More © critics who don’t get the creative process.

It often seems as though each time an artist, let alone a legend, pays homage to the past, some pundit with an axe to grind on copyright seizes the moment to declare the contemporary law restrictive to creative development.  Variations on the theme of “artists could never do that today” have been trotted out in essays, some thoughtful, others not so much.  In this latter category, Ed Krayewski, writing for reason.com, picked up a few themes from Bob Dylan’s 20-minute Grammy Award acceptance speech when he was named Person of the Year by the Recording Academy’s philanthropic program MusicCares.

Dylan pays homage to his well-known roots in folk music and offers tribute to artists who performed his work in the early days. Dylan says, “I also have to mention some of the early artists who recorded my songs very, very early, without having to be asked.”  Krayewski offers this quote referring to Peter, Paul, & Mary as evidence that having other artists play a songwriter’s music has value, as though this some sort of revelation.  Not only does this come under the professional column labeled “No Shit,” but Dylan isn’t even saying what Krayewski seems to think he’s saying.  “Early artists…recorded….without having to be asked” means Dylan didn’t ask them to play his songs, but he was delighted they did.  And nothing in copyright law today prevents this from happening artist-to-artist in the same nascent environment Dylan is describing about his early career and that of Peter, Paul and Mary. In fact, once a song is published, the songwriter cannot prevent a cover from being recorded, even if he wants to, as long as the performing artist pays a fee.  But this licensing process hardly “locks up cultural heritage,” as IT policy consultant Steve Worona tweeted and was quoted in the article by Krayewski.

Dylan has spoken and written so much about his process, his inspirations and derivations, that his words have frequently been served up as proof that copyright kills creativity.  The problem is the argument is so often based on an assumption that the exception proves the rule.  For instance, there is this quote pulled by Krayewski from Dylan’s speech:

I learned lyrics and how to write them from listening to folk songs. And I played them, and I met other people that played them back when nobody was doing it. Sang nothing but these folk songs, and they gave me the code for everything that’s fair game, that everything belongs to everyone.

Ah, ha!  There we have it!  Proof from the master’s mouth himself that work is derivative and, therefore, we can conclude that copyright stands in the way of the creative process!  Except, no.  Again, for an author of, well,…anything this quote also kinda sits in the “No shit” column.  Woody Guthrie or Pete Seeger might say essentially the same thing; certainly they’ve said similar things, but can you tell these artists apart?  Can you tell the differences among Dylan and Guthrie and Seeger and Guthrie the Younger?  In those differences is the work that becomes copyrightable, yet none stifles one another or anyone who has come since to break out of those famous shadows.  Krayewski suggests Dylan’s generation is more litigious than its predecessors, which implies that the present generation of musicians has been left gnawing on musical table scraps because all the damn boomers locked away the prime cuts under copyright.  How then, did that generation produce so much music without spending their lives in court? And where the hell did some wonderfully innovative works I just heard by The Punch Brothers come from?  For that matter, where did all of Dylan’s post 1976 works come from (except the Christmas album), if the “copyright environment” is so toxic? Because there are infinite variations, and artists know this.

The only thing that’s really changed about the copyright environment is that there are tech-industry interests aligned against it.  As such, perhaps the supposedly free-market libertarians at reason.com should look at the economic pressures on contemporary artists as a threat to culture rather than copyrights.  But most especially, they should stop presuming to know anything about the creative process and the ways in which artists draw from one another and still manage to create their own works.  There’s a reason the ability to do this is called a gift.  It’s special, it’s rare, and not everybody gets it.

Releasing police body cam video undermines their purpose.

Last week, The Los Angeles Times reported that the 7,000 officers of the LAPD will soon be wearing body cameras to record their interactions while on duty.  Communities that have employed these cameras have reported significant decreases in the number of claims of police misconduct (reductions as impressive as 90%), and it is fair to assume those statistics represent both actual changes in officer behavior as well as a reduction in false claims of misconduct.  The fact that the presence of body cameras can provide evidence that can protect both civilians and officers is a very attractive proposition; but the extent to which the videos captured should be made automatically available to the public via the Internet is a subject of debate in Los Angeles and other communities. While some citizens will argue a right to know in this regard, I generally agree with LA Police Chief Charlie Beck, who is quoted in the Times article thus:

“I think people misunderstand transparency as having everybody and all the public have access to everything. And it isn’t so much that as having the ability to have oversight by multiple entities outside of the Police Department. I think that’s the meaning of transparency.  I don’t think that transparency means we post every interaction on YouTube.”

Indeed, in viewing both the social trends and the economics associated with social media, I believe the potential harm of broad distribution of police body camera video outweighs the benefits of doing so and could undermine the value of deploying the technology in the first place.

Privacy & Decency

As cited in the Times article, Chief Beck emphasizes that officers respond to a wide range of calls, like entering the homes of victims who have experienced horrible violations by all manner of perpetrators.  So, I hope we can all agree that perhaps a woman who just called the cops because her husband beat her up should not become not free reality TV for us to ogle via social media.  And domestic battery is relatively tame compared to the anthology of horrors that humans visit upon one another and to which police officers are often witness.  More to the point, the volume of police encounters involving events that we have no business watching (let alone allowing some website to monetize) is far greater than the volume of encounters in which may see a need to scrutinize the conduct of the officers.  And in cases in which such scrutiny is necessary, justice is likely to be best served if the related video remains sequestered during investigations and trials.  By distributing all police body cam video to the public, we risk turning various forms of human suffering into a Circus Maximus that is more likely to serve our crass taste for ugly spectacle than it is to serve justice.

Due Process

There are several good reasons why evidence in a case remains sealed and juries are meant to be comprised of citizens who have seen or heard as little evidence as possible at the start of a trial.  Imperfect as our criminal justice system may be, I really don’t think we want to substitute the fundamental components of due process and jury trials for digitally deputized lynch mobs, no matter how incontrovertible video evidence might appear to be.  In the immediate aftermath of the Boston Marathon bombing, a self-appointed posse formed on Reddit that zeroed in on a suspect, who drew attention partly because he had gone missing.  It turned out that the poor guy the Redditors had identified was “missing” because he had taken himself to a secluded location to commit suicide. And the only result the online posse managed to achieve was to spawn harassment of the young man’s family in advance of the grief that would come when they  learned of his death.

Online vigilantism frequently turns into actual harm; and it doesn’t matter if many of us think the victim “deserves” it because we saw a video of him doing something bad.  Evidence has already shown, and logic certainly suggests, that the mere presence of the body cameras already brings about desired effects without dumping all the video onto YouTube for the world to chat about.  It is sufficient, and probably even more effective, for an officer to be aware that a constant record is being stored, which can be entered into evidence in a case against him for abusing his authority.  If that same video is made public, the officer’s attorney has an opening to strike it from the record, the prosecutor has a harder time empaneling a jury of peers who haven’t drawn early conclusions; and these factors alone are more likely to further entrench the standard practice of not indicting officers for apparent wrongdoing than to move the trend in the other direction.

It Probably Wont Help the Larger Cause

I personally believe the case of Michael Brown is pretty fuzzy because the only evidence available corroborates Officer Wilson’s testimony. But the Eric Garner case in NYC is another matter; we have citizen-filmed video that shows an officer using excessive force and killing Mr. Garner with an illegal choke hold.*  While it’s true that even video footage requires context and other evidence to properly weigh any case, the fact that there was no indictment in the circumstances involving Mr. Garner is a travesty; but the reasons for this failure are cultural, political, and yes, racial.

The flaws of law enforcement policy and any underlying racism that may affect procedure in various communities require real social change that is just as likely to be stymied by constant distribution of body cam footage as it is to be aided by whatever illusion of transparency that distribution would create.  I say illusion because, as I have argued in several contexts, there is an assumption by well-meaning citizens that raw, decontextualized information must inevitably foster a majority and morally-aligned public who will pressure authorities for change.  Interestingly, though this assumption is contradicted by the fact that for all the increase in leaks and smart-phone videos and raw data dispersion, we see even greater schisms and social discord on a range of issues  than in years prior to this media saturation. Unfortunately, an unexpurgated video has the same potential to ignite a racially-motivated defense of police brutality as it is to ignite racially-motivated retaliation against police in general.  Reason based on evidence does not necessarily prevail in the larger public forum; in fact, it rarely does. And video can be a highly emotional medium.

We have a lot of video now that has sparked plenty of outrage but has done very little to move us toward greater balance or away from policies that, for instance, disproportionally place black citizens in conflict with police officers.  There is no denying that there are millions of Americans who will support those policies by saying “Yeah, but there are more black criminals,” and then we’re off to the races in every sense of the word. How are the cultural complexities of that or any other shouting match going to be calmed by the mass distribution of these videos? I suspect tempers would not be mollified, that these raw images would throw more fuel on an already smoldering fire.  If that’s true, the resulting increase in tensions will only make communities less politically capable of adopting law enforcement policies that might forge better relations among citizens and officers. Or am I missing something?  Have internet comment threads generally decreased the level of vitriol in society?

As stated, I like the idea of these cameras as a hedge against officers who might abuse their authority and as a tool to protect officers who may be wrongly accused of such abuse.  But turning the footage itself into an ongoing spectacle, calling it oversight, and then allowing YouTube and others to monetize the show, does not sound to me like social progress.

*The proximate cause of death may not have been the choke hold.  I don’t mean to write  anything careless about the case itself and thank commenter Angry Villager for making a valid criticism.  The larger point, of course, is that even with a video viewed by millions, the conditions preventing further investigation or indictment may prevail.

Don’t ask if artists deserve to be paid.

I frequently encounter comments on this blog and around the web reiterating the thematic question as to whether or not “artists should be paid as much as they are.” The inquiry is typically posed by contrasting the arts to other professions we likely consider more critical, like emergency medicine or teaching or epidemiology.  This attitude is a bit of a shift in for artists, who are historically used to the idea that not even friends and family will take them seriously until they make a living; but regardless of the chimerical mood in the peanut gallery, everyone should rest assured that in general artists still don’t make very much money.  Be happy or unhappy about that as you will.

Often, when I encounter this question asking what “artists deserve to get paid,” it is in regard to wealthy, creative and/or performing artists.   And this is something of a variation on the recurring theme “Why should pro sports stars get paid millions to play a game, when people like nurses struggle to pay their bills?”  This rhetorical and apparently rational question is based on the fallacy that financial value is somehow tied to social value, which it simply will never be in a free-market economy. (Please resist the urge to stump for communism here.)  NFL players are paid millions because football is worth billions, and this has nothing to do with the relative “importance” of the game.

But we should clarify something about semantics right away:  in general, artists are not “paid” in the sense that most people are paid based on a contract with an employer.  Most artists are entrepreneurs, and if the product(s) their business produces sells million of units, they’re going to earn revenue in the millions of dollars. We are not “paying” them a million-dollar salary, and yet comments I read often ask literally, “Should we pay them so much.”  One might think the artists they’re talking about are on the public payroll, and we’re checking a line item in the federal budget.  “Dammit!  We’re paying Kid Rock how much???”  So, the semantics are either carelessly or purposely misleading when employing the words we and pay.

In fact, the question being asked isn’t even comparable to the ongoing debate over the salaries and bonuses that are paid to c-class executives in major companies.  While the government should not impose a maximum compensation package that a business may pay its leadership, we have seen examples of a corporate culture that can aggravate wealth consolidation and even reward failure.  When executives make four-hundred times the salary of a company’s average worker and may also receive an multi-million-dollar golden parachute, even for screwing up a corporation, these occurrences certainly beg the question as to whether or not these people should be paid so much?  And while the thesis inquiry about artists’ pay seems to echo this line of inquiry about top executives, the two subjects have nothing to do with one another.

As stated, most artists function as small businesses and produce works on spec with a wide range of investment from pure sweat to millions of dollars.  They earn revenues through sales of their works ranging from supplemental income, to full-time professional salaries, to cha-ching for a fortunate few.  It doesn’t matter if an independent business sells widgets or cheese boards or record albums; it is simply preposterous to ask whether or not the seller “deserves” the revenue from the units she is able to sell. But of course, that’s not really what the people who pose this question are asking, is it?  What they’re really asking is why they should pay for works produced by artists at all, and they are rationalizing a desire to not pay with a smokescreen of faux-humanist gibberish about creative work being less socially important than work in medicine or education.  But aside from the fact that the teacher and the doctor probably can’t perform a song anyone wants on his iPod, the real folly in this entire line of reasoning is that the doctor, the teacher, the plumber, and the fool asking the question are all economically co-dependent on that artist we’re arbitrarily presuming to remove from the ecosystem.

I know I’ve used the ecosystem analogy before, but it seems to me that it is economic suicide to eradicate a vital business engine just as it can be ecological suicide to eradicate a vital species.  We don’t necessarily know the exact cost of losing a particular beetle to deforestation, but we do know all species are interdependent and, therefore, view diversity as salubrious and extinction as hazardous.  How is an economy any different?  You would likely never be able to follow a path from a new creative venture in Singapore affecting trading that afternoon in Hong Kong, triggering a flurry of international trades, leading to a windfall in Seattle that seeds a company that offers you your next job.  But we do know that this matrix of chaos is what we call the economy, and we, therefore, accept the general principle that a rising tide raises all boats and vice versa.  Thus, most things with intrinsic economic value (i.e. things people want or need) that can be part of the grand game of trade are universally beneficial.  Put it another way, one benefits economically from the financial success of rock bands one hates. So, it is self-destructive to argue in favor of diminishing any legal, fair, and prosperous trade, especially if that trade is as economically diverse as the arts.  Diversity equals stability.

Some have argued that there is no economic harm in under-paying or not paying for entertainment media that is consumed.  Without so much as a wink, lobbyist Matt Schruers in July of 2013 wrote an article on behalf of the CCIA (Computer & Communications Industry Association) that rather astonishingly stated that “money not spent on pirated content is, in many cases, still spent.”  Hard to argue with that, but the implication that no harm is done as long as the money goes into the economy somehow is a shell game. Let’s make an evening of it…

You can save about twelve bucks by pirating three movies instead of renting them.  And with that twelve dollars, you can order a pizza to eat while watching one of your pirated films.  So, like Schruers said, that money still goes into the economy, right?  Yes, but at this point, you should probably skip the movies and the pizza and go back to economics class because what you’ve actually done is consume about $24 worth of goods and put $12 into the economy. Multiply that activity by millions of consumers and watch what happens, not just to one industry, but quite possibly to your job.  Because further exacerbating the folly of this false logic, you’ve just fed one sector of the economy that is considerably less robust than the sector you chose to starve. The core motion picture industry employs nearly two million Americans making over $100 billion in wages, and that contributes substantially to support jobs all over the country in completely unrelated industries. Like pizzerias.  Still, in some minds, that kind of wealth in the movie business translates into “they’re so rich, they don’t need my four dollar rental fee,” and this is the perfect attitude to adopt if you hope to go from being the guy ordering that pizza to one day applying for the job of delivering it.  It is far better for your overall economic health to rent one movie, buy one pizza, and tip the delivery guy for a grand total of about $18 and thus feed three tiers of the economy in a single night’s use of your disposable income.  It’s the same thing prudent investors do when they spread their bets.  Diversity equals stability.

It is a conundrum.  The technology that makes paying for creative works functionally optional fosters the notion that it is morally optional and, therefore, rationally objectionable. This leads to earnest discussion as to whether or not producers even “deserve” revenue for the things we consume; and once again, we see an example in which the technology that is supposed to connect us all actually blinds some of us to the ways in which we really are connected.