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.

Lessig Mixes it Up

Attorney and legal scholar Lawrence Lessig considers the current copyright system to be generally antagonistic to contemporary culture.  In fact, any number of common assertions about copyright’s supposed obsolescence in the digital age are very likely derivative of something written or said by Lessig, who has devoted a fair amount of energy promoting the value of the remix.  In at least two video versions of this talk, he prefaces the subject by quoting John Philip Sousa, who in 1906 decried the new “talking machines” thus:

“When I was a boy … in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today, you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.”

You might expect this quote to be used as a segue to criticism of anachronistic fears of new technology — like Jack Valenti’s infamous exaggeration about the VCR as a “Boston Strangler” — and in fact this Sousa quote has been referenced by scholars and technology advocates in this context.  But in this case, Lessig cites the composer for a very different purpose, which is to tee up his audience for a chat about rediscovering what he calls “read/write culture.”  In essence, Lessig claims a kinship with Sousa, pining for the days when people sang (i.e. shared) songs with one another through the nexus of their front porches.  Thus grounding viewers in this nostalgic idyll, Lessig then proposes the reasonable enough notion that YouTube (or any social media) is the new front porch of our digital times. This, he tells us, is how “the kids” are sharing the songs of the day — through mashups, through bedroom performances, through remix in many forms — and it is, therefore, wrong to criminalize “the kids” for engaging in a new variation of a bygone pastime.  And by “criminalize” of course he means enforcing copyrights through takedowns, C&D letters, or even lawsuits.

Now, Mr. Lessig is a controversial figure among those who care about artists’ rights and digital culture, but he is also a highly qualified legal scholar, and I would not presume to question his knowledge of the law itself.  I leave such criticism (and there is plenty) to Mr. Lessig’s peers.  But I do know a sales pitch when I hear one, and I certainly have a bone or two to pick with what Mr. Lessig appears to be selling.

Right off the bat, he takes Sousa’s concern for the American vocal cord entirely out of context, omitting the fact that these words were uttered as a preamble to testimony before Congress in favor of stronger copyright laws.  Specifically, Sousa hoped copyright would expand to protect sound recordings, which didn’t happen for another seventy years.  Regardless, even cherry picking the sentiment, I’ll buy Lessig’s comparison between the porch of yesteryear and the virtual porch of today, but I have to stop myself from being sucked too deeply into the metaphor when I realize he’s constructing a straw man.  Or in this case, straw kids.

As Lessig is free to generalize in his talk — to gloss over the case-by-case realities of various infringements, fair uses, takedowns, or suits — I’ll claim the same privilege and generalize that very few rights holders are in any way interested in “criminalizing” the kind of remixing that could arguably compare to the social celebration evoked in Sousa’s yearning plea. In fact, here’s a video of some ladies singing just one of the songs of the day (the mid 80s anyway) on both a virtual and literal front stoop just as JP Sousa would supposedly have it.

This ukelele trio that calls itself No Skanks On Sunday offers a charming rendition of “Take the Skinheads Bowling,” written and originally performed by David Lowery’s band Camper Van Beethoven.  And you know who’s just fine with this video remaining on YouTube?  David Lowery and Camper Van Beethoven.  That’s the same David Lowery who, through guest appearances and his blog The Trichordist, has become one of the most outspoken opponents of piracy and other forms of mass digital infringement. But when I asked him about this video, his response was, “Yeah, we don’t care about that stuff.”  And I’ll bet my paycheck against Lessig’s that the majority of rights holders feel the same way about this kind of use.  So, if we’re going to generalize, I think it’s accurate to say that remix culture, for better or worse, is doing just fine and that the number of wrongful, mean-spirited, or aggressive takedowns represent the exception rather than the rule.  So, while I don’t know the law well enough to tangle with Lawrence Lessig, I see little evidence of rampant “criminalization of the kids,” which makes me wonder if Lessig is really concerned with defending culture, or is he concerned with selling books and making a career out of addressing a problem that isn’t a real problem?

Meanwhile, what is certainly offensive to artists and bad for culture at the same time is what happens when one types “Take the Skinheads Bowling,” or just about any other song title, into a search engine. We’re supposed to be 20 years into “the information age,” but good information is actually becoming harder to find if search is the tool being used.  The top results will be a handful of YouTube videos of CVB playing their song, none of which are by permission; then the obligatory Wikipedia entry, which is an okay first source but requires fact-checking; then there’s a smattering of unlicensed lyric sites selling ads and only sometimes crediting the songwriters; and then we get into torrents and other means of downloading unlicensed versions of the song itself.  Nearly all of this activity directs money into Google’s coffers, and neither the band nor the public is particularly well served if the initial search began with “What’s that song? Whose is it? I want to know more?” For all the noise about “connecting with fans,” search is actually a wonderful way to disconnect works from their authors and to hijack potential fans away from patronizing the artists themselves. I think we all have a bit of ADD on the web; we set out looking for something and can be easily distracted by the offerings in the top results.  Think Google doesn’t know this?

I remain confused as to why a band’s official website is not among the top results when one types in famous lyrics or song tiles; and I know what SEO is, but if cultural diffusion is the goal, shouldn’t the digital-age version of the album cover be among the first  sources discovered by someone searching a song?  CVB’s site offers lyrics, notes, guitar tabs (all free); and the user just might, I don’t know, learn something about the band and discover more tunes he or she likes.  That’s connecting with fans; but the company that owns the only search engine to speak of and the only ad server to speak of doesn’t really support traffic directed in this way.

So, as a legal layman but active observer of these things, it seems to me Mr. Lessig’s presentation, though charming, contains at least two fallacious premises.  The first is that the positive aspects of remix culture are actually threatened by the copyright system; and the second is that remix culture is universally positive.  I don’t know of any cases in which rights holders are stopping “the kids” from singing the songs of the day on YouTube.  But there are plenty of cases in which adults are profiting from remixing culture in ways that benefit neither fans nor creators. While it’s almost rote these days to call everyone a shill, I don’t think this is very helpful. I prefer to assume intelligent people mean what they say and believe in their positions, and Lawrence Lessig is certainly an intelligent man.  Of course, that might be why his ideas are ultimately so dangerous.

Dr. King & the Public Domain

Every time a Martin Luther King anniversary comes around, the anti-copyright armada is well armed with blogs and articles decrying the indecency that the civil rights leader’s words and recordings are not in the public domain.  And never one to miss such an opportunity, even while missing the point, Mike Masnick at Techdirt insists that Dr. King’s “I Have a Dream” speech should no longer be protected by copyright controlled by the King estate.

You know the speech, right?  Who doesn’t?  We celebrated it’s 50th anniversary yesterday, and it’s only one of the most famous pieces of oratory in world history.  Yet, despite the fact that Dr. King’s words managed to attain osmotic universality long before the invention of YouTube, one gets the idea from reading Masnick’s post that without “sharing” the speech through social media, it might simply vanish into oblivion.

I understand the sentiment.  After all, these words feel like public property, and they were among the many gifts King gave to humanity.  So, is it really fair that the King family can manage or even license this speech and “sully” its legacy with money?  It is.  And the primary reason should be obvious:  because YouTube doesn’t belong to the people, it belongs to Google; and Google monetizes every click. That means Masnick’s idealistic musings that sound humanistic are already sullied with money, except that in his world, the money would be Google’s, and the King family would get zip.  How is that more fair or better serving the public interest?

The internet industry has done such a thorough job of telling people that the web belongs to all of us, we actually believe it.  Masnick’s title “Let Freedom Ka-Ching” is admittedly clever, but it’s also hypocritical.  He mocks the tawdry commercialism of licensing King’s emancipating words for use as a ringtone and cites Professor Boyle of Duke University, who also mocks such use; but why is the alternative better?  If I made an homage mash-up that earned millions of views on YouTube, why would it be any less tawdry for Google to advertise fast food against it?  Go a step further:  what if a white-supremacist group creates a racist mash-up with the speech that generates millions of views, and Google sells ads against that? The King family would be powerless to do anything about it, and Google would keep the video online because it’s “free speech.”  Ka-ching!

We keep forgetting that copyright is often about preserving the integrity of works, and not just about money. Estates have long played the role of curators who protect the legacy of authors’ works, and we dismiss the value of this at our peril, even as we mock the idea of “I Have a Dream” as a ringtone. I happen to think a ringtone is not a bad use as uses go, but that’s another conversation.

The web moves fast, it favors what “trends” and not necessarily what endures.  There is no evidence to suggest that my fellow Americans are any more enlightened or have more ardently embraced the goals of the civil rights movement because of social media and so much jittery sharing of things.  Worse yet, can we say for certain that a generation or two from now, the legacy of King would not be mangled through reuse beyond all recognition?  The answer is no we can’t say that for certain because we’re making assumptions based on technologies and social trends that are less than a decade old.  And we have seen plenty of evidence that what goes viral is not always accurate or valuable.

I for one think Martin Luther King, Jr. already gave us plenty; and access to his works is anything but limited.  You might have to get off your butt and go to the library, but considering how far he walked, that doesn’t seem like a lot to ask.

Rime of the Corporate Manager

“Nor any drop to drink.”

It was a year ago this week that I first launched this blog, and when a friend shared the above video the other day, it reminded me why I choose to write about digital-age issues, the rights of artists and creators, and the assertion of the humanistic over the technological:  it’s because I believe the economics of the internet  too often reflect exaggerated corporate values disguised as social values.  I’ve produced videos similar to this one, have sat down with CEOs to record no small amount of gibberish in my career, but Nestle CEO Peter Brabeck-Letmathe appears to be a paragon in the art of believing one’s own bullshit.  When a guy calls “extreme” the assertion that water is a human right, it’s probably time to break out the pitchforks and torches. If the molecule that makes all life possible isn’t a human right, then there are no human rights. Of course, Nestle has long been featured in many a rogues gallery among watchdog organizations for a range of abuses around the world, including its purchase of cocoa harvested by child slaves in Africa.

There’s nothing wrong with corporations, just corporate culture; and it’s my belief that for about a half-century, we’ve been nurturing a mindset so detached from social responsibility that it should really be no surprise when executives at the top of the hill espouse viewpoints bordering on depravity. More to the point, this dissociative behavior is not exclusive to wealthy CEOs. For everyone you know who might want to defenestrate the architects of the mortgage-backed securities fraud, you probably know just as many people who privately think, “I wish I’d been in on that.” And the truth is these corrupt bubbles are often pumped up as much by greedy individuals and small entities tailgating the bigger players in these schemes.  We have trained ourselves to pursue short-term, high-return ventures regardless of their value or toxicity to society overall. And the sad reality is that the economy we have fostered leaves us with little choice other than to become social cannibals. As the middle class in the developed world is hollowed out by the schemes of the uber-wealthy, those in the middle begin to recognize that a modest and sustainable existence is nearly impossible; and so we become schemers ourselves, assuming that the only security lies in rapid wealth accumulation by whatever means. Victims be damned.

I have believed for a long time that our economic woes are cultural more than they are systemic, and if this is true, it means things will have to get really bad before a new generation redefines its principles out of necessity.  And that brings us to the massive influence of Silicon Valley and the many populist promises of Web 2.0.  The marketing is an ongoing montage of human potential, entrepreneurism, innovation, global connectivity, and a better quality of life for more people — all set to the tune of some world-music anthem. To watch the commercials, one gets the idea that all we need is to endow every individual with a smartphone, and human potential becomes limitless. If we just plug in, we can all live beautiful, upper-middle-class lives, dress like hipsters, and share our beautiful experiences with one another through social media.  Meanwhile, I meet more American millennials who have no idea what they want to do with themselves, partly because jobs are scarce and the market is flooded with educated people.

The underlying message emanating from the internet industry is indeed one that promotes tearing down existing systems (i.e. “barriers”) because technology “empowers the individual.”  And there is some truth in these promises evidenced by many entrepreneurial and grassroots enterprises that would not exist without the digital revolution; but there is also an illusion of personal empowerment that I think blinds many to the same old corporate interests behind all the feel-good PR.

My concern is that the internet industry, both tangibly and ideologically, represents everything that’s already dangerous about corporate culture, only on steroids. Take a step back from the apparent vastness of the web and consider how few major corporations profit from most of our activity.  Name another Facebook.  Name another Amazon.  Name another Google.  Web 2.0 is a highly circumscribed environment owned by a small number of corporations that don’t employ very many people. Moreover, if we’re going to be brutal about it, the most successful web business are fundamentally exploitative in nature. Whether we’re talking about social media, a news aggregator, music streaming, some sophomoric diversion site, a YouTube, or a torrent, the business model is clear — drive traffic to paying advertisers without investing much or anything in the production of content.  This is the underlying reason why the industry is antagonistic to intellectual property (and sometimes even privacy) rights — because such constructs are just a nuisance to the money-for-nothing model that is the foundation of most of these self-proclaimed innovations in the market.  “Water is not a human right” is a message that supports Nestle’s bottom line. “Privacy and IP aren’t civil rights” are messages that support the bottom line of most high-profit web companies.

We may be in danger of very rapidly expanding the WalMart model throughout multiple sectors of the economy by having too much faith in these technological promises. The big-box retailer is monopolistic and exerts excessive pressure on suppliers.  As consumers, we see lower prices at the store but too often fail to realize that we’re part of a vicious cycle that actually leaves us with fewer dollars to spend in the first place and even forces manufacturers to export labor overseas where workers may be mistreated in the production of inferior goods.  We see this same, unilateral bargaining power as Apple’s new music streaming service negotiates licensing rates with the major publishers; we’ll see it as YouTube negotiates with entities like the NFL and as Google inserts itself more directly into the filmed-entertainment business.  Instead of diversity and competition, which the web promises, we seem to be fostering consolidated wealth and power not seen since the days of John D. Rockefeller. And although many people have come to look at the WalMart model holistically, we still tend to look at web enterprises only as consumers benefiting from all the cheap and free stuff.

iStock_000000793986Small
Photo by Haje

There are social, moral, and financial reasons to be wary of our exuberant embrace of models that rapidly devalue goods and services, or principles like privacy, intellectual property, or common decency. Nevertheless, every day, some lobbyist or paid consultant or academic with a book to sell will extoll the value of devaluation. Not only do many of these theories remind me of Mr. CEO of Nestle defining water as a “food stuff,” it reminds me of an old joke . . .

A guy buys firewood at $1.50/lb and sells it to his customers for $1.25/lb. When he realizes he’s not making any money, he decides he needs a bigger truck.