Tag: techdirt

Dr. King & the Public Domain

Every time a Martin Luther King anniversary comes around, the anti-copyright armada is well armed with blogs and articles decrying the indecency that the civil rights leader’s words and recordings are not in the public domain.  And never one to miss such an opportunity, even while missing the point, Mike Masnick at Techdirt insists that Dr. King’s “I Have a Dream” speech should no longer be protected by copyright controlled by the King estate.

You know the speech, right?  Who doesn’t?  We celebrated it’s 50th anniversary yesterday, and it’s only one of the most famous pieces of oratory in world history.  Yet, despite the fact that Dr. King’s words managed to attain osmotic universality long before the invention of YouTube, one gets the idea from reading Masnick’s post that without “sharing” the speech through social media, it might simply vanish into oblivion.

I understand the sentiment.  After all, these words feel like public property, and they were among the many gifts King gave to humanity.  So, is it really fair that the King family can manage or even license this speech and “sully” its legacy with money?  It is.  And the primary reason should be obvious:  because YouTube doesn’t belong to the people, it belongs to Google; and Google monetizes every click. That means Masnick’s idealistic musings that sound humanistic are already sullied with money, except that in his world, the money would be Google’s, and the King family would get zip.  How is that more fair or better serving the public interest?

The internet industry has done such a thorough job of telling people that the web belongs to all of us, we actually believe it.  Masnick’s title “Let Freedom Ka-Ching” is admittedly clever, but it’s also hypocritical.  He mocks the tawdry commercialism of licensing King’s emancipating words for use as a ringtone and cites Professor Boyle of Duke University, who also mocks such use; but why is the alternative better?  If I made an homage mash-up that earned millions of views on YouTube, why would it be any less tawdry for Google to advertise fast food against it?  Go a step further:  what if a white-supremacist group creates a racist mash-up with the speech that generates millions of views, and Google sells ads against that? The King family would be powerless to do anything about it, and Google would keep the video online because it’s “free speech.”  Ka-ching!

We keep forgetting that copyright is often about preserving the integrity of works, and not just about money. Estates have long played the role of curators who protect the legacy of authors’ works, and we dismiss the value of this at our peril, even as we mock the idea of “I Have a Dream” as a ringtone. I happen to think a ringtone is not a bad use as uses go, but that’s another conversation.

The web moves fast, it favors what “trends” and not necessarily what endures.  There is no evidence to suggest that my fellow Americans are any more enlightened or have more ardently embraced the goals of the civil rights movement because of social media and so much jittery sharing of things.  Worse yet, can we say for certain that a generation or two from now, the legacy of King would not be mangled through reuse beyond all recognition?  The answer is no we can’t say that for certain because we’re making assumptions based on technologies and social trends that are less than a decade old.  And we have seen plenty of evidence that what goes viral is not always accurate or valuable.

I for one think Martin Luther King, Jr. already gave us plenty; and access to his works is anything but limited.  You might have to get off your butt and go to the library, but considering how far he walked, that doesn’t seem like a lot to ask.

Copyright, copyright everywhere…

There is certainly no shortage of copyright in the news these days, and readers of this blog might wonder about my silence on subjects like the Supreme Court’s ruling in Kirtsaeng or the testimony before Congress by Register of Copyright Maria Pallante calling for the next great overhaul of the law. For starters, when I began writing IOM, I never intended for it to overemphasize copyright as a topic; and I have stated repeatedly in posts and comments that there are plenty of sites (see blogroll) hosted by legal experts in Intellectual Property, which I do not presume to be. In fact, one of my ongoing criticisms of the Web is that its mechanisms tend to bring out the armchair expert on all subjects, regardless of their complexity, which invariably reduces even the most intricate matters to popular sentiment based on prejudices already held before discussion began.  An illusion of discourse heading in no particular direction.

I write this blog from two main perspectives — as an artist working to navigate a changing career in the middle of tremendous upheaval and churn; and as a citizen with a measure of socratic humility, admitting that my observations are limited and that there are always experts who know more than I about many things. I bet if I walked into my local diner and talked to the 50+ crowd, I could gather a smattering of opinions on say North Korea but probably receive blank stares on copyright.  If I did the same thing with a bunch of local sixteen year-olds, I might get blank stares on North Korea and an earful on the evils of copyright.  Odds are, of course, few of these opinions will be grounded in quality journalism, let alone first-source expertise.  Yes, the Internet makes it possible to cut through bumper-sticker politics and acquire expert information, but it’s also a great tool for repeating the bumper stickers, which is why amateurs can make a whole career out of repeating what people want to hear, regardless of substance. So it is with copyright.

If uninformed, declaratives about copyright are the froth in your latte, then TechDirt is the site for you. I read Mike Masnick’s post, for instance, concerning Pallante’s testimony, and the typical blogger thing to do would be for someone like me to critique that post fallacy by fallacy; but the prospect of doing so is almost as tedious as it is futile.  After all, both Masnick and I are about as expert on copyright law as we probably are on plumbing.  Those opposed to strong copyright protections already agree with his post, and those in favor will agree with mine. Meanwhile, I’m betting a large segment of the American population neither knows nor cares to know about the inner workings of these laws; so I often find myself wondering about the value of us amateurs arguing via blog over some of the more fleeting and granular aspects of a legal system that will likely take several years to evolve into its next incarnation.

So, for anyone who reads this blog and is not knee-deep in the gore of the copyright battle, the big picture as I see it this:  I believe the copyright system will change over the next decade or so, but if that change is predicated too much on the self-serving premises of its tech-industry antagonists, the results for artists in particular, and for society in general, will be regressive rather than progressive. It would be like allowing the oil industry to overly influence emissions policy.  Copyright stifles innovation is a popular meme and a cornerstone premise of the entire cabal aligned against the system, but this assertion is never supported by solid examples or data, which leads one to conclude that innovation describes what is contemporary and popular, regardless of whether or not it is economically progressive or, dare I say, fair.  We generalists could boil down the details to  a few fundamental questions when considering the future of copyright:  Is enterprise-scale piracy innovation or exploitation? Is the right of the author a civil right or a government handout?  Is copyright relevant for the individual or just a tool for big corporations?

These may be questions my kids’ generation will have to answer, but in order to do so honestly, they will need to come to terms with certain practical realities that don’t require legal scholarship.  First, they’ll need to recognize that the Internet is not an extension of themselves, but a technological piece of infrastructure over which just a few corporations wield unprecedented power.  Next, they’ll need to see past the selfish habit of acquiring media for free and accept that there is no such thing as an economy based on free stuff, that someone always pays and who pays makes a difference.  They’ll need to recognize that no matter what they believe about big media companies and lobbyists, flesh-and-blood, independent artists and small creative businesses are experiencing tangible and measurable harm. In fact, as I write this, musician and activist David Lowery, speaking at the Canadian Music Week’s Global Forum, just said the following: “The first week our new Camper Van Beethoven album came out, I watched one seed on BitTorrent distribute more copies than we sold.” I think you have to be both daft and depraved to describe this as innovation, and this kind of spin has no business informing the future of copyright.

I was asked the other day by a gadfly baiting me on Twitter if a “win” for me would be the triumph of the RIAA and the MPAA. I don’t know what that means, and neither does the gadfly; but these implicit accusations are typical of the associative politics to which neither conservatives nor progressives are immune.  Such interactions are circular, boring, and meaningless. And the hypocrisy is off the charts. I won’t pretend I’m a legal scholar, but the number of tech utopians who presume to lecture the creative community about how to make albums, motion pictures, and other works is truly staggering.

As I say, this blog was never intended to be all about copyright, and it occurs to me that part of its intent was to share observations from the perspective of developing new film projects in the current landscape. I admit that I am too easily attracted to the broad discussion, and I shall make an effort to steer this blog to be a little more film project focused, if for no other reason than film is next and may be more vulnerable than music.  It’s been a long time since Lars Ulrich was pilloried on the steps of Napster, and today we see musicians, from fairly obscure to the biggest names, coming forward to talk about artists’ rights in the digital age, and not without reason.  The truth is I don’t care if I or one of my colleagues develops a new film as a self-produced project, a deal with a Netflix, a traditional studio, or an established indie production company — whatever best serves the work.  But there is not one of these paths that is not founded on the right of the author to retain first choice in the process by establishing a precedent of ownership in the work.  Beyond that fundamental reality are many intricate details for professionals to work out and a whole lot of amateur-hour bullshit that deserves once and for all to be moved to the fringes of the debate.

Turning Down the Noise

Photo by Dmitry Rukhlenko

One of the things I truly love about the Internet’s influence on human psychology is that there seems to be something about the act of typing publicly in real-time that makes so many of us into armchair experts on just about any subject we choose.  This is particularly striking when it comes to complex legal matters, and if you are unfortunate enough to find yourself engaged in a “discussion” about copyright, you will invariably encounter invocations of the Constitution and proclamations of reason from people who are not legal professionals of any kind, let alone intellectual property law.  Whenever I hear someone use the terms “copyright maximalist” or “copyright monopoly,” it reminds me of social conservatives who use the term “activist judges” to sweep away some  legal principle that doesn’t square with their personal agendas.

Several months ago, Registrar of Copyrights Maria Pallante made a statement in an interview that was not only innocuous, but also happened to be correct. She said that “Copyright is for the author first and the nation second.”  Silicon Valley’s Representative Zoe Lofgren, however, decided to take Pallante to task in a Congressional hearing; and TechDirt editor Mike Masnick got his righteous knickers in a twist over the whole non-issue.  Masnick posted several articles blasting Pallante and provoking reader comments from some of the great armchair, Constitutional scholars of our times (no doubt, you’d know them by their avatars).  One of these experts posed the following question, which is probably more telling than any of the ham-handed legal opinions put forth:  “In this climate, is it still a realistic expectation to ask the public to allow artists to be full time artists?”  If I read that statement out of context, I’d assume it came from a conservative politician who transparently disapproves of the NEA, and opaquely hates all us wierdo, liberal, artsy elitists.  In other words, “Get a real job.  You can write books, make movies, compose music as a hobby.”  And, yes, this is the vision of technocrats and their supporters.

I try very hard not to presume any more legal expertise than the average citizen who hasn’t been to law school.  As an exercise in logic, however, I find it impossible to see how the one-sentence clause in the Constitution on copyright could function in any other way than that described by Pallante — i.e. that creative work won’t benefit the public until it first benefits the creator(s); and both history and the rulings of numerous courts bear this out.  But don’t take my word for it.

For anyone who is truly interested in dispassionate, professional, and well-written analysis of copyright fundamentals, it is hard to find a better source than Terry Hart, a young lawyer with a specialty in intellectual property law, who hosts the blog Copyhype, named by the ABA Journal as one of the top 100 legal blogs in the U.S.  For example, I recommend Terry’s recent post on this this no-so-controversial statement by Maria Pallante.

People like Representative Lofgren and Mike Masnick have an axe to grind for a specific industry, and people like me and others who speak out from the point of view of creators can get more than a little emotional, especially when we encounter sentiments like the one above asking whether the “public should allow” us to make creative work a profession. So, I think it’s important, and frankly calming, to step away from the shouting and read the work of someone like Terry from time to time.