Category: Culture

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.

Patent Hypocrisy Raises Privacy Concerns

A few posts ago, I reported that the major lobbying muscle in the Internet industry backs a patent “reform” bill (HR 9) called the Innovation Act. I argued in that post that while this reform claims to eliminate nuisance “patent trolls” from clogging up the system with dubious claims, what it really does is eliminate competition from the market.  Because, while the Silicon Valley PR hydra continues to sell the message that intellectual property is an outdated concept in the digital age — one that is chilling the general public’s civil liberties no less — they don’t actually mean that IP is outdated for them, just for everyone else.

Not surprisingly, a web search is no way to get a quick answer as to how many patents these companies hold. Most especially, typing “How many patents does Google have?” into a Google search yields a rather opaque set of first results from the “organizer of all data.” I had to use Bing to get to this article from 2013 in MIT Technology Review, which indicates that since 2007, Google has accelerated its patent activity to the tune of over 1,500 awards per year.  This is still far behind IBM, but not bad for a company that keeps telling the public the USPTO is “overwhelmed” by applications and flimsy claims. This 2012 article from ZD Net estimates that Facebook owned 812 patents at the time of publication, nearly all of these purchased from IBM in a single week as an apparent move to build up its defensive position against litigation from Yahoo! and Mitel.  And this 2014 article in IP Watchdog offers some praise to Facebook for its “more developed” patent strategy in contrast to Twitter vis-a-vis market valuation.

I mention this final example to make the point that there is nothing inherently wrong with these companies availing themselves of IP protections; what’s wrong is the hypocrisy of backing policy change that would create an uneven playing field for big vs small.  To put that in brass tacks, if one of these big boys infringed some IP you created, it isn’t enough that you’d be at a financial disadvantage in a lawsuit, but they’d also rewrite the law to possibly label you a “troll” in order to invalidate your claim in the first place.

But so what? These are the real innovators, right?  They’re innovating a brighter future for everyone and doing it all for free in the name of freedom and open freeness and free openness and disruptive free open innovation and freedom. Right?  Yeah.  So, here’s one of Facebook’s latest patents, Patent No. 9,100,400, which this excerpt from a post by the law firm of Gottlieb Rackman & Reisman explains clearly:

“In the patent, Facebook explains that it has invented a system by which, among other things, it can take the data, specifically your list of friends or your “social network,” and examine the credit ratings of those in your social network. The data is then used to provide information about YOU to lenders, presumably under the theory that “birds of a feather flock together.” If your friends collectively have a good credit rating, the lender might give you loan. If your friends collectively have a poor rating, the lender can close its file on your application. The point here that that lenders who might see some benefit in having data about your social network to judge the likelihood of your ability to pay the loan, or even your willingness to pay it back, will likely be paying Facebook (or any company that Facebook licenses) for the data.”

At the top of the list of magical thinkers I distrust are religious zealots followed closely by actuaries, the latter being too often engaged in devising some alchemical rationale to correlate, for instance, your choice of wardrobe with the insurance premium you should pay.  And we should not be surprised at all — in fact we have already seen other evidence — that social media profiles can become part of your unintended resume, your medical history, your credit-worthiness, your insurability; in short, your worthiness to live among the haves instead of the have nots according to someone’s data-driven decision process.

Now it is possible, that Facebook and lenders will not be able to implement this patented system as described without running afoul of the Equal Credit Opportunity Act, but if adopted, how is this credit based on the company you keep not a potential digital-age means of helping the rich stay rich and the poor stay poor?  When an entity like an insurer, creditor, or potential employer wants to disenfranchise a type of person — black, gay, Mexican, women who have premarital sex! — they devise criteria to avoid direct conflict with anti-discrimination laws.  “We didn’t deny you that loan because you’re black, we denied it because your friends (who didn’t manage to escape the impoverished neighborhood you did) all have bad credit scores.”

So, it’s not hard to imagine a future with a variety of creative, actuarial schematics by which any individual or group may be disenfranchised simply because we have voluntarily made what we used to call “private life” a matter of public record. And because this is the new normal, perhaps we ought to be drawing new legal boundaries regarding personal information and discrimination, but that doesn’t seem to be the kind of reform any of the digital-age leaders want to talk about.