Category: Digital Culture

Copyright Doesn’t Restrain Culture – Part I

Among the premises commonly stated to argue that we must “rebalance copyright for the 21st century,” we find two widely spread and oft-repeated generalizations, both of which are false.  The first generalization is about access, which proposes to speak for the consumer and implies—or explicitly declares—that copyright acts as a barrier to the diffusion of cultural works.  The second generalization concerns the creation of new works and proposes that copyright acts as a barrier to derivative and new works, that it stops new creators from building upon existing works, which is inarguably an essential—even unavoidable—part of the creative process.

The fundamental problem with both of these generalizations is that neither the consumer’s nor the creator’s experiences, practices, or behaviors largely support the assertions being made.  Nevertheless digital-rights activists, pundits, and academics continue to repeat these messages as though they are common sensical, observable truths; and further, they tend to conflate the two interests—consumers and creators—despite the fact that these are generally separate subjects with regard to copyrighted works.  As such, I’m presenting the following as a two part-part essay. Part I will address the first generalization about consumers, and Part II will address the second generalization about creators building upon existing works. And, although I understand that it is very popular to say that “we are all creators now,” that there is no longer a line between creator and consumer, I believe this is also not true in the market overall. In Part II, I will address the hybrid consumer/creator, but for the sake of clarity, Part I concerns only those people who consume works and have no interest whatsoever in creating even so much as a minor mash-up. After all, this is almost certainly how we can describe the majority of the market we honestly call consumers.

Part I – Access and the Consumer

Statements made about copyright limiting access are typically—one might even say purposely—phrased in high-minded, aspirational tones.  They involve words like culture, enlightenment, democracy, information, and education.  The assumption is that copyright terms are so long, that prospective consumers of important and valuable works have difficulty gaining access to them—or at least difficulty relative to the speed of the Internet.  This paints a picture in which copyrights keep great works under lock and key, thus starving society of the many rich, cultural experiences to which we are the rightful heirs as stated in the intellectual property clause of the Constitution.

Of course, one of the simplest, initial answers to this charge is that the lion’s share—by a substantial margin—of the works that are pirated via the Internet, are mass-appeal media, which have been produced only very recently; this includes works like motion pictures or hit TV shows that have not yet been officially distributed by their producers.  So, even the most tamely-worded proposals to reduce copyright terms to roughly a decade on the grounds that this would be “more in synch with the 21st century,” are naive at best, and outright lies at worst.  Or as Robert Levine puts it (and I have quoted him on this before), “It doesn’t matter if copyright is Life plus 70 or Life pus 50 years, because on the Internet, copyright lasts about ten seconds.”

With regard to older works (classics), the reformer’s view, which says these belong in the public domain sooner, is actually more elitist than its proponents would like to believe.  It assumes the majority of the market actually cares to have access to these works, which is a typically liberal leap of faith that wants to lead even the most stubborn horses to water.  I know that sounds snobbish, but it’s quite the opposite.  I don’t think less of my neighbors because they don’t likely give a damn whether or not the entire oeuvres of Bergman or Fellini are available via legal streaming, but that they are eager to watch Game of Thrones, Sons of Anarchy, The Walking Dead, and sports.  To the contrary, they represent the real market, while it is only a handful of us oddballs who might choose to make an evening out of re-watching Fanny and Alexander.

So, to put this in exaggerated terms, it wouldn’t really matter to a very large portion of the market if the works they don’t care to access had perpetual copyrights or if the works they do care about had ten-year copyrights because most consumers want to access current works immediately, and they will acquire them—either legally or illegally—regardless of copyright terms. And because most of the works they do want are current, these are also widely available through legal means.  So, in this regard, it is dishonest when the voices who say, “You can’t stop piracy,” or “Piracy is a reaction to scarcity,” happen to be the same voices who say that copyright terms should be shorter.  One cannot argue in favor of both theft and shorter terms at the same time without sounding ridiculous.

Meanwhile, long copyright terms are probably the most effective mechanism by which to preserve classic works that at least some portion of the market does want to access, and in formats in which they prefer to experience them. Maintaining licensing regimes funds necessary restoration, remastering, fresh translation, publication, distribution, and other labors necessary to produce fresh editions of media that are desirable to the market for a large number of classic works. (Because if one is going to make an evening of an Ingmar Bergman film, one does not to watch some crappy digitization of it on YouTube.) Yet, nearly two years ago, the Duke University Center for the Study of the Public Domain released an article, devoid of any clear thesis, complaining rather strenuously that a list of great works, including Bergman’s The Seventh Seal, remained under copyright as of the start of 2014.

Naturally, I’m using Bergman as an example that could stand for any classic work of art or scholarship, and I wonder now, as I did in my rebuttal to that Duke post, what exactly does one want to do with The Seventh Seal other than to watch it? Which, by the way, is currently possible via Hulu, Amazon, or iTunes.  So, not only does the copyright barrier not exist for the consumer in this case, but the narrative that is constantly repeated, even by scholars we’re meant to take very seriously, tells a double-fiction—first, by implying that there are scores of disenfranchised people hungry to watch this classic film; and second, that those who do want to see it are unable to do so.  Yet, here I sit, three dollars and about four button clicks away from watching Max Von Sydow play chess with Death, if I want to.

Of course, any number of readers can produce the title of an obscure work that is either difficult or nearly impossible to find.  But this has always been a challenge for the true enthusiast of a particular genre or artist, and its singular nature is again its own rebuttal to the claims made by copyright reformers that “the public” is underserved by the current IP regime. A tiny minority cannot necessarily represent “the public,” and the legal system cannot wholly anticipate and serve every unique desire. But again, for the true enthusiast in pursuit of an obscure work, the most sustainable preservation mechanism is likely going to be one that is built on a foundation of licensing.  While random digitization by amateurs ripping DVDs, etc. may have the momentary appearance of “making works available,” it is a very poor—and entirely unreliable—form of preservation.  For instance, MGM’s long-term interests in its library of famous musicals is the mechanism that maintains the prints and quality reproductions of Singin’ in the Rain, not YouTube and certainly not Putlocker. But in any regard, the more niche the interest of the consumer, the more we are talking about such a small fragment of the consumer market that it seems irrelevant to any practical debate about copyright terms acting as a general barrier to access.

Also, despite the fact that many classic works of art and scholarship are either in the public domain or cheaply accessible, the promised enlightenment that is supposed to follow as a consequence often looks a bit like a fading 60-watt bulb. For instance, in a bizarre moment of afflatus in May 2013, anti-copyright’s would-be prodigal son Derek Khanna stated on Twitter that people should not read The Great Gatsby because it is not yet in the public domain.  This still elicits a Scooby-Do double-take to consider his logic, which advocates a specific illiteracy as a symbolic protest against copyright terms, despite the fact that this particular novel is so widely available that one is apt to trip over a discarded copy in a city park.

Nobody can justifiably argue that readers lack access to the works of Fitzgerald because of copyright terms. Meanwhile, I’m sure these works are available illegally right now, but that does not necessarily mean any more people are reading them than they were 20 years ago. In fact, Gatsby itself is probably being assigned to groaning high school students at this very moment, including at least several who will keep up the American tradition of taking their access for granted and dodge the reading altogether. And, for that matter, we seem to be witnessing a new phenomenon in American colleges whereby certain students are refusing to engage with various assigned classics because some theme, topic, or language offends their own special snowflakyness.  All of which is to say that I suspect that with every new work that might be made more available by “rebalanced copyright,” we may simultaneously see new social and cultural reasons for consumers to disenfranchise themselves from works anyway.

The reality is that we have more works legally and affordably available than at any time in history, plus an entire black-market that trades in making works available for free.  Yet, it is hard to find much evidence that this river of media has produced a more fertile society comprising a cultural literacy that extends beyond whatever is trending in any given moment.  Last week, my kid’s middle school had a Dress as a Movie Character Day, and so my daughter (because she’s my kid) went as Charlie Chaplin. By midday, at least twenty schoolmates asked who she was, and some thought she was Adolf Hitler. I find this extraordinary. With all the information that’s available right now—all of it entirely unaffected by copyright—how do middle-class American kids get to be 13-14 years old and not at least recognize an icon like Chaplin’s Little Tramp — to say nothing of knowing what Adolf Hitler looked like? These are hardly images of arcana.

In another example, my eldest in college, taking a required American civics class, reports that several of his fellow students had no idea Germany was recently divided East/West, and they had also never heard of the Cuban Missile Crisis.  How?  Are these not digital natives who have grown up with “the world of knowledge at their fingertips”?  It is preposterous to claim that their ignorance on these basics of general knowledge is because Google hasn’t been allowed to digitize enough content due to copyright constraints. So, can anyone rationally argue that accelerating the progress of works into the public domain has anything to do with a broader literacy?  If these kids are missing certain fundamentals, it’s because of other reasons—mediocre schools and family influence being the most likely—that have nothing whatsoever to do with copyrights.  Ironically enough, I think my generation may have acquired more cultural literacy just watching Looney-Tunes cartoons on one of a dozen TV networks than many a digital native has gained from all the “access” he supposedly has today. After all, our Bugs Bunny “scarcity” was a primer in world history, music, film history, Shakespeare, art history, literature—and in a certain Wile E. Coyote way, basic physics.

This is not to say, of course, that there isn’t literacy to be found in contemporary media. Writer Daniel Starkey offers a very frank article about growing up poor and committing petty larcenies in order to have some of the things the kids around him had.  Entitled Piracy Gave Me a Future, Starkey’s main thesis is that media piracy provided him with access to a literacy he might otherwise never have had.  He writes …

“Deus Ex was the first game I’d seen that listed its primary influences, which included philosophers like Hobbes, Voltaire, Locke. They were wealthy men, to be sure, but learning about their work set me on the path to learning about sociology, about history, about how much all media is one long chain of slightly modified ideas, with each new link adding a new twist or perspective. The game’s themes also spoke to some of the most personal concerns of my life, including economic class, injustice, about the disempowered fighting against a wealthy ruling class.”

And this is exactly the kind of anecdote the copyright “reformers” like to cite in order to prove the purpose of their agenda.  But I would counter this with two points.  The first—as I have already indicated—is that Starkey pirated works that were current and, therefore, would still be under copyright even with very short terms; and the second is that exceptional individuals like Mr. Starkey have throughout history found ways to educate themselves beyond the barriers of their circumstances. Those barriers are usually financial, cultural, or political while having very little to do with the specifics of intellectual property laws. After all, there are millions of kids whose parents bought them Deus Ex and who did not take from their gaming experiences the kind of life lessons that effected Starkey’s future. But it is the market of those millions of paying customers and the legal framework for development and distribution of the game that provides the foundation for producing Deus Ex in the first place. (It should be noted that Starkey’s article does not make any kind of mention regarding copyright reform; he is merely sharing his own introspection.)

The critics claim that copyright creates “artificial scarcity” in a time when technology demands abundance.  They say we live in a “read/write” culture today, but this is only a fragment of the larger picture because I think we also live in a “don’t read/burn” culture, in which whatever is viral (ergo profitable) continually overwrites the kind of fundamentals of cultural literacy referred to above.  One need only look at the state of our politics to see that my kids’ schoolmates aren’t the only ones who seem to have no knowledge of basic, historical facts and are living out Santayana’s axiom.  Yet, organizations like the Electronic Frontier Foundation like to draw circuitous lines from a creator’s enforcement of his copyrights toward a slippery slope into political censorship. This was in fact the crux of one statement after the Ninth Circuit Court ruling in Lenz v UMG.  As posted on the EFF site, attorney/activist Corynne McSherry says the following:

“The decision made by the appeals court today has ramifications far beyond Ms. Lenz’s rights to share her video with family and friends. We will all watch a lot of online video and analysis of presidential candidates in the months to come, and this ruling will help make sure that information remains uncensored.”

Aside from the specific rebuttal we might make to McSherry’s assertion that a rights holder can use DMCA to effectively censor a candidate or criticism of a candidate—because she can only be referring to very specific and rather unlikely circumstances—her larger point would be laughable if it were not so depressing.  Have the hyperbolists at EFF not noticed that our digital-age, 140-character politics have become more reminiscent of the volatile, populist, and naive 19th century than anything akin to the revolutionary promise of a more progressive 21st? Remix isn’t just some fun thing the kids do with a song and some video clips, as Mr. Lessig would tell us, remix is also what’s happening to truth, to science, and to journalism that’s trying to stay relevant in a world moving faster than the speed of real investigation. So, it seems to me that we could hardly detect censorship in a public debate so utterly devoid of facts, reason, statesmanship, or even solid reportage in many cases. Yet, the EFF would have us believe that it will be some musician taking a video off YouTube that will in some way harm our political process. If anything, it may be the musician who’s the only one making any sense.

This is not to say that social and intellectual progress is not being made in many areas, or that digital technology does not play a significant role in that progress—only that copyright terms (or patent regimes for that matter) are not acting as a barrier to that progress. For all the anti-IP rhetoric, these regimes are probably as generative as they have ever been, and I sincerely doubt there is any measurable evidence to prove that the copyright system is holistically out of synch with the 21st century and the digital market.  It’s just one of those things that sounds true and may even look true on the surface, but probably isn’t true if we really study the matter carefully.  If anything, the present reveals that the general consumer has ample (legal) access to more works than he can realistically experience.  At the same time, there are myriad social reasons why consumers do not access any number of works of art or scholarship, and it seems hardly reasonable to blame the rights of the artists and scholars for that.

In Part II, I’ll address the assertion that contemporary copyright is out of synch by acting as a barrier to the creation of new works.

It’s called being creative. On memes and copyright.

I feel a little bit bad picking on Washington Post tech writer Caitlin Dewey as much as I have already, but it’s probably not as much as I would if I read her column with any purposeful frequency.  Unfortunately, given the subjects I write about, people like to send me links to her articles. And I read them. And then the voices in my head start yelling because she’s said something deeply ill-considered in a high-profile newspaper. And then typing happens …

So, one of Dewey’s recent observations concerns the possible extinction of “our favorite memes” from the Internet thanks to copyright enforcement by owners of the rights to the underlying images on which said memes may be based.  Specifically, she cites what is supposedly an Internet legend known as Socially Awkward Penguin, which originated on 4chan (snort-laugh).  The meme features a copyrighted image of a waddling penguin, originally captured by veteran photographer George Mobley, which has been remixed and repurposed to produce various funny (or not) aphorisms on the theme of awkwardness.

Now, I certainly won’t disagree with Dewey that the meme is a perfectly valid form of expression, though how much cultural importance we can ascribe to the medium, I suppose, depends very much on each meme and the context in which it is used.  For instance, I think I’m all set with the constant repurposing of that screen-grab of Gene Wilder flashing his Willy Wonka smirk as the predicate to every sardonic comment anyone cares to convey on any number of issues. And that gets to the real point about any expression, which makes use of existing material:  it doesn’t necessarily need to. And, guess what happens if, say, a meme maker respects the rights of the owner of the original work?  He or she communicates the same idea in some other way.  It’s called being creative.

Anyone who creates stuff will tell you that being forced to work around an obstacle — like not boosting someone else’s work — almost always produces something better than what was first imagined because the new work becomes a legitimately new expression. And this is likely to be just as true with a meme as with any other medium.  I’ve written about this theme before and have also cited a relatively recent work of scholarship called Working Around Copyright by Joseph P. Fishman at Harvard Law School.

The assumption made by those who’ve grown up with what they think is a new idea called “remix culture” is that creativity depends on unlimited use of existing works. But if SAP (Socially Awkward Penguin) was destined to become part of the digital-age vernacular, then there’s no reason to assume that this form of shared expression would have been diminished if the originator of the meme had taken inspiration from Mobley’s image rather than taken the image itself. Hence, the assertion that copyrights “stifle creativity” is an oxymoronic claim because the author who derives, works around, and creates anew will always be more creative than the author who copies and pastes.

Now, the legal story Dewey cites in order to justify the misleading headline saying that our favorite memes are being killed by copyright involves Getty Images, which manages the rights for Mobley’s original penguin photo.  Dewey writes, “In the past year, the company’s licensing agency, Getty Images, has ‘pursued and settled’ multiple infringement cases involving Socially Awkward Penguin, it confirmed to The Post. All of those actions were carried out in secret, with blogs and other posters agreeing to non-disclosure.”

We’ll get to the “secret” part in a moment, but suffice to say, one of these sites, German-based getDigital agreed to take down posted SAP memes from its blog and pay a back-dated license fee, but they refused to remain silent on the matter. Instead, getDigital published a blog post about its settlement with Getty, and this post is apparently the foundation of Dewey’s article.  From the big picture, we are meant to conclude that 1) Getty is randomly cherry-picking little sites who can’t defend themselves, which is meant to seem silly given the ubiquity of SAP on the web; and 2) that there is something truly sinister in that condition of silence regarding the settlement.  But as is so often the case when it comes to the Internet and copyright, commentary like this is predicated both on a misunderstanding of the law as well as an implied wishful thinking that it should work differently from the way that it does.  In addition to providing shoddy reporting on the actual issue, this also does a disservice to any site owner or blogger as to what they should and should not be posting.

So, to try to clear up the first part of the confusion in this story, most of us encounter memes on social media sites like Facebook. If we like them, we share them, they go viral, and it’s all a bit of harmless fun.  The reason Facebook is not liable for any infringement in these cases is that the site is protected by safe harbor provisions in the DMCA. These provisions — although they are often applied in a manner in which they were never intended — presently shield a site like Facebook because all or most of the content is uploaded by the users.  But these safe harbors do not apply to a publisher of content on his/her/its own site.  So, if the New York Times, which has editorial control over the content on its pages, publishes a Reuters photo without proper licensing, the NYT is liable for direct infringement of that photo.  Hence, this same rule applies to any site on which the owner controls the content, which would include the blog of getDigital, or even this blog because it is not a platform for UGC (User Generated Content). So, a rights holder like Getty will only go after sites on which the owner controls the content, and a lot of the big publishers know better than to infringe.

Moreover, people need to understand — and Dewey makes this mistake in her article — that money has nothing to do with it!  As mentioned in this post about a friend who found herself in some trouble with a photographer, it doesn’t matter if the use of a work is in any way related to commerce or revenue for the site owner that uses the work.  While commerce may indeed influence the remedies sought by a claimant, money has no bearing whatsoever on whether or not a work has been infringed.  This  is one of the most common misconceptions out there, and it has only been exacerbated by the apparent “freeness” of the Web.  I say apparent because none of this Web stuff is free; it’s just that most people don’t pay attention to the nature of the trade that is happening (but that’s another subject).

As for the settlements between Getty and any site owners, I recognize that secret is a truly dirty word in this age when people have convinced themselves that the Internet provides transparency, but non-disclosure is a pretty mundane, standard practice when settling civil cases of this nature.  The plaintiff agrees not to sue — that’s what a settlement is — but it is in the plaintiff’s interests not to publicly reveal the terms of the settlement for any number of reasons, namely that its right to negotiate with a future defendant not be affected by the terms of prior settlements. With an entity like Getty and a case involving visual media, it’s not exactly like settling with a medical device company that demands silence about some negligence causing physical harm.  That’s nasty stuff.  But this is not that kind of “secret.” It’s just basic practice in many areas of civil litigation; and if you were a plaintiff, you’d probably want the same conditions.

I know there is a lot of noise about rewriting copyright law in the age of the Internet, but it is patently absurd to expect — and self-defeating to hope — that such revision would result in such a shapeless body of law as to condone the free-for-all we perceive the Internet to be and perhaps even think should persist.  But neither the interests of commerce nor those of creative expression are particularly well served by this agenda; and perhaps tech pundits who presume to comment on copyright issues should first get their facts straight before once again claiming that some favored form of expression is being “killed” by this body of law. The meme, for better or worse, can continue to amuse, inform, annoy, or even misinform for years to come, and it can coexist with copyright even without revision. And we’ll all be just fine.  It’s called being creative.

On a side note, Getty does make many of its images freely available to embed as shown above for publishers like bloggers.  What do you think, “Sound of Music Penguin?”

Recorded Music is the MOST Valuable

“That’s one of the great things about music. You can sing a song to 85,000 people and they’ll sing it back for 85,000 different reasons.”  – Dave Grohl, Foo Fighters –

I saw this quote posted on Facebook the other day, and I hope it’s properly attributed because it expresses something I had been thinking about shortly after I and many others criticized the pollyanna NY Times Magazine article by Steven Johnson about two weeks ago.  Because by writing for such a prominent publication, Johnson elevated the economic myth that live performances for musical artists are a legitimate substitute for the near-wholesale devaluation of recorded music in our times.  The suggestion is that the musical artist simply has to tour more in order to make up for the revenue stream that was once generated by sales of recordings; and I have encountered this naive assertion so presumptuously worded as to include sentiments like musical artists “should actually work for a living.” These declarations are made as though the production of sound recordings isn’t work in the first place, or as if the person speaking has any clue about the actual costs, logistics, or wear-and-tear of playing live gigs for any artists smaller than a handful of mega-stars.  And then, of course, there are the songwriters and producers and everyone else involved in creating the recorded song, which first attracted the fan long before he or she ever considered attending a live show.  The bottom line is that, as fans, we care way more about recorded music than live performances, and we all know it.  So, it is in our own self- interest to want a market that supports recorded works in the future.

We tend to talk about these things from the perspective of the artists—that they need to make a living, how they can still make a living, and what kind of living we presume to think they deserve—as if the artists’ experiences are external, and even in opposition, to our own interests as fans.  The assumption is that recorded music will always be available and that it will never be compensated any better than it is right now; so the conversation then turns to these often-fanciful proposals for alternative revenue streams, even supported by dubious applications of data by pundits like Steven Johnson.  But even if the numbers added up—and they absolutely do not—I can’t help noticing what a tragically cynical story this has become.  Because after 15+ years of piracy and rationalized predation by major corporate players vying to be lords of the stream, what we’ve really managed to do as consumers is to undervalue the one musical experience that most of us cherish above all.

Live performances are great.  Even in a small venue where the acoustics suck and the beer is warm, watching performers play favorite songs among an audience of other fans is almost always exciting.  But, by and large, this is not how we form personal relationships with music. We form relationships with songs because they are recorded, because they are portable and are, therefore, with us in our day-to-day lives. This is how certain songs become the soundtrack to our most visceral experiences, both good and bad. It’s why songs we may not even technically like or consciously choose to associate with certain moments become part of a unique playlist that only means what it means to us individually.  It’s why if you ask me and my wife what “our song” is, we have to say “Rock Lobster,” whether we would have it be so or not. It’s why putting my three children to sleep is chronologically “Everybody Plays the Fool” by Aaron Neville; “Into the Mystic” by Van Morrison; and “Hey Mambo” by Dean Martin.   Even as I write this article, I see that a friend—a much younger person—has posted on Facebook that he is coming to terms with the realization that he may actually like the band Squeeze.  How apropos. Since my college years were 1984 – 1988, Squeeze is prominently featured on the soundtrack of that chapter in my life. That’s just how we relate to music.

We are told that scent is the sense most directly linked to memory, but speaking from my own experience, I find aroma often triggers the sensation of a memory I can’t quite identify, while songs are hardwired to my biography with absolute precision. I assume this is most people’s experience with music and feel bad for anyone for whom it is not.  And because these associations are so powerful and, in my opinion, so valuable, I often ignore or at least compartmentalize a lot of agnostic music criticism. Of course, there is real genius and virtuosity that must be recognized, but this is something separate from the serendipitous connections between songs and life’s milestones. So, that first serious, adolescent kiss just might happen while the main title song for the Dukes of Hazard is playing.  I’m just sayin’…it might.

At the start of this holiday weekend, we were in the mood to play a bunch of hits from the days of A.M. radio—those years when as kids we rode around in the backs of station wagons without seat belts, and all the good music played on tinny, monotreme speakers in the center of the dashboard.  And hell yes, it’s cool that a streaming service now enables us to tap into these memories on-demand and play tracks—from the corny to the sublime—that we can blast through the house in 2015. A few songs by Carly Simon naturally made the cut on this playlist; and I think about the enormous contribution of this prolific singer/songwriter, who admits to having painful stage-fright; and I want to throw things at the smug pundits who shruggingly declare, “The market just doesn’t support that anymore.” Because if that’s true, it’s the market that needs fixing.

I don’t think I’ve heard Linda Ronstadt’s rendition of Roy Orbison’s “Blue Bayou” since those low-fi days, when I was too young even to appreciate it, but in surround-sound to my adult ears, it really is a gorgeous version of a classic that should be treasured.  And if you look at the names of the professionals who played and/or sang on her platinum album Simple Dreams and think for a moment that a new Ronstadt somewhere out there will ever produce songs of a similar quality without the investment model we call labels, you simply have no idea how recorded music is produced. But I assure you it has almost nothing to do with the affordability of digital tools.  Like all works, the real investment is in labor, skill, experience, talent, and time. Just because a great recording can be made by one person with some low-cost digital gear, that does not mean we, as listeners, want the range of available recorded works to be so universally limited. To put it another way, yes, a filmmaker can produce a feature with a few friends and an iPhone, but he cannot produce Game of Thrones that way—or really almost any of the films you want to see.

So, while my youngest danced around to “I’m a Believer” by the Monkees, having no idea what he was listening to, I thought about what a streaming subscription costs versus what it should actually be worth to me.  The singles I had cued up in a matter of minutes would have cost about $25 in 1973, which is nearly $143 in 2015, if we factor for inflation.  But a subscription to a near-global catalog of music that turns my sound system into a home jukebox only costs about ten 2015-dollars a month? There’s no way that adds up; and no amount of magical wordplay from the Internet industry can make it add up, especially for the next generation of recording artists, and quite possibly for their fans.

The personal relationships my kids are forming with the music they’re listening to right now will be the basis of their own nostalgia in 20 years.  Yet, despite the fact that this personal interaction with music is as meaningful as it ever has been, the market in which artists are working today insists that their recordings aren’t worth anything. They are told these products are just loss-leaders, which must be produced in order to generate a fan base, which might be convertible into revenue by some means other than direct sales of the product itself. No business model actually works this way; but, of course, a young entrepreneur can operate at a technical loss for a while and have a bit of fun before the numbers start to catch up and reality sets in.  When recorded works themselves cease to be a commodity (i.e. they’re made for the purpose of selling something else), they cease to be the basis for investment, and this can limit the range of creators’ options to collaborate and produce a richer universe of sounds.

But, of course, look at all the work being produced right now, say the tech-industry pundits.  We have a greater variety of music out there than ever before! This is true, which is why critics like me and my friends are called “luddites” and accused of “clinging to old ways.” But in the bigger picture, we are also witnessing very early stages of these market transformations.  The switch from digital downloads to legal streaming is just a few years old; and it is far too early to conclude what the results will be over the next decade or two simply by looking at how creators are trying to respond right now.  Certainly, there are a lot of creators making all kinds of music and putting it out there for us to enjoy, or not; but if a lot of that music is being produced by artists under age 30 and they cannot build sustainable careers over the next decade, we don’t know what the results will be.  What we do know (even with all the horror stories) is that when people invest in the recordings themselves, making bets that these products will be valued, that this model produces a great variety of works for us listeners.

That eldest child whom we put to sleep with Aaron Neville is naturally into metal and punk as a young adult.  And he recently introduced the whole family to an artist who, by all appearances, is what we might realistically call a rising star, though not likely destined to be a mega-star.  Her sound is original, her guitar playing has been critically praised by fellow professionals, she’s touring, selling merch, she’s hot, and she fits the profile of an artist who would traditionally have a 10+ year career with an indie label.  As a colleague of mine with 30 years experience working with indies told me, “Under the old system, I can say with confidence that this artist would have ten times the recording sales she does today. And that would be enough for us to have invested in her career and provide all the support she needs to develop and produce her best work and to support her with marketing, booking, openings for bigger acts, videos, etc. Today, we can’t make that investment.”

The counter-narrative to this indie-label model is that, thanks to the Internet providing a free platform for promotion, the artist can be her own support system, and therefore, “keep 100% of the recording sales” rather than share any of it with that grubby label.  Except the way this translates in reality is that the artist gets to do the work she knows (make music) plus a lot of the work she doesn’t know (marketing, booking, producing, etc.) and “keep 100% of recorded music sales & license fees,” which are now so low that they almost might buy coffee for the people who’ve done her favors in the last month.  By comparison, the “outdated model” was based on a business strategy, in which the indie label says to an artist like this, “You may never make us millions, but we see a way to invest in your career and make that work over the coming decade or so.”

But pretend we don’t care about the artist herself in this narrative. Still, the potential loss to us as fans just might be that kick-your-ass, break-your-heart, can’t-live-without-it album she never produces—because, of course, musicians are mortal except for Keith Richards.  By 35, this hot, punk artist will be another person than she is today. She may be a little burned out on constant touring, or get married, or want a kid, or want to have some kind of personal life beyond producing music for her fans to not pay for.  And wherever life leads her, this narrative will produce new music in her; and there may be some masterwork lurking in the alchemy of 2022.  But because there were never record sales or sustainable license deals for streaming to properly support that label investment model, there’s no way of knowing what she won’t produce in the coming years as a result.

On the other hand, if our assumption is that she’ll produce anyway—because that’s just how artists are or because artists “do better” when they struggle financially—then as so-called fans, we really have become cynics and leeches.  We have no reason to presume that we deserve recorded music for nothing, or next to nothing, just because digital technology makes it possible or because the recording industry has a checkered history. Those are just excuses for our cynicism.  Many of us could not imagine a world without recorded music, so how can anyone so dismissively say that it is of little value?  Probably, the most cynical belief of all is that recorded music—let alone complex, distinctive, and experimental recordings—will always be widely available no matter what market conditions prevail.  This may prove true, but not necessarily.  As long as the product we value most of all is the one for which we are least willing to pay, it seems reasonable to say that the future is anything but certain.