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.

Zombie Jamboree – Google “Helps” Fight Piracy

You know the deal.  Kill one zombie while ten others are infecting hundreds more who in turn infect thousands until, well, you’re basically toast.  Not only because it’s Halloween but because I am so damn bored with the Whack-a-Mole simile to describe anti-piracy efforts, I’m switching to zombie fighting.  Even TorrentFreak uses the word resurrect in the title of this article to describe how one particular torrent site, FileSoup, is using Google’s database of takedown notices to re-establish live links to infringing material.  It’s a bit confusing for the non-techie (including me), and I won’t do a better job summarizing the mechanics than the TF article, but here’s the big picture as I understand it:

Google receives about 20 million requests per month from rights holders to remove links to infringing URLs.  I suspect those are requests from major rights holders like studios and does not include independent rights holders who don’t have the resources to send out notices in significant volume.  Despite the fact that the overwhelming majority of takedown requests are legitimate and the DMCA is nearly useless for rights holders, Google and its PR machine continue to promote a general message that DMCA takedown requests are, by default, an attack on free expression.  To help reinforce this idea, the company dons a populist costume, claiming to be pro-transparency, and files all takedown requests with Chilling Effects Clearing House and produces a Transparency Report detailing the notices it receives. With the aid of so-called digital rights activists at The Berkman Center and the EFF, a publicly available database like Chilling Effects becomes a two-headed monster for both rights holders and the public.

First, as stated in an earlier post, the name and positioning of Chilling Effects is a pretty sleazy PR move designed to sustain that message that all takedown requests inherently violate free speech; and then, as a reporting “service,” these databases provide an efficient resource for prospective infringers to bring dead links back to life with relatively basic coding skills.  To quote TorrentFreak quoting someone from FileSoup, “We created a technology that crawls DMCA notices and resurrects the torrent webpage under a different URL so it can appear in search results again. It was rather complicated to sharpen it, but eventually it works pretty well. We will use it on FileSoup.com for all the websites we proxy.” 

Recently, Google rewrote its search algorithms to demote major pirate sites in the results queue, and this is a good thing. Despite having dragged their feet for years on taking such action and insisting search had no influence on pirate traffic, these demoted positions do seem to have had a mitigating effect already.  Of course, while giving a fist bump to rights holders’ with one hand, Google is using the other hand to feed links that have been lawfully removed by DMCA notice into a database that feeds this URL reassignment process to infringe exactly the same material against which Google can still sell advertising. 

And as bad as that is, I am even more concerned with the ideological agenda behind the more insidious message conveyed by an initiative like Chilling Effects that IP rights (or any other rights) infringe speech just because it’s the Internet. It is not wild speculation to say that the ultra-libertarian ideology of Silicon Valley’s elite envisions a future that looks and sounds populist and egalitarian for now, but that can become a real zombie apocalypse in just a few years.  In this zombie apocalypse story, everyone and everything is wired, and we’re all smiling at the free stuff on our devices and the conveniences brought to us by the Internet of things, and nobody notices that we’ve become commodities ourselves.  

Like a good horror movie, it begins subtly with consistent behaviors among the tech industry elite encroaching on various civil liberties.  Google does all it can to play fast and loose with piracy, and only so many people really care because they figure “it only affects big media conglomerates.”  Years later, Reddit balks at taking down stolen nude celebrity photos, and a few more people care about that because they begin to see this kind of rights infringement hits a little closer to home; those are people not companies.  Meanwhile, Google scans Gmail, and Facebook turns our connections, comments, and apparent interests into a commodity that can be traded like pork belly futures.  Then, Amazon exerts pressure on suppliers and labor with a monopolistic power we haven’t seen since John D. Rockefeller.  And because the pattern is asymmetrical and subtle, just like a zombie movie, we overlooked patient zero, which in this story was a song, illegally commoditized by a “file-sharing service” back in the early 90s.

Happy Halloween!

Is Support the Artist the Right Message?

It is common practice for those of us who discuss the rights of creative workers to talk about asking the generation of digital natives to support or respect the artists, not only by not pirating their works but even going so far as to purchase their works if they truly consider themselves fans.  But during a recent conversation that included this theme, I made an observation that ought to be obvious; and it seems to me that us GenXers might owe you millennials an apology.  Because it’s easy to say, “Please support the artists,” but while saying it, we ought to admit that we never had to think about our role as consumers in these terms.  When I’d walk into Tower Records to get a new album, I wasn’t thinking “I’m supporting the band and the songwriters.”  I just wanted the music, and buying it was the only way to get it.  Today, it’s the opposite, and not just for millennials.  The option to listen to music, even legally, without buying any songs is so obvious that almost the only reason to purchase any music, by digital download or on CD, is a conscious choice to support the artists — to pay for altruistic reasons when it isn’t technically necessary.  That is a significant shift in consumer mindset — and of course rationalizing piracy is another matter — but I do sometimes wonder if it’s true that digital natives don’t get it, at least in principle.

There’s no question that concurrent with changes in technology and experience, digital natives have grown up with the mantras of narcissism beat into their heads at very impressionable ages.  And this “give me what I want” attitude certainly applies beyond expectations of free entertainment.  For instance, I recently came across a story contrasting a negative restaurant “review” posted on Yelp and the restaurant owner’s witty response.  The complaint stemmed from the fact that the customer wanted food to go, which this particular restaurant does not offer.  Naive to how selfish she sounds, the author of the complaint felt that her and her husband’s expectations of what they wanted ought to have prevailed over whatever choice the chef/owner of the restaurant had made with regard to his business. You should read the chef’s response because it’s funny, but I draw your attention to this quote from the woman’s complaint:

“This restaurant thinks they’re too good for customers.  They will soon learn that if you ignore customers, they’re going to start ignoring you.”  

Sound familiar?  Remind anyone of the rhetoric coming from Silicon Valley interests insisting that  producers of entertainment media have to wake up and learn to deliver what consumers want the way they want it, or else…?

In fact, I think the chef and his restaurant make a pretty good, non-copyright-enterprise metaphor for the author of a creative work.  This chef has chosen the manner in which he wants to prepare and serve food and has decided that does not include an assault on his labors that occurs when a meal is placed in takeout containers and made to travel.  This isn’t just snobbery; it’s sound business if the chef is invested in cultivating a reputation for a certain quality of cooking with high-value ingredients, completed by appropriate presentation. That reputation isn’t going to be cultivated if thousands of customers in Kansas City think his food is overcooked and tastes a bit like styrofoam.  If he wishes to serve a clientele that is willing to sit down and have a meal the way it’s meant to be prepared, that’s his prerogative as a creator just as it is the market’s prerogative not to go if they don’t like what he has to offer.  But I bet he has plenty of customers.

The point is that despite numerous manifestations like this one in which blind narcissism is fueled by the apparent empowerment of social media’s soap box, I suspect that even most digital natives would side with the chef/owner in this case, perhaps not recognizing that the woman’s selfish rationale echoes the logic used to justify piracy and general access to free media.  The trick, of course, is that rationalizations carry considerable weight when they are repeated en masse after a behavior becomes normalized.  That doesn’t make the rationalization any more sound; it just makes it popular.  Nevertheless, I’m not entirely convinced that “respect” for artists is the key because I suspect the emotional relationship between consumers and creators hasn’t really changed.

Consider the songwriters, who are presently getting screwed by legal streaming services because their fees are subject to outdated statutory rates for plays on these services that are obliterating the need to buy songs or albums.  The songwriters themselves don’t hate streaming; they love Spotify in principle as much as the rest of us do.  How could you not?  But the revenue streams are shrinking, and so are the number of professional songwriters; and neither the economic nor the cultural cost implied should be ignored. Still, I suspect very little has actually changed in the hearts of millennial consumers with regard to their relationship to the songs.

I was just in Nashville, where I went with colleagues to two honky tonks.  In the first, a cover band was playing a lot of rockabilly, and there didn’t seem to be a customer in the place, most of them in their 20s who did not know the words to “Summertime Blues,” co-written by artist Eddie Cochran and Jerry Capehart.  That song is nearly 60 years old.  The second honky tonk featured what might have been the hardest-working cover band I ever saw, playing without a break for hours, rolling one song into the next in a medley drawing upon at least 40 years worth of music history.  This included Steve Miller’s co-written 1973 hit, “The Joker,” which again every millennial in the place seemed to know by heart.

I don’t think the connection between fans and songwriters is any different than it was before the digital age.  To the contrary, given all the hype about “connections” made through technology, it is remarkable to watch a roomful of complete strangers, supposedly the wired generation, all belting out a 41-year-old song together.  That may not seem extraordinary, but I can guarantee that in 1984, my contemporaries were not in clubs or bars singing “Paper Doll” or “Don’t Get Around Much Anymore,” both hits in 1943. Is there a link between stronger artists’ rights, industry growth, and longevity of a song in cultural consciousness?  It would be an interesting set of stats to study.

Odds are, most of the young people in those crowds don’t know who Steve Miller is or who Eddie Cochran was, but they probably don’t know who Sean Parker is either — the man who invented disrespect for music with Napster while these kids were still babies.  Of course, if that’s the rough timeline, who really gave Napster a boost, millennials or us Gen Xers?  After all, we’re the real first adopters of all this tech, so if our kids’ generation takes free stuff for granted, we have to accept some of the blame for that and perhaps stop assuming they don’t care about the artists any more or less than we ever did.

In this regard, I am glad to see the conversation shift toward one in which the extraordinary ideological and economic transformation being led by Silicon Valley billionaires extends way beyond its impact on the creative industries.  As a steady stream of editorials emerge from respected writers that accurately describe the Internet industry as oligarchical, and the digital-native generation continue to confront the reality of shrinking middle-class opportunities (in contrast to the fairy-tale promises of digital gurus), it will be interesting to see how this generation responds to the realization that they’ve been had.  It could get ugly if progressive ideology continues to stray from its historic foundation in human labor, but it doesn’t have to go that way because the alternative is basic, free-market economics.  So, rather than say to the next generation, “Buy an album or a book or a movie to support the artists,” it might make even more sense to say, “Buy these works to support yourselves.”

Copyright Critics Don’t Quite Get Artists

Copyright critics, particularly those voices murmuring in the halls of academia and legal scholarship, seem to question the purpose of copyright as though the law itself has generative properties. While it is true that copyright imposes one kind of constraint, and that constraints in general tend to be generative in the creative process, copyright’s critics focus a great deal of attention on the productive implication in the language of the IP clause itself, meaning its purpose “to promote the progress of science and the useful arts.” A popular viewpoint asks a reasonable-sounding question:  Does copyright produce the public benefits conditionally implicit in the clause; and if not, has copyright worn out its usefulness? This boils down to skepticism about copyright’s presumed role as an incentive for the creation of works but fails to account for a lack of understanding about creators and their many motives.

We can no more ask copyright to produce creative works than we can ask civil rights laws to eradicate prejudice from the hearts of all mankind. And even if copyright’s critics do not mean literally to suggest that the law itself is generative, the language often used does covey this connotation. For instance, one common argument made begins with the irrefutable statement that people created works before copyright, followed by the reasonable prediction that they will still create without copyright; and these premises then lead to skeptical conclusions about copyright as an incentive for the creator. But this view of the creative worker choosing to engage in his or her process is both naive and cynical, in part because it begs that mercurial question about the role of money.

Artists create work because they are driven to do so, and the extent to which profit is on the mind of any particular artist during the production of a work is first, nobody’s business; and second, too complexly varied among creators to use as a basis for examining incentive. A traditional rap artist, for example, produces his brand of poetry out of real experiences from the streets and simultaneously hopes that his works are a path out of those streets. There is no point in trying to parse these overlapping motives in a futile attempt to properly understand one artist’s incentive, let alone to then apply half-baked conclusions to describe the motives of all creators.

Copyright critics may hear artists say things like they’re “not in it for the money” or that even thinking about what might be done with a work after its completion can be detrimental to the creative process itself. But these utterances are not so black-and-white as they might seem, and their themes are too often taken out of context in order to further support a thesis that a disconnect exists between copyright and the incentive to produce.

For instance, when the creative worker says he or she is not expecting to make money, this is usually a half truth reflecting an understanding that any attempt to predict the alignment of stars that must happen to make a work financially successful is an exercise in madness. This does not mean that most creators are not hopeful, sometimes rather desperately, that a work-in-progress will be at least modestly remunerative; it is merely a recognition that this outcome is nearly impossible to foresee in most cases. A songwriter may write fifty songs in a year but cannot say for certain why seven of these might be recorded by various artists or why one song in particular makes the charts. Invariably, some of the rejected songs were the ones she thought were the best. So, the venture is always risky, and no creator possessing any common sense expects a promise that his or her work will be desired by the market. Nevertheless, out of the millions of creators who choose to engage in these ventures, often against the advice of friends and family, comes the diversity of works that collectively make life richer for all of us.

Where the common critical view is faulty, I think, is its too-literal interpretation of the incentive/creation paradigm, a mistake easily made by salaried academics, but not one made by artists, who are pleasantly satisfied when any one work can generate enough compensation to more comfortably produce future works.

Using a simple hypothetical, an author may produce volumes of un-marketable works, then perhaps a profitable but pedestrian work, and then one masterwork that will become timeless. But without his secured financial interest in that middle, profitable work, the probability that society will be the beneficiary of the masterwork is lowered. Of course, few stories follow this linear progression, but the point of this over-simple example is that when copyright provides at least a basis for economic stability for the artist, we enjoy a system in which the vast diversity of artists continue to take all of the risks, while society is solely the beneficiary of the most favored works produced without taking any risk.

By inviting a model without copyright, we could well trade the diversity we now enjoy for a more limited number of works produced solely by creators who already have economic stability. It is perhaps not surprising that such an elitist outcome would be overlooked from the vantage point of relative security within academia, where pressure to produce certain original works may exist, but without the kind of risks borne by the artist, who lives by the fruit of her labor alone.

This question of copyright’s relevance is, of course, one predicated on technology changing the marketplace. It is assumed (though not on the basis of any evidence) that digital tools for creation, and especially distribution, of works somehow obviates the need for authors to retain ownership of their copyrights in order to sell to the market through various licensing regimes. Here, the critic’s assumptions already contradict the original claimed examination of copyright as an incentive to create works because the only relevant change that has occurred is with regard to the distribution of works after they have been created.

Yes, artists have many new digital tools for production, but nothing about the motives to create or the labor that represents human transference of idea to rendering upon some medium has changed in any way that is relevant to examining copyright. Only the distribution of finished works has been changed by the internet, and so this examination by critics should not pursue the incentive to create question in the manner that appears to be the trend in academia.

Having said that, it is worth noting that copyright does provide incentives other than financial that are indeed relevant to authors, even if their intent might be to make work available for free without expectation of any revenue. And this is one way in which the highbrow copyright skeptic seems particularly cynical in failing to recognize that an anything-goes market most certainly can de-incentivize creators to produce or distribute works, if they must relinquish their power to control the manner in which their works are used.

Further, if it is true that a copyright-free future could shrink the pool of producers to those already financially secure (as predicted above), this suggests that all the non-remunerative benefits of copyright might be of even greater value to those authors still willing and able to produce. And in the absence of those rights, we could easily see a reduction not only in the number of producers, but also in the number of works produced by that elite few.

In a practical example, imagine the trustafarian artist working in the most altruistic manner, producing wonderful works solely to be experienced; he doesn’t care about money, but he does have to accept that McDonald’s can use his work to sell hamburgers, which betrays everything he is expressing. It is not farfetched to imagine the artist in this example will withhold works from public view, even if he continues to produce for his own pleasure.

In fact, as reported by Gabe Friedman for The Atlantic, graffiti artist David Anasagasti filed a copyright infringement suit against American Eagle Outfitters for featuring his work in their ad campaign. Graffiti is certainly a medium that represents a permission-free spirit and is a public expression offered without expectation of compensation; but Anasagasti’s suit, right or wrong, and regardless of the ruling, makes the point about copyright’s incentive in this context. We could argue ad nauseum about the legal merits of his case, but the fact that the artist cares is what matters. Deprive any kind of artist of control, particularly to fend off commercial interests, and he/she may well decide to deprive us of future works.

Once we shift attention to the matter of distribution in the digital age and the opportunities and threats faced by creators, we tend to hear less theory from academia and more from corporate interests with a financial stake in an internet that rejects most regulations, including copyright. The academics, it seems, tend to focus on legal theory —  the intent of the framers; distinctions between property rights and natural rights; the question of copyright’s function as an incentive, and so on. But the question that should be asked is the role of copyright as incentive for the distribution of works, with an honest look at the very complex manner in which sustainable distribution systems feed the cycle of new production. As I say, this is usually when the conversation tends to transition from legal theory to market practices, and in that regard, we can look at data.

While it’s true that there is no one solution for all creators and all media, the general premise that is skeptical of copyright in the digital age appears to be based on a few assumptions that have almost entirely failed to manifest in the digital age. And despite evidence to the contrary, these assumptions continue to fuel predictions of a brighter future for creators, fiddling as Rome burns. The foundational assumption is that the author of a work can sell directly to enough real fans through the nearly free distribution platform of the internet (with free tools graciously offered by various tech companies) that she can bypass licensing regimes with traditional distributor entities. Without the need for this kind of licensing, the author no longer “needs” copyright in order to engage in newly-available, one-to-one transactions with customers. Moreover, the author keeps nearly 100% of all proceeds rather than a percentage of the distributing entity’s revenue, and this hypothetical revenue is expected to offset any losses resulting from unauthorized acquisition of the works.

In essence, the argument boils down to this:  That while the Internet fosters threats (e.g. piracy & lower prices), it also creates opportunities (e.g. self distribution & greater percentage back to authors) that are predicted to be more potent than both the threats and the pre-digital models.  The problem is that none of these hypothetical benefits for creators are becoming manifest at any scale that we can take seriously as a basis for questioning the catalytic role of copyright in supposedly “outdated” models.

While we do hear occasional examples of digital-age opportunities proving to be successful for specific creators, the reason we continue to encounter the same handful of anecdotes repeated in editorials, blogs, and even testimony before Congress, is that these stories are dramatically outnumbered by the millions of examples in which both artists and consumers are facing a loss of works to due to threats posed by the digital age. This may seem counter-intuitive because to look at the market right now, there are more works available than ever, but this expansion may be temporary because we are still in a transitional period, enjoying the bounty of the moment, while not seriously considering the other side of the threshold if certain threats are not properly addressed.

Medium by medium, one has to look at threats and opportunities differently, and this conversation unavoidably includes the subjective assessment of “public benefit,” leading to the interesting but futile debate over what constitutes works of value (i.e. what we hope survives or fails).  Nevertheless, it seems reasonable to predict that if the vast majority of creative producers, including those whose work supports authors, are overwhelmed by threats, then the net result over time will be a reduction in the volume of works of value by the broadest, sensible definition of the term. Copyright alone is not the answer to the many forces at play affecting all workers throughout the middle class; but weakening copyright for the creative sector has at least an aggravating — if not outright destructive — effect when combined with those other economic pressures in the same way that, say, stripping collective bargaining rights exacerbates the woes of another kind of labor force. So, intellectual discourse within the comforts of academia are all well and good, but pollyanna assessments of almost any industry sector right now do reek of elitism, blind to the realities of those who depend on the rights in question.