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.

Google Books is a good thing, but …

Given the way information tends to distort at lighting speed these days—particularly through the filter of tech v copyright referenced in my last post—I’m not surprised to read articles like this one by Ellen Duffer writing for Forbes on a thesis proposing reasons why Google Books is “good for publishers.” And it’s not that everything she says is incorrect so much as irrelevant, if the article is purposely meant to comment on the recent 2nd Circuit Court ruling in favor of Google in its ongoing litigation with The Authors Guild.

Not only does this  lawsuit have nothing to do with publishers, the timing of Duffer’s article, essentially making an argument for the worthiness of Google Books, might lead readers to think this lengthy litigation has been all about stopping the project from moving forward. It hasn’t.  There is no need for Duffer or anyone else to extoll the virtues of Google Books when the litigant authors generally agree that the search tool is a tremendously valuable resource with great social benefit. Hence, The Authors Guild has never filed for injunctive relief asking the court to order Google to stop what it’s doing. What the authors do want is compensation from Google for digitizing their books. As stated by Authors Guild President Roxana Robinson, “We aren’t challenging the concept of a search engine, just the seizure of copyrighted material. If Google is willing to compensate an author for using her work, they’re welcome to offer searches in it as much as they like.”

In order to create the Books search tool, Google has digitized over 20 million complete works.  Many of these are in the public domain; many are still in print and are still under copyrights owned by publishers; and many are works (in print or out) for which the copyrights are owned by the individual authors or their estates.  The public domain works are obviously fair game; but regarding the books still under copyright, Google has a negotiated contract with the publishers but no deal to compensate any of the authors.

The full story behind this division is a ten-year saga of attempted deals and lawsuits going back to the days when this project began as a partnership between Google and publishers, and then the libraries got involved; but the individual authors who own their own copyrights have never been paid, which makes them wholly involuntary contributors to this potentially profitable venture for Google.  (Please tell me nobody believes at this point that Google is doing this, or anything else, solely for the greater good. Can you say $400 billion market cap?)

Google has claimed that securing rights for individual works is too cumbersome, to which The Authors Guild’s Executive Director Mary Rasenberger responds, “Google has made much of how hard it is to clear authors’ rights. Our sister organization, the Authors Registry, can assure them it is not difficult. We can show them how it’s done, and with far less money than Google has at hand.”

To be sure, complaining about the scope of work required to clear these rights sounds a little fishy coming from the company that processes 20 petabytes of data every day, the organizer of the world’s information, the unrivaled leader in all things search and index, and the company that flaunts its ability to innovate at “Google scale.” It seems to me if you’ve got both the resources and the chutzpah to want to be the first company to digitize every book on the planet, that securing even a large number of rights should be a relatively minor function of the overall project.

Instead, it appears that if Google fought this hard and spent what must be millions in legal fees just to not pay the authors, their rationale is probably not about the money; and it’s not credibly because the process is too daunting for them.  Surely, Google hoped to prevail on a fair use defense—as it has to date—and to break new legal ground in its ongoing effort to reshape the fair use exception until it is so over-broad as to be almost meaningless.

Having said that, legal experts will disagree about the extent to which this most recent  ruling really sets new and clear precedent, rather than introducing a new vagueness to the doctrine that will only be clarified through future litigation.  Either way, Google’s agenda seems transparent; and as much as we may like Google Books itself, the general public should not be too quick to assume that broadening fair use doctrine is automatically more democratic or will foster more innovation, particularly when the doctrinal change is being pushed so hard by such a powerful corporate entity. After all, Google has a pretty consistent track record for consolidating market share and for pushing boundaries in this country and abroad with regard to the rights and interests of individuals and small entities.

Whether Google pursues cases that weaken IP protections or privacy rights; or it exerts the power of its monopsony position on platforms like YouTube, I think people have figured out that Google is just a business and should not be assumed to represent all that is good about the idealistic underpinnings of the Internet itself.  The company’s empower the individual rhetoric is just PR, and with the recent dropping of its founding motto “Don’t be evil,” we are reminded that this is all just business; and no business gets to nearly a half-trillion-dollar market cap without being at least a little evil to somebody.  Google Books sort of makes this point; it’s a good service supported by somewhat evil means in that it disenfranchises the most vulnerable individuals involved, when this is unnecessary in order to fulfill its otherwise worthy goals.

I also think the Books case serves to highlight a pattern consistent with Google’s game of steadily eroding the legal rights and/or bargaining power of individuals while trading on the illusion that it serves as an engine of individual rights and individual voices.  We’ve seen how the independent musical artists on YouTube have had the gateway drug of Content ID pulled from them if they choose not to sign the newly exploitative MusicKey contract. And with plans to launch the video subscription service YouTube Red, Google appears ready to employ similar hard-ball tactics with its most lucrative video content partners, offering them the choice of a lesser revenue-share deal or outright removal from the platform. (Lest anyone forget, it’s really TheirTube.)

If we combine the kind of pressure Google exerts on independent creators through its policy agendas with the company-store type terms it can dictate to individual creators, it’s easy to think of this strategy as the digital-age equivalent of union-busting during the late 19th and early 20th centuries.  Strip labor (in this case content creators) of both their rights and their negotiating power while consolidating market share in a technological paradigm that fosters natural monopolies. It may be the future, but it’s actually a very old story being written in ones and zeroes instead of coal and steel.

Netflix Is Not An Internet Business

With the release this month of Netflix’s first official feature film Beasts of No Nation, the rental-turned-streaming service continues to prove itself a fierce competitor in the filmed entertainment industry—not only as a producer of award-winning projects, but as the preeminent, game-changing distributor having a dramatic influence on both traditional distribution models and viewer habits. This is particularly true with works we would normally call television programming, but it should be no surprise to see Netflix, Amazon, and other streaming services jump into the production of feature-length motion pictures. Still, even as Netflix reshapes the producer/distributor landscape, it would be a mistake to call it an “Internet business.”  It’s not. It’s a filmed-entertainment company—one that has followed almost the exact same business model as most cable networks, which built revenues on syndication (very similar to rentals) until they had the resources to begin producing original programming. Hence AMC makes Mad Men.

Naturally, the most profound change in TV viewing effected by streaming technology is the ability to “binge watch,” which is itself a neologism with an unnecessarily negative connotation. Speaking as a guy who abandoned “by appointment” television more than 25 years ago, I have to say that I now do watch TV shows again because of the opportunity to view an episode or two in sporadic moments of free time, though I wouldn’t really describe this as “binging” per se.  It’s really just a more dynamic and more convenient version of time-shifting (first made possible by the VCR), hence it’s easy to see the business logic in releasing whole seasons on a single day rather than one episode per week.  In a subscription model using on-demand technology, time no longer matters to the distributor as a point of access in order to retain revenue from viewers, but this is really the only distinction between a Netflix and an HBO as producer/distributors. And assuming HBO replicates the same model in the near future, this will not make it suddenly an Internet business.

But what is an Internet business anyway?  It may seem obvious, but not if we pay attention to both the colloquial, and even some of the formal ways in which we talk about the Internet. For as long as I can remember, friends and colleagues have been referring to the Internet when it isn’t quite what we mean at all. And I am sure I have been guilty of this lapse in clarity more than once on this blog, though I do try to use the expression Internet industry when writing about behaviors, motives, or agendas of a specific group of major corporations as subjects distinct from the technology itself.

Consider the expression Don’t believe everything you read on the Internet, a cliché that predates our digital times, but one that seemed to take on a new connotation during the dot com days when those bubbly, revenue-free business ventures were grist for a justifiable mill of cynicism.  Of course, neither then nor today would it make sense to dispute the veracity of information that comes through any particular set of wires. If a 20-year news veteran writes a story, it certainly does not matter if her work is published in print, online, or both. In this sense, there is no the Internet, there is only the journalist, her integrity, and her talent.  But that doesn’t stop us, it seems, from occasionally thinking of the Internet as a subjective noun, which can entertain, produce, deliver, swindle, amuse, enlighten, or lie; rather than as something more akin to a prepositional phrase, which creates an association between the individual and one form or another of human enterprise, action, or even folly and predation.  Still, we often say in casual conversation, I got this off the Internet, Look it up on the Internet, or Buy it from the Internet, and so on, entirely dissociating the information, content, or product from the extraordinarily complex, capital and labor-intensive processes behind the ephemeral page.

We talk about connections and awareness in the digital age, but real awareness is often not a byproduct of the consumer-convenience and ad-driven design of Web 2.0. Consider the reductive nature just in the act of buying a smart phone online.  A single click represents mining five metals in at least four countries as well as eight rare earths found mostly in China; international trade agreements; human labor working in conditions of varying degrees of quality; global shipping protected by multiple state navies; and a legal framework of mind-boggling proportion. In the same way many schools and parents have in recent years found it worthwhile to teach children that food doesn’t come from the supermarket, it is perhaps even more necessary to teach them that absolutely nothing comes from the Internet.

With entertainment media, it clearly does not matter whether HBO’s True Blood transmits to a viewer’s TV via one type of signal while Netflix’s Orange is the New Black uses a different transmission technology. This has absolutely nothing to do with the viewer enjoying either program and even less to do with the process of producing these hit shows. And this is perhaps an oversimple, yet relevant, example as to why I think it’s about time we stop reporting the story of the copyright debate as one of Internet businesses vs legacy media producers, or Hollywood vs The Digital Age, or most especially as Creators vs Technology.  As with the smart phone example, copyright is just one component of a legal framework that enables the production of Orange is the New Black and, by the way, the Google search algorithm that makes it convenient to look up information about author Piper Kerman.

It should be abundantly clear that for all the shiny newness of the “Netflix effect” on the industry overall, none of these developments imply any clear mandate for substantive change with regard to a producer’s copyright interests in the works—or with their interest in mitigating the influence of illegal distribution networks (piracy). To the contrary, the fresh diversity of programming and flexibility of viewing options advanced by these new producer/distributors may be even more dependent upon protecting their distribution, derivative, and merchandising rights than with so-called traditional media business models.  Whether the cable plugging into your TV is coaxial or ethernet, the legal foundation that enables production of the shows and films you watch remains fundamentally unchanged—to say nothing of the fact that the technologies themselves are dependent on many of the same legal frameworks.

Nevertheless, the ideological battle rages on, attracting “Internet activists” toward a broad anti-copyright, anti-IP agenda, perpetuating the myth that there is a central conflict between technological or creative innovation and the purpose of protecting intellectual property. The rhetoric of these squabbles distracts from the more subtle—easily misunderstood—points of actual conflict among leading entities. Meanwhile, technological similarities among major players seem to cloud some very important distinctions in business strategies and practices.

Netflix built its business entirely within the regime of licensing existing works, providing a better rental service, staying ahead of consumer demand as high-quality streaming became technologically feasible, and then migrating into original programming.  That’s called being competitive and innovative. And with its production of excellent works in just the past few years, the company has grown its number of paying subscribers to nearly 60 million; it now has a market value just behind that of CBS; and it is rapidly expanding into multiple markets around the world.

The bottom line is that neither individual creators nor major media producers have any quarrel with technology, the Internet, or the future. To say otherwise is just silly. Filmed entertainment in particular is a medium driven from its inception by a robust cycle of technological innovation. Moreover, the major players in the changing market are simultaneously symbiotic and competitive.  Hence nothing about the IP interests of a Disney should be misrepresented as a generic rebuke every line of business in which Google has an interest, let alone as a rejection of technology in general.  It ain’t the tools, it’s how you use them.

Leave Shakespeare & Van Gogh Alone – Part II

In Part I of this essay, I argued that although Shakespeare’s plays do comprise myriad precedent works, his biography and manner of production provide little guidance for a conversation about the role of modern copyright as it relates to derivative works and the need to build upon existing works. And when it comes to skepticism about the incentive role of copyright, we encounter a lot of assumptions about the motivations of artists, including an insistence that they will always create no matter what their circumstances may be. This is often true to an extent, but in the context of mass, technological exploitation of works circumventing copyrights, the sentiment is entirely parasitical. Then, as if to aggravate the callousness of this notion, the copyright skeptic may cite an artist like Van Gogh as an archetype because he clearly produced masterworks despite a life of scorn, indigence, and madness. But as with Shakespeare, Van Gogh is too far removed from the contemporary market to be a useful reference in a conversation about the future of copyright. I think we should leave poor Vincent alone; he’s been through enough.

Upon his death by suicide on July 27, 1890, the 37-year-old Vincent Van Gogh left to the world nearly 900 paintings, over 1,000 drawings, some 150 water colors, and over 100 sketches in the numerous letters he wrote, most famously to his art-dealer brother Theo. This is an impressive body of work considering the fact that all of it was produced in barely a decade, and that the period between Van Gogh’s first masterwork—“The Potato Eaters”—and his death is less than half that time. In fact, the paintings I imagine most of us think of when we hear the name Van Gogh were all made in just the last two years of his life, with a reported 70 of these canvasses made in just the last few weeks. At the risk of a corny reference to his most famous painting, Van Gogh’s productive period as an artist really was a shooting star moment in history.

In many ways, of course, Van Gogh is like every artist inasmuch as his passion to express emotion transcends mere technical facility. Among the reasons I believe he is so often cited as extraordinary, though, is that perhaps no other artist reveals quite so dramatic a contrast between a tragically lonely existence and such overwhelming posthumous fame and popularity. But this commonly understood narrative should not really serve as any indication of the mechanisms that drive most creators; Van Gogh is too extreme in more ways than one, and society should not hope or expect to foster many artists quite like him.  Suffice to say that, based on his own writings, what drove Vincent as an artist was certainly a combination of forces—spiritual, delusional, and pragmatic—and there should be little doubt that, in his more lucid states, he desperately hoped his work would earn him a living.

1881 was the year Vincent truly began to take art seriously, and his letters to Theo from that year include multiple references to his expectation that he will very soon be an able enough draughtsman to begin earning his own income rather than continue to sustain himself on the money constantly borrowed from Theo, family elders, and myriad friends and colleagues. These passages can be cringingly uncomfortable to read because they provide a glimpse of Vincent as a sometimes arrogant, black-sheep, dilettante, not only sustaining himself by the good graces of others, but also surprisingly capable of biting the hands that are feeding him. The eldest son of a tightly knit family, Vincent’s occasionally naive sense about interpersonal relationships is exemplified when he tells Theo that he has fallen in love with their cousin Kee Vos.  Without diagnosing Vincent—as many have have presumed to do—his own writing about this unrequited love reveals that in his mind Kee’s rejection of him—and the family’s disapproval of the match—is evidence of a protracted courtship. His naïveté is heartbreaking, but it is clear that Vincent does hope his newly-found pursuit of art will lead to both financial stability and social status when he writes, “The elder persons will change their minds about this matter not when Kee changes her mind but when I become someone who earns at least 1,000 guilders a year.”

One may certainly muck about in the abundance of published speculation regarding Vincent’s mental condition as it relates to his incentive to paint, but I would argue that the more one examines the nature of what appears to have been a conspiracy of multiple neuroses, the less appropriate he becomes as an example of artists’ motivations in general. Certainly, Van Gogh is is not the only creator—or inventor for that matter—to manifest the genius/madness dichotomy; and even the most lucid, work-a-day, creator is apt to feel, or be made to feel, quite irrational at times for the pursuit of a distinctive vision. Nevertheless, Vincent seems to have walked a particularly narrow strand of gossamer between brilliantly innovative and functionally insane that most creative artists are fortunate not to experience.

To paint strong feelings solely by working directly from nature – glowing with passion – infernal fire of the soul – is incredibly taxing for the nervous system. Vincent is an example of that (myself partially so). – Edvard Munch

Regardless of the particular demons and angels that drove Van Gogh—or drive any artist—the incentive to create and distribute inherent in the foundation of the intellectual property right, especially in a market like the United States, does not reasonably anticipate such rare creatures, but rather the considerably larger population of creators, who lead comparatively ordered lives and for whom artistic or scholarly work is very much a job. And as if to punctuate just how uniquely unhelpful Van Gogh is in this regard, he happened to take his own life just at the moment when his work might have been about to pay off.

It is a frequently noted irony that only one of Vincent’s paintings ever sold during his lifetime, but it may not be widely recognized how achingly close this first sale might have been to a real break in his career.  “The Red Vineyard” was purchased at an exhibition in Brussels for the price of 400 francs by a Belgian woman named Anna Boch, who was herself an impressionist painter as well as—in collaboration with her brother Eugene—an art collector and a patron of artists. Of course, it was Theo who had begun to represent Vincent’s paintings by this time, and on March 6, 1890, he recorded the receipt of the money from the Bochs for the sale of “The Red Vineyard.” This was less than five months before Vincent would inexplicably shoot himself during an otherwise typical outing to paint a landscape in Auvers-sur-Oise.*

Two months after Vincent’s suicide, Theo himself died of syphilis, leaving his wife Johanna alone with their baby son (Vincent), but also in possession of nearly all of her brother-in-law’s works. Driven by both passion and necessity, Johanna taught herself to become an effective and shrewd art dealer, and it is she whom we have to thank for bringing Vincent’s work to the attention of the world.  According to Wouter van der Veen, co-author of a book about Johanna and this period, it would be a mistake to think that Johanna was starting from a place of total obscurity with regard to Vincent’s works.

By 1890, Van Gogh’s paintings had already gained the admiration of a number of close colleagues and fellow artists and were just beginning to attract some wider attention. Van der Veen reminds us that some of Vincent’s most famous canvasses were “not even dry” when the artist died and that it was normal—when information moved at 19th century speed—for it to take several years for an artist to become known, let alone valued in the market.  So, given the fact that nearly all of Vincent’s best works were painted in his final two years, any narrative that his incentive to work never anticipated a professional status really falls apart under examination of both his own writings and the circumstances of his time and place.

Naturally, it is easy to get lost in the intrigue of Vincent’s psychology and its many dramatic—even violent—manifestations, both in life and in paint, and forget that at least some part of this complex, irascible man wanted very badly to make art his career. It would be an understatement to say there were myriad conflicting, complex, and even dark forces that drove Van Gogh to paint and to see the world the way he did, but the rational side of him did not lack for hope of some commercial and social acceptance, and in this one regard at least, he is no different from nearly all artists.  Beyond that, any conversation about creators working in the 21st century and the role of intellectual property rights in their works should probably never invoke figures so extreme and so remote from our times, let alone presume to really understand them.

*Although investigation since 2011 raises interesting questions as to whether Van Gogh was in fact murdered, that begs a whole conversation entirely separate from the focus of this essay. Whether by his own hand or not, his life was cut short just about two years into his prolific period as a painter.