Author-Endorsed Mark

This article is now superseded by The Creator-Endorsed Mark; please see there instead.

Imagine if when you obtained a book (or a song or a movie), you could know whether or not the way you obtained it was explicitly endorsed by its author. Could you use that information to make better choices?

I think so. Here’s a scenario: you walk into your local copy shop and ask for a book you saw recommended on someone’s blog. Machines to print books on demand are already here (see the Bookmobile, for example), so let’s assume that printing up a book at a copy shop is a reasonable thing to do.

Under the current copyright system, the copy shop must have permission from the copyright holder to print the book for you. One way for them to get permission is to work out bulk deals with publishers, so that every time the shop prints a book, a certain percentage goes to the publisher (and then a percentage of that goes to the author). Another possibility is for copy shops to become publishers themselves, bypassing the traditional publishers and working out deals with authors directly.

But many other arrangements are possible, and as more and more information moves onto the Internet, we can’t predict what all such arrangements might look like, nor should we try. What we really need is a flexible framework in which authors and readers can experiment with different models, without being forced into distribution systems that are more restrictive than either party actually wants.

For example, some authors might prefer an approach that takes into account the fact that readers differ in price sensitivity. For such authors, a better arrangement with the copy shop would be to simply set a suggested donation. The shop tells the customer what the author’s suggested amount is, and the customer can include it in the final price, or increase it, or decrease it, depending on her needs and resources (the copy shop’s own copying fee sets the “floor” for the price the customer pays). The copy shop accumulates the donations and sends them in to the author by whatever means the two arrange, most likely an intermediary service.

Is this the best possible system for all creative works? Maybe, maybe not. The point is that it would be good for such experimentation to be not only possible, but easy. In that spirit, here’s a proposal for enabling experimentation.

The Author-Endorsed Mark would be a single trademarked certification symbol that anyone can use to certify their distribution of a work, if the author (copyright holder) has given them permission to do so. In other words, the author is the licensor of the mark, and the distributor is the licensee. An author would allow use of the mark in order to say “These terms of distribution have been endorsed by the author of this work.”. Someone can still distribute the work without meeting those terms, but they can only display the mark if they meet the terms. The point is to provide information, instead of imposing restraints: the purpose of the mark is to allow recipients to know what channels and methods of distribution are endorsed by an artist, yet not restrict everyone to using just those channels (unlike current copyright law).

Currently, by contrast, we have a system in which recipients never have to think about the difference between an author-endorsed channel and a non-endorsed — but still legal — channel. Although this distinction could exist in theory, in practice we rarely get to choose. Instead, most channels are both legal and (implicitly) endorsed, since distributors must negotiate with copyright holders in order to distribute.

It doesn’t have to be like this, and some artists would actually prefer a more relaxed way. Instead of being forced accomplices in a system that shuts down anyone who hasn’t negotiated with them or their representatives, what if artists could offer audiences a way to merely distinguish between endorsed and non-endorsed distributions, and then let the audiences make their own choice? “Non-endorsed” needn’t mean “illegal”, it would simply mean that distributor has not met the author’s preferences, and therefore may not use the Author-Endorsed Mark. If there’s just one mark that everyone uses for this purpose, some percentage of people will learn to look for it, just as a percentage of people have learned to look for the organic certification symbol when shopping for food.

Artists’ preferences don’t have to be about money, either. Earlier, I used a suggested donation amount as an example of a preference, but it could just as easily have been quality of paper, or print resolution, or the presence or absence of advertising on a DVD, or various combinations thereof. The Author-Endorsed Mark is an experimentation enabler: it gives artists a tool to encourage some actions without prohibiting others. Some purchasers will follow the artist’s preferences, but others will try out different arrangements — arrangements that might unexpectedly please or benefit the artist. Instead of everyone being forced to act more or less in lockstep, the way they are today, we could open up the floodgates to a real diversity of systems, while still giving people the ability to make informed choices among those systems.

During a discussion of this proposal, Brian Fitzpatrick pointed out that it might be useful to have a “negative” version of the mark: a symbol you can (or must?) use when distributing something in a way that you don’t know is in accord with the author’s wishes. I think that’s a neat idea: it forces everyone involved in the transaction to be positively aware of the choices they’re making, but without preventing the transaction itself.

That might just be the great lesson of the Internet: information beats control, every time.

(Translations: 中文)

Portait of Jacob Tummon

Today the Vancouver Sun published an editorial by Jacob Tummon entitled “The Case for the Death of Copyright”. Tummon is already known to readers here for his in-depth piece on copyright at Legaltree.ca. While this editorial is necessarily shorter and less detailed than that earlier piece, it still makes a strong case. Tummon is a law school graduate, and he makes the excellent point that unenforceable laws inevitably lead to disrespect for the law itself: “Canada has experience with laws that engender widespread violation: Consider prohibition in the 1920s. A law violated so brazenly is more than meaningless — it undermines the effectiveness of the legal system generally.” Bravo to the Vancouver Sun for giving space to these ideas.

Here’s the full editorial, reprinted with Jacob Tummon’s permission…

The Case for the Death of Copyright

It has been said that intellectual property law has an unfortunate tendency to “disable critical thought.”

Nowhere is this more apparent than the reasons proffered for copyright in the Internet age, including the refrain that “copying is tantamount to stealing.” That flatly is not the case.

The morality, economics, and practicality of laws dealing with physical property do not hold for the intangible works covered by copyright. With finite physical property, scarcity is inescapable; with digital representations, scarcity does not apply. It is therefore not surprising that reasoning premised on this false analogy yields a law not in the best interests of content creators (“content creator” means artists, musicians, writers and so forth.)

The ostensible justification for copyright is that it provides attribution to the original creator and serves as an economic incentive for creators who can license the use of their work to make money, provided someone is willing to pay.

The latter point deserves careful scrutiny as the vast majority of creators do not earn meaningful incomes through copyright. Moreover, there are viable models for creators to earn income from their work which do not depend on copyright. Sponsorships, ticket sales, T-shirt sales and commissioned works are obvious longstanding examples.

Canadian musician Jane Siberry offers her music on her website using a “pay what you can” system, but a guideline shows the average price customers have paid per track. The result is an average price higher than what one would pay through iTunes. There are also similarly clever business models for novelists.

Embedding advertising or product placement within a TV show or movie is another viable means to pay for content. Budweiser produces its own TV-type shows on its website Bud.TV. Budweiser’s motive is worth noting for its prescient thinking: “If we don’t start playing in this digital game now we’re going to be playing catch-up for a long time. And this is an industry that can’t afford catch-up,” explained Tony Ponturo, Anheuser-Busch’s vice-president of global media and sports marketing.

Nor is proper attribution dependent on copyright. Tort law, through causes of actions like defamation and passing-off, could be wielded to prevent someone other than the original creator from claiming authorship, and also the original creator being credited with an altered version of the work. Incidentally, plagiarism in an academic setting is currently enforced independently of copyright.

Trademarks and patents are other areas of intellectual property that do not depend on copyright and would continue to exist in the absence of copyright.

That copyright isn’t needed for attribution or economic incentive is not the whole story. There is a body of work, in all areas covered by copyright, which requires the elimination of copyright to flourish. DJ’s making mixed tapes is a simple example.

Consider, with the means available through modern software, the splicing of video to say nothing of novels; a freeing from the constraints of copyright would invariably lead to an explosion of works being altered, transformed, improved, and ultimately morphed into new works.

The lack of such creative works is a not insignificant cost of copyright. This repressing effect can be damaging to the promotion of political and social expression and greater productivity.

Copyright was originally created as a means for government to exercise censorship after the advent of the movable type printing press. Given this origin it is not surprising that copyright is not intellectually coherent.

Stephen Breyer, now a judge on the U.S. Supreme Court, wrote as an academic in the 1970s on the weak case for copyright, asking why the work covered by copyright should be treated differently than other actions that produce value far beyond what they get remuneration for, i.e. the person who invents the supermarket, the person who clears a swamp, a schoolteacher.

The truth is that copyright has traditionally, and to this day, served primarily the publisher’s interest and not that of the creator or the public — it is not derived from natural justice.

Irrespective of moral and economic dimensions, the deathblow to copyright will likely come from the Internet itself. Due to the nature of the Internet, and anonymizing technologies in particular, the practicality of attempting to enforce a pre-internet copyright regime through the Internet is a road that we as a society should not go down.

Canada has experience with laws that engender widespread violation: Consider prohibition in the 1920s. A law violated so brazenly is more than meaningless — it undermines the effectiveness of the legal system generally.

Over time, the Internet will increasingly expose constraints on text, pictures, and videos for what they are — arbitrary and outmoded. In the meantime, it makes sense for Canada not to pass copyright laws that are more restrictive and invasive.

Jacob Tummon is a recent graduate of the University of British Columbia’s faculty of law.

As promised, here’s the Op-Ed piece (lightly edited) that I sent in to the New York Times as a response to Mark Helprin’s article on extending copyright.

Great Ideas Live Forever — But Only If We Let Them.

The title of Mark Helprin’s May 20th Op-Ed piece (“A Great Idea Lives Forever. Shouldn’t Its Copyright?”) puts an important question front and center. And the answer is a resounding “No.”

It is precisely because great ideas and great works of art live forever that restrictions on accessing them should be temporary and limited, much more limited than they are today. This is not only because access to culture and knowledge is a public benefit in itself, but also because those who create new works build on the works of their predecessors and peers. All creation is derivative — as Mr. Helprin, himself a writer, ought to know.

Treating works of the mind as physical property fails at a basic logical level: if I steal your bicycle, now you have no bicycle; if I copy your song, now we both have it. When Helprin argues that the government should not be able to “commandeer” your works (by which he means, apparently, allow them to pass into the public domain), he blurs this crucial distinction. The government is not commandeering anything. Even after leaving copyright, your work is still your own. After all, no one is arguing against rights of attribution being preserved: the world will still know who made that book, or song, or painting. What’s really happening is that the government is finally relinquishing command of the work, by allowing it to flow freely in the great creative stream where the bulk of humanity’s inheritance resides.

The question we should be asking is: for how long should the government give any private party — sometimes the author, more often a publisher — the ability to prevent others from making copies and derivative works? That is all copyright does, in the end. It is not an ownership right, it is a temporary monopoly. In possessing a copyright, I possess nothing tangible that I didn’t have before, I simply have the privilege to cause others to possess less, and can rent or sell this privilege for a fee.

But if copyright is just the option to prevent other people from exchanging information freely, we should surely demand the strongest possible proof that it benefits society, before granting such severe powers even temporarily. Yet Helprin proposes extending copyright terms to be essentially infinite. Why?

Helprin has fallen prey to three myths. The first is the fallacy of a natural right of ownership (that is, control) for works of the mind. The reason ownership makes sense for bicycles is that, without ownership, it would be too difficult to decide how a particular bicycle would be used. Imagine a world where bicycles couldn’t be owned: every time I wanted to ride mine, I might have to put it up to a vote by the whole world. Endless discussions would ensue, perhaps a run-off election.

The idea is ludicrous, of course. We have ownership so we can efficiently make decisions about exclusive allocation of resources. But the key word is “exclusive”: when the resources are infinitely renewable, as with works of the mind, I can ride my bicycle and so can you, and neither of us need interfere with the other. The idea that owning creative works is somehow a natural right thus founders on the rocks of physical reality. When Helprin equates copyrights with houses, he chooses a bad metaphor, and comes to bad conclusions.

The second myth is that of the lone genius, the solitary creator whose works spring de novo from some unique spark, owing nothing to anyone else. That’s simply not how creativity works. It is sobering to realize just how many masterpieces we would be without now, had copyright laws always been as strict as they are today. Helprin cites a Mozart aria as an example of art (and let us note, in passing, that Mozart was paid through grants, commissions, and salaries, not through copyright royalties). If Helprin is fond of opera, has he considered that we would likely be without Verdi’s “Macbeth”, had Shakespeare’s plays not been part of the public domain, accessible to all as a basis for derivative works? I pick this example at random; there are many others. Derivation is not some statistical outlier, it is the norm, and the freedom to practice it has been central to creativity for millennia. Transcription, rearrangement, quotation, and translation of other works have always been the marrow of art, as any musician, painter, or writer can testify. Only recently have we begun insisting that certain of these creative imitations be kept private, or else be subject to the grueling process of “rights negotiation”, which causes so many works of art to be suppressed or heavily modified.

The third myth, which Helprin relies on unquestioningly, is that today’s severe copyright regime is justified because it provides an economic basis for creativity. A look at the lives of most artists suffices to show how wrong this is. Today, as in the past, most creators fund their activities through day jobs, grants, commissions, patronage, sale of first-print rights, and performances — but only rarely through copyright royalties. It is true that a small minority of creators do earn a living from copyright, and if we think that business model worth preserving, we should be considering how long copyright terms really need to be to support it. It’s hard to imagine, though, that if we evaluated copyright strictly as an economic incentive, we would be able to justify multiple decades of monopoly control, as we currently have, let alone extending and tightening that control to the degree Helprin proposes. A few years of copyright? A decade, perhaps? These are the lengths of time within which most copyrighted works make most of their royalties. Restrictions beyond that should be viewed at best as indulgences, certainly not as rights.

Helprin writes that “an agricultural-age law makes no sense in our creative era”. But copyright is not an agricultural-age law. It was designed in the early eighteenth century around the limitations of the printing press. Publishers, not authors, proposed it as a compromise measure to replace an expiring censorship law. Their argument was that exclusive print rights would be needed to ensure dependable reproduction, in an age when the technology and economics of print runs were the main hurdles in making works accessible to the public. From the start copyright was not really about subsidizing creation, it was about subsidizing distribution, just as it is today.

Except that today we have a far better distribution mechanism than the eighteenth century ever dreamed of. We’ve just finished building a worldwide copying and editing machine — the Internet — and this is no time to shrink from using it. Mark Helprin’s proposed course would hurt artists and the public alike. Instead, we should be trying to reduce copyright to the minimum needed (if any) to bring new works into existence, and treating works of the mind as seeds, to be returned as soon as possible to the fertile earth of the public domain.

Note: This article was updated and expanded in December 2012.  You can view the new version here.

page from early copyright registration book

One of the biggest problems with today’s copyright system (and patent system, for that matter) is that there is no economic pressure pushing works toward the public domain. Instead, the incentives are all structured toward copyrighting for as long as possible — far past the point of really benefitting even the copyright holder, let alone the public. Below is a proposal for a truly balanced policy, one that that would give copyright holders a motivation to release works sooner, and give the public a way to influence how long any particular work stays under copyright.

This article describes a new copyright system, one designed to reflect the public’s interest in moving works into the public domain, while at the same time preserving the most useful market characteristics of the current system. It works through a tempered monopoly: instead of offering today’s automatic, fixed-term, and essentially zero-cost copyright grant, it offers a monopoly whose value and duration are based on a combination of the public’s and the creator’s interests, which are not necessarily at odds.

Best of all, it is simple and low-overhead. It does not require any complex negotiations, third-party assessments, or intricate pricing formulas. Here’s how it works:

First, new creations would still get an initial automatic copyright term, but fairly short: on the order of three to five years. Today’s copyright terms automatically last many decades — holders are given years of monopoly power regardless of whether they actually want or need it. Thus the first step is to arrange things so that, if the owner does nothing, works will enter the public domain much sooner than they would today.

Later we’ll look at the question of initial term lengths in more detail. For now, let’s focus on the moment when a work is about to default into the public domain under this new system.

Assuming the copyright owner takes no further action, the work just enters the public domain [1].

But there’s an alternative: instead of letting the monopoly lapse completely, the copyright owner can choose to register the work each year for continuation of copyright, with a registration fee proportional to the self-declared value of the work. That is, the copyright owner picks a number of dollars that she claims the work is worth. It can be any number at all, but the yearly registration fee will be a percentage of it — for discussion’s sake, say 2%. (The exact proportions don’t matter here: it could be 1% or 5% instead of 2%, registration could be semi-yearly instead of yearly, etc. The idea is the same, regardless of the details.)

Now comes the key: since that declared value is now a matter of public record, anyone can pay it to the copyright owner to liberate the work into the public domain. This would be a mandatory transaction: the copyright holder has declared what the work is worth, and has an incentive not to declare too high, because she’ll have to pay a percentage of it to renew every year. Anyone willing to pay the total amount can cause the work to go into the public domain.

Because the value of a work may change over time, the registrant may adjust the declared value up or down each year when renewing the registration [2]. This is also one of the reasons behind that initial brief (but free) monopoly term: it gives the copyright holder a chance to see what the work is worth, and she can use that information to decide how much to register the work for when the initial term ends.

Let’s run through an example. Suppose I write my great novel, “The Helprin Affair”. For a brief period of time, I have a regular copyright, just like today. After that, I decide to register to keep my copyright. Calculating (based on sales so far) that my novel is worth US $100,000, I therefore pay $2000 to the copyright office, which I can afford, because the novel has been selling strongly and I’m sure I’ll make that back in royalties this year too. The next year, I make the same decision… But eventually, there will come a time when it’s no longer worth it to me. At that point, I can either reduce the declared value, so as to pay a smaller fee, or release the work entirely. (There should be an upper limit on renewals, however; no work should be kept out of the public domain permanently. Monopolies are still monopolies, after all.)

At any time after my initial registration, some third party can look up the declared value of “The Helprin Affair” in the copyright office’s records, and pay me $100,000 to liberate it on the spot, or in later years perhaps less or more, if I’ve changed the declared value in subsequent registrations.

Note that this is not a purchase of the copyright itself, but rather a liberation of the work from copyright entirely. People would still be free to lease or sell their copyrights as before, for whatever price they can get (which, interestingly, may be higher or lower than the registered value — the market dynamics behind that decision are just as rich as those involved in determining a work’s value under today’s copyright system). But whoever the owner is, whether the author or someone else, they’re responsible for keeping up the registration. And while the work is still under registration, anyone can come along and pay the registered owner the declared value to liberate it. The justification for making this a mandatory transaction is that since the copyright owner chose the price in the first place, it is by definition fair, and the public’s ultimate interest is in having the work be available to everyone, without restriction.

The initial term, for which no registration is required, has some purposes beyond just giving the creator a chance to assess the market value of the work.

First, requiring explicit registration from the very beginning would penalize small-scale artists disproportionately: they are likely to be short of resources and to either forget to register, or not know how. They would thus be unfairly disadvantaged in comparison to those working with publishers, who have a legal staff to remind them of registration requirements. But after an artist has a chance to see a work succeed, they’re not likely to forget to register it (though a few may still forget — no system is perfect).

Another reason to grant a free initial period of copyright is conservatism. Although I’m not convinced that copyright is truly necessary at all in the Internet age, there is at least an argument for giving new works a “clear landing space” for a few years after their creation: a default exclusive copyright, much like today’s but lasting a shorter time, can help give the work time to establish its own identity. Again, I’m not sure this is really necessary — but it wouldn’t be excessively harmful, and it might make a lot of people more comfortable with reform.

There is a balancing act going on here. It may be useful for the original work to have time to become known on its own terms, before derivatives appear that capitalize on the momentum of the original work’s initial appearance but that might also eclipse it before it has a chance to make an impression. On the other hand, we also want derivatives to become possible during the “reaction cycle” of the original work, that is, during the time when the original work is still relevant, so that derivatives have a chance to be meaningful responses. (This is very similar to the right to fork in open source software; see The Wind Done Gone for an example of why this right is important in art).

So what’s an appropriate amount of time for the original work to make its splash, before having to contend with derivatives? I won’t pretend to know for sure, but for the purposes of discussion, let’s say three years. Instinctively, anything over five years feels too long to me, and less than a year feels too short. But it doesn’t matter here what the exact number is; three will do for now. That’s a period of time within which most royalty-generating works make the majority of their revenue anyway. Registrations could then continue the monopoly for another ten even fifteen years (though I think the latter number still too high, because it’s so punishing to independent derivative works).

While this proposal is a compromise, it’s at least a compromise tilted toward the public interest. By analogy, think of a homeowner who cuts a driveway opening onto a public street, in order to gain access to a private garage. If I take a streetside parking space away from the public, I expect to pay the city (that is, the public) a fee, and usually annually, too, not just a one-time fee. Similarly, a copyright owner who wants to keep a work out of the public domain should pay for that privilege. But unlike a garage, this privilege need not be permanent, because losing monopoly control over a work after roughly a decade is not as serious as losing one’s indoor parking space.

This system would go a long way toward alleviating the orphan works problem, by ensuring that the copyright owner of a work could be found (someone must be paying the fee over at the registry), and toward alleviating the ghost works problem (in which derivative works are suppressed), by setting a maximum amount of money that, for the vast majority of works, would probably still be affordable for a motivated party wanting to see that work in the public domain.

The copyright lobby frequently talks of finding an appropriate “balance” between the needs of creators and the needs of the public. Like many appeals to balance, it is usually a smokescreen for something else: in this case, for efforts to increase copyright terms and restrictions beyond their already grotesque lengths. The “balance” they’re talking about neatly presupposes that creators and the public are somehow on opposite sides, while publishers are, curiously, absent from the picture altogether. (Their portrayal is also historically suspect, as copyright was designed to subsidize distribution more than creation — that is, it’s been about publishers, not artists, all along.)

Nevertheless, why not take them at their word? If balance is such a good thing, let’s have it: a true economic balance between the desire of copyright holders to retain exclusive control, and the desire of the public to let creative works roam freely. If that kind of balance is what we want, then the Declared Value system comes much closer to it than do today’s one-sided copyright laws.

[1] Entering the “public domain” does not, of course, mean that accurate attribution is no longer protected. Crediting and copying are entirely separate things, and while the public’s interest is served when works can be copied and derived from, it is not served if people take credit for what they did not do. Thus it may be wise to legally protect attribution separately from copyright, although note that the absence of dedicated attribution laws laws has not resulted in a plague of plagiarism on the Internet. This is probably because widespread distribution and search tools are a far better protector of attribution than any law: there is no plagiarism problem in the world of open source software, for example. We’ve written elsewhere on the protection of attribution and how plagiarism is not related to copyright, in this article about Google Book Search, this article about how digital analysis resulted in the swift detection of a major instance of plagiarism, this article on distinguishing between copyright violation and plagiarism in the classroom, this article on how New York University apparently fails to make that distinction, this reader’s comment on that article, and this article about the history of copyright.

[2] Alternatively, the owner could be allowed to adjust the declared value at any time (perhaps even as a reaction to liberation offers), with the provision that any upward adjustment would require immediate payment of the difference between the old and new registration fees. However, the public domain would be better served by simply allowing adjustment only at fixed intervals: if the owner of a work can’t figure out its market value and set the fee accordingly, that is no reason to favor the owner over the public when the work is being liberated at a price the owner once clearly thought sufficient.

A ton of people wrote in to point out Mark Helprin’s Op-Ed article in this Sunday’s New York Times (“A Great Idea Lives Forever. Shouldn’t Its Copyright?”); some of them suggested writing a response.

So I’ve written one, and sent it in to the New York Times editors. As we have no problem with right-of-first-print arrangements here :-), I’m waiting to hear back from the NYT before posting it on this site. The NYT will let us know within a week if they’re going to run it. [Update: they didn’t run it, so it’s posted here now.]

Portait of Jacob Tummon

In the meantime, though, recent Canadian law school graduate Jacob Tummon wrote in with a piece that’s as good an answer to Helprin as we could ask for, although he didn’t write it as a response to Helprin. It’s called “The Case for the Elimination of Copyright” (http://legaltree.ca/node/559), and it’s a really good, thoroughly-footnoted analysis of the cases for and against copyright — economic, moral, and legal.

Tummon writes from a Canadian legal perspective, and helpfully compares Canadian with U.S. law at several points. There are also some great quotes from skeptics in copyright jurisprudence, including Stephen Breyer, who is now a judge on the U.S. Supreme Court. All in all, highly recommended.

Ironically, at the bottom of the page is a notice saying “Copyright © 2007 Legal Tree Project Inc.” I suspect that notice is just placed there automatically, and that it’s questionable under Canadian law whether they actually have an exclusive copyright on the piece, but Jacob himself could probably say authoritatively.

[Note: this article was featured on Slashdot when it originally appeared, and has been edited slightly since then.]

Recently, Slashdot carried an interesting — and in my opinion mistaken — piece by Greg Bulmash about copyright and open source. Here’s Slashdot’s summary:

Reader gbulmash sends us to his essay on the fallacy of those who would abolish copyright. The argument is that without copyright granting an author the right to set licensing terms for his/her work, the GPL could not be enforced. The essay concludes that if you support the GPL or any open source license (other than public domain), your fight should be not about how to abolish copyright, but how to reform copyright.

The piece contains flaws in both its reasoning and its rhetoric, and deserves a rebuttal, in part because it reached such a wide audience.

The piece’s most obvious problem is its conflation of copyright with “creditright”. For example, here’s how Bulmash asks us to imagine what would happen if the GPL (a copyright license that allows derivative works, but only if they are also under the GPL) were unenforceable:

You create some cool open source app. Then some megacorporation comes along, removes all your claims of credit, adds 10% more code, compiles it, and distributes the executable binary locked up in DRM. […] Would that theft of your work act as a disincentive to creating more works? Would you say to yourself, “why bother slaving away to create this when some megacorporation can just steal it, put their name on it, and lock it up in DRM”?

This mixes up two completely different concepts: the right to be credited for a work, and the right to control distribution of that work. Attribution and copying are not the same thing: those who download songs illegally from the Internet do not typically replace the artist’s name with their own, after all, and yet the RIAA is still filing lawsuits. So attribution is not really the issue here (and in general, letting data be copied freely actually helps prevent plagiarism, a topic covered in more detail here). In any case, no one objects to laws that protect credit. By all means, let’s prevent the megacorporation from distributing your work without crediting you proportionally. But it would be a misnomer to call such protection “copyright” law, because it wouldn’t have much to do with controlling copying. It would be a creditright, because it would simply enforce proper crediting.

That passage also shows a larger problem in Bulmash’s piece, which is that, circularly, his language often assumes the very points he’s arguing for. He talks of “theft” and “stealing”, as though when the megacorporation gets your work, you somehow lose the work. Again, if he had objected to the theft of your credit, that would be perfectly reasonable, since the degree to which someone else claims credit for your work is exactly the degree to which you lose credit. But he’s apparently talking about the theft of the work itself, and this makes little sense when applied to works of the mind. If I steal your bicycle, now you have no bicycle; if I copy your computer program, now we both have it.

All these problems can be seen at once in a paragraph near the opening of his article:

The problem with a large part of the anti-copyright crowd is that they don’t understand or won’t admit what copyright entails as a concept. That is the right of the creator of a work to exert some control over how it’s used, who can copy and distribute it, and a right to have their authorship acknowledged.

Notice the rhetorical sleight-of-hand there: he presents copy control as a natural and uncontroversial “right” — and then accuses his targets of simply not understanding (or refusing to admit) that copyright entails that right! Of course that’s not true: the abolitionists understand perfectly well what the laws are today, they’re just trying to change them, on the grounds that the laws are bad. If Bulmash wants to argue that control of distribution should be a right, that’s fine, but instead he just asserts the right as though it’s a fact of nature, like the sunrise, beyond reasonable dispute. And again, he conflates control of distribution with acknowledgement of authorship.

Now let’s move to the core of Bulmash’s piece, which is his claim that open source software licensing depends on copyright. Here he does have a point, just not as broad or lasting a point as he thinks. For one thing, he tries to apply the argument to all open source software licenses, when it really only applies to the GPL. That’s why all of his examples use the GPL, and not other licenses. The GPL is unusual among open source licenses in that it has a “copyleft” provision: it requires that if you make and distribute a derivative work based on a GPL’d original, your derivative must also be under the GPL. It is true that this provision currently depends on copyright law for enforcement, and on various occasions it has had to be enforced, sometimes publicly, sometimes behind the scenes.

But while Bulmash is technically correct that this part of open source licensing depends (today) on copyright law, he’s missing the forest for the trees.

I’m not arguing, by the way, that total abolition of copyright is necessarily the best thing. I do think it’s a defensible position, though, and that either abolition or very fundamental changes to copyright terms and restrictions are needed to save our culture from being stuffed into a vending machine and sold back to us dollar by dollar. But that’s a topic for another article. With respect to Greg Bulmash, my point is just that copyright abolitionists are being perfectly consistent when they use the open source movement as an example.

To: mail@americanpublicmedia.org
Subject: Re: MTT Files Program 4: Igor Stravinsky’s Copyright Blues

Regarding “The MTT Files” Program #4 (“Igor Stravinsky’s Copyright Blues”), which aired on San Francisco’s KALW radio tonight:

Michael Tilson Thomas’s intertwined history of music publishing and Stravinsky’s composing life was fascinating and enjoyable — but may I register a complaint? The program came very close to being a probing look at copyright and control, only to shy away and simply reiterate Stravinsky’s grievances without examining them too deeply.

For example:

Stravinsky objected strenuously to music from his ballet “The Firebird” being rearranged as a popular song, “Summer Moon”. In fact, he objected so much that he sued his American publisher for allowing it to happen, on the basis that the rearrangement was devoid of musical merit.

In his sympathic recounting of Stravinsky’s claim that the music had been damaged, Michael Tilson Thomas falls into the trap of treating music as though it were a physical object. The problem with this is easy to explain: if you damage my bicycle, now I cannot ride it, but if you “damage” my song, the world now has both my original version and your new version. Nothing has been lost, something has only been gained. Ultimately, a song cannot be destroyed or damaged. It can be copied, but the original always remains, no matter what is done with a particular copy.

An artist’s attempt to suppress derivative works, as Stravinsky did, is simply censorship by another name. After all, no one was asking Stravinsky to endorse “Summer Moon” artistically. His good name and musical reputation were not on the line: he was always free to disparage “Summer Moon” and dissociate himself from it, if he wanted to.

But by attempting to suppress the song, Stravinsky went from mere disdain to outright hypocrisy. After all, in his own compositions, he had long made liberal use of others’ work — not only of folk tunes, but of composed and attributed music, such as in the Pulcinella Suite. Would Stravinsky say that Giovanni Pergolesi (or Pergolesi’s heirs) should have the right to sue Stravinsky for rearrangements that Pergolesi would probably have found strange? Of course not. And just as Stravinsky was free to build on the work of his predecessors and peers, he should have extended the same rights to others.

My point is not that we should blame Stravinsky — he was behaving the way the copyright system encouraged him to behave, and no differently from many other composers. But an examination of music and copyright, even if it springs from a story about a particular Stravinsky rehearsal, should do more than perpetuate the all-too-common perception that the way copyright enables artists to “control” their work is an uncontroversial and natural right. The reality is far more complex than that. It’s no coincidence that modern copyright law descends directly from a sixteenth-century English censorship law, a history that Michael Tilson Thomas unfortunately didn’t have time to cover.

-Karl Fogel
Editor, QuestionCopyright.org

There’s a famous phenomenon in copyright known as the orphan works problem. It refers to the situation in which the copyright owner of a given work cannot be found. This effectively prevents others from using such a work as part of a new project. For example, if you want to make a movie based on a novel, you must first get permission from the novel’s copyright holder. But if the novel is an orphan work, then you can’t even find the copyright holder. Technically speaking, you could proceed without permission — but you would do so at your own risk. The copyright owner could emerge at any time and demand penalties. You might end up having to pay damages; worse, you might have to abandon or censor your derivative work, no matter how much effort you’d put into it.

Related to the problem of orphan works is another problem, much more serious, yet much less discussed. I call it the ghost works problem. Ghost works are all the works that never get made in the first place, or are made but not released, because copyright concerns prevent them either from being started or from being distributed. Every project that dares not base itself on an orphan work becomes a ghost work, but there are many more ghost works beyond that. Indeed, it would be fair to say that today most works are ghost works. That is, most works either don’t exist or are not accessible, because copyright obstructs them. Whenever you walk into a bookstore, survey the shelves around you and imagine them to be 90% empty, for in a sense they are.

That might sound surprising. After all, the shelves look full, don’t they? To see why they are not, let’s start with an inverse example: a classic work that (fortunately) isn’t a ghost work, but easily could have been, had its authors lived under the modern copyright regime.

In April 2007, the singer Max Ziff and I gave a concert at the Berkeley Piano Club, in Berkeley, California. We performed one of the great works of nineteenth-century German song: Die Schöne Müllerin, Franz Schubert’s musical setting of twenty poems by Wilhelm Müller. Müller and Schubert were not a team, though. In fact, when Müller wrote the poems, around 1820, it was with the intention that an entirely different composer, Ludwig Berger, would set them to music, which Berger did. Müller and Schubert never met, and Müller apparently never even knew that Schubert too had set his poems to music.

Not that Schubert was trying to hide anything from Müller. It was simply that, at the time, there was no cultural expectation that one must ask permission before making a derivative work from someone else’s original work. Müller’s poems, having been published, were now considered part of the common culture, and if composers wanted to write songs based on them, they were free to do so. To our eternal benefit, Franz Schubert had this freedom: Die Schöne Müllerin is a truly inspired piece of music, one that has influenced generations of singers and composers.

Our concert thus depended on the public domain in two ways. One way is obvious: Die Schöne Müllerin is, legally, in the public domain today, so we are free to perform it without arranging royalty payments to anyone. But there is a deeper dependency, too: this music would not exist in the first place had there not been a healthy public domain at the time the poems were written.

Imagine if Müller and Schubert had lived in the present day, instead of the early nineteenth century. Müller writes his poems, intending for Ludwig Berger to set them to music; Berger does so. Then a mostly unknown composer, Franz Schubert, appears out of the blue, wishing to set them to his own music and asking Müller’s permission. But Müller can’t give permission — he doesn’t own the copyright anymore, his publisher does, and the publisher, not wishing to encourage competition with the Berger settings, is inclined to refuse. Perhaps Schubert could pay for the privilege? But no, he doesn’t have those kinds of resources. Or perhaps he’d like to negotiate a royalty-sharing arrangement? But Schubert has no lawyer, and no head for haggling over contracts. He’s a composer, not a negotiator. Well then, he is free to set the songs for his private enjoyment (that’s “fair use”) but he certainly may not distribute them!

In all likelihood, things wouldn’t even get that far, of course. Instead, Schubert would know in advance that he cannot always follow where his inspiration leads, when where it leads him is into someone else’s copyrighted territory. Instead, he would just accept that the work of most of his contemporaries is out-of-bounds for someone like him, an unknown with no resources. And so we would not have Die Schöne Müllerin… nor Die Winterreise (another of his song cycles), nor many of his individual songs, which often set the work of living poets.

And that’s just one composer.

This exercise in imagination highlights one of the most insidious aspects of the ghost works problem: that it cannot be easily measured, no matter how great its magnitude. We can point to an existing album, a movie, or a book and say “There! There is that thing, that physical object, whose existence is beyond doubt.” But how can we point to something that is not there? How can we know what we do not have? We can only measure the loss indirectly; nevertheless, there is compelling anecdotal evidence that it is large.

Some of this evidence comes from the world of free and open source software, where it is traditional not only that the software itself be released under open copyright licenses, but that the software’s documentation be similarly licensed. This means, among other things, that derivative works such as translations can be made by anyone. In theory, this could be done without permission or cooperation from the original authors, but in practice translations are almost always authorized and approved, because cooperation is easier than territorialism.

The result of this freedom is that the documentation for virtually all major open source programs, and many minor ones, has been translated into several languages, usually enough languages to cover the vast majority of the software’s user base. Furthermore, the translations are usually kept up-to-date as the software and its documentation evolve.

This phenomenon is not limited to technical documentation. In late 2005, I published a book entitled Producing Open Source Software: How to Run a Successful Free Software Project. The publisher, O’Reilly Media, although marketing the book through traditional trade and bookstore channels, agreed to release it under a permissive (open source) copyright. Accordingly, I put the book’s full text online at producingoss.com — and pretty soon people showed up to translate it! I did nothing to seek out translators, except release the book under a liberal license; only after the first translators showed up did I put a notice on the front page soliciting more. Now we’ve got a German translation under very active development (with two separate translators who only met through cooperating on this project), a Hebrew one happening somewhat more slowly, and some recent arrivals looking at doing a Chinese version.

This is happening with a book that has, let’s face it, a fairly limited audience. Not only that, it’s the second time this has happened to a book I’ve published (see cvsbook.red-bean.com). Once could be coincidence; twice is starting to look like a pattern. And I’m only using my own books as examples because they’re the first thing that came to mind. There are hundreds of open source projects that could tell a similar tale about their documentation. The lesson to draw here is that, were it not for copyright restrictions, most books in the world would be translated into several languages. After all, the better the book, the more some multilingual reader will be motivated to translate it. The translation doesn’t have to be perfect, because there will also be people who show up to edit it. These projects tend to self-organize in exactly the same way that open source software projects do.

But under the current copyright regime, if you want to release a translation of a book that was published under traditional restrictions, you don’t just sit down and start translating. Instead, you start by negotiating the right to translate — a process which is completely unrelated to actually translating, and is also daunting, time-consuming, and likely to fail. It’s hard to imagine a more potent gumption sink than “rights negotiation”. The mere prospect is enough to shut down most translation projects — which is why I look at those bookstore shelves and see them as mostly empty.

For those who leave rights negotiation for later, the penalties can be severe indeed. Recently, I opened the April 2nd, 2007 issue of the New Yorker to see the following notice from David Denby in the “Critic’s Notebook” section:

In 1977, Charles Burnett, a U.C.L.A. film student, made his thesis film, “Killer of Sheep,” a fictional portrait of life in the Watts section of Los Angeles, for less than ten thousand dollars. The film has attained legendary status, but it has never been released theatrically before, because of music-rights issues. Burnett used many kinds of African-American music on the soundtrack, and the movie itself has the bedraggled eloquence of an old blues record. […]

In other words, for thirty years — long past the time when its topics were contemporary, long past when it could have had the most impact and been most appreciated — a great film has languished unseen. For thirty years, Killer of Sheep was a ghost work. And to what end? Movie licensing royalties are probably not why those musicians recorded that music, and are in general not a significant part of most musicians’ incomes. That a few musicians occasionally hit the royalties jackpot is indisputable, but does that skewed and random result really justify the censoring of a film for three decades?

Now sensitized to the presence of ghost works all around us, I usually don’t need to go out of my way to find examples. Instead, I can depend on them finding me with some regularity. Such was the case here. While writing this article, I opened my New Yorker and saw the above piece. I could have chosen from several other examples that crossed my path in the last week — and those are just the stories that someone bothers to tell. This fact alone is a clue to the size of the problem.

If one person can gather a few examples of ghost works without even trying, many people working together can really start to catalogue the problem. Maybe after we have enough we’ll start to notice some patterns. So please keep your eyes open, and if a ghost work crosses your path, let us know. Our contact page is http://www.questioncopright.org/contact.

Bob Ostertag

Bob Ostertag is a musician and experimental audio artist based in San Francisco. He has been performing and recording since the 1970s. In this article, he describes the recording industry from the point of view of an experienced musician, and explains why most musicians today would be much better off sharing music via the Internet than signing standard industry recording contracts. He also discusses the larger issue of what happens to society as more and more of our culture gets locked down under centralized corporate control. Bob practices what he preaches: his music is available for download from his web site, bobostertag.com.

(This article is now also running over at AlterNet.)

In March 2006 I posted on the Web all of my recordings to which I have rights, making them available for free download. This included numerous LPs and CDs created over 28 years [1]. I explained my motivations in a statement on the Web site:

I have decided to make all my recordings to which I have the rights freely available as digital downloads from my web site. […] This will make my music far more accessible to people around the globe, but my principal interest is not in music distribution per se, but in the free exchange of information and ideas. “Free” exchange is of course a tricky concept; more precisely, I mean the exchange of ideas that is not regulated, taxed, and ultimately controlled by some of the world’s most powerful corporations… [2]

One year later, I continue to be amazed at how few other musicians have chosen this route, though the reasons to do so are more compelling than ever. Why do musicians remain so invested in a system of legal rights which clearly does not benefit them?

When record companies first appeared, their services were required in order for people to listen to recorded music. Making and selling records was a major undertaking. Recording studios and record manufacturing plants had to be built, recording technology and techniques developed. Records not only had to be manufactured but also distributed and advertised. Record executives may have been crooked in their business practices, callous about music, or racist in their treatment of artists, but the services the companies provided were at least useful in the sense that recorded music could not be heard without them. Making recorded music available to the general public required a significant outlay of capital, which in turn required a legal structure that would provide a return on the required investment.

The contrast with the World Wide Web today could not be more striking. Instant, world-wide distribution of text, image, and sound have become automatic, an artifact of production in the digital realm. I start a blog, I type a paragraph: instant, global “distribution” is a simple artifact of the process of typing. Putting 28 years of recordings up on my Web site for free download was a simple procedure involving a few hours of effort yet resulting in the same instant, free, world-wide distribution. It makes no difference if 10 people download a song or 10,000, or if they live on my block or in Kuala Lumpur: it all happens at no cost to either them or me other than access to a computer and an Internet connection.

So much for distribution. What about production? Almost none of my releases were recorded in a recording studio provided by a record company. They were either recorded on-stage, in schools or radio stations, or in living rooms, bedrooms, and garages with whatever technology I could cobble together. They are made either by myself alone or with a small handful of close collaborators. In one sense this is atypical, because I intentionally developed an approach to recording that was premised on never needing substantial resources, with the explicit goal of maintaining maximum artistic autonomy. Yet while this approach may have been unusual 20 years ago, it is less and less so today as digital technology has drastically reduced the cost of recording. There are very few recording projects today that actually require the resources of the sort of high-end recording studios record companies put their artists in (and for which the artists then pay exorbitantly – bills which must be paid off before the musicians see any royalties from their recordings). Just as the Web has changed the character of music distribution, laptops loaded with the hardware and software necessary for high-quality sound recording and editing have changed the character of music production.

Record companies are not necessary for any of this, yet the legal structure that developed during the time when their services were useful remains. Record companies used to charge a fee for making it possible for people to listen to recorded music. Now their main function is to prohibit people from listening to music unless they pay off these corporations.

Or to put it slightly differently, they used to provide you with the tools you needed to hear recorded music. Now they charge you for permission to use tools you already have, that they did not provide, that in fact you paid someone else for. Really what they are doing is imposing a “listening tax.”

Like all taxes, if you don’t pay you are breaking the law, you are a criminal! Armed agents of the state have shown up at private residences and taken teenagers away in handcuffs for failure to pay this corporate tax. It is worth noting how draconian state coercion has been in this field in comparison to many others. For example, almost everyone I know (including myself) has a unpaid copy of Microsoft Word on their computer. I am certain that some kids who have run into legal trouble for sharing music without paying the corporate tax also had unpaid copies of Microsoft Word on the very same hard disks that were taken as “evidence” of their musical crimes. Yet no state agents are knocking on the doors of our houses to see if we have pirated software. Music alone is singled out for this special treatment.

You would think that musicians would be leading the rebellion against this insanity, but most musicians remain firmly committed to the idea of charging fees for the right to listen to their recorded music. For rock stars at the top of the food chain, this makes sense economically (if not politically). The entire structure of the record industry is built around their interests, which for all their protesting to the contrary dovetails fairly well with those of the giant record companies [3].

But the very same factors that make the structure of the record business favor the interests of the sharks at the top of the food chain work against the interests of the minnows at the bottom, who constitute the vast majority of people actually making and recording music. Most records, in fact, produce good money for corporations and little or none for the musicians. This is because the recording studios and engineers, art departments, advertising departments, A&R departments, legal departments, limo services, tour agencies, caterers, and distribution networks that swallow up the sales revenue for all but the big hits are owned by these very same corporations. Records that sell tens of thousands don’t “break even” not because no money comes in, but because all the money goes to keeping the corporation in the black. Revenue for the corporation starts coming in with the first CD sold, royalties for artists don’t kick in until every part of the bloated corporate beast is adequately fed.

What exactly are these corporations? To begin with, we should note that the major “record companies” are not actually record companies at all but huge media conglomerates. Most “independent” labels are owned by a corporate label. Each “major” is in turn owned by an even bigger corporation, and so on up the food chain. At the top of the chain sit a tiny handful of media giants: Time Warner, Disney, Rupert Murdoch’s News Corporation, Bertelsmann of Germany, Viacom (formerly CBS) and General Electric. These corporations are among the world’s largest. All are listed in Fortune Magazine’s “Global 500” largest corporations in the world. They have integrated both horizontally (owning lots of record labels, lots of newspapers, and radio stations) and vertically (controlling newspapers, magazines, book publishing houses, and movie and TV production studios, as well as print distribution systems, cable and broadcast TV networks, radio stations, telephone lines, satellite systems, web portals, billboards, and more).

This incredible concentration of power over news, entertainment, advertising, music, and media of all kinds is a recent phenomena, and is fueled by the very same digital technology that has made the Web and the recording-studio-in-the-bedroom possible. In 1983, 50 corporations dominated US mass media, and the biggest media merger in history was a $340 million deal. By 1997 the 50 had shrunk to 10, one of which was created in the $19 billion merger of Disney and ABC. Just three years later, the end of the century saw the 10 shrink to just five amidst the $350 billion merger of AOL and Time Warner, a deal more than 1,000 times larger than “the biggest deal in history” just 17 years before. As Ben Bagdikian, author of the classic study The New Media Monopoly noted, “In 1983, the men and women who headed the first mass media corporations that dominated American audiences could have fit comfortably in a modest hotel ballroom… By 2003, [they] could fit in a generous phone booth.” [4]

These companies own the most powerful ideology-manufacturing apparatus in the history of the world. It is no wonder they have convinced most musicians, and most everyone else, that the entire endeavor of human music-making would come to a screeching halt if people were allowed to listen to recorded music without first paying a fee – to these corporations. I know many musicians for whom making records in an environment dominated by corporate giants has been an exhausting and thankless task from which they have derived little or no gain, yet they remain convinced that taking advantage of the free global distribution offered by the Internet would constitute some sort of professional suicide.

Here is how the structure of this industry ruins the aspirations of independent-minded musicians and labels. Mainstream CDs sell in really large numbers only for a short window of time, usually while songs from the CD are on the radio. Unless those CDs are on the shelves of stores while the songs are on the air, potential sales are lost. In order to get stores to order large numbers of CDs in advance, the industry evolved with the norm that stores can return unsold CDs at any time. If your company sells pants, or toasters, or bicycles, retailers cannot do this, but record shops can. As a result, record labels must have more money in the bank per unit sales – be more capitalized – than other kinds of companies. Unfortunately, with almost all independent labels this is far from the case. Most are started by music fans driven in to the business by their passion for the music they love. They operate on a shoestring. They send out a bunch of records and hope for the best. Sales might look good at first, but at some later point they get swamped with returns and they have a cash flow crisis. To survive the crisis they engage in creative bookkeeping, telling themselves it is OK because they are really doing this in the interest of the artists, and when things improve everything will get sorted out. But things only get worse, until they collapse or they get bought by a bigger company with more capital. If they collapse, artists don’t get paid and there is a storm of mutual recrimination. If they get bought, the company that buys them is generally only interested in the top selling artists in the catalog, and may well take all the other titles out of print. I know one artist who had ten years of his recordings vanish into the vault of a big label that bought the little label he recorded for. He approached his new corporate master and asked to buy back the rights of his own work and was refused. In the company’s view, his work did not have sufficient market potential to justify releasing it and putting corporate market muscle behind promoting it, but neither did they want his work released by anyone else to compete with the products they did release. From their perspective it was a better bet to just lock it up.

I could relate many more anecdotes here, or delve deeper into the structure of the industry, but I think what has been said so far should suffice. Among people in my immediate social circle of musicians, John Zorn, Mike Patton, and Fred Frith have, over the years, sold CDs in sufficient quantity to actually make money. For all the rest of us, selling recordings in whatever format has been a break-even proposition at best. Not only have we not made any money, for most people in the world our music is unavailable. My works provide an excellent example.

  • My first LP, with the Fall Mountain ensemble, was released on Parachute, a small label run by Eugene Chadbourne which folded long ago and the music has been unavailable ever since.

  • My Getting A Head and Voice of America were released on Rift, a small label run by Fred Frith which suffered the same fate. It remained unavailable until I put it on line for free.

  • My Attention Span, Sooner or Later, Burns Like Fire, and Say No More were released on RecRec in Switzerland, a label launched by a music fan that went through exactly the trajectory typical of small labels I described above. By the time that I, and other artists recording for the label, discovered that we were being cheated out of our royalties the label was already collapsing. Here again, all this music remained unavailable until I put it on line for free. Since then, several thousand people have heard it.

I could continue this list but there are a lot of CDs and the stories would become dully repetitive. Of course, my music is pretty far off the beaten path. But if I had instead spent the last decades playing in rock bands that had released a series of recordings that each sold in the tens of thousands, the details would be different but the result would be the same. This is the structure of music distribution it is allegedly in the interests of musicians to defend.

There is now a very simple alternative, which is to simply post your music on the web. No, you won’t make any money from it, but the odds are overwhelming that you would never make any money from it anyway if you charged for it. And by posting it on the Web a remarkable thing happens. People all over the world can actually hear it. When I was making my music available for sale on CD, I would often hear from people who had spent years unsuccessfully trying to find a copy of a particular CD, and these were dedicated hard core listeners, who put a lot of their free time into music. Now anyone with even a passing interest can find my music easily and hear it.

People have actually been convinced that if it were not possible to charge fees for listening to recorded music, there would be no “incentive” to play music. It’s time to take a step back and see the big picture. As recently as 60 years ago, most people who made their livelihood from music viewed the recording industry as a threat to their livelihood, not the basis of it. Given the mountains of money that big stars have made during the intervening decades, this fear has generally been viewed in retrospect as hopelessly naïve. But consider the following: A few years ago I performed in the cultural festival organized by the Sydney Gay and Lesbian Mardi Gras, and witnessed the parade and dance party which is this festival’s culminating event. The parade brought roughly half a million people into the streets, including participants and observers. It took hours for the parade to slowly move through its course. Every contingent in the parade had its own choreography and music. The participants danced through the street, and many spectators danced alongside. So that’s half a million people dancing in the street for several hours. The parade ended in a 12-hour dance party attended by over 20,000, featuring seven different pavilions with non-stop music in each. Before the era of recording, the number of musicians required to keep half a million people dancing in the street for six hours, and then 20,000 dancing for 12 hours more, would have easily run in to the thousands. At the event I attended, the musicians involved numbered exactly one. No contingent in the parade included a live musician – all were dancing to recordings. All the music at the dance party was recorded as well. In the largest pavilion, at the climax of the party, an actual live singer, Chaka Kahn, emerged in a blaze of fireworks and lights to sing a short medley of her hits – to recorded accompaniment.

Humans have walked this earth for about 195,000 years. We don’t know exactly when music emerged, but it was certainly a very long time ago, long before recorded history. There is evidence that music may have been integral to the evolution of the human brain, that music and language developed in tandem. The first recording device was invented just 129 years ago. The first mass-produced record appeared just 110 years ago. The idea that selling permission to listen to recorded music is the foundation of the possibility of earning one’s livelihood from music is at most 50 years old, and it is a myth. The fact that most musicians today believe in this myth is an ideological triumph for corporate power of breathtaking proportions.

I should note that I do have serious reservations about the emerging culture of on-line music, but they have nothing to do with money. My music is made for sustained, concentrated listening. This kind of listening is increasingly rare in our busy, caffeine-driven, media-drenched, networked world. I suspect it is even rarer for music that was downloaded for free, broken up and shuffled through fleeting “playlists”, and not objectified in an object that one can hold in one’s hand, file on the shelf, or give to a friend. But this concern has nothing to do whether we charge money to hear recorded music, and everything to do with how we live in a culture in which there is a surplus of information and a scarcity of time to pay attention.

The issues involved here are hardly limited to music, but extend outward to a legal and corporate structure that shapes our culture so profoundly its importance can hardly be exaggerated. Music is no longer just music but a small subset of a corporation’s properties. Property rights have become so absurdly swollen that they now constitute a smokescreen hiding a corporate power grab on a scale rivaling that of the great robber barons of the nineteenth century. Instead of grabbing land or oil, today’s corporate barons are seizing control of culture. They are using the legal construct of property to extend the reach of corporate power into parts of our lives that were previously beyond their grasp.

There are so many shocking anecdotes one could relate in this regard; here is one from my own recent experience. If it seems trivial at first glance, it is because it is. That is precisely my point, as you will see if you bear with me.

It has been my privilege to have John Cooney as a student. John is young, bright, enthusiastic, hard-working, politically engaged, and artistically gifted. During his freshman year at UC Davis, he made a short animation about global warming that won the Flash Contest prize from Citizens for Global Solutions, and the Environmental Award of the Media That Matters Film Festival. He also made a computer game that he put on-line for free, and that was listed as a “Top Free Online Games” by Freeonlinegames.com, a “Game of the Week” by ActionFlash.com, and a “Featured Game,” by Addicting Games. John’s game also made the “Flash Player Top Games List,” and was even the subject of a story on BBC World News.

Not bad for an 18-year old college freshman. But both his projects resulted in cease-and-desist letters from corporate lawyers, including one from Tolkien Enterprises demanding that he not refer to an animated character in a game he was offering on-line for no charge as a “hobbit.” None of this involved high stakes or dire consequences. John’s game no longer features a “hobbit.” This case is trivial compared to parents getting sued for vast sums because their kids are downloading pop songs, or the unhappy plight of Eyes on the Prize, a film which beautifully documents the civil rights movement in the US, yet was withdrawn from circulation because its makers could not afford to renew all the necessary permissions on the incidental music that “leaked” into the film via documentary footage (which included a substantial payment to the copyright holders of the “happy birthday” song as the film shows Martin Luther King Jr.’s family at home celebrating the civil rights leader’s birthday).

But John’s experience is important precisely because it did not involve important people or high-profile issues. Even though there was no realistic possibility that anyone would think Tolkien Enterprises had somehow endorsed or been involved in John’s project, the mere fact that someone, somewhere was making new, independent culture using Tolkien Enterprises’ copyrighted character was enough to set the corporate reflexes in motion. The key thing here is the convergence of corporate power with the growth of the World Wide Web. If John had just shown his game in class and not put it on the Web, Tolkien Enterprises would have never known or cared. If his animation had not won an award, there would likely have been no legal threats. Together, the episodes offer an elegant demonstration of how copyright law punishes success and deters creative use of the World Wide Web.

Anything on the Web is available to anyone, which is of course both its promise and its peril. Corporate legal departments can write automated programs that crawl through the Web 24/7 searching for copyrighted works. The “hits” then generate threatening letters that intimidate anyone who doesn’t have deep pockets and a lot of time on their hands. The cost to the sender is almost nil; the cost to society is, in a literal sense, immeasurable.

Getting a threatening letter for a corporate legal department is not a pleasant experience for anyone, least of all an 18-year old kid. Keep in mind that more and more students turn in homework assignments via the Web, and not just in college but in high school too. All of that work is now exposed to the corporate vultures.

“Property rights” have bloated to the point where they can dictate the content of freshman art projects. But that is not all. Altogether more and more of what we do in our lives passes through the Web. People invite friends to parties, view art, listen to music, play games, have political discussions, date and fall in love, post their family photo albums, share their dreams, and play out sexual fantasies – all on line. Since corporate legal departments claim their copyright privileges extend to anything on the Web, the result is a huge extension of corporate power into private lives and social networks.

But that is just the beginning of the story, for the accelerating rate of technological change continues to push digital technology further and further into our lives in just about any direction you might look. To pick just one example, boundaries between our bodies and minds and our technology are blurring. Cochlear implants, for example, now allow deaf people to hear via computer chips loaded with copyrighted software which are implanted in their skulls and in response to which their brains reconfigure, growing new synapses while unused synapses fade. Cochlear implants are wirelessly networked to hardware worn outside the body which usually connects to a mic, thus allowing the deaf to hear the sound environment around them. But the external hardware can just as easily be plugged into a laptop’s audio output for a direct audio tap into the Web.

When the Web extends into chips in our skulls, where is the boundary between language that is carved up into words that are corporately owned and language that is free for the thinking?

I don’t wish to be sensationalist. We are not all about to turn into corporately-owned cyborgs. But I do wish to point out that the issues around turning culture into property are urgent, and far-reaching. Society is not well-served if we treat specific matters like downloading music on the Web as isolated problems instead of one manifestation of a vastly bigger struggle in which much more is at stake.

1 The original recording titles includes Early Fall, Getting A Head, Voice of America, Sooner or Later, Burns Like Fire, Fear No Love, Pantychrist, Like A Melody, No Bitterness, DJ of the Month, Say No More, Say No More in Person, Verbatim, and Verbatim Flesh and Blood.

3 Prince is the one notable exception here – a megastar who has used the Internet to build a music distribution infrastructure controlled by him and not a Fortune 500 company.

4 Ben H. Bagdikian, The New Media Monopoly, Boston: Beacon, 2004.

The conference “Copyright, DRM Technologies, and Consumer Protection”, on March 9 and 10 at UC Berkeley, was a great example of competing assumptions jockeying for mental floor space.

(DRM is the set of software and hardware handicaps that prevents computers and media players from sharing files freely with each other. It’s why when you download a song to your iPod, you can’t copy it to another iPod or upload it to somewhere else, for example; or why when you burn a CD with a standalone CD burner, you often have trouble making copies from the new CD.)

The panelists at the conference were varied: lawyers and professors of law, some economists and other academics, executives from content-owning companies and content-carrying companies, officials from governmental and quasi-governmental bodies (e.g., WIPO), someone from the British Library, from the Electronic Frontier Foundation, from Public Knowledge, etc. Each panel held five or six people, facing the audience. A moderator introduced each one, and then that panelist spoke for fifteen to twenty minutes on the panel’s topic. After all had spoken, the panel as a whole took questions from the audience.

Given the disagreements in the room, the conference understandably didn’t come to any conclusions about DRM. But it did two other useful things: it gave an opportunity for every possible analysis of DRM to be heard and debated (there were some non-obvious ones), and, perhaps more importantly, it revealed the rhetorical terms in which different parties want the public to think about DRM.

One good point a few panelists made is that successful DRM is likely to weaken the user’s privacy. All DRM prevents computers and media devices from sharing files freely with each other. But in order to merely curb freedom, rather than end it entirely, DRM must identify which files can be shared and which can’t, and which methods of sharing are permissible. The more sophisticated this process of determination becomes, the more it is necessary for devices to analyze information about the files in complex ways. The burden of this analysis will often be too great to implement in typical consumer electronics — so instead the data will be sent to an online server, which will figure out your rights and tell the client device what to do. But step back and consider where this is going: devices all over your house, sending information about your viewing and listening habits to a central server. Is this data certain to be subpoena-able someday? You bet. It probably already is.

Another point (made by Peter Swire among others) was the computer security implications of running DRM. The code in a DRM system must be a black box: it cannot be open source, because if the user could understand and change it, she could disable it and copy her files without restriction. But if the code is opaque, it cannot be examined for security flaws — and in fact, the Digital Millennium Copyright Act makes it illegal to even attempt such an examination in most circumstances. Basically, you have to run this code, for even if you are technically capable of modifying it, doing so would be illegal. (In response to this situation, Jim Blandy proposed a new slogan: “It’s my computer, damn it!”)

There was also some discussion of DRM in terms of consumer law and contract law, rather than copyright law. Consumer law takes into account the “reasonable expectations” of the consumer (for example, that having obtained a copy of a movie, you might reasonably expect your television or computer to actually play it when asked). But this solid-sounding phrase slowly disintegrated as people pointed out that the expectations of consumers are not static: as people experience digital restrictions more and more often, they begin to accept them — their “reasonable expectations” begin to incorporate DRM behaviors.

It was fascinating to see how determinedly the representatives from content-owning companies used the words “balance” and “choice”. Over and over again, we heard that the best DRM systems are those that strike an appropriate “balance” between the rights of content owners and the rights of consumers (also sometimes called “users”). The invocation of “choice” as a guiding principle often came as part of a self-addressed call-and-response formula, as in “What do consumers really want? They want choices.” I don’t see any way to understand that other than as a fake question designed to make DRM deployment appear to be a response to some market need — which it isn’t, because users have been indicating pretty clearly what they want: bits that flow freely.

These sorts of assertions often came in the context of the broader claim that DRM has the potential to enable a wide variety of new business models (see “An Economic Explanation For Why DRM Cannot Open Up New Business Model Opportunities” for a rebuttal of this point of view). The business-model argument was repeated by several panelists, and it’s worth some attention for the assumption underlying it: that enabling any particular business model is a positive good, a prima facie justification for whatever DRM mechanism might be required to enable it. My friend Ben Gross has an intensely practical answer to this kind of thinking. He objects to draconian copyright laws on the grounds that it’s simply not the government’s job to prop up failing business models, and he applies the same reasoning to DRM. Panelist Andrew Bridges (of Winston & Strawn, LLP) said essentially the same thing, in a memorable comment on DRM’s essential role in the marketplace: “There are two ways to make money by connecting supply and demand: by making it easy, or making it hard.”

Some panelists made reference to DRM protecting “integrity” (e.g., Victoria Bassetti of EMI: “DRM preserves our products’ integrity”), but we never got a concrete explanation of how it does so, or even what precisely it would mean. “Integrity” is a loaded word here, because whenever it is used in a conversation about filesharing and copyright, one can easily imagine that it refers at least partly to plagiarism. I don’t know whether that’s how these people meant it, but the inference is hard to avoid, and it’s completely backwards: DRM works against the detection of plagiarism, because it impedes digital technologies’ ability to arbitrarily examine and compare files, and prevents people from uploading files to locations where they can be viewed and downloaded publicly. Plagiarism cannot flourish where there is transparency, but DRM prevents transparent behavior at a technical level, and thus drives people toward non-transparent methods of sharing.

There were also various attempts to talk of DRM-restricted products as being essentially the same as physical products or limited-resource services. Thus, Thomas Rubin of Microsoft said that DRM has been accepted for years as a means of controlling access to satellite TV (and now satellite radio), to websites that require login accounts, to cell phone networks, and even to traditional libraries! At some point during the reading of that list, he mentioned that he was being deliberately provocative and tossing up some examples as fodder for thought. I’m glad he included that caveat, because his list didn’t contribute anything constructive to the debate, except to outrage more than one person in the audience (as I learned chatting in the hallway afterwards). Web sites and cell phone networks have limited bandwidth and computational resources, so their products really can be used up, if too many people log on. And libraries deal with physical objects, so access control is as understandable for them as for jewelry stores.

Is it so much to ask, at this late date, that everyone debating issues of copyright and DRM agree to stop talking about digital data as though it were a limited resource? You can’t “steal” songs and movies, you can only copy them. They’re not like library books, or cell phone bandwidth, or an artist’s reputation (all of which are, in one way or another, diminishable resources). Talking about data in that way is a disservice to logic. I think, deep down, Thomas Rubin knew this, which is why he inserted his disclaimer.

If I were to take away two lessons from the conference, they’d be that language matters, and assumptions matter. The rhetorical advantage gained by being in favor of “balance” is nearly unbeatable. I think the only way to deal with it is to redefine “balance”, to start using that word to talk about balancing new things, for example, the right of the public to copy and make derivative works versus the right of the artist to have (very) temporary control over the initial distribution of her work.

As for assumptions: I heard Victoria Bassetti of EMI respond to a questioner by asking (paraphrasing, as I don’t have the transcript) if he cared whether artists earned any money or not. Since artists mostly don’t make money from copyright royalties anyway, her response was a non-sequitur, but it effectively placed her on the artists’ side and the questioner on the side of those lazy, freeloading filesharers. Because she knows that most people share a certain assumption — one which she may even sincerely believe herself — about artists earning their livings from copyright royalties, she’s able to use this kind of response to deflect attention from the problems DRM creates. It would be a bad outcome indeed for these to be the terms under which the public considers DRM.

I’ve concentrated mostly on the remarks of unreservedly pro-DRM panelists here, but I don’t want to give the impression that they set the tone of the conference. There were impressive critical presentations and questions from the aforementioned Andrew Bridges, from Gigi Sohn (of Public Knowledge), Cindy Cohn (of the EFF), Ian Kerr (University of Ottowa), Deirdre Mulligan (Berkeley Center for Law and Technology, Samuelson Clinic, and Boalt Hall School of Law), Peter Swire (Ohio State University), and others. I went to the conference partly to see how people were talking about DRM, from all points of view, in preparation for being on a similar panel in Montréal next month. I was not disappointed. If there remains any major point about DRM not raised at this conference, I’d be very surprised; kudos to the organizers for that.

[References: my notes from the conference are here.]