On government and copyright

Another day, another misguided view on intellectual property. Via Tim Lee at Ars Technica, here’s a quote from a representative from Ron+Rand Paul’s Campaign for Liberty:

“We think the public domain is a terrific part of the Internet,” he told us. Rather, he said, the group was worried that “Internet collectivists” would use the phrase “public domain” as “code for getting the government more involved” in copyright issues.

The group is pushing back against the idea that, “what is considered to be in the public domain should be greatly expanded.”

First, copyright exists because of government, full stop. There is no copyright infringement in the state of nature. Second, to expand what is considered in the public domain means lessening the interference of government, by shortening copyright terms.

This would seem to be an area where libertarians and liberals could agree (in fact, it mostly is). It’s terribly depressing to see the Paul’s finding a way to oppose this.


Code is control: on Facebook and media

A friend asked me recently what I think of Facebook’s new plan to unveil a new media sharing platform on their site. Dan Gillmor’s column in The Guardian captures most of my thoughts thus far:

If you buy a refrigerator for your home, it’s yours. And once installed, it’s going to work the same way for the rest of its working life, letting you organise perishable food inside a cold space.

But in the world of technology, once you buy something – or, even more, become a user of a web-based service – there is a very good chance that it will change. And increasingly, the changes come with a take-it-or-leave it choice – which is to say, little to no choice at all.

The point is this: the more our products contain software – and increasingly, code is integral to the things we buy – the more likely it will be that these products are not really ours anymore. The companies that sell them (or, in the case of web services, allow us to use them) will increasingly make decisions that they can change at a whim, or a court order. Probably the most infamous example to date took place whenAmazon reached into its customers’ Kindle book readers in 2009 to delete copies of – irony alert – George Orwell’s 1984, which, it turned out, were being sold illegally by one of its online vendors.

I don’t expect bad faith to rule. Most of the changes will be upgrades, no doubt. But we will have no choice but to accept them. That’s the problem.

This is the right framework to think about this. We already give up so much control with our reliance on Facebook. This change seems likely to increase that. A couple things I’d add…

The refrigerator metaphor is interesting because even though you own your ‘fridge, you can’t use it without electricity. We can think about electricity as a fairly open framework; no single corporation can dictate the rules for devices plugging in. Similarly open standards – more open really – exist online. The web itself is governed by a set of open protocols driven forward by rough consensus (and running code). What we need to fear is the open standards web approach giving way to the corporate standards app approach. Every additional layer that we cede to single corporations is a step backward. That’s part of why I’m worried about Spotify.

The second thing I have to add… With respect to media, I’m particularly worried about Facebook and its approach to copyright enforcement. Will Facebook take an aggressive approach akin to Apple’s with iTunes and iPods? Or will it sit back and let the burden sit with the users? If Facebook tries to enforce IP rights as part of its sharing platform it will be truly damaging and a  step back for online culture. Users will presumably pressure them not to, but content creators (and their industry groups) will take the other side, and will be better organized. So that’s a piece I’ll be closely watching as this rolls out.


How bands get paid

This is a fascinating post from an indie band, via Techdirt, laying out how much they get paid for various purchases or listens across platforms. It’s worth a read. But since I took a little heat for my recent post/screed on Spotify and the record companies, I want to share a few highlights from an actual music creator:

If you decide to pay nothing, well, we get nothing, but at least you didn’t give money indirectly to major record labels, which seems to be the case with Spotify!!

And here’s Techdirt:

What really comes through from all of this is that, as has pretty much always been the case with all but a handful of top acts, musicians don’t make much money from selling music. At least, as an indie band, Uniform Motion actually does make some money from all of these methods. If it was a signed band, they’d almost certainly be making zilch on each play or sale, because the label would keep it until they “recouped,” which for nearly every signed act is approximately never.

However, it does drive home the need for ancillary revenue streams — such as performances. Performance revenue has issues too, but to make a living making music, it seems pretty clear that most acts need multiple revenue streams.

The main point I want to make here is that figuring out how to make sure artists can live a comfortable life is mostly divorced from how we actually paid for music in the late 20th century! The centralized record company model was a means for a tiny percentage of artists to make a whole ton of money. Pretty much nothing about that makes sense. Especially now since distribution costs roughly nothing.

There is then the separate question of how a whole class of musical artists should be compensated. We can have that discussion. But let’s start it out by remembering that the answer so far has mostly been they basically didn’t. So when I raise the possibility that maybe they don’t need to, it shouldn’t seem like a totally wild notion.


How to protect IP

The Washington Post editorial board favors legislation to protect copyright holders from infringement online. Here’s how the Protect IP Act would work:

The proposal would allow the Justice Department or a private rights holder to move against a rogue foreign Web site by convincing a federal judge that the site is “dedicated to” and has “no significant use” other than copyright or trademark infringement. Defendant Web sites would have the right to contest the allegation. An otherwise legitimate site that may have sold a product that turned out to be a fake or unknowingly linked to or posted an item to which it did not have the rights would be spared legal action.

Putting aside the overall desirability of the bill – I’d have to learn more – what would the impact be on copyright holders? Would their position be strengthened? That’s the assumption, and certainly the conventional wisdom. But I can imagine (fantasize?) about a different result.

Say tomorrow downloading or streaming movies or music illegally was impossible. What would the impact be? Would a generation raised on free access to culture throw up its hands and start paying? Or would those artists, creators, labels, studios, etc. who made their content freely available legally gain an advantage? You could imagine shows that could be streamed for free online starting to beat out those that couldn’t, once illegal downloads went away. Or music licensed under Creative Commons finally enjoying significant economic advantage over that which had to be purchased.

You can tell yourself a story about either open licensing or at least legal streaming offering greater not less competitive advantage in this environment. I find it easier to imagine in music, personally, because it’s more difficult to imagine a unified stance against free distribution. Sure, maybe you could get 95% of TV shows behind paid gates. Ditto movies. But does anyone think that’s how it’d go with music? Artists and labels would put their music out for free (either open licenses or legal streaming) in order to gain advantage against more popular artists. And in that way, perfect legal control of illegal copying could theoretically be a boon to those favoring free (as in beer or speech) access to culture.

None of this may be likely, and the kind of perfect control required is pretty spooky. But I find it to be an interesting thought experiment.


NYT ignores draconian copyright terms

The New York Times had a lengthy piece on a legal battle between musical artists and the recording industry. Here’s the lede:

When copyright law was revised in the mid-1970s, musicians, like creators of other works of art, were granted “termination rights,” which allow them to regain control of their work after 35 years, so long as they apply at least two years in advance. Recordings from 1978 are the first to fall under the purview of the law, but in a matter of months, hits from 1979, like “The Long Run” by the Eagles and “Bad Girls” by Donna Summer, will be in the same situation — and then, as the calendar advances, every other master recording once it reaches the 35-year mark.

The record companies object, and there seems to be a legal battle shaping up. But nowhere in the article is there any mention of the fact that no one should own these recordings after 35 years!

My brother, a law student, pointed out to me that mine is a normative claim, whereas the article centers around a legal battle. True. But it’s more than that. By the criteria the Constitution sets out for intellectual property, today’s excessive terms clearly fail. The purpose, laid out in the copyright clause, is:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

I can’t say it any simpler than this: no one seriously thinks today’s copyright terms are maximizing the creation of art and culture. It’s blatantly obvious that terms could be significantly shorter without any loss in terms of creation. So by the the criteria set out in the constitution, the battle NYT describes is a sideshow; the real story is that copyright terms are out of control.

All I’m asking for is a brief mention. The artists’ “side” is represented, as is the record companies’. What’s missing? The public’s side. This is the tragedy of what political scientists refer to as concentrated benefits/distributed costs. Artists and record companies each gain dramatically from excessive copyright protection. The public loses out, but each individual loses only a little bit, so it’s hard to organize politically to institute more sane policies. That explains the politics of copyright, but one would hope the NYT would go out of its way to give voice to public interest arguments.


Stealing, remixing, and the Constitution

Photographer John Harrington has a post criticizing Lawrence Lessig’s approach to copyright and urging photographers not to give up their rights, no matter what Lessig and others might recommend. The post represents a dangerous approach to intellectual property firmly at odds with the Constitution.

The Law is only The Law until we change it

“Call me a killjoy,” writes Harrington, “but stealing music is stealing from artists. Period.” But why? Presumably because he believes the appropriation he’s describing is against the law. But why is it against the law? What is the purpose of copyright? I’m glad I asked…

To promote the Progress of Science and useful Arts

The Constitution states clearly what the purpose of copyright is, and it’s not to infinitely preserve the natural rights of artists. Its aim is to further progress. Which means we have to ask: is copyright achieving that aim? Are terms too long or too short, by that criteria? Lessig and others have argued persuasively that they are far, far too long. I’m open to debating that as an empirical matter, so long as we agree upon the basic purpose of the law.

Nothing is derivative of nothing

My fear is that Harrington would object to the very criteria by which the Constitution insists we judge copyright. My fear is that he would claim artists simply have certain natural rights to their work, and regardless of what the law says, stealing is stealing. I could go on for a while about why I find this misguided, but it’s hard to have a productive argument about a philosophical tenet. Here’s just one reason: despite what Cadillac would have you believe, nothing is derivative of nothing. Ideas, art, culture all build on what has come before. When thinking about intellectual property we often focus on output without considering input. (Put another way, everything is a remix, as the video below argues.)

Against artistic rent-seeking

Artists and content creators will always be tempted to favor strong intellectual property regimes. But self-interest is no basis for a moral theory (sorry Ayn). As Lessig has also argued, control over intellectual property has never been easier to exert. Technological limits to near-perfect control are evaporating. If content creators give in to temptation and insist on advocating for an intellectual property regime justified by a conception of natural rights – despite the Constitution’s clear position to the contrary – our culture will suffer. The line between stealing and remixing needs to be considered on the basis of maximizing progress, not just protecting property.