny, because that’s often an argument used by pirates against the complaints of their victims.

      Your description of Gestapo techniques by the copyright holders is vivid,but provides no examples.

  20. Jennifer says:

    Re punishment vs. right/incentive–I’ve focused mainly on the disadvantages of copyright because the advantages claimed for it are widely known. Also, I focus on the disadvantages because I can see all too clearly how they apply to me. There are artistic endeavors I have not made because copyright makes them unprofitable and unfeasible; the result is that I create and earn less, not more, because of copyright. And so it seems that copyright helps some artists and hurts other artists. And this does not even consider the rights of public. The question is, how can we get the maximum good for the maximum number of people?

    Re changing business models–“If he’d just pay me to stop robbin’ him, I’d stop robbin’ him!” ;) I can see the parallel you’re drawing. At the same time, I can see why it rubs people wrong to lose access to things that were formerly free and/or cheap. Nowadays more Americans buy e-books than p-books. But publishers by and large refuse to sell e-books to libraries. As a result, people no longer have access to free new books. Or what about used bookstores, the alternative way to get hold of cheap books? These stores are going out of business all over the place. As a result, people no longer have access to either new, free books or old, cheap books. And it seems the major publishers are inclined to shrug and say, “Let them eat cake.” Legal or not, inflated prices (via collusion or otherwise) and the removal of free alternatives rubs people wrong. And it is basic human nature to “correct” such perceived unfairness though whatever measures they feel are warranted, perhaps ignoring rules they view as “silly” in the process. The person who smuggles a soda into the movie theater is reacting to the high prices of beverages. The person who downloads a free e-book is reacting to the high price of books. Both freeloaders perceive their behavior as being fair and justified under the circumstances: “If they would be fair, I would be fair too. But by being unfair, they’ve forfeited their rights for fair treatment from me.” Humans have an innate understand that friendship is a two way street. To ignore this instinct is possible, but generally unwise.

    Re Google & co–Big Search didn’t exactly have to twist my arm, y’know. ;) I have numbers for how much more I would make if copyright were reformed according to my suggestions. My motivation isn’t just some pie in the sky dream of “innovation” or “entrepeneurship”–it’s a hard fact I can add up on a calculator. (And I don’t have any illusions that Google and co. are all good and wonderful. You know what they say about absolute power.) As for the RIAA lawsuits ten years ago and the VCR, those really aren’t the issues I’m thinking about. In more recent news, we can look at the incident in Finland where police seized a 9 year old pirate’s Winnie the Pooh laptop after she downloaded a song. Did you know you can print candy sculptures with 3D printers? Did you know people are hoping to sell 3D printers to children so that they can print out toys? The implication, of course, is that it will soon be both possible and necessary to confiscate copyrighted pirate candy from the mouths of babes. (“Youthful Piracy Ring Busted! Police Seize Ten Lollipops Shaped Like Death Star (TM)! Juveniles Face Fines!”) Or, there is the case of the first pirate tried in New Zealand under their new copyright tribunal. She confessed to downloading one song, but claimed that she didn’t know she was doing anything illegal. She was also tried for two other song downloads which she claimed *not* to have downloaded. And, considering that there were multiple people using her IP address, there’s no way to say if she was innocent or guilty. Indeed, it seemed that she was presumed guilty and could not have proven her innocence in any possible way. Which event is more alarming: the theft of a candy bar, or the creation of a governmental policy of “guilty until proven innocent”? I would argue that the latter evil is much, much more dangerous. Unfortunately, I can list example after example of this sort of thing. Extraordinary measures are being foisted upon ordinary people for ordinary behavior. I have no desire to trade in my civil rights for the sake of better copyright enforcement. Better that art should die than that the justice system should be corrupted.

    • David Newhoff says:

      If I honestly thought that this is about Art v. Justice, I’d be right there with you. The short answer to your last paragraph is that I believe, regardless of incidents or mistakes and miscarriages, that the alternative is jumping out of the frying pan into the fire. I wouldn’t say so, if I didn’t believe it, but time will tell.

      As for your middle paragraph, I’m not sure where this new scarcity is being seen. As I said to M earlier, iTunes is an answer to easy access at a fair price — and it hasn’t been that great for music — and it hasn’t stopped the expansion of torrents. The prevailing attitudes and justifications toward piracy are not a friend meeting a friend half way. It’s someone saying “Give me what I want right now, or I’ll just take it.”

    • monkey says:

      If you leave copyright up to a utilitarian equation, I’m sorry but it’s no contest. Copyright benefits many more creators than it hurts, and it benefits the public by a) making new works possible and b) allowing members of the public to become creators in their own right.

  21. Jennifer says:

    > “Is it fair to rob creators of a chance at a livelihood so that you can write about your favorite characters? I’m sorry if this is harsh, but depriving the Internet of Bond fanfiction is nowhere near as tragic as depriving the world of future Ian Flemings.”

    Hmm…I don’t see it as an either/or scenario. As I’ve described earlier, I believe the relationship between official work and fan work can be a mutually profitable symbiosis. At any rate, folklore about popular heroes has existed for hundreds of thousands of years, and it is extremely unlikely that it will ever go away. So the future Ian Flemings are just going to have to bear up (like they always have anyway). In the meantime, I see people are already writing fanfic for 50 Shades of Grey. How long till someone writes a popular 50 Shades of Grey fic, strips the barcode, and sells it? Also in the news, yet another barcode-stripped Twilight fanfic is now selling as a “real” novel. Alas, not a cent of profit is going to Stephanie Meyer from these fan ventures. She could be licensing her fanfics for a cut and lighting cigarettes with burning hundred dollar bills, but instead she’s gonna hold onto that copyright and let the money slip through her fingers. C’mon, Stephanie–it’s still not too late to put Bella and Edward back into 50 Shades of Grey and resell it as a Twilight “What if” story. Copies would be flying off the shelves.

    Re public domain books being useless to authors–not true. I’m currently giving away one of my books for free, as well as several free chapters of another one. People come to my website for the free content, and then they notice what else I have for sale. The free stuff is essentially bait on the hook, and it drives my website up Google’s rankings, so that more people come to my site and buy more stuff. I offer more free content than almost all my competitors and it’s obviously paying off: My site is the youngest one on the second page of Google, and still climbing. Besides which, there are all kinds of incentives you can add to motivate people to buy your version of a public domain book. Deleted scenes. Author commentary. New ending. Tips for budding writers. I see it all the time. Finally, people will still buy print books: “Ooh, the platinum edition with the holographic cover and pull out poster!” There is life after public domain.

    When my books go into the public domain (in five years, per my choice), I plan to put them up on my website for free as bait. Then I’ll add another hundred pages of material, tag the book as “2nd Edition” and continue selling them next to the free versions. When the second edition expires in five years, I can put out a third edition. So I continue to get more bait, earn higher search rankings, and I still have something to sell. Btw, who cares about publishers? It’s bothersome enough having to give a $0.45 fee to Paypal for each book sold (Down with service fees and up with Bitcoin!); I’m certainly not going to give Amazon a 30% cut of my profits, much less beg a brick and mortar publisher to let me pretty please publish with them.

    > As for your middle paragraph, I’m not sure where this new scarcity is being seen.

    It’s mostly just the libraries complaining right now–there’s all sorts of hand wringing going on over the fact that they can’t buy e-books. The fear is that soon libraries will not have new books to offer; everything they have will be both nondigital and several years out of date. One librarian speculated that unless the situation is remedied in 2-3 years, libraries will become irrelevant. So they view this as a matter of life and death, which is why I say that libraries could soon be removed from the picture. However, it might be possible to eventually sell “used” e-books, so we’ll have to see how the first sale situation pans out.

    Duolingo and Khan Academy–actually, they won’t make the rest of us poorer; rather, we’ll save money. Compared to the price of Rosetta Stone or the cost of college courses, both are an absolutely great deal (free). After using Duolingo I’ll never take another language course again.

    Re copyright enforcement–I’m not going to go into a discussion of the things done in the name of stopping piracy. Suffice to say, I hear the words “isolated incidents” or “occasional abuse” suggested too frequently for comfort. After awhile, all those isolated incidents start to look an awful lot like a pattern. Bottom line: Facebook is now used extensively to “share” copyrighted photographs and art. And now I see developers are offering some new file sharing apps for the site that let users securely send music and movies as large as 1 GB to their FB friends. Copying is becoming bigger, faster, easier, cheaper, safer, and more fun. Laws are becoming more extreme, unreasonable, absurd and irritating. The longer we wait to reform, the less respect for the copyright law will be left.

    • monkey says:

      Except that Fifty Shades Of Grey is, in a word, shit. And before you say I don’t understand fanfiction, I’ve known plenty of fanfiction and erotica fans who feel the same way.

      As for an “official Twlight” version if Fifty Shsdes, first of all, have you ever considered that Stephenie Meyer might have an objection to Fifty Shades that has nothing to do with money? Whether it’s wanting to preserve the integrity of her story or a moral objection to the sexual content, the message is the same: stay out of her sandbox without her permission.

      (as well, how exactly will she be able to make a fortune if she relinquishes her copyright? Isn’t a license the same thing? The point, though is that her wishes should be respected, at least in her lifetime.

      Your own example has a rather noticeable flaw: any extras to the public domain edition would have to be protected. (And again, not that many serious authors would want to bother with holographic covers to entice people to pay for what they should pay for in the first place.)

      Duolingo and Khan Academy make “us” poorer because its replacing paid labor with free labor. Not sure why that’s hard to understand.

      Again, you haven’t provided actual concrete examples of “Gestapo tactics” used to enforce copyright.

      Your example of Facebook is telling – of course it’s becoming more common, because its not in Facebook’s interest to clamp down on it. Facebook becomes another company that sells ads based on unpaid content. It’s not a tenable situation.

    • monkey says:

      Oh and “who cares about publishers?” Maybe the thousands of people employed by them?

    • David Newhoff says:

      It’s clear, Jennifer, that you have no love for what some call “legacy” businesses in this context. That’s your privilege, and I’m not going to spend time convincing you that this view is, in my opinion, a bit narrow. The most important word you used above is “choice,” which is the foundation of copyright — the creator/author’s choice. And while I might agree in practical terms that respect for copyright at all could be threatened by the perception that it is an unscalable wall built by legacy corporations, there is no discussion to be had with those who support the real problem of unfettered exploitation by torrents, etc. This is large-scale theft that steals the right of the creator to choose, and it absolutely threatens the viability of the independent upstart long before it threatens the big, corporate-produced content. Plus, the exploitation is mostly in the service of selling garbage to suckers, which is anathema to the values of most artists. Forget money for a moment, should a documentary exposing misogyny be hijacked and used as flypaper to attract young males to junk adds that play on their most puerile notions of women? I know that’s a very specific example, but it’s to illustrate a point. The premise goes against everything art is about, and the “solutions” suggested by the Web industry mouth-pieces and fair-weather activists are all variations on one form of patronage or another. This leads to fewer unique voices, more homogenization, more corporate influence, and ultimately less free expression that really matters.

      Regarding enforcement, the legacy industry hasn’t focused on individual users in quite some time. There aren’t too many people who don’t think the RIAA lawsuits of the last decade were a mistake; but these events have been used as an excuse to provide cover for institutional, for-profit pirate enterprises like TPB. That’s just irrational law enforcement, no matter what the issue is.

      • monkey says:

        Interesting that you mention legacy copyrights – there’s the assumption that once a creator dies, their only beneficiaries are Evil Corporations. Setting aside true legacies – I.e, creators willing their works to their surviving family – there are rare cases where creators donate the rights to a worthy cause. The most famous (and lucrative) is the willing of Peter Pan to a children’s hospital in London – to this day they benefit from the sales. As well, saxophonist Paul Desmond bequeathed the rights to “Take Five” (arguably one of the most popular jazz songs of all time) to the Red Cross, and Dorothy Parker did the same with her works and the NAACP. So it’s not being overly dramatic to say that copyright actually benefits people in material ways other than just money.

      • David Newhoff says:

        All true, but the big picture reality is that copyright has a long history of turning creative work into middle-class jobs, and a strong middle-class is central to the freest society we can have.

  22. Jennifer says:

    None of us has said that 50 Shades of Grey is good. Nobody said that Twilight was good either. /shrug And I can completely understand why Stephanie Myers might not want to license 50 Shades of Grey. That’s her choice; creators should have the right to control the *commercial* use of their work until their copyright expires. After all, I haven’t been arguing that we should get rid of copyright completely–I suggest five years. Since 50 Shades of Grey (the fanfic version) was published within 5 years of Twilight, it would fall under this category. After the time is up though, Stephanie will (and should) lose the right to control the commercial exploitation of her work.

    > Your own example has a rather noticeable flaw: any extras to the public domain edition would have to be protected. (And again, not that many serious authors would want to bother with holographic covers to entice people to pay for what they should pay for in the first place.)

    I would mess with fun covers. ;) As for protecting the extras–why? The bonus content isn’t in the public domain, unlike the rest of the book.

    Re Duolingo & Khan Academy–In the past, I had to do dozens of homework translations for practice. Now I still have to do dozens of practice translations, but it’s for a good cause. They’ve basically found a way to exploit language students’ “waste” labor in the same way one might exploit waste heat to run an extra generator. No one has ever paid me for doing practice translations, so I’m doing the same amount of free labor that I ever was. And I don’t think that the Khan Academy gets anything from its users’ labor, so no issues there.

    > Again, you haven’t provided actual concrete examples of “Gestapo tactics” used to enforce copyright.

    It would probably raise the temperature in here a bit too much if I did. ;p Anyway, I’m not particularly interested in assaying that branch of the copyright debate. So, we will just have to agree to disagree.

    Facebook– Copyrighted images are being pirated left and right on Facebook, and yet we don’t often hear complaints about picture pirates and parasitic social networking companies. “Where is the outrage?” There is none. Over time it has become culturally acceptable to “share” copyrighted images without even the slightest twinge of guilt. Indeed, there would be rioting in the virtual streets if Facebook tried to crack down on image sharing. Images are small, easy to handle, and people produce a lot of them. But video too is now becoming small, easy to handle, and mass produced. Therefore video sharing is poised to become just as ubiquitous as picture sharing. Right now the main thing holding this back is the high cost of storing 100s of MBs of data. But, the time will come when 1 GB will seem like an insignificant figure and the high water mark will be a TB. At that point it will be possible to attach a movie to a post like this one in the same way that one might attach an image. People will not consider it reasonable to have these capabilities blocked, no matter how much pirating said tools are used for. Knives are used for murder, but when every household has a dozen in the kitchen… And as for Facebook, Twitter, et al, well. Nobody is going to call them pirate companies, and it would be impossible for even the most ardent government effort to take them down. So if you can pirate all you want with Facebook, why visit Megaupload and co? Facebook has less porn ads. The way I see it, a temporary victory over Megaupload costs us the goodwill of millions of innocent buyers/voters, and will ultimately fail to prevent widespread piracy across every site that allows user generated content. I would consider this a pyrrhic victory. There are few left who pity RIAA; we don’t want to be categorized with them in the mind of the public. What of our right to have control over our work? It would be nice if this were possible, and in an ideal world everyone would respect our rights. But I just don’t think it’s realistic at this point–much less in ten years. Starting now, I think the best way to maintain control of our work is to make it so that people want us to have control. They will want us to have control because we are nice, fair, sane people selling convenient, accessible products at reasonable prices and offering attractive incentives to buy from us rather than from a generic source. If the stick breaks, then one must use the carrot. This is control via manipulation of desire rather than threat of force, and I believe it is the best option we have.

    Re the legacy industry– The mere fact that we now call them the “legacy” industries is an indication of what’s happening. And I would say that they’re still targeting individual users. It’s just that they now add a nondisclosure agreement into the secret out-of-court settlement, which was what they were doing until the recent Winnie the Pooh laptop scandal brought the whole scheme to light. The weaker the legacy industries get, the safer I feel, and the sooner copyright law will be reformed.

    • David Newhoff says:

      I said some call them “legacy” industries, but this is an illusion. Make no mistake, the industries seeking to unseat them, as it were, are far scarier. On this point I am absolutely confident.

      And I’m too busy to get into it all, but to hell with the goodwill lost by taking down Megaupload. There is no long-term cost there. Anger a bunch of people unwilling to pay for media or placate them and wind up in exactly same place because MUL is not a new model for a new kind of business. There’s a world of difference between an over-reaching lawsuit that harms an individual and telling a bunch of freeloaders (I like Ruen’s term) that what they’re doing is fundamentally wrong. Either they get it or they don’t. If they don’t, there’s no loss because these are people determined to destroy culture, destroy viable industry, and frankly destroy a functioning society in favor of black markets and mob rule. That’s where this leads. So, their goodwill be damned.

    • monkey says:

      “It would probably raise the temperature in here a bit too much if I did. ;p Anyway, I’m not particularly interested in assaying that branch of the copyright debate. So, we will just have to agree to disagree.”

      You’re the one who brought it up, and keep alluding to scare stories like the Winnie The Pooh laptop.

      As for not complaining about Facebook, the hell people don’t complain. Remember the whole “Instagram owns your photos” debacle?

    • monkey says:

      As well, what does the average person needs terabytes of cloud storage for?

      And five years is ridiculous. The whole point of the Long Tail is that a book, movie or record can sell over decades. As well, it ignores the fact that pirates simply won’t care if you only have a five year copyright; they’ll cheat you anyway.

  23. Restructure says:

    You are a racist piece of shit, OP. I know you won’t publish this comment or even care about it. But whoever is paying you to shill for copyright should consider getting someone less objectionable and less callously inclined to appropriate the historical oppression of people who aren’t like him and therefore, in his eyes, are worth nothing. When I read your words I go from agreeing with you to feeling sadness and disgust. Congrats and hope you’re proud.

    • David Newhoff says:

      Okay, I’ll approve this comment once, despite its being both rude and ridiculous, just to see if you can calm down and talk in any manner other than standard Web-rage. Prove how I’m a racist exactly. And then explain how in an age in which human trafficking is on the rise globally, that the word slavery somehow only applies to “people of color” in America.

      • Restructure says:

        As I commented on another post and suspect you understand perfectly well, comparing bittorrent to slavery is racist. As I commented verbatim above, appropriating the historical oppression of a marginalized group is a racist thing to do. Web content providers who make money from ads conduct “experiments” on their users by measuring clickthrough rates and how they correlate with demographics and content, but I would never say “they are experimenting with people, which is just like the Holocaust,” because I’m not an antisemite. Sorry, but Lars Ulrich sitting around failing to collect a miniscule royalty because someone is streaming rather than purchasing his song is not the same as, or remotely comparable to, my ancestors being packed onto ships like cargo, raped, whipped, castrated, and/or bred and sold like livestock. And before you trot out some wholly inadequate rebuttal about piracy affecting “little people” in the content industry, too, I’ll save you the trouble: even if a secretary or warehouse worker gets laid off, that is not the same as, or remotely comparable to, my ancestors being packed onto ships like cargo, raped, whipped, castrated and/or bred and sold like livestock.

        By the way, I never said that slavery only applied to people of color in America — I said people of color would be alienated and disgusted by your callous references to slavery. I doubt that some Czech woman being trafficked and brutalized in an underground brothel would find your comparisons very enlightened, either.

      • David Newhoff says:

        You’re entitled to your opinion, of course, and I didn’t block your comment, although I don’t consider name-calling to be a valid way to have a conversation. If you want to argue linguistics and the use of the word in this context, you don’t really have a leg to stand on. Exploiting work without permission or compensation is forced labor in that it removes the right of the worker to determine the manner in which his work is used. That the labor in this case does not involve torture doesn’t mean the term is off limits, even if it is being used as a mild exaggeration to make a point. Regardless, it is certainly not grounds for calling the writer (in this case me) a racist. Slavery has been committed throughout history and across many races and religions. How then can the word be inherently racist in any context? You might say it’s incendiary or improperly used (although I wouldn’t agree), but racist? Although I’m not religious, my ancestors were in theory slaves of Egypt at one time. What has that to do with my use of the word in a blog about online piracy?

        I don’t know you or your point of view, but it sounds as though you are looking for racism where you can find it. You don’t know me either, even though I don’t hide in anonymity, but I have always been an enemy of all forms of bigotry and human deprivation. I’ll discuss a serious subject with just about anyone who can do so with a reasonable amount of courtesy, but don’t throw Lars Ulrich the Rum Triangle, systematic rape, and the Holocaust at me in a stream of consciousness. Consider the likelihood that I’m really not a racist, and maybe there’s another conversation going on here.

      • Restructure says:

        “Exploiting work without permission or compensation is forced labor”

        No, forced labor is forced labor. To simplify this for you, forced labor occurs when someone forces you to labor. You will not find a single international treaty or other reputable, recognized definition of slavery or forced labor that encompasses copyright infringement. At most, it might be said that content creators are “forced” to labor more to earn the same amount of money, because the availability of infringing copies reduces revenue from legitimate purchases, but the same could be said for literally any technological, social or economic development (or activity by a competitor) that reduces a product’s price. OMG, movies are available on VHS which causes movie theaters and some television networks to make less money! That’s SLAVERY! Oh, no, wait, it isn’t. Being compelled by force or threat to make a movie, build a pyramid, perform fellatio or pick cotton is slavery.

        That slavery has been committed throughout history and that people of all races have been enslaved has no impact on whether your comments are racist. In the context of contemporary U.S. society (which, at an institutional macro level is undeniably a white supremacist society), comments by white people that disproportionately harm people of color are racist. When you appropriate slavery and analogize it to something as nonviolent — and, from a human rights perspective, something as trivial — as p2p downloading, you at once deny and dilute the horribleness of actual slavery. This harms people who victimized and whose ancestors were victimized by actual slavery; in the U.S., most of those people are black.

        It’s telling that you dismiss my comments because they reference Metallica, rape and the Atlantic Triangular Trade as part of the same thought. Consider that your own comments are at least as ridiculous; and, given the privileged position from which those comments were made, consider the likelihood that you are, in fact, racist.

      • David Newhoff says:

        Well, there it is. I tried three times to engage you politely and as a fellow human being, despite the fact that you insist upon calling me a racist. You clearly don’t understand what you’re talking about with regard to torrent sites or the labor they exploit, and you are clearly looking for racism where it does not exist. I have no fear of letting your comment stand generally unanswered. The fallacies speak for themselves, and your outrage is misdirected. Here’s a link to the racist short film I made in 2011. http://goneelvis.com/view/

        If you want to shout about racism, there are so many legitimate targets out there for you.

  24. Restructure says:

    “You clearly don’t understand what you’re talking about with regard to torrent sites or the labor they exploit”

    If you want to explain how torrent sites commit forced labor, I’m all ears. I suspect you won’t because you can’t.

    • David Newhoff says:

      Actually, it’s explained in the other post. Nutshell simple version: labor and investment in those works is partly compensated over time and sometimes long after the work is done. By hijacking the distribution process, that compensation system is disrupted and diluted, and sometimes just removed. The crime is one of profiteering off labor without permission; and it doesn’t matter that the work is was done in the past. The labor in this case has two choices: accept the exploitation or stop working at his/her profession; and in the case of the former, this means accepting that exploitation exerts greater pressure on labor’s ability to make a living in the market. The answer from the criminals is “stop us if you can.” That’s force, even though it’s non-violent force.

      • Restructure says:

        Okay, but profiteering off labor without permission — for example, by stealing the product of someone’s labor — is theft, not slavery. That’s pretty intuitive, right? I build a car; you come along and take it without paying for it; you’re a thief, not a slaver. Profiteering off labor and compelling labor are not the same thing, because (as you note) the victim of profiteering has the option of not laboring. For many, that’s an inferior option, but having that option taken away from you — being compelled to work in the environment and according to the hours set for you, and being told that if you do not perform the labor demanded of you then you or your family will be imprisoned, tortured or killed — puts you in a whole other ballpark. That’s slavery.

      • David Newhoff says:

        In the strictest sense, yes, but I’ve already stipulated that the term was written in a context that was purposely provocative. You may take issue with that use, if you like, but it doesn’t justify the racism comments. Moreover, the purpose of the provocative use of the term is to focus on the labor itself. Far too many people have swallowed the Kool Aid regarding justifications for their use of torrent sites, and part of the reason is that the pro-piracy crowd want to argue that what’s being stolen is something of effectively zero value. This is false because what is being stolen in this case is not a film or a song, per se, but labor. And the point of that post is to get people to understand that what’s being taken is not a thing like a car, or ephemera like 1s and 0s, but work. In some cases, what takes a kid five minutes to download might represent tens of thousands of hours of skilled work and millions of dollars in investment, mostly in that labor. That’s what’s being stolen, and that’s why I use the provocative word to draw attention to that point. Clearly it offends you personally; and I’m sorry about that, but at a certain point, I think you’re splitting hairs and trying to own a word from a cultural perspective.

      • Restructure says:

        There is a common misconception that “racism” just means bigotry or animus on a personal level. It doesn’t — it also encompasses institutional power imbalances, and actions some people claim are innocuous can become racist when they happen against the backdrop of broader societal racism. It is fairly uncontroversial among people who concern themselves with such things that when middle class white Americans invoke slavery “to be provocative” and when they condescend to and tone-police people of color who tell them their rhetoric is hurtful, they’re being racist.

        Separately,

        “the point of that post is to get people to understand that what’s being taken is not a thing like a car, or ephemera like 1s and 0s, but work.”

        But doesn’t the car also embody work? It could represent tens of thousands of hours of labor, millions of dollars invested in building the factory, sourcing the materials, crash-testing prototypes and building a brand. Cars benefit from economies of scale (though so do songs put out by large record companies), so an individual car might not cost millions to build, but I doubt the exact input/manufacture cost is the decisive factor in your analogy. I could have spent my life designing and building that car and it could be my pride, joy and crowning creative achievement. But if I faced a choice between having my beloved car stolen and becoming a slave, it would not even be a close call. (I suspect most people would feel the same way). That’s why I don’t think theft vs. slavery is the hair-splitting distinction you make it out to be. Most societies agree, since slavery is generally considered to be one of the worst human rights violations imaginable while theft registers at various levels of severity but is never remotely in the same league.

      • David Newhoff says:

        And do you honestly feel that my use of the term in this context supports institutional power imbalances and broader, societal racism, both of which I find abhorrent? What if I weren’t an American? What if I weren’t white? And if by inviting you to polite conversation, I’m tone-policing you, you have a chip on your shoulder. You’re more than welcome to blast away at me, if that’s what you want; but I’d probably approve the comment once and not respond to it. Why should I?

        If it were possible to effectively and cheaply steal a large percentage of the car driving population away from the legit makers of cars, then your analogy would hold up. The theft would be both physical property and labor, and we’d watch the car makers lay off lots of workers as a result. Again, the point is to get the torrent user to focus on the people, the investment of labor, the fact that the compensation isn’t just about the check some grip got at the end of a shoot week, that it’s far more complicated than that, and that this labor is your tax base, your neighbors, your customers, etc.

    • Restructure says:

      As explained above, I think the term used in this context (i.e. “to be provocative” about an issue that has nothing to do with racial justice or human rights) supports institutional imbalances by trivializing them (i.e., by trivializing slavery). If you weren’t speaking as a member of a dominant, privileged class in a society with a history of enslaving black people, I’d still call this use appropriative and insensitive to slaves generally. “Inviting” someone to polite conversation isn’t tone-policing, but that’s a very poor description of your response in this thread to my calling you out. My comment was angry because reading racist shit makes me angry. If you had experienced the kind of racism directed at us every day of our lives, you might have a chip on your shoulder, too. I’m over that particular exchange, though: I’ve said what I needed to say and it’s up to you what you do with that information.

      I understand that you want pirates to think about the people who are harmed when the entertainment industry suffers. But honestly, the result you describe sounds pretty similar to layoffs and losses that happen when foreign competition or technology changes the market for a product. (While I didn’t bring up cars for this reason, perhaps Hollywood is the new Detroit). One difference, of course, is that piracy is not just any technological innovation; it’s a form of technological innovation that violates U.S. law. But maybe some aspects of copyright law are anachronistic. These laws exist because we decided hundreds of years ago that we wanted to give people the legal right to exclude others from accessing reading our writing or listening to our music, believing this would foster creative output. It would also be nice if we had the legal right to prevent others from emitting annoying odors in our vicinity or taking pleasure in our physical beauty without complimenting or remunerating us — but those rights would be so unenforceable that there’d be no point enshrining them in law. In all seriousness, do you think profit models that rely on an ability to exclude people from accessing popular text, audio and video content can remain viable for much longer?

      • David Newhoff says:

        Well, I don’t think I’ve been rude considering you started by calling me a racist piece of shit; and it seems that what you wanted me to say was, “I’m sorry, you’re right.” I don’t presume to have experienced racism as you describe, but I’m pretty damn close with some people who have. Additionally, you never know what a complete stranger has experienced and to presume otherwise leads to a kind of social detachment that feels a lot like racism. What’s more, your comments about copyright seem to come from an angry place, too, as though copyright’s purpose is to exclude, which it is not. That said, if you’re truly interested in having an open mind on copyright itself, mine is not the best blog to visit. Of course, I also think there are so many other places to find and fight real racism than my blog. So, what’s the real frustration?

        I would also add that above all, I defend the rights of artists partly because independent artists are a powerful force for social change. Where do you think race relations in America would be without the arts?

    • Restructure says:

      “Some of my best friends are minorities”

      LOL nevermind, you can’t possibly have said anything racist. My bad. Fistbump!

      “Additionally, you never know what a complete stranger has experienced and to presume otherwise leads to a kind of social detachment that feels a lot like racism”

      Sorry, am I wrong? Have you experienced being black in America? Have you or your recent forebears been personally oppressed by the institution of slavery? Let me know if I misapprehend. You say that my mean comments on your blog “feel[] a lot like racism,” so I guess you’re claiming you’ve indeed experienced racism (just not in the way I have)? I really hope this is not a prelude to some drivel asserting that “reverse racism” is a thing.

      Copyright’s purpose is absolutely is to exclude. That is the essence of all private property rights — and it’s not a bad thing. I relish the right to exclude others from my home, for example. And if, one day, invisibility and teleportation technology become pervasive and make that right unenforceable, we’ll have to talk about new ways to organize our society.

      I think the arts in America have advanced race relations and social justice, but I don’t think major movie studios and record companies have contributed much to that effort on net. I would be interested to look at piracy from a pure social justice perspective. I don’t know if anyone has done that.

      • David Newhoff says:

        Clearly, this is going nowhere. You’ve laid claim to the moral high ground on language, on race, and even on copyright and the arts. You don’t think major movie studios and record companies have contributed to changes in race relations in America? The flaws in those industries notwithstanding, you fail to see the relationship between profit motive and cultural diffusion. I was two the year MLK was assassinated, and by the time I was halfway through high school, the hottest performers were Michael Jackson, Prince, Eddie Murphy, and Richard Pryor — careers made possible by this system you seem to think has no impact. Like or hate any of those performers or others, it doesn’t matter. But you cannot question their influence on fostering the color blindness that was King’s dream.

        Beyond that, you seem determined to mine racism where there isn’t any and to twist words to fit your agenda, which is murky at best. Like I say, if you’re focused on race in 21st century America, talking to me shouldn’t be on your to do list.

      • Restructure says:

        Just to be perfectly clear, I didn’t go looking for racism to criticize on the internet and descend upon your page. I went looking for commentary on copyright and was affronted to find ridiculous slavery comparisons mixed in. re: major movie studios and record companies, my key words are: on net. For every Sony artist Martin Luther King listened to and every constructive instance of “cultural diffusion,” there have been hundreds of toxic, retrograde, stereotypical depictions of people of color, women and gay people, and there have been thousands of white people in suburbia nodding along. While all art is a reflection of the underlying culture, studios have incentives to pander to the monied, middle class (typically white and historically often bigoted) “mainstream,” and they do.

      • David Newhoff says:

        And just to be clear, don’t confuse a defense of copyright as a principle with a defense of everything that every studio, publisher, or label ever produced.

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