Tag: techdirt

R Street & Techdirt Dissing Prince

“R Street is a free-market think tank with a pragmatic approach to public policy challenges.”         — R Street About Page —

If one is going to comment on public policy, then one ought to make an effort a) to understand the nature of a given topic; and b) to present facts instead of fiction.  In this regard, R Street might want to be careful about republishing articles from the blog Techdirt, as it did last week with this Op Ed by Zach Graves all about what Prince did wrong in the management of his career.

Graves notes that although Prince was a musical genius, he was one who “…never quite found the right approach when it came to licensing his music for redistribution—in spite of the fact that he sold over 100 million records, placing him among the best-selling artists of all time.”  If it seems as though the second half of that statement contradicts the first, that’s because it does.  When you combine terms like musical genius and best-selling artist, it takes some chutzpah to presume to know best—in a post-mortem analysis—how the artist in question might have made wiser choices.  In fact, Graves is working overtime trying to shoehorn Prince into an online market the artist rejected. He writes, “ … his fans were left in an odd position, on the news of his death, of being frequently unable to provide links to Prince’s massive oeuvre.”

Speaking as a representative of the 80s, and of those who have been Prince fans since he first emerged, that statement is not only surprisingly disrespectful to the wishes of a beloved artist who just passed away, but it lays bare a mindset that actually believes these fleeting moments on social media are of much greater emotional and cultural value than they really are.  The shared sense of loss among Prince’s fans is not diminished because a friend does not post “Little Red Corvette” on Facebook via YouTube.  Micro-moments like these are fine, occasionally interesting, but are utterly forgettable because of the very nature of the interface itself. Our relationships with Prince’s music, as with all music, are based on associations his songs have with tangibly profound, wonderful, painful, or intimate moments in our lives.  And if the next generation doesn’t form these same types of realtionships with music, then they probably won’t relate to music at all.  Meanwhile, the fact that YouTube & Co. were deprived of a few million advertising impressions they would have sold on the trending of Prince’s death is exactly what he wanted to deny these companies.  He saw through the lie that the OSP’s revenue model has anything whatsoever to do with his music or our love of it. And he was absolutely right.

It is fairly well known that Prince spent considerable effort and resources during his career in order to gain and maintain control of his work.  Quite simply, he did not like anyone dictating how, when, or where his music ought to be distributed—not Warner Music 23 years ago, not YouTube last month.  So, the fact that Graves chose to compare and contrast the market potential of Tidal (which licensed Prince) with Spotify (which Prince rejected) is entirely irrelevant, whether Graves’s math in this case is sound or not.  Prince was a Mozart.  And it’s rare to see that kind of genius without the individual also being fiercely proprietary about his work.  And although Graves acknowledges that Prince’s decision to license exclusively through Tidal “may have been a reflection of his proclivity to assert tight control of his brand,” he remains steadfast in his bias when he writes “…making music less accessible poses serious challenges for artists and consumers alike.  For one thing, as English singer/songwriter Lily Allen explains, it will reinvigorate incentives for piracy.”

News flash:  Prince did not disappear into obscurity despite his rejection of these “free” platforms.  Yet, somehow, Graves believes the “lesson” we are supposed to draw from Prince’s legacy is that this hugely successful, influential, and universally-respected artist was fundamentally wrong, while the new-economy sages at Techdirt and R Street are right. Their logic says that if the artist chooses not to be fractionally exploited by a YouTube or a Spotify, then he naturally deserves to be fully exploited by outright piracy.  Put that way, it sounds more outrageous, right? But that’s essentially what Graves and others are saying.  Prince told that proposition to go screw itself, and maybe that’s the real lesson he leaves behind.

Of course, Graves actually reprises the blame-the-artist-for-piracy theme because he wants to point readers to a remarkably obtuse statistic presented by Techdirt founder Mike Masnick’s very own, brand-new “think tank” called Copia.  The stat says that, “55% of 18-29 year-olds pirate LESS when offered a free, legal alternative.”  Wait for it. It’ll happen…

I’m no longer amazed at the capacity some people have for presenting bad news as if it were good news.  Because somehow Copia et al think nobody will notice that the truly stunning fact revealed by this stat is that 45% of the demographic will continue to pirate as much as ever no matter what free, legal alternatives are available.  But creators should feel molified by the prospect that the other 55% of the market will pirate less!  It is certainly indicative of a Kool-Aid narcosis that Techdirt, Copia, and R Street would even present these data with a straight face. After all, if one were to provide the same market research to the dumbest investor on earth, no matter what the business sector, he would tell you that no investment will be forthcoming.  Try pitching investors and telling them that 45% of the target market is guaranteed to steal from you while 55% of the market will only steal some from you, and watch what happens.

Perhaps most importantly, R Street in particular should be held accountable for republishing an article that completely misrepresents the facts in what is commonly called the “dancing baby” case.  Graves writes …

“Famously, Prince, via Universal Music, was behind the “dancing baby” DMCA lawsuit, which featured Prince’s “Let’s Go Crazy” playing faintly in the background of a short clip as a toddler danced. Ultimately our friends at EFF, who were representing defendant Stephanie Lenz, prevailed on their fair use claim. In 2013, EFF awarded him their “Raspberry Beret Lifetime Aggrievement Award” for “extraordinary abuses of the takedown process in the name of silencing speech.”

Setting aside the relatively minor detail that Prince himself was never directly involved in this case, the most important fact is that EFF sued UMG after the Lenz video was actually restored to YouTube via counter-notice procedure; and nobody ever sued Stephanie Lenz–at least not pertaining to this matter.  The reader is free to review the facts of this eight-year litigation and decide for himself whether the temporary takedown of the “dancing baby” video represents “award-winning” abuse of DMCA—or if perhaps the EFF chose this case because it would inevitably lead to misrepresentation exactly like the quote above.  “Prince sues mom and baby” makes good drama, but it just didn’t happen.  And to say that it did in the immediate aftermath of this artist’s passing is as rude as it is irresponsible.

As for Zach Graves’s concern that Prince’s music may not “reach a new generation of fans” due to its absence from certain free platforms, I’d like to tell him not to worry.  Prince’s work has touched millions of people and influenced thousands of other musicians around the world. It will transcend generations in spite of what web platforms have done to culture and memory itself.  At the same time, although YouTube’s predatory and monopolistic strategy may position its platform as “essential” in a certain sense for musical artists, one must ask if this winner-take-all outcome is the kind of “free-market pragmatic approach” R Street policy hopes to support.  The idea that Prince’s music needs YouTube in order to live on in our cultural memory would be a quaint conceit if it were not the kind of arrogant proposition that has hypnotized many policy thinkers by means of ceaseless repetition.

Don’t Blame Disposability on Copyright – Part I

In a recent post on Techdirt, Parker Higgins plays a somewhat familiar refrain when he blames copyright for causing a general extinction—or inaccessibility—of various works. Describing a kind of dark ages for researchers, historians, and journalists— whether amateur, student, or professional—Higgins presumes to draw a very big conclusion in a very short post and consequently begs more questions than he bothers to answer.

Right off the bat, if we really are seeing an unprecedented dearth of available works in the categories Higgins cites—published books, news archives, historical research, investigative journalism, photographs—then each of these subjects wants its own discussion since the production, distribution, and preservation of works in each discipline are distinct from one another.  But I suppose if one is going to casually declare that “Stuff is disappearing all because of copyright,” then perhaps lumping all stuff together makes a perfectly adequate blog post for people inclined to believe the premise in the first place.

Referring to the National Digital Newspaper Program, an archive that apparently contains no sources more recent than copyright’s 1922 boundary, Higgins makes this slightly overwrought declaration:

“…the dark cloud of copyright’s legal uncertainty is threatening the ability of amateur and even professional historians to explore the last century as they might explore the ones before it.”

In this context, I suppose we are meant to conclude that “uncertainty” (i.e. complexity) in copyright is confounding this newspaper archive program, even though Higgins states that they rather certainly do not digitize works from 1923 onward. So, it’s not clear where the confusion lies for the program’s administrators. But even if the 1923 constraint (i.e. length of terms) is itself worthy of debate, the more audacious part of Higgins’s statement can hardly be meant to be taken literally.  Regardless of the copyright status of any particular project, archive, or work, I am reasonably sure that it’s still easier to explore the 20th century in greater depth than, say, the seventeenth.  Heck, some of us still kicking actually remember the 20th century.

But I don’t mean to entirely dismiss the point Higgins is making.  Naturally, works that do exist from any period up to the early 20th century may, without copyright restriction, be digitized and organized into a useful archive for the amateur or professional researcher.  In fact, while working on my post about Van Gogh, I referenced an incredible archive representing fifteen years worth of labor by researchers and historians working with the Van Gogh Museum in Amsterdam. Not only have they made all of Vincent’s correspondence available, but the writings are complexly cross-referenced and searchable with insights, footnotes, and related drawings.

And while it is true that Van Gogh’s works are in the public domain, it does not stand to reason that this database could never have existed otherwise.  In fact, this particular archive is so good, so painstakingly assembled, that it earns a natural exclusivity, which could easily have been compatible with licensing the works or collaborating with an estate, if that had been necessary. The point is that preserving many types of works in a meaningful way takes desire, talent, and resources that can be far bigger hurdles to overcome than copyright protection.  Meanwhile, random, free-range copying of works motivated by a wide range of purposes is not necessarily sufficient to effect valuable preservation. And copyright’s complexity or length of terms is unlikely to be the only catalyst—if it is a catalyst at all—among the forces that foster disposability, not the least of which is digital technology itself.

As a broad observation on this matter, it is curious that those who preach the value of “abundance” bestowed upon society by digital technology—and this is certainly true of Techdirt’s editorial gist—fail to consider that with increased volume in the production of anything, disposability will likewise increase.  And this is particularly going to be true with intangible commodities like creative, scholarly, and even amateur works that have increased exponentially with the advancement of digital tools for production and distribution. We read, watch, listen to, and share more stuff on a daily basis than at any time in history, but I suspect we also mentally discard a great deal of it and move on to the next pile of stuff the next day—or the next minute.

And this is in fact how Web 2.0 is designed to function economically—not as an archive of all knowledge as it is sometimes loftily described—but as a system that financially rewards the sites that can draw attention to whatever is trending in the nano-present. Whether it’s an expert analysis of a global trade agreement or the current disposition of Kim Kardashian’s butt is irrelevant to the economic interests of the site owner. Clicks is clicks. And daily traffic is what puts money in the bank.  (This, by the way, is why even the expert analysis of a trade agreement, might display a photo of Kim Kardashian’s butt in the sidebar.)  The motivation to preserve and to archive valuable works, is a wholly separate matter from these economic drivers; and it turns out that even important stuff can disappear from the Web at an astonishing rate for reasons having nothing to do with copyright.

In this regard, I’ll draw your attention to the article cited at the end of Higgins’s post, a very interesting story by Adrienne Lafrance writing for The Atlantic.  The centerpiece of her article is journalist Kevin Vaughn, who in 2006, while working for The Rocky Mountain News, began researching the families affected by a terrible incident in 1961 in which a train collided with a bus.  His work ultimately led to a multi-part web series called “The Crossing,” which drew tremendous support from the local community expressing a deeply personal connection to the tragedy.  Then, as Lafrance writes, “In 2008, Vaughan was named a finalist for the Pulitzer Prize in feature writing for the series. The next year, the Rocky folded. And in the months that followed, the website slowly broke apart. One day, without warning, “The Crossing” evaporated from the Internet.” Lafrance goes on to describe how Vaughn was able to resurrect at least part of “The Crossing” from assets saved to a DVD, but the point of the story seems to be the ephemeral reality of the Web contrasted with its illusion of permanence.

It’s worth noting that Lafrance’s article never mentions copyright in any context whatsoever.  Instead, I would argue that what we learn from the piece overall is that the motivations, processes, and resources necessary to preserve anything are much the same as they were in pre-digital times, but that there are even greater challenges with digital and web-based assets than with physical ones. Namely, they are inherently easier to lose. And above all, it is folly to believe that online is synonymous with forever.

“Saving something on the web, just as Kevin Vaughan learned from what happened to his work, means not just preserving websites but maintaining the environments in which they first appeared—the same environments that often fail, even when they’re being actively maintained. [Alexander] Rose, looking ahead hundreds of generations from now, suspects ‘next to nothing’ will survive in a useful way. ‘If we have continuity in our technological civilization, I suspect a lot of the bare data will remain findable and searchable,’ he said. ‘But I suspect almost nothing of the format in which it was delivered will be recognizable.’”

So, it is odd that Higgins would even cite this article to support a thesis that copyright is the culprit in the loss of important journalism, when Vaughn’s conflict was in fact one with technology.  The only lesson the preservationist can reasonably take from this example, or from the broader points made by Lafrance, is that both the will and the resources to preserve an archive must exist prior to an event (e.g. a business closure) that can shut down a web platform, leaving behind not even a scrap of paper as a primary source.  No doubt, most of us with hard drives full of unsorted, digital family photos can relate to this challenge, knowing that these assets are stored on devices whose obsolescence is far more immediate than the shortest copyright term ever proposed.

Nevertheless, what Higgins seems to be implying is that a reduction in copyright, which would allow free copying and sharing of assets might protect a work like “The Crossing” because it would not have resided in only one place on the Web. He writes, “Just last month, flooding threatened a priceless collection of photos in the New York Times archive; had those images been digitized and widely copied, no single flood or fire would pose a risk.”

But even if widespread and random copying could be expected to preserve an older collection like these Times photos (and there are reasons why it would not), it is unclear what copyright amendment Higgins would propose at all with regard to a comparatively recent work like “The Crossing.”  How would simplifying what he calls “the arcane and byzantine rules created by 11 copyright term extensions in the years between 1962 and 1998” help address the fundamental reasons why a work distributed exclusively online in 2006 disappeared two years later?  Perhaps Higgins is proposing that the solution would be no copyright at all—in which case he should say so—but then this begs the question as to why there was ever a Rocky Mountain News to hire a Kevin Vaughn to create “The Crossing” in the first place.

Ultimately, Higgins’s post is consistent with a general bias that we have the technology to make the world’s works accessible and useful, and it is therefore antiquated to allow copyright to thwart this capability.  That may seem rational on the surface, but unless we want to boil that premise down to Let’s just allow Google to digitize and control it all, the conversation becomes far more complicated. At the very least, we need to consider that human capital required to make works accessible in a meaningful way, that the technical sustainability of digital assets themselves is uncertain, and that wired life has an effect on disposability, on general knowledge and awareness, and even on memory itself.  Meanwhile, it’s too easy to casually declare that stuff is disappearing all because of copyright without even examining what may or may not be disappearing at all.

On this matter, probably the most compelling citation made by Higgins in his post is a reference to research by Paul J. Heald into the apparent disappearance of American books from the mid-20th century.  But Heald’s conclusions deserve a thorough response as Part II of this essay.

Techdirt’s Masnick reveals own irrelevance.

Mike Masnick, editor and founder of Techdirt often writes like a smug frat boy, substituting scorn for ideas, and is frequently careless about fact-checking. This may be be why his mantra sounds sillier every day, as he bangs on about all that is wrong with just about anyone who believes copyright still plays a role in the digital age.  Seriously, other than die-hard myrmidons, is anyone still listening to what he’s saying?  Because he’s in danger of becoming the poster child for everything that is wrong with the very things he purports to defend.

Most recently, Masnick revealed his capacity for carelessness when he wrote this blog post about an event he did not attend, focusing on two words taken way out of context, and then making no effort to confirm the basis of his tantrum.  The subject was a recent conference hosted by the Center for the Protection of Intellectual Property, which included panelist Sandra Aistars, CEO of Copyright Alliance. (I have worked with both organizations.) Masnick claims in his post that Aistars was “insisting that the efforts for copyright reform are really coming ‘from criminal elements’ and that no one in ‘any sort of innovative sector’ is actually on board with copyright reform.”  Had Mike bothered to wait for the video of that meeting, he might have heard  the following, in which Aistars adds to her recap of 40 years worth of debate and discussion on copyrights thus:

And an element that goes a little bit further than what we’ve heard before and almost seeks the entire elimination of intellectual property protection, and that element I think is coming in its most aggressive form not from any sort of innovative sector in any business, but is coming more from the, I’ll call them “criminal elements,” cyberlockers, entities like that who support and benefit from cyberlockers, and they are not interested intellectual property in any way, and I think those of us who rely on intellectual property in our business lives are just collateral damage. 

So, in case any Techdirt readers (or editors) need that simplified, Aistars is making a very clear distinction between real innovators — whose voices she welcomes and has always welcomed to any discussion — and actual criminals who really don’t deserve a seat at the table.

And speaking of not deserving a seat at the table, people who are incapable of presenting ideas that challenge the imagination beyond cheap sarcasm and false reporting have clearly lost contact with the nuanced evolution of this ongoing debate.  In other words, when you just start making shit up as an excuse to keep calling everyone who supports copyright a “maximalist” (whatever the hell that means), it might be a sign you’ve run out of things to say.  By coincidence, I happen to be on my way to attend a similar event hosted by CPIP as I write this, and all of the topics for discussion are written humbly in the inquisitive and not in the conspiratorial imperative that guys like Masnick like to imply.  Experienced adults are trying to solve problems and come up with new ideas; and all the sniping from the kids’ table doesn’t speak well  for the cause of the Internet as a medium for enlightened discourse.

UPDATE:  It looks like while I was writing the above, Mike updated his own post in order to both reveal the full quote in context and then stand by his bizarre assertion.  All I can say is that perhaps what Aistars ought to have said is that the copyright debate is being skewed by a criminal element and also some really stupid people.