Category: Copyright

How Napster Gave Us Donald Trump

I finally had a chance to read Move Fast and Break Things by Jonathan Taplin.  A former music manager and film producer from the period I would describe as America’s true golden age, Taplin is now director emeritus of the Annenberg Innovation Lab at the University of Southern California. The book, which debuted a few months ago, explains how the internet oligopoly has steadily undermined democratic principles—and how we’ve helped them do it.  Taplin condenses a lot of information into a highly-accessible book that I would recommend for anyone first approaching these issues, or as a well-articulated reference for anyone already engaged.

While reading Taplin, the thought occured to me that I bet the left-leaning advocates of media piracy, along with many of the anti-copyright voices in academia, and the “digital rights” groups who scorn enforcement of copyright online would hate to know how much they helped elect a guy like Donald Trump as president.  But that’s kinda what happened.

When young, digital natives first bought into the idea that music piracy was justified because they were “sticking it to the Man,” they could not see that they were lighting the first match on a long fuse that would blow their own labor rights all to hell by the time they entered the workforce.  By consuming all the free candy, and subscribing to the progressive-sounding PR of Silicon Valley corporatists, millions of Americans unwittingly surrendered in the first battle of a war they didn’t even know was being waged against the basic rules of democracy.  Now that war is becoming more apparent. As Taplin describes in the book, it is a war being prosecuted by ultra-libertarian, monopolists like technology VC Peter Thiel—a member of Donald Trump’s inner circle—who has publicly stated his disdain for us “unthinking demos,” as he likes to put it.

Democracy is of course anathema to the warped ideology of Silicon Valley’s most powerful corporate leaders; it’s messy and inefficient, imposing rules (like copyright) that stand in the way of boy geniuses who’ve overindulged at the gold-plated bong of libertarianism while swooning to the ravings of Ayn Rand. These are men who want more than the unprecedented wealth they’ve already acquired—men who sincerely believe that their ability to reshape society with technology has earned them the right to be the new landlords of the nation. And we plebs have no business trying to stop them.  Notice I keep saying men. Here’s Taplin’s citation of Thiel’s allusion to American women’s suffrage, as written on the CATO Institute website in 2009:

“Since 1920, the vast increase in welfare beneficiaries and the extension of the franchise to women — two constituencies that are notoriously tough for libertarians — have rendered the notion of ‘capitalist democracy’ into an oxymoron.” [Emphasis added]

That’s the kind of thinking that permissionless innovation, beginning with piracy and the erosion of copyrights, has helped finance into extraordinary political power today. So, let’s not mince words.  If copyright infringement was in fact the first battle in a larger technological war against individual rights, led by a group of egotistical, male capitalists, then I’m afraid every woman who ever justified piracy has—like Ayn Rand’s Dagny Taggart in Atlas Shrugged—demurely told these assholes she’d like them to be in charge.

The extraordinary power of the tech oligopoly owes much to both political parties’ unwillingness to wield anti-trust law, and to a business and technology press too busy star-fucking to notice that journalists’ heads have been on the chopping block for years.  But perhaps the most insidious element in this narrative is the role played by “digital rights” organizations like the Electronic Frontier Foundation, PublicKnowledge, and Fight for the Future, along with their satellite and sister organizations around the world.  Adopting the tone of left-leaning, anti-corporate activists, the people in these organizations would probably hate to think that their advocacy dovetailed quite nicely with the election of a guy like Donald Trump. But it has.

Whether these institutions are co-conspirators or just useful idiots for Silicon Valley’s wealthy elite, their absolute rejection of copyright—or of any enforceable, democratic rules—in cyberspace has largely served to advance the interests of the most powerful aristocrats the modern world has ever known. The paradox the folks in these organizations refuse to recognize—indeed, which they cannot afford to recognize—is that their micro-defenses of the First Amendment on the internet have largely empowerd a tiny group of men whose stated ambition is to disrupt the Republic as an incovenient, inefficient, and outdated model.  And since no Republic means no First Amendment, it’s hard to fathom what exactly these activists think they’re achieving.

The fact that mass copyright infringement is still viewed as rebellion against corporatists, rather than playing into the hands of oligarchs, probably has a lot to do with the word property.  This is a particularly loaded word in America. Liberty, as it was codified into law at the beginning of the nation, meant liberty for property-owning, white men, including white men who owned black men and women as property. From these morally corrupt beginnings, the progress of demanding that civil liberties apply to all citizens has generally been one of wresting control from the propertied and privileged classes, which is why labor rights are so deeply intertwined with civil rights overall.

While copyright is a kind of property right, it is also analogous to a labor right whereby the right of the worker to negotiate terms is embodied in the protection of the work after completion.  With the appearance of Napster in 1999, the subsequent growth in piracy, and all the ideological bullshit that growth spawned, copyright was incorrectly subsumed into the broader narrative of the people reclaiming territory that was unfairly occupied by the propertied classes.

Though it would not be accurate to say that the major, corporate rights holders are beyond reproach, the general failure to recognize copyright as an individual right was a huge mistake—one that accelerated and financed the agendas of elitists, who view a wide range of individual rights as barriers to their own wealth and power. The destruction of copyright in the service of Silicon Valley’s interests may prove to be the cracked keystone that ultimately allows the whole democratic structure to collapse.  Unless of course we find the political will to tell these guys to get stuffed.

In this narrative, Trump himself, like the “digital rights” activists, is just another useful idiot. His innate disdain for the pesky rules (and even common courtesies) of democracy, coupled with his allegiance to the wealthy elite, make him an effective tool for the likes of much smarter men like Thiel, Larry Page, Sergey Brin, Marc Andreesen, Mark Zuckerberg, and Jeff Bezos.

If we think of the unorthodox presidency of Trump as one that defies traditional, ideological labels, what it really represents is a vote of no confidence in American democracy. And that’s what makes it so dangerous. As noted in a recent post, the World Values Survey concluded that only 30% of Americans born after 1980 believe that it’s important to live in a democratically governed society at all. Presumably, then, the remaining 70% comprises that cacophony of views we see on social media—including many that would be opposed to Trump, but are equally anti-democratic in other ways.  To be clear, I would not make a case that Hillary Clinton, or any other candidate who has yet emerged, reveals the kind of Teddy Roosevelt moxie needed to restore balance between public and corporate interests; but electing such a figure would actually require the public to restore some faith in the system itself.

I’ve speculated in past posts that the anti-establishment trend is creating an ideological vacuum, which is already being filled by tech corporations and their owners’ libertarian agendas. This may lead to a state of technological feudalism, when all labor rights will be obliterated, taking the soul of other civil liberties with them.  The right of free speech, for instance, would become mere illusion because no citizen’s voice would actually matter in that kind of society. Speech would thoroughly devolve to noise—as effective as playing with a fidget spinner—we make on tech devices just to amuse ourselves, and to tell the computers how we can serve them rather than the other way around.

There’s a reason why one of the first steps toward authoritarianism is to silence the artists. To acheive this in a democratic society, it must be done subtly by degrees, by eroding their rights and economic power.  So, wouldn’t it be a cruel joke on ourselves if the anti-democratic, dystopian end game really did begin with everybody stealing music?

Castle: New Music Licensing Bill is Crony Capitalism

Not only musicians, but authors of all works should be deeply concerned about Rep. Sensenbrenner’s proposed “Transparency in Music Licensing and Ownership Act,” says attorney and blogger Chris Castle.  Describing the proposed legislation as a new “safe harbor” for users of creative works, the new law would effectively abolish liability for infringements by large, corporate-owned business sectors like the American Hotel and Lodging Association, along with usual suspects in the internet industry.

“…if you haven’t undertaken the formality of registering in this new database, then the user has no exposure to statutory damages and will not have to pay the victorious songwriter or artists attorneys’ fees.  And this new safe harbor applies apparently even if that songwriter or artist has filed a copyright registration under existing law,” Castle writes.

See full article here.

Getting away with infringement doesn’t mean it’s cool.

Photo by Max Dubler. Used by permission.

Last week, while I was writing my last post about photographer David Slater, a story on PetaPixel was making the rounds.  Written by photographer Max Dubler, the title is a refrain of an all-too-familiar theme.  No You Can’t Use My Photos on Your Brand’s Instagram for Free, says Dubler.

Dubler has carved out a niche photographing the world of downhill skateboarding and reports, “A few days ago an established, successful small longboard brand downloaded one of my pictures from an event in Canada and posted it to their Instagram account.”  It seems as though I see a story just like this posted by photographers at least once a week. Corporate entities use images without permission to promote their brands on social media, but without the slightest awareness that they need permission from the photogrpaphers.  Not only do these appropriations themselves reveal a core dysfunction among business operators, but the smugness with which some of these parties respond shows the extent to which these platforms and the anti-copyright agenda have warped common sense.

Dubler allows riders to share the photos he takes on social media but asks that any business entities that wish to use his images to contact him for permission.  When he wrote to the longboard company to tell them that he charges $25 for social media use of his images (a tiny fee by the way), the company representative wrote, “Seriously? We don’t pay for Instagram shares, and we always give proper credit, I mean, who pays for Instagram shares lol. I will take it off if you wish Max.”  This fairly represents many attitudes out there.  The exchange goes on a bit further with Dubler explaining that the use had already been made and the $25 needed to be remitted; but the company representative ultimately wrote, “Go extort someone else.”

In response to that attitude, here’s a traditional scenario:

If a photograph is registered with the Copyright Office and the photographer is, for instance, represented by a stock company with some legal muscle, the smug business owner—instead of receiving a demand for the pocket-change of $25—might get a bill for like $3,000 along with a letter stating that if the company doesn’t pay that fee, it will be sued for $150,000 in statutory damages for copyright infringement.  At this point, the cocky idiot who wrote the rude “extortion” response would then find out from his own attorney that his company’s infringement is indefensible, and the harsh, $3,000 lesson would be richly deserved. The managers of this company would never use another photo without first thinking “Dude, maybe we need permission.”

Unfortunately, most independent rights holders like Dubler have no practical means for enforcement because the cost of filing a federal lawsuit is extraordinarily high.  This is why it is important for independent creators—perhaps visual artists most of all—to endorse current proposals to create a copyright small claims system.  Without this remedy, it is simply too easy for corporate entities in particular to appropriate work they should be paying for. And some people only ever learn when they feel a little pain for making bad decisions.

Keeping in mind that authors of copyrighted works are also entrepreneurs (usually very small businesses), any other business operator should recognize that using the product of an authors’ labor without permission is both uncool and illegal.  Anyone who runs a business knows what expenses look like and knows that marketing materials are usually an expense. One should assume, therefore, that if the source or legal status of an image is unknown, that it is not just there for the taking.

As Khloe Kardashian’s Instagram infringement story makes clear—and businesses everywhere should note—posting a copyrighted photograph to social media without permission infringes the photographer’s right to reproduce the work and his right to publicly display the work. And if the user removes the rights information from the image, as Kardashian is alleged to have done, that’s another violation of a separate statute.

I understand that social media is a fast-moving, free-wheeling environment where infringements happen all day long; and I sympathize with individuals (not businesses) who inadvertently commit infringements based on well-intended, but false, assessments of fair uses.  I wrote about one friend running into this kind of problem with her blog. In that post and others, I have laid some of the blame on the voices of the anti-copyright agenda for promoting misunderstanding about fair use, which can get independent creators into trouble.

Far too often, though, when creators do enforce their rights, this is characterized by bloggers and the press as an unreasonable imposition on small businesses—thus justifying in one guy’s mind the use of the word extort.  But not only are these loose appropriations frequently committed by companies of every size, it is awfully hard to imagine the same hew and cry ringing out if a company is expected to pay for office supplies or internet access or to advertise with Google. Yet, somehow creative works are assumed to be different. They’re not.

Millions of creative professionals today encounter assumptions that their work should be performed free of charge and/or that work already created should be “shareable” on the internet without permission or compensation.  It is a dysfunctional attitude that devalues human labor, and we are already seeing signs of this corrupt notion manifest in business sectors beyond the creative industries.  In light of some of the predicted effects that automation may have on employment, how we value human labor is one of the existential questions facing the generation called “digital natives.”  In the meantime, any company that just takes without asking really does deserve to get sued. It’s the only way some people learn.