Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

You’re Watching Too Much TV—All Because of Copyright!

An editorial appeared in The Hill written by Martin Skladany, associate professor of law at Penn State.  Titled To curb dangers of media consumption, let’s reconsider copyright law, the article comprises an incoherent litany of social complaints; but to the extent one can glean any thesis from its dissociated and unsupported declaratives, I suppose it would be the following:

“…excessive copyright protection has turned art – which is meant to inspire us intellectually and support us emotionally, to enable us to cope with the uncertainty of life and the finality of death – into a glossy corporate weapon that Hollywood wields to effectively imprison vast swaths of society.  ‘We the people’ are ‘doing time’ in front of a screen.”

In sum,  Skladany thinks Americans have become mush-headed and morally depleted (as evidenced by our vitriolic political climate) because we are watching too much filmed entertainment; and the underlying cause of this addiction is strong copyright law, which enables “Hollywood” to keep us hooked on their “glossy” (i.e. frivolous) wares.  I have to say, as someone who’s never seen Game of Thrones and is more likely to be found reading than watching TV, that Skladany is behaving like a highfalutin prig; and in doing so, manages to make a hash of copyright law, art, filmed entertainment, journalism, and the topic of media gluttony all at the same time.  

For one thing, I have no idea on what authority he declares that the purpose of art is to “inspire us intellectually and support us emotionally, to enable us to cope with the uncertainty of life and the finality of death”?  Really?  Is that what Bukowski is doing?  Or David Lynch? Or Banksy?  Or Shakespeare for that matter?  Artists may hope to inspire intellectually at times—though certainly not always—but if indeed they were merely the self-help gurus Skladany seems to think they should be, their works would be intolerably tedious. 

If Skladany wants to propose that entertainment and news reporting have merged in a way that is unhealthy for journalism, that would be a hard premise to refute and certainly makes a worthwhile discussion on its own. Or if he wishes to opine on the not very original theme that “low art” tends to be more popular than “high art,” that’s also a separate conversation, albeit a purely academic one.  But neither of these topics justifies lumping all content that appears on all screens into a single category, labeling it “corporate mind control” and then, bizarrely, diagnosing copyright law as the underlying infection causing a social disease.

Like other academics of his ilk, Skladany refers generically to “Hollywood” as though all filmed entertainment emanates from a monolithic institution—one which is allegedly doing our thinking for us.  This is oxymoronic, like saying “Democratic Party Conspiracy,” because just like Democrats couldn’t organize a conspiracy of two, the diverse range of television and motion pictures in the market represent thousands of individuals with a million competing and interrelated ideas, aesthetics, values, egos, agendas, and resources. 

Some of those individuals are brilliant, funny, poignant, serious, etc. and have a talent for expressing themselves in ways that deserve to shape our thinking.  We call this art.  And the way of madness lies in Skalandy’s arrogant implication that we can parse which of these expressions comprise the “better” art in context to his assault on copyright law.  Or to put it another way, I think the world would be better off without reality TV, too, but copyright law has nothing to do with the fact that more people have seen The Apprentice than the oeuvre of Francois Truffaut.

It is unclear whether Skladany means to be imposing a value judgment about what he considers to be the “art” and “non art” among all motion pictures and television; but clearly he harbors such an opinion, or his perspective would make even less sense than his presentation.  He writes, “Reducing copyright’s excessiveness will hurt professional reporters and non-corporate artists to a degree, but, more significantly, it will also level the playing field with corporate entertainment.”  (I’ll let the “hurt to a degree” go for the sake of the larger point.)

By “excessive” copyright law, Skalandy refers solely to the duration of protection—certainly it is the only example he presents—and it is frankly impossible to fathom how shortening copyright’s terms would “level the playing field” and thus enable the “art” of filmed entertainment to better compete against the “non art” of filmed entertainment.  And this is assuming that all “art” content comes from independent creators while all “non art” comes from corporations, and as though no symbiosis exists between these two worlds.

Of course, parsing the “good media” from the “bad media” does not appear to be Skladany’s real goal.  It’s not that we’re watching too much low-quality material in his view, it’s that we’re watching too much, period—spending far too many hours glued to whatever the digital-age version of the boob tube is in lieu of more admirable pursuits like “volunteering” or “going to social events.”   This is where he truly wanders off on thought safari as pertains to copyright law.  I mean, even if we consider his opinion to be valid in this regard, what in blazes does copyright have to do with it?  I was going to watch Jessica Jones tonight, but now that the copyright terms are shorter on that show, I guess I’ll go volunteer at the homeless shelter.  Seriously?

Skladany is free to opine that Americans ought to be engaged in more useful activities than watching stuff on screens, but nothing about his credentials as a law professor, nor anything in this editorial in The Hill, suggests that he has anything fresh to add to that particular conversation, which began shortly after the first TVs were sold.  This is just one of several examples illustrating his lack of intellectual discipline, choosing instead to toss a bunch of haphazard ingredients into an anti-copyright casserole, serve it up half-baked, and expect people to eat it.  Or as my friend Neil Turkewitz stated in his response to yesterday, “…it may be the worst ‘academic’ piece I have ever read.”  

There is much more one could write in response to Skladany’s editorial, not least would be to rebut its underlying theory that weakening copyright would “level the playing field” rather than simply weaken individual authors.  But as he has not provided even a hint of support for this premise, it seems sufficient for now to say that he is simply wrong.

Libido for Dystopia:  A Response to “The Second Digital Disruption” – Part II

In Part I of this response to Raustiala and Sprigman’s paper, I contend that the authors place too much emphasis on the porn industry (namely on one data company’s transformative effect) as a model that can be instructive for other types of creators.  Primarily, I believe the authors fail to weigh the substantial differences between porn and nearly all other forms of copyrightable expression.  In Part II, I respond to the paper’s main thesis that access to consumer data can significantly minimize the risk involved in producing a creative work and that this lowered barrier suggests a recalibration of copyright law in both theory and practice. 

Although the paper’s authors do parenthetically admit that it is too soon to predict the extent to which “data-driven authorship” may reduce the risk of market failure, they still proceed to make a strenuous case for limiting copyright protections on this basis.  While it seems very likely that data-mining us consumers will surely continue to influence the development of at least some creative works, it is indeed far too soon to assume that market success will be any more likely to result from algorithmic intuition than from good old-fashioned human instinct.  

For one thing, even pre-digital over-analysis of market expectations has a long history of yielding works that audiences find dull and, well, predictable.  Meanwhile, more than a few works of distinction are the products of gut feel, singular visions, and even drug-induced madness.  Most of the time, of course, the works that earn and retain their place in the stars is pure happenstance and sweat—an unpredictable cosmic meeting of elements in both time and place, plus a lot of work.  

But even if data-mining could produce the elusive magic box of prescience that increases the likelihood of market success by a significant margin, does this really implicate a change in copyright law as Raustiala and Sprigman propose?  They write… 

“Copyright is traditionally justified as necessary to protect investments in the production of creative works. If others are simply free to copy original works, then originators will find it impossible to recover their investments. If you want creativity, the story goes, you have to stop copying.”

That is a partial truth at best.  Investment of either time or money, or both, is certainly one reason that is traditionally presented as the case for copyright protection, but it is not necessarily at the core of copyright’s purpose for existing.  As referenced in this recent post, it has long been held in English courts, American courts, and the innate sentiments of many people that the fruits of the author’s labor are her property as a principle of natural right.  So, it is hardly axiomatic that copyright’s raison d’etre is based solely on the protection of some externally measurable amount of investment risk.  

To the contrary, copyright’s protections apply uniformly to works produced across a very wide spectrum of investment risk.  A song written in a half hour is protected in exactly the same manner as a song mulled over for years, just like the boot-strapped indie film made with personal debt is protected the same as the hundred-million-dollar studio feature.  The prodigy has the same rights as the late bloomer, and if the market rewards either creator, this will only reflect an appreciation of the work itself and not the amount of labor or risk invested to produce the work.  

Relatedly, how might we measure the relative risk taken by various authors in order to then rationally limit copyright based the proposed Raustiala/Sprigman theory?  Is the novelist who spends three years writing on spec taking a greater or lesser risk than the investors who pour millions into a new action movie?  Even without detailed analysis, we can say with near certainty that the investors in the blockbuster film stand a much better chance of earning a substantial return than the book author will ever receive for her invested risk.

Yet, according to Raustiala/Sprigman, we might need to consider limiting the copyright protections for the speculative book authors on the grounds that the big-time movie investors may soon be able to use consumer data to reduce their risk by some as-yet-undefined margin.  And if copyright were limited on this basis, how could such a policy achieve anything other than to exacerbate the disparity between corporate and individual creators?  If, as the paper points out, TimeWarner needs AT&T’s data-mining capacity to compete with Netflix and Amazon, then it stands to reason that the independent author in a market dominated by “data-driven authorship” becomes an even smaller cog in the machine. 

And this appears to be Raustiala and Sprigman’s real goal:  to reduce the status of the author as an individual who does anything particularly special.  After all, if we redefine the significance of the author, this would certainly be grounds for redefining the purpose and practice of copyright law.  Despite the fact that there is no telling at this moment how significant “data-driven authorship” may be, the authors of this paper are ebullient over the prospect that it will likely “undermine the Promethean allegory” in favor of what they call the “Panoptian model.”

“In the Panoptian model, creators are no longer Promethean geniuses who bring something previously unknown from the heavens down to earth.  Instead, they are unsleeping watchers.  They are accessories to a system of surveillance — one that we, as consumers, have for the most part bought into willingly, but which we are nonetheless likely to understand [sic] not entirely new and less than entirely beneficent.”  

I’ve read some artist-hating, tech-utopian declarations over the years, but this paper’s view of creators as “accessories to a system of surveillance” may be the winner.  Its implications reach far beyond Raustalia and Sprigman’s feelings about authors and copyright and—perhaps unwittingly—advocates the supremacy of the networked hive in which each sovereign individual’s value is reduced to a data point.  

In our contemporary narrative, when society is struggling to hold onto democratic principles (i.e. our humanity) against the forces of tech-enabled extremism, these academics, so eager to find some rationale for limiting copyright law, have managed to advocate what Professor Shoshana Zuboff has termed “surveillance capitalism.”  “This new form of information capitalism aims to predict and modify human behavior as a means to produce revenue and market control,” she writes.  Or to put it another way, Raustiala and Sprigman seem to hope that data can do for art what Cambridge Analytica has done for elections.   

What many readers may not know is that Christopher Sprigman is one of the most influential thought leaders on contemporary copyright, which I find disconcerting to the extent this paper reflects “new thinking.”  While I see no reason to scorn conversations about amending the practice of copyright law in response to new and clearly-definable market realities, I find the underlying view of creators espoused by this paper to be frankly cynical and ugly.  As the authors write, “The [Panoptian] label refers to Argus Panoptes, the hundred-eyed giant of Greek mythology who served as unsleeping watchman for Hera.”  Indeed.

At best, Argus is an apt metaphor for a surveillance state that serves the interests of a single, powerful, and jealous goddess.  Of course, the force that brings down that surveillance state, which causes Argus to sleep with all eyes closed and thus lose his life to the sword of Mercury, is music.  So, with respect to their chosen metaphor, it is notable that the future Raustiala and Sprigman want to embrace is one that does not celebrate the next Brian Wilson who tells family, friends, and corporate powers to “screw the formula” while he produces a landmark album that makes even the Beatles drop everything and say, “Damn.  That’s different.” 

Photo by kentoh

Libido for Dystopia:  A Response to “The Second Digital Disruption” – Part I

“It is as if some titanic aberrant genius, uncompromisingly inimical to man, had devoted all the ingenuity of Hell to the making of them.  They show grotesqueries of ugliness that, in retrospect, become almost diabolical.” – H.L. Mencken, Libido for the Ugly (1927)

A paper published in August by Kal Raustiala of UCLA Law and Christopher Jon Sprigman of NYU Law proposes a new, generalized rationale for limiting copyright protections:  “data-driven authorship.”  Titled The Second Digital Disruption:  Data, Algorithms and Authorship in the 21st Century, the central thesis hinges on the assumption that because authors of creative works will soon able to use Big Data to predict a greater likelihood of market success for a given work, this reduces the investment risk in producing that work, which in turn recommends limiting copyright protections.  From the paper …

“The next digital disruption is going to reach deeper. It will re-order how creative work is produced, and not simply how it is promoted and sold. It will transform our notions of authorship. It will raise fundamental questions about the nature and value of human creativity. And, perhaps less consequentially for the world at large — but of central importance to lawyers — it may shift how we think about the value and utility of, and even the moral justification for, intellectual property rules.”

Raustiala and Sprigman see the inevitable adoption of “data-driven authorship” as a predicate for a philosophical shift in the way society perceives the author and that this perceptual change ought to yield a revision of the underlying moral rationale for copyright.  Rather than viewing the author as “Promethean” (i.e. as an individual bestowing her works upon society), the paper proposes that “data-driven authorship” proposes a concept of the author as “Panoptian” (i.e. as a “watcher” who synthesizes creative expression in a collaborative process with her audience whose proclivities for various types of content can be understood and even predicted through data).* 

Betraying the Purposes of Creative Expression

If I had to pick just one flaw in this paper (and it’s hard to choose one for a fairly short rebuttal), it would be the naive bias, typical among copyright skeptics, that misrepresents the relationship between creators and their audiences by presuming that the goal of creative expression (art) is necessarily to give people what they want. While it is certainly true that most creators hope for market success and that big-money investors in works like blockbuster movies have always endeavored to predict, if possible, the likelihood of producing a hit, this business narrative does not fully represent the creative impulses, talents, or labors of individual authors, who must remain the central figures of copyright law, if copyright law is to mean anything at all.

If every creator were overly motivated to second-guess what his audience wants, then both creators and audiences would be left with the homogenous output that would eventually result from such a tedious feedback loop.  All works of note (i.e. the works we love) in every medium have generally earned their place in the anthology of “greatness” by virtue of being distinctive, experimental, or ground-breaking—works produced by artists who did not ask what we expected of them, but instead gave us works we did not know we wanted until we had them. And this does not even account for art that meaningfully provokes because it is controversial, unconventional, or uncomfortable.  

It is particularly odd that the authors of this paper so eagerly anticipate the prospect of creators seeking merely to satisfy audience taste, when it is precisely that endeavor, taken to an extreme, which produces safe, formulaic, repetitive fare that many viewers cite as pabulum that only deserves to be accessed via piracy. In other words, the authors’ predicate for proposing a shift in copyright theory is to embrace more corporatization of creative works; and this directly contradicts their fellow copyright skeptics, who claim that a central flaw with copyright’s status quo is that it overly favors corporate rightholders at the expense of individual authors.  

As is often seems true of these papers, the authors present “data-driven authorship” as yet another rationale to address a problem that nobody has actually proven to be a problem—namely the scope of copyright protection as it stands. In concert with many in academia, Raustiala and Sprigman proceed from a commonly-held (though not universally accepted) assumption that copyright can only be seen as a necessary evil—a devil’s bargain society makes with authors to extract work from them. While no one will deny that a key rationale for copyright is incentive, I maintain that the view espoused by this and other papers—stated as though it were axiomatic—is ahistorical, cynical, and a needlessly mercenary way to view the relationship between creators and their audiences.  

To support their thesis, Raustiala and Sprigman devote considerable attention to—indeed almost fawn over—the apparent adaptation to online piracy by the “porn industry,” asserting this narrative as one that ought to be instructive to mainstream (non-porn) authors of works.  They write …

“We use the adult entertainment industry as our primary lens to examine the second digital disruption, but as we will show, the techniques so effectively deployed there are increasingly apparent in the music, film, and television industries as well.”

To be sure, anybody who can cite the innovation called “dildonics” and the 1841 copyright skepticism of Thomas Macaulay in the same paper deserves an AttaBoy; but just as so many modern skeptics tend to ignore the broader context of Macaulay’s oft-quoted speech,** the authors of this paper gloss over significant differences between pornography and just about every other form of copyrightable expression. They further commit the fallacy of referring to the successful adaptation of the “porn industry” while minimizing the fact that said adaptation came at the cost of consolidation whereby one Big Data firm called MindGeek now controls nearly the entire online market.  So, if there really is a lesson non-porn creators can take from porn creators, it might be Don’t Let This Happen to You.  

The Porn Narrative is a Cautionary Tale to Creative Authors

Raustiala and Sprigman explain that pornography adapted to piracy—rather than attempt to litigate or effect policy changes—in part because of MindGeek’s ability to leverage massive amounts of data about viewer behaviors.  The paper then compares the MindGeek model to the ways in which Netflix currently uses its data about viewer habits and then implies that future non-porn motion pictures, episodic series, and all other media can learn the art of “data-driven authorship” from their porn-making cousins.

Of course, the MindGeek narrative in this paper simply expands on a familiar theme in which access to the content itself is understood to be a loss leader that can attract tens of millions of viewers, a percentage of which can be relied upon to spend money in other ways. For instance, while most visitors to porn sites will only ever view a handful of clips at a time for free, a valuable number of visitors will be amenable to spending money on things like “Camming” (private web-cam interactions),  “Customs”  (custom-made pornographic scenes), or sex-related merchandise (you get the idea).  

Although the paper’s authors acknowledge that pornography is fundamentally “utilitarian,” they do not seriously consider how this fact alone generally disqualifies the industry from having much to teach authors of non-pornographic works. Without wading into a discussion about the line separating erotic art from pornography, suffice to say, most porn—and particularly the porn to which the paper refers—has nothing in common with most creative expression, either for the creators or the audiences.  The paper states …

“MindGeek is at the forefront of this new approach.  The fine-grained data that MindGeek collects from its billions of views each month puts it in a position to analyze and then leverage consumers’ revealed preferences regarding a wide range of adult content.  We already see MindGeek using what it learns about viewing patterns to better categorize and organize content.  Most strikingly, MindGeek increasingly uses its data to shape the content that its production companies create.”  

Sprigman and Raustiala may find these observations “striking,” but it is hardly more than obvious to understand that MindGeek is able to learn through data collection that particular tastes in porn may be trending and that these data can then inform even the producers of scenes to make quick, responsive decisions about camera angles, casting, wardrobe, scenarios, etc. in order capitalize on those trends. It is equally unremarkable to recognize that relatively short, pornographic clips can be served up like free snacks in order to entice some viewers to spend money in ways ancillary to the pornographic videos themselves.  Sex sells.  Nobody needs academic research to support that premise.

But the MindGeek “lesson” is useless to many a non-porn filmmaker, who asks 90 minutes of our attention for a story he wants to tell in his own distinctive way.  His motives for producing (and ours for watching) are exactly the opposite of the MindGeek model.  As a creator, he is not interested in satisfying audience taste—let alone reenacting some fleeting, primordial fantasy. Instead, it is essential that, to a great extent, the author doesn’t give a damn what the audience wants to see.  And it is only when a creator surprises us the most, that we bestow upon him the compliment artist.  

On the other hand, as Raustiala and Sprigman correctly observe, major producers of non-pornographic works are not only leveraging Big Data in their business models, but they cite testimony from TimeWarner’s proposed merger with AT&T, which asserts that without access to data, the content producer will be at a disadvantage relative to companies like Netflix and Amazon.  The paper’s authors are not wrong to describe the use of data in the market, but I suspect they may be over-emphasizing the usefulness of that data and, more importantly, jumping the gun by presuming that the power of said data to inoculate against risk is a sound rationale for limiting the role of copyright.

In Part II of this post, I’ll respond to this proposed revision of copyright as a rational byproduct of the presumed value of “data-driven authorship.”

* “Panoptian” comes from the Greek myth of Argus of Panoptes. See Part II for further comment.

** For instance, Macaulay’s speech was in the context of a five-year debate that he ultimately lost; his dire predictions about copyright terms did not come to pass; and he was advocating the views of the publishing industry over those of authors. 

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