Robert Levine Tells the Rest of the Story

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.

4 comments

  1. Bill instead of disparaging Fred Von Lohmann as a “copyleft icon” why don’t you mention a legal position he’s taken on which he was shown to be wrong?

  2. [There was a mention of Fred von Lohmann of Google (formerly of the EFF) in a preliminary version of this article, which was deleted before the final draft.]

    Ray,

    “Copyleft icon” is not a disparagement, it is a characterization. If you had read the post about him that I linked to there, you would understand this. Fred and I know each other and I have the highest respect for him, as do most people in the copyright field including many experts who disagree with his positions.

    – bill.

  3. […] am honored by two recent reviews of Free Ride. On his Copyright and Technology blog, Bill Rosenblatt discusses the book as a counter-narrative to the conventional wisdom (which he […]

  4. Ernie Drown · ·

    Unfortunatly,our rights and those of artists are disapiering -” my mother used to say if it is’nt your’s don’t touch it ” getting a “clip” or a few seconds of a song thats one thing , but to just steel movies or songs or books,,thats just wrong !!
    Ernie

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