Patry on Copyright Repair February 12, 2012
Posted by Bill Rosenblatt in Book reviews, Law.3 comments
The prolific copyright authority William Patry wrote a book in 2009, Moral Panics and the Copyright Wars, which was a jeremiad against the current copyright system along with pleas for reform — but with no ideas about how to reform it. In response to criticism, Patry promised a follow-up work that would supply the “prescription out of the current situation.” That book would be titled How to Fix Copyright, and it would come out in the beginning of 2011.
So here we are in early 2012. The book is now out. But as a prescription for how to fix copyright, it’s a disappointment.
First of all, the reader has to wade through a lot of complaints about today’s copyright system, and other redundancies to Moral Panics, to get to any suggested solutions. Furthermore, Patry — apparently against the advice of his editors — refused to create a summary that neatly lists his ideas for reform. It is true that the book contains deeper ideas that it would be unfair to reduce to list items, and I’ll get to some of these. But first, here’s a list of succinctly statable copyright reform ideas in Patry’s book:
- Reduce the term of copyright, because most works make money for their owners in the first few years after release, and after that they are best put into the public domain.
- Make copyright registration mandatory instead of automatic, so that only those who really want protection for their works can get it.
- Pass strong “orphan works” legislation, so that works whose owners won’t or can’t claim them can be enjoyed by all instead of being locked up in limbo.
- Create comprehensive global rights registries, so that copyright users can instantly tell who owns what and license works appropriately.
- Streamline the impenetrable maze of copyright licensing entities, rules and cross-border inconsistencies, so that it becomes easier to access content legally worldwide.
- Create more statutory licenses, blanket licenses, and levies, to make copyright easier to administer and rights holder compensation easier to generate.
- Price copyrighted works differently in different geographies to reflect economic realities, because people in economically challenged countries can’t possibly afford the prices for content that people in first-world countries pay.
- Change copyright law to accommodate the new breed of digital artists whose tools necessarily involve copying pieces of copyrighted material.
- Abolish legal constructs that impose or support “digital locks” on content, such as DMCA 1201, because they unfairly restrict technological development as well as Fair Use.
Go to any other established copyleft source — Lessig, Litman, Vaidhyanathan, Public Knowledge, etc. — and you’ll find much the same list. One exception, perhaps, is #7, geographically differentiated pricing (though this has little to do with copyright law per se). This has been shown to work well for physical products such as CDs: for example, Microsoft tried it for software and found its piracy rates in countries like China significantly reduced. But it’s hard to see how you make it work for pure digital content without lots of impractical cross-border enforcement implications (mandatory geolocation-based filtering, anyone?).
Now that we’ve gotten the Cliffs Notes version of this book out of the way, let’s get to the more novel and interesting ideas. First is Patry’s call for resetting goals of copyright reform so that they focus on the original objective of copyright. The original objective has been to maximize the works available to the public by providing creators incentives to create them. Changes to copyright law have often been enacted with the objective of reducing infringement and preserving revenue for copyright owners. That goal overlaps with the original one, but it’s not the same thing. He also says that future changes should be based on hard evidence that a proposed change will help achieve the objective rather than “blind faith” that it will do so. The evidence-vs.-faith argument makes great sense and is hard to argue with in principle.
Yet Patry doesn’t discuss how this could actually be implemented in the U.S.; he mainly provides the counterexample of the UK Digital Economy Bill and the lack of analysis that went into it when it was rammed through Parliament. The normal U.S. process in implementing a law that touches the business world is for lobbying groups to influence members of Congress — and in many cases, to even propose legislation drafts. In the case of copyright, Congress has a nonpartisan Copyright Office that is supposed to advise it on such matters. Patry would certainly know to what degree the Copyright Office could act as the source of the independent “impact statements” he seeks, since he worked there himself.
The Office does evaluate proposed changes to the law today, though in tightly controlled ways such as the triennial rulemaking on DMCA 1201. It does get lots of “input” from lobbyists and (as I know from my own experience) hungers for truly independent expertise. But the Office does not have the capacity to evaluate the economic, technological, and behavioral issues that come into play when judging the impact of proposed changes to the law. The European Commission’s Special Advisor program could be a model for what Patry has in mind: it hires outside experts to consult (for nominal fees) after they pass strict conflict-of-interest vetting processes.
But if the real goal of copyright is to maximize the amount of works available to the public, then it seems to me that the evidence is before us today and is so obvious as to require no studies at all. Sites like YouTube, Flickr, Scribd, and any number of free music sites offer exploding numbers of works that are supposedly covered under copyright (or some subset of copyright, such as Creative Commons licenses) and are there for promotional or non-pecuniary reasons. The numbers are huge even without the infringing material. And I suspect that most people who upload original material to these sites don’t think about copyright at all. How does this state of affairs require “reform”?
Patry discusses two other ideas that complicate his principles of reform. He insists that for copyright to do its job, content creators should be able to make livings from their work. So far, so good. He says that the current system favors major media companies, and the benefits do not “trickle down” to individual content creators. Also hard to argue with.
Yet once again, he doesn’t really describe how to fix this problem. Without explicitly tying them to the problem of compensation for individual content creators, he calls for more blanket or statutory licenses, in which licensing entities set monetary terms for content on behalf of large numbers of or “all” content creators respectively, and levies, which are taxes on hardware and blank media. All of these result in license fees that are somehow disbursed (after being reduced to cover “overhead”) to content creators through “magic black boxes” that are affiliated with or beholden to governments. Such entities — at least in their current states — are often far cries from independence and fact bases.
He also calls for global rights registries, which should make licensing and compensation fairer and more efficient. But such things would have to coexist with the collecting society (i.e. government-affiliated magic black box) system that we have today — or the latter would have to be drastically changed. This is a highly promising area of thought; unfortunately Patry doesn’t connect the dots far enough to pursue it.
The second idea in How to Fix Copyright that complicates Patry’s copyright reform principles is his foray into the dark and dangerous waters of dichotomy between “culturally important” content and “commercial trash.” Patry, a classically-trained clarinetist who commissions composers to write works for his instrument (don’t get me wrong: this is a good thing!), wants to preserve “cultural” content and has no interest in Hollywood products such as Batman 3, American Pie 4, or Miley Cyrus. In this, Patry parts company with his employer Google, whose lobbyist Derek Slater recently said, in justifying YouTube, that it’s wrong to judge content by “quality” because “one man’s trash is another man’s treasure.”
The original purpose of copyright runs into some trouble over this ambiguity: should copyright seek to maximize “what the people want” or works that meet some cultural or “quality” criteria? There must surely be some history behind this conundrum. Patry must know it from his background as law professor and textbook author, but he doesn’t share it here. If it’s the former, then it seems to me that the system is working just fine as is. The major media companies are expert in recognizing and satisfying popular demand, even if they do less and less work in creating the actual content. And for those who aren’t interested in big-media content, there’s YouTube, SoundCloud, Scribd, and so many other sources of content that doesn’t even cost anything.
But if the purpose of copyright is really to maximize “quality” or “cultural” works, then what about creating (and properly funding) a Department of Culture and a cabinet-level Secretary to run it — thereby putting the United States on par with most other developed countries? Patry stops short of recommending this, but he tends in that direction by calling for “direct funding [of] diverse cultural works” (i.e. patronage), expressing admiration for crowd-funding entities like Kickstarter, and generally appearing to see “marketing” as an egregious form of corporate mass hypnosis.
The final big idea in Patry’s book that merits discussion is his treatment of Fair Use. Patry spends an entire chapter singing the praises of Fair Use as a deliberately vague and conceptual construct. He takes an expansive view of Fair Use that is seemingly at odds with Larry Lessig’s position that it is a “wedge” between legal use and infringement that has been overloaded in the digital age. It’s also, as I’ve said many times, at odds with digital reality today.
Patry contrasts U.S. Fair Use with the Fair Dealing system used in the UK, Canada, and Australia, and with the similar scheme implemented through the European Union Copyright Directive. He calls those systems “closed list” systems because they codify uses of content that aren’t infringement (such as parody and criticism) rather than using the “open-ended” concepts found in U.S. law. He says, “Critics of the U.S. fair use doctrine point to the alleged ‘open-ended’ nature of fair use and argue that it lacks certainty.” Yep, it sure does. Fair Use’s lack of certainty makes it impracticable in the digital age as never before. Lessig has said that Fair Use is really just the right to hire a lawyer; Patry either doesn’t agree or doesn’t care.
This attitude that the copyright systems’ efficacy should be based on laws as written, and as executed by lawyers, governments, and government-sanctioned entities, pervades How to Fix Copyright. In other words, not only is the book short on implementation recommendations, but it also doesn’t look far enough outside the system to determine how to fix it. In his previous book, Patry had the temerity to suggest that “perhaps the answer to the machine is in the machine,” referring to Google’s use of fingerprint-based copyright filtering technology as an effective way of reducing piracy and monetizing content on YouTube. But in How to Fix Copyright, he spends an entire chapter recanting this statement. This chapter that contains so much rhetorical contortion (not to mention misunderstandings of technology and the market) that I bet it’s the result of Patry’s copyleft colleagues giving him grief about what he said last time.
And that’s the biggest problem I personally have with this book. The route to getting many content creators paid is neither through big-government “magic boxes” nor through laws that are for all intents and purposes unenforceable without technology or unless you can afford to both hire a good lawyer and wait until the litigation or negotiation is over. I don’t disagree that the copyright system needs reforming, but the original ideas for reform in this book have questionable practical value without plausible explanations of how they might actually work.
William Patry is a highly learned and respected figure in copyright with depth and breadth of interests that do him credit; his writing is articulate, well-researched, and persuasive. One can certainly read similar enumerations of copyleft ideas from other sources that are more shallow, strident, doctrinaire, and/or uninformed. But in the end — and unlike in copyright — the ideas matter more than the expression, and in How to Fix Copyright, the ideas underwhelm.
Robert Levine Tells the Rest of the Story December 21, 2011
Posted by Bill Rosenblatt in Book reviews.4 comments
Robert Levine’s excellent debut book, Free Ride: How Digital Parasites Are Destroying the Culture Business, and How the Culture Business Can Fight Back, was released back in October, but with the current firestorm over the Stop Online Piracy Act (SOPA) in Congress, its proper moment is now.
The public side of the SOPA opera is playing out according to a Script that — as Levine documents in this book — has been standard repertoire for years. The Script has a cast of characters, including Good Guys who fight for freedom and justice and consumer rights, and Bad Guys bent on destroying those things. The Bad Guys are the MPAA and RIAA, and sometimes telcos and cable companies; the Good Guys are Google, a few other tech companies, some brave startups, a handful of scrappy Davids (as in vs. Goliath) in Washington, and a coterie of law professors who, being tenured, have little personal use for copyright.
Apart from some ambivalence over Apple, The Script has varied little over the years. It is picked up and performed on a regular basis by tech pundits whose objective in life is to improve their Google search rankings. No one dares deviate from The Script for fear of being ostracized by important content aggregators and purveyors of conventional wisdom, both of which generate more pageviews for them.
The Script has gotten really tiresome. It’s not necessarily wrong; it’s just old, and it’s shallow. It’s gone well past its sell-by date — or metaphorically and olfactorily speaking, its free-to-air window. And thanks to this book, the world can now know that there are other sides to the story, and that it’s OK to talk about them.
If Jaron Lanier’s You Are Not a Gadget from last year is the philosophical tract on which a new movement in favor of content creators’ rights has been founded, then Free Ride provides the factual foundation on which such a movement should be based. And just as Lanier gets cred from being a veteran technologist and inventor of Virtual Reality, Levine is a former editor at Wired (as well as Billboard).
This book looks beneath the so-called copyright wars that play out in public, lets facts about how the media and technology businesses operate speak for themselves (for the most part), and airs out arguments that you don’t see in Wired or on TechCrunch. It is a is a well-constructed piece of business journalism, not a tedious screed in the vein of Mark Helprin’s Digital Barbarism or Clifford Stoll’s Silicon Snake Oil.
Free Ride is about how the technology business is just that — a business – and as such, it behaves the way businesses are supposed to behave if they are to do things like increase their stock prices. Levine adroitly follows the trail of money that powers legislation and advocacy, which in turn affect public opinion as well as laws. As he puts it, “Copyright holders talk about theft while technology companies hide behind the public interest”, yet ”[i]t isn’t out of idealism that Google spends millions of dollars to influence public policy.”
Levine shows that Google is the largest of several technology companies that influence policy by funding organizations like the New America Foundation, Public Knowledge, Creative Commons, and Berkman Centers for Internet and Society at Harvard and Stanford.
Lobbying organizations’ modus operandi is to rally people and organizations around messages that elicit contributions. Messages like “keep the Internet free and open” and “fight censorship” resonate with the public, especially when they align with getting content for free. When a company like Google funds these organizations, the effect is to put a positive PR spin behind activities that benefit those companies — a spin that the likes of the RIAA and MPAA don’t enjoy (to put it mildly). The effect is also to favor issues that benefit tech companies, such as loosening copyright, over other ostensibly pro-consumer areas such as safeguarding online privacy, which don’t benefit tech companies.
Levine also does an excellent job of chronicling the history of the content industry’s attempts to get laws and regulations passed that help clamp down on copyright infringement and the tech industry’s long-held position that any such rules are unacceptable. He says: “…free culture advocates take any chance they get to argue that the media business can adjust to a world in which laws against illegal copying are not enforced. Even if listeners aren’t convinced, the flurry of studies, op-eds, and panel events create an atmosphere of uncertainty that makes it hard to pass laws that would be more effective in tackling piracy.” And: “Although the groups backed by Google have some smart ideas for reforming copyright, they also want to make the current laws impossible to enforce.”
He also provides several chapters’ worth of facts that demonstrate that consumers get the content they pay for. For television, for example, he explores “the business model[s] that brought us Mister Ed” (network TV, paid by advertising), Mad Men (cable TV, paid by consumers), The Bachelor (reality TV, so cheap to produce), and “Charlie Bit My Finger” (YouTube, essentially cost-free), and he suggests that we’re on a slippery slope towards a world where all we get is the latter. He shows that it’s not just about making the world safe for the latest Hollywood blockbuster or teen-pop starlet; it’s about maintaining a model that enables any worthy content creator to recover costs and maybe even make a living.
The larger point of Free Ride is that content has inherent value and that mechanisms must be created or maintained to preserve that value, while the technology industry is destroying that value or diverting it from creators towards itself. Levine lets facts and quotations tumble forth to show this. One of my favorite examples of the latter is a quote from Avner Ronen, CEO of Boxee and thus a poster child for “free riding”: “If [content owners] really don’t want people to access their content for free online, they can fix it very easily—just don’t put the content online. Then they risk piracy.” Levine doesn’t comment on the utter ridiculousness of Ronen’s statement, instead letting it stand on its own.
The book’s corollary is that today’s prevailing attitude of treating content as an industry, while treating technology as an inevitable and untamable force of nature, is neither fair nor balanced. The inevitable, untamable force of nature is creativity, which can be artistic, technological, or both. If you’re going to accuse record labels and movie studios of acting like businesses, you have to accuse big tech companies of doing the same.
Yet Levine is hardly an apologist for the media industry. For example, he agrees that the term of copyright and statutory damages for infringement under U.S. law are way too long and large, and he finds the media industry just as guilty as anyone else of funding “research studies” that produce blatantly biased results. In fact, Levine’s journalistic instincts often get the better of him as he feels compelled to balance every factual assertion that bolsters his point with a counterfactual that softens it; the book ends up being far more balanced than its polemic subtitle suggests.
The final part of Free Ride discusses possible solutions to the problems of copyright. This is where the book falls short — and not just because there aren’t any easy answers. Levine looks to developments outside the United States, particularly in Europe, and sees various things that look like they are worth adopting on this side of the Pond.
While Levine has a fine grasp on copyright litigation and party politics in Europe, he doesn’t show much beyond a view of greener grass on the European lawn when it comes to licensing schemes. His European licensing ambassador appears to have been Jim Griffin, the well-known and respected advocate of blanket licensing. Griffin seems to have extolled all of the benefits of blanket licensing to Levine but left him ignorant of the many shortcomings of copyright and content licensing under such systems in Europe (and elsewhere): inequitable royalty distribution, irrational levy schemes, opaque accounting, inefficiencies, resistance to new business models, cross-border chaos, and more. (This is especially ironic given that Levine now lives in Berlin.)
Thus Levine doesn’t explore European national copyright collecting societies and their relationships to their countries’ copyright policy. He also runs across former French and German culture ministers in his travels, but he fails to notice the additional complexities created by the presence of those culture ministries in the mix. Given that the United States is the only industrialized country in the world that doesn’t have a culture ministry, this may not be surprising, but these would all have been rich veins to explore in order to understand some of the problems in European and international copyright policy, and how they might be solved.
Furthermore, if Levine wanted further hints at where solutions might come from, he might have heeded the advice of William Patry, the prodigious copyright scholar who now works at Google. In his 2009 book, Moral Panics and the Copyright Wars, Patry suggests that “the answer to the machine is in the machine.” In other words, Levine talked to a lot of lawyers, corporate spokespeople, and policy wonks; he might also have talked to more technologists about how things like DRM and filtering work, how they affect user experience and cost, and how they interface with copyright law.
But consider the last few paragraphs quibbles from someone who has been in these arguments for a long time. Free Ride is a hurricane’s worth of fresh air, a book that ought to change the conversation about online content and copyright. For example, a reporter from a respected tech website told me recently that he dare not write any pro-copyright stories for fear of not being picked up by aggregators and of being ostracized by his peers. This form of hive-mind-based self-censorship ought to be an outrage.
Yet the conversation may already be changing; which brings us around to SOPA. A recent Levine-influenced piece in New York magazine said: “There’s a reasonable debate to be had over whether SOPA and its Senate companion, the Protect IP Act, represent needed reforms or Draconian regulatory overreach. … Really, SOPA is just an old-fashioned Washington battle between two entrenched corporate camps: the entertainment companies that don’t want their output ripped off, and the web companies that don’t want to be saddled with increased compliance costs.”
New York magazine isn’t Wired, but such remarks would have been heresy as recently as last year. Descriptions of the SOPA opera as “old-fashioned” and companies like Google as “entrenched” are actual changes in the Script. It’s about time.
Don’t Know Much about E-co-no-my February 2, 2011
Posted by Bill Rosenblatt in Book reviews, Economics, Music.add a comment
I have read many studies, articles, books, etc., about how digital technology affects copyright, and I’ve come to a conclusion: the writer’s opinion about the subject is heavily dependent on who he or she is.
This may sound extremely simple-minded, and at the first level, it is. A musician who wants to quit her day job will care much more about strong copyright than a tenured professor. A think tank report commissioned by the RIAA will espouse a hugely different position than one from Public Knowledge.
But there are deeper levels to this seemingly inane assertion. The National Academies’ Impact of Copyright Policy on Innovation in the Digital Era project group was really onto something when it asserted that in order to make progress on digital copyright, emotions and philosophies need to be removed from debate. As a corollary, those writers who deal as much as possible in hard facts and the real world are more likely to be right than those who deal in abstract principles.
To be specific, I’ve found that economists have the firmest grasp on reality in the digital copyright debate, and they deserve more attention than they are getting. (Bear in mind that this “insight” comes from someone who took only one economics class in college and did very poorly indeed.) For example, the academic researcher at the National Academies’ workshop last October who struck me as the most knowledgeable about real-world digital copyright developments was not a legal scholar but the lone economist at the event, Mark MacCarthy of Georgetown University.
The latest example of this is a new book: The Price of Everything: Solving the Mystery of Why We Pay What We Do
One of his chapters, “The Price of Free,” considers the momentum towards free content on the Internet. He cites the famous 2007 “pay what you wish” experiment by the rock band Radiohead — and while his immediate observations are somewhat off base, he gets it right by the end of the book.
As an economic thinker, Porter believes in homo economicus, i.e., that people make economically rational decisions. This leads him to incredulity that 38% of the people who downloaded Radiohead’s In Rainbows album from Radiohead’s site paid more than zero for it.
The Radiohead In Rainbows experiment has become a sort of Rorschach Test for those interested in digital copyright. Those on the “free culture” side claim that it was a huge success, while those on the “strong copyright” side claim that it was proof that the free content model doesn’t work. To sum up arguments on both sides, here is a variation of a chart I made for a conference talk last year:
| “Free Culture”: It Was a Success! | “Strong Copyright”: It Was a Failure! |
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Porter ends up deciding that Radiohead could only get away with this because they were already famous — a position similar to that of Jaron Lanier in his book You Are Not a Gadget last year. To back up this point, Porter finds another case that the free culture types don’t like to talk about: Trent Reznor (Nine Inch Nails) tried a similar experiment, which achieved more or less the same results as Radiohead. But when he got his friend, the far-less-famous Saul Williams (a/k/a Niggy Tardust), to try the same thing, the results were dismal.
The same could be said of the thousands of unknown indie bands who give their content away on MySpace every day. Because these artists are unknown, and MySpace gives them “some” exposure as opposed to “none,” Porter finds that giving away content is worthwhile to indie bands. Yet later in the chapter, Porter predicts that content will ultimately suffer from the move towards free because there will be no way to pay for the cost of its production.
Unfortunately, Porter fails to connect the dots between these two ideas. Indie bands on MySpace also have to pay to produce their music, though admittedly orders of magnitude less than the cost of a Hollywood movie. So, just as it is with the free software movement, if you look at it on strict economic terms, indie music on MySpace is subsidized by indie musicians’ day jobs.
So why did 38% of visitors to Radiohead’s website pay more than zero for music they knew they could get legally for free? The answer is perceived value of content, which has been ingrained in people’s minds (in industrialized societies, at least) over a very long time. Strong copyright advocates are gravely concerned that such value will erode as the price of music online floats downwards towards zero. Porter doesn’t cover this at all.
Yet elsewhere in The Price of Everything, Porter deftly analyzes another major area where people pay for intangibles: religion. People pay for their faiths with money, time, and restrictions on their behavior. He makes a solid case that religions succeed to the extent that they impose such demands in a cogent way, and moreover that if they relax the demands, they lose adherents.
If one applies this logic to music and other forms of artistic output, the conclusion is inescapable: it must have a perceived value in order to survive. Content producers do themselves no favors in the long run by allowing that perceived value to erode. Although Eduardo Porter looks at this argument purely in terms of justifying the monetary cost of producing content in the first place, the overall arguments he makes in The Price of Everything bolster this conclusion.
Tim Wu’s Master Switch December 12, 2010
Posted by Bill Rosenblatt in Book reviews.4 comments
Tim Wu of Columbia Law School has been best known to the technology world at large — as opposed to the circle of cyber-law academia that he inhabits — as a staunch proponent of net neutrality. He occasionally weighs in on copyright-related issues on the Internet, but net neutrality is his calling card.
Now, with The Master Switch: The Rise and Fall of Information Empires (Borzoi Books)
Somewhat surprisingly, net neutrality only makes an oblique guest appearance at the end of this book. The central idea of The Master Switch is what Wu calls “The Cycle.” In the Cycle, a new communications technology is introduced by inventors, hobbyists, hackers, startups, etc., then slowly gets coopted by major corporate interests, who monopolize the new technology, rob it of its openness and freedom, and rule… until the next iteration of the Cycle comes along.
Wu starts his story with the founding of AT&T in the early 20th century. AT&T is a central character throughout the narrative, leading up to the present era, where it is the exclusive partner of another monopolistic, restrictive, closed-system, centralized-control proponent: a company called Apple.
But The Master Switch is definitely not just another predictable openness-and-freedom-good, corporate-greed-bad screed from an academic idealist. The book is a breath of fresh air, in three ways.
First, although Wu does come down firmly on the side of openness and freedom, his analysis is even-handed and does allow that there are benefits to closed systems run by monopolists. The early incarnation of AT&T as a telecommunications monopoly not only ran a system that was guaranteed to work all the time but also devoted much of its efforts to public service. And Apple sure does make great devices.
Second, he’s practically the only member of his tribe to allow that a Silicon Valley company can ever do any wrong. Not only does he accuse Apple of building closed systems and betraying its original ideals, but he calls Google “one of the great corporate hegemons of our time.” His views of both companies are not altogether flattering, which is especially interesting considering his assertion that they are the two opposing superpowers in the next great conflict over communications technology.
Third, Wu actually cares about commercially produced content, whereas most other writers on this subject matter either treat content as undifferentiated piles of bits or prefer the content created by the newly liberated masses. He’s evidently a film buff. He looks deeply into the history of Hollywood and examines how its periods of greater or lesser creativity correlated with periods of centralized and decentralized control. (He says little about other content industries such as music and publishing.) He laments the fact that today’s massive glut of content on the internet is devaluing content in general.
After taking the reader through several iterations of The Cycle over the past century, Wu delves into questions such as: is the Internet really “different this time”? What are the best ways to ensure that monopolistic behavior is kept in check? And, what is the proper role of government versus private industry?
Most of his proposals and conclusions are relegated to the final chapter, where he switches from engaging storyteller to academic writer of portentous sentences like “[The] indifference to the danger of private power … owes in part to the Lockean sanctification of private property as enunciated by Jefferson.” And this is where his book goes downhill.
Wu proposes something called the Separations Principle, whereby various mechanisms are put in place to keep content, communications, and electronics industries apart from one another.
The Separations Principle is not a simple recipe, such as “The FCC should impose net neutrality regulations” or “The Justice Department should go after info-tech monopolists much more aggressively” (for that one, see trust-busting litigator Gary Reback’s recent book Free the Market!
In other words, Wu looks at only two of the four factors controlling Cyberspace that his Harvard Law School mentor Larry Lessig laid out so elegantly in Code and Other Laws of Cyberspace
As far as economics are concerned, Wu should have (or shows no evidence of having) read a book that is still, after over a decade, the Bible of information technology economics: Carl Shapiro and Hal Varian’s Information Rules
And as far as behavioral norms go: it’s possible that Companies nowadays don’t exhibit the same level of public spirit that the AT&T of a hundred years ago did under Theodore Vail because they are savvier about business nowadays, not because public service is an accepted behavioral norm of large companies. Wu doesn’t allow for this possibility.
Wu’s grasp of technology is weak. I was hoping to read a cogent explanation of what net neutrality is and how exactly it would work, given that Wu is one of the top net neutrality ideologues; I was sorely disappointed. And I suspect that like “net neutrality,” Wu’s “Separations Principle” is easy to state at a superficial level but extremely difficult to define precisely or put into practice.
As evidence of Wu’s technological shallowness, he gets a few salient tech-related facts wrong, such as his assertions that Apple was “the first to get the music industry to consent to online downloads” and that law professor Jonathan Zittrain first made the “startling prediction” in 2006 that “information appliances” would eventually overtake PCs. (Correct answers: several companies offered major-label-licensed services 1-2 years before Apple did; Larry Ellison of Oracle made this prediction five years before Zittrain.)
The Separations Principle is an intriguing idea, but it’s hard to argue for or against it based on the thin explanation of it that Wu offers in this book. In addition to not tackling economic or technical aspects, he doesn’t offer much evidence that disallowing combinations of, say, network providers with content owners is The Answer that will give people freedom, choice, creativity, etc.
For example, music companies have complained for years that Apple and other technology companies have damaged their business by throttling the economics of distribution. Yet Apple doesn’t own any music copyrights, let alone record companies. Conversely, no one seems to be complaining that Sony’s ownership of both a major movie studio and a major music company is hurting consumers.
Wu fears a combination of, for example, Comcast and NBC Universal or AT&T and Disney/Apple. The former may happen. Yet the latter seems to be little more than a partnership that has done wonders for AT&T but isn’t helping Apple very much anymore (just ask iPhone owners in New York and San Francisco) and in fact may be helping Google and its Android partners (just ask Verizon Wireless subscribers in those cities). Moreover, one could argue that Apple’s bond with Disney (via Steve Jobs) may weaken rather than strengthen Hollywood’s hand by forcing the major studios into two separate technological camps: Disney/Apple and everybody else.
Wu does relate the Separations Principle to historical evidence of its necessity. But by failing to explain how it would actually work, Wu misses an opportunity and diminishes an otherwise excellent book. This is neither to discount the importance of the issues that Wu raises in The Master Switch nor to suggest that solutions are easy. Solutions to the problems that Wu identifies will need to come from people with broader expertise and will take time to figure out. In the meantime, The Master Switch offers important historical perspective on the current tugs of war, and is inherently valuable on that basis alone.
I Buy Music. Not Music T-Shirts. July 26, 2010
Posted by Bill Rosenblatt in Book reviews, Business models.2 comments
I’m going into the T-shirt business. Seriously. Not to make lots of money, but to make a statement.
Recently a colleague sent me an article from Wired that absolutely made my blood boil: “Clive Thompson on How T-Shirts Keep Online Content Free.” And I just finished reading a new book: Fred Goodman’s Fortune’s Fool: Edgar Bronfman, Jr., Warner Music, and an Industry in Crisis
The epilogue of Fortune’s Fool alone is worth the cover price: Goodman rails against an industry that is choking off the very idea of recorded music — foreclosing the advent of the next Beatles, Steely Dan, Public Enemy, or name-your-favorite-techno-artist; and robbing inspired moments caught in time, like a future Kind of Blue or Allman Brothers At Fillmore East, of their immortality. He provides powerful evidence that musicians will end up even worse off without some form of record companies than they are today if music is to be given away, and he calls out people who advocate for free content (like TechDirt’s Mike Masnick) for their glibness and hypocrisy.
Thompson’s article in Wired (from late 2008) repeats a common Silicon Valley refrain: that artists should give away their content in order to build a fan base, then sell them other things — like T-shirts. It offers advice on how to get your T-shirts made with little or no up-front investment through online retailers like Zazzle and Cafe Press. Just follow Thompson’s advice and the world will be a wonderful place, with ubiquitous content free for the taking and enough people proudly sporting advertisements for artists on their chests to compensate for lost sales of recordings. (And take no notice of the fact that the T-shirt retailer pockets most of the profits.)
Reading this article made me think of the advice in handouts that companies give to workers being laid off: clip coupons, go to Salvation Army or other used clothing stores, buy generic instead of name-brand merchandise, borrow your books from public libraries instead of buying them. Pragmatic, realistic advice? Perhaps. But it’s advice being given by the entity that just cut off your income.
Hence my new T-shirt. It says, simply, “I buy music. Not music T-shirts.” It contains no branding, not for this blog and not for my consulting firm. It’s just a T-shirt with a message about T-shirts. And thanks to the good folks at Zazzle — yes, their service is excellent — it’s available in a range of styles and colors, though I designed it in red.
Whether or not you are a fan of DRM, rights technologies, ISP subscriber levies, or other means to preserve revenue from copyrights, the point is simple: artists should be able to focus on and make their livings from what they do best: creating content.
It’s unreasonable to expect musicians to spend time on activities that are unrelated to making music (and that includes maintaining blogs, Twitter feeds, etc.). It’s especially unfair to those who focus on studio craft rather than live performance. Marketing, buzz building, and artist development ought to be entrusted to entities other than musicians. Those entities might not be any of the established record companies, and the financial terms might work differently from the way they do now, but the basic concept has to be the same, or recorded music will asphyxiate.
By the way, I say this as someone who was housed, fed, clothed, and educated because my father made a living as a musician. (He retired from the Philadelphia Orchestra in 1994; now, of course, that esteemed institution is in financial trouble.)
So buy the T-shirt and make a statement. Maybe I’m railing against the inevitable, but it’s a cause worth fighting for.
Piracy Throughout History July 7, 2010
Posted by Bill Rosenblatt in Book reviews.1 comment so far
If you read William Patry’s Moral Panics and the Copyright Wars, you get the idea that ”piracy,” as a term to describe intellectual property infringement, was coined by Jack Valenti at the MPAA in the 1980s in order to create a “folk devil” and incite the public against infringers.
Wrong – as you will learn if you read even the first chapter of Piracy: The Intellectual Property Wars from Gutenberg to Gates
This scholarly tome — if you can manage to slog through it (hint: skip the three chapters on patents) — provides a fascinating historical perspective on how notions of intellectual property developed over time. What was “authorship,” how did it compare with “invention,” and how should those things be protected for the good of society?
What we think of as second-nature today was nothing of the kind three hundred years ago. The distinction between an authored work and its printed manifestation did not occur to anyone until relatively recently; and the nature of an invention took lots of long arguments in Parliament to determine. Johns explains these long, drawn-out processes in great detail, focusing on the ideas and movements that came and went over the years.
Piracy is a great companion piece to Pat Choate’s equally fascinating work from 2005, Hot Property: The Stealing of Ideas in an Age of Globalization. That book’s basic thesis is that robust industrial societies stay that way by protecting their intellectual property strongly, but got that way in the first place by stealing the IP of others.
Johns’ position on this issue is somewhat converse: he states that simple economics combined with restrictive intellectual property practices (whether by law or by convention) forced the development of new technologies for distributing IP more cheaply to take place in new worlds. His focal point and starting place is England; his new worlds are Ireland and then the United States. You didn’t want to register your book with the Stationers’ Guild, which meant having to supply copies at no charge to all of the university libraries in the UK? Then you either worked locally and risked punishment, or you went across the Irish Sea or Atlantic Ocean to escape the establishment or the law. From there you could print your cheaper editions of English literature and import them back into England.
One of my favorite parts of Piracy comes later, in Johns’s discussion of the development of radio — in particular, of the BBC and its license-fee system in the UK. Johns goes into lavish detail about how the British government grappled with what types of licenses to issue to different types of people — passive listeners vs. “radio experimenters” — and how ineffectual the government was at policing abuses of such licenses, especially when primitive reception equipment produced feedback that ruined the listening experience for everyone in the immediate area. Although Johns makes no mention of it (and perhaps doesn’t realize it), this episode has thought-provoking implications for the current controversy over whether network service providers should police copyrights through content filtering technologies.
Piracy ends with the proposed settlement between Google and the book publishing industry in late 2008 (in fact, it’s curious that the subtitle of the book ends with “Gates” rather than “Google”). Like Choate, Johns doesn’t take sides in the Copyright Wars. Instead he suggests that our only hope of getting the most out of intellectual property is to look back at how it was developed over time and revisit some of the discussions and debates that got us to where we are now.
Copyright abolitionists who claim that copyright is merely a quaint anachronism invented by the Stationers Guild to create a monopoly on printing in England should read this book to find out how wrong they are. The notion of copyright has shifted over time through careful thought and action. Our current intellectual property regimes might well be improved, but it’s wrong to dismiss them as seventeeth-century concepts that were grafted wholesale onto the digital age. Instead, it’s right to look at how we got from the Stationers’ Guild to the Digital Millennium Copyright Act in order to plot the most appropriate next steps in the development of intellectual property.
William Patry’s War on Copyright May 12, 2010
Posted by Bill Rosenblatt in Book reviews, Law.28 comments
William Patry’s Moral Panics and the Copyright Wars is not a particularly new book — it was published in September 2009 — but I was intrigued to read it when I saw him speak eloquently at the Copyright Clearance Center’s recent OnCopyright conference. At this event, the prolific and widely-experienced copyright expert represented himself as espousing a “balanced” approach to copyright.
Unfortunately, Moral Panics is about as balanced as the US federal budget. It is very well written, deeply researched, engaging, and erudite; but it is ultimately a copyleft screed that will not be particularly illuminating to those who have read other works in this genre. Patry’s basic theme is that notions such as “copyright war” and “piracy” are metaphors cooked up by Big Media in an attempt to blow the importance of copyright way out of proportion to its actual purpose and value in society, and to demonize those who stand in their way.
This is an interesting and well-argued line of reasoning, but if you follow it through to Patry’s rhetorical (though not very practical) conclusion, you get the distinct impression that copyright is a virtually worthless construct. There is no “balance” here, just an exegesis of copyright excess perpetrated by the likes of Jack Valenti and the RIAA.
This book contains nary a sentence defending the value and necessity of copyright. At best, Patry merely cites the usual quotes from Jefferson about the value of intellectual property as if they were hoary old relics, giving them a treatment similar to that which a liberal judge might give parts of the Constitution when arguing with someone like Supreme Court Justice Antonin Scalia.
Beneath all of Patry’s talk about the insidious power of metaphors and “folk devils” to influence the public dialog lies a fairly standard set of copyleft truisms, such as: confusing the Big Media industry with actual content creators; pointing to some fringe youth content creation activity as “the wave of the future” (Japanese cell-phone fiction writers in Patry’s case, though I don’t get their relevance to his arguments); and generally ignoring content creators’ needs to make livings.
Much of the copyleft doctrine on copyright in the digital age rests on the following logic: Big Media represents the interests of copyright; many of the actions of Big Media are objectionable (e.g., Big Media sometimes treats content creators unfairly); therefore copyright itself is objectionable. This is just plain flawed logic, yet Patry follows it slavishly in this book.
The use of such logic is perhaps understandable, given that most of the people who write about this stuff have very little contact with actual content creators. Either they are academics, and thus sheltered under what Lawrence Lessig has aptly called the academic patronage system, or they are Washington beltway types who exist to spar with their counterparts at the Big Media lobbying organizations. It’s more fun to talk about appropriation artists or cell-phone novelists, but all that is irrelevant to the mainstream musical artist, writer, or photographer who just wants to get paid.
Patry’s insight that Big Media resorts to metaphors and folk devils may be accurate as far as it goes, but it’s hardly novel. In fact, it has been no more than business as usual for politicians and lobbyists of all stripes throughout history, from Jim Crow in the 1830s to Joseph McCarthy’s “red menace” in the 1950s to the Willie Horton TV ads that George H.W. Bush used to win the presidency in 1988.
Far more interesting than the accusation of Big Media of acting like typical politicians is an examination of the results of such actions on society and culture over the years. In this respect, Moral Panics falls short of Jessica Litman’s Digital Copyright, which provides such an analysis and stands with Lessig’s first book Code and other Laws of Cyberspace as the most worthwhile copyleft treatises to date.
Litman explains in her book how the U.S. copyright law has evolved as a series of accomodations between special business interests that have been made over at least a century. In that light, the actions that Patry complains of in Moral Panics are merely more of the same (notwithstanding Patry’s repeated “Masterpiece Theatre”-ish references to Lord Macaulay and his ilk).
And Patry does little more than complain: he stops his book cold by calling for “reform” without the slightest hint of how to go about it. After reading Moral Panics, one gets the feeling that William Patry’s idea of reform is to do away with the entire copyright system. (Patry has since decided to follow this book up with a sequel on how to fix the system; his posted comment on Amazon.com tells us to expect this next year.)
By the way: the introduction to Patry’s book implores readers and reviewers to ignore the fact that he is the chief copyright counsel at Google and to treat the opinions in his book as entirely his own. I have two things to say about this. First, the only piece of rights technology about which Patry has anything positive to say in this book is Google’s video fingerprinting system for YouTube. (He at least agrees with my own axiom that “the answer to the machine is in the machine,” a sentiment that actually puts him at odds with many of his technophobic copyleft brethren.) Second, Google ultimately hired William Patry for a reason.
Jaron Lanier Is Not a Gadget February 3, 2010
Posted by Bill Rosenblatt in Book reviews.add a comment
Back in June of last year, I wrote: “When will we get to read a well-organized, well-researched work about the erosion of value of content that is written by someone with credibility who is not a recondite copyright scholar, a media industry shill, or an Internet Luddite? I’m still waiting.”
Well, the wait is over.
Jaron Lanier’s You Are Not a Gadget: A Manifesto
Before I talk about the book itself, let’s get one thing out of the way: some call Lanier a “Luddite” because he “doesn’t get it.” Now, this is a guy who invented Virtual Reality back in the 1980s, has technology research positions at UC Berkeley and Microsoft, has an IEEE Career Achievement Award (given just last year), and is currently at the cutting edge of research on the interface between computer science and medicine. Oh, and he shared an apartment with Richard Stallman just as Stallman was mapping out the movement now known as open source.
Jaron Lanier is many things (I left out musician, among others), but he’s not a Luddite. In fact, he has thought more deeply about issues of content, creativity, and humanism in the Internet age than just about any other writer on the subject. And his ideas are right on target.
In this book, Lanier asserts that the Internet is moving creativity and content to a “hive mind” or “noosphere” that eschews individual authorship and, far from encouraging a new age of creativity, flattens creative endeavors – from the perspectives of both economics and the creativity itself. He says that the growth of Internet and Web 2.0 technologies will result in riches for “lords of the cloud” like Google but no one else – apart from a lucky few who are exceptions that prove the rule rather than harbingers of New Rules.
The first part of You Are Not a Gadget is admittedly a little rough going at times for those who, like me, have no background in philosophy. But it’s necessary for Lanier to set up an intellectual basis for the arguments he makes subsequently, so that they have credibility and do not come off merely as opinionated rantings (such as previous books on this subject like Mark Helprin’s Digital Barbarism and Clifford Stoll’s Silicon Snake Oil).
The next section of the book looks at the content industry – particularly music – from the perspective of someone who is a technologist as well as a performing and recording musician. As I read this, I did something that I haven’t done in years: I found a yellow highlighter and started highlighting quotable sentences and paragraphs. Soon I stopped, because there were just too many.
Here are just a couple:
Ironically, advertising is now singled out as the only form of expression meriting genuine commercial protection in the new world to come. Any other form of expression is to be remashed, anonymized, and decontextualized to the point of meaninglessness. Ads, however, are to be made ever more contextual, and the content of the ad is absolutely sacrosanct.
My riff on a similar theme from 2007 is buried within here. And another:
The people who are perhaps the most screwed by open culture are the middle classes of intellectual and cultural creation. The freelance studio session musician … the stringer selling reports to newspapers from a war zone. Each pays painful dues and devotes years to honing a craft… They get nothing from the new system.
He then goes on to debunk some of the supposedly promising ideas for Music 2.0 business models. These include:
- Kevin Kelly’s “True Fans” model: he’d love to see this happen but the evidence thus far is distinctly underwhelming.
- The Radiohead free-download experiment: a “giant musical act from the old days of the record business, grabbing a few headlines by posting music for free downloading”, a model that does not apply to new, unknown artists — as I also said two years ago when the experiment took place.
- The specialized curator/aggregator: “…only a trickle of money is made. The aggregated musicians make essentially nothing.”
Notice that he’s not talking about record labels, major or otherwise; he’s talking about actual content creators. People who take the opposite of Lanier’s position all too often make the mistake of conflating the two.
Lanier explains that he would love to see new business models arise that will enable musicians and other content creators to make livings, but he’s not seeing evidence of that happening. Furthermore, he readily blames himself for having been part of the problem in the first place, as he did in the 2007 New York Times op-ed piece that first earned him notoriety among the free culture crowd.
But Lanier doesn’t just lament the state of culture online; he also provides cogent explanations for how it got to be this way. He shows how certain aspects of Internet and Web 2.0 technologies encourage a lack of creativity (so-called mashup culture, he says, is mostly a canard), civility (“troll” behavior), industry, and other desirable human qualities.
To illustrate how the technology actually causes this to happen, he refers to the example of MIDI (Musical Instrument Digital Interface), the digital music protocol that was designed back in the 1980s to capture sounds from digital keyboards. MIDI’s musically expressive capabilities are very limited, especially when applied to non-keyboard instruments, but the technology’s pervasiveness has had a deleterious effect on the music that people use it to produce.
He also discusses the design of the Unix operating system and its repressive effect on software design since its origins in the early 1970s, and an alternative to Wikipedia called ThinkQuest that produced more authoritative content but died on the vine of scalability.
At the end of the book, Lanier goes back further, to the ways in which humans learn to interact with the world around them through childhood – a subject in developmental biology called neoteny. He compares human neoteny to that of other species with relatively advanced intelligences and capabilities, such as cephalopods (squid, octopus). This brings him back to virtual reality, a subject for which he apparently still has a soft spot after all these years.
And what of Lanier’s position on digital rights technologies? He shows some understanding of how they work. He calls DRM “troubled” and “cumbersome.” But at the same time, he says:
…it is often claimed by open culture types that if you can’t make a perfect copy-protection technology, then copy prohibitions are pointless. And from a technological point of view, it is true that you can’t make a perfect copy-protection scheme. If flawless behavior restraints are the only potential influences on behavior in a case such as this, we might as well not ask anyone to ever pay for music or journalism again… Locks are only amulets of inconvenience that remind us of a social contract we ultimately benefit from.
This is the best description I have seen of the relationship that DRM is intended to promote between the “Architecture” (technology) and “Norms” (behavior) factors of life in the digital age that Lawrence Lessig laid out in his landmark book Code and Other Laws of Cyberspace. To me this explanation is preferable to the “keep honest people honest” line used by people like the MPAA’s Fritz Attaway. Lanier understands the value DRM ought to have, even if he is not comfortable with the technology itself.
Furthermore, one of his ideas for reviving the music industry, a physical object called a “Songle,” would have to contain some form of DRM in order to work. And he calls for augmenting Creative Commons with a scheme that resembles DReaM-MMI, a 2008 DRM research project from Sun Microsystems that attempted to get Creative Commons and DRM to coexist peacefully. DReaM-MMI — the MMI stands for “Mother May I” — is a protocol for negotiating content usage rights that requires users to reveal details about their intended usage in exchange for more rights.
Lanier subtitles You Are Not a Gadget “A Manifesto,” possibly to position it against its intellectual opposite, the famous multi-authored Cluetrain Manifesto of 1999. At that time, Lanier was also a big believer in climbing aboard the cluetrain. But now he’s older and wiser, and he’s changed his tune. He realizes that although the Internet holds a lot of promise for creative content, much of that promise is being squandered by limitations in technology and misconceptions of vision.
You Are Not a Gadget is the right person saying things that really need to be said, and saying them in a way that is as impassioned as it is carefully reasoned. It ought to be required reading for everyone involved in digital content.
Get it
Mark Helprin’s Hardcopy Barbarism June 24, 2009
Posted by Bill Rosenblatt in Book reviews.2 comments
A few weeks ago, I tried to make my way through Mark Helprin’s book Digital Barbarism: A Writer’s Manifesto, and I gave up about halfway through (more truthfully, I accidentally left it in a hotel room while on a business trip but did not regret it). Now, with the publication of a review of this book in the New York Times Book Review, I am no longer afraid of my own opinion, even though it’s based on an incomplete reading: this is a terrible book.
Digital Barbarism resulted from an op-ed column that Helprin, a highly regarded novelist, wrote a couple of years ago calling for the further extension of the term of copyright. The intensely vitriolic online response he received – hundreds of thousands of online comments, blog posts, etc. – stunned him into insensibility. That is the only plausible explanation for how an acclaimed, accomplished writer can publish such a pompous, curmudgeonly, incoherent, and poorly researched screed. It is as hard to slog through as it is full of inaccuracies and gratuitous ad hominem attacks.
And the only plausible explanation for how a respected house (HarperCollins, which did not publish Helprin’s novels) could publish this book is that an editor there liked its core message: content creators should be able to get paid for their work; the current trend of scholarly thought in the copyright world jeopardizes content creation by ignoring or denying its value; this in turn jeopardizes the richness of culture and the integrity of information.
This is a worthwhile message that deserves a coherent, creditable, and persuasive book expounding it. It’s really unfortunate that no one has written such a book. Digital Barbarism is the most squandered opportunity to do so since Clifford Stoll’s Silicon Snake Oil in 1995. Andrew Keen’s The Cult of the Amateur (2007) is the best book-length discussion to date on the Internet’s negative effects on copyright, but even that was undone by Keen’s snarky tone. The best overall piece has been from computer scientist and composer Jaron Lanier. Lanier’s 2007 Times op-ed was a mea culpa with respect to his “piracy is your friend” piece of nine years previous.
When will we get to read a well-organized, well-researched work about the erosion of value of content that is written by someone with credibility who is not a recondite copyright scholar, a media industry shill, or an Internet Luddite? I’m still waiting.
Bill Rosenblatt
Azita Arvani
Bill Jones
Niels Thorwirth
