The "Copyfight" Reaches Epistemic Closure

THERE ARE MANY, many arguments you can make about the societal benefits of limiting the terms of copyright.

Unfortunately, you won't find many of them in the comments section on Michael Geist's site.

Geist has staked out his territory -- as an academic and law professor, he believes in an expansion for fair use/fair dealing and frowns upon mechanisms such as digital locks that prevent people from using purchased content the way they want.  Through newspaper columns, consistent advocacy on the issue, and assiduous courting of so-called "copyleft"ists, "copyfighters," and other creatively-monikered folk, he's become the de facto clearinghouse for a so-called "consumer-focused" view of copyright reform.

As I've argued previously here, and privately in friendly emails with Geist himself, what's consistently missing from his site (and from the points of view of his commenters) is any realistic representation from the creators of artistic works.

See it's quite easy to rail against copyright when the enemy is a huge multigloobinial copomoration breathing fire out its greasy lawyer-tusks, but wee people have a dog in the hunt too when it comes to protecting their intellectual property.

Not that you'd know it from Geist's site.

Argue politely or otherwise that the content creator's opinion is a little light on the ground, and you're very quickly met with rhetoric & indifference, ranging to outright hostility.   In some cases, you're lumped in with the corporate weasels because they're the most fun to fight.  (The blowback from suing customers is the single greatest mistake made in this area in recent years. It's emboldened the immoral, and given fire to the muddleheaded. It's like a layer of volcanic ash-gunk that covers anyone who tries to argue the creator's side.)

Otherwise, you're treated to a lovely, shopworn, half-assed screed on the "you can't stop the ocean" style argument about making money in the new world.  (Seriously, hands up anybody who's been hearing this argument since before the last dot.com bust?) 

There's nothing quite like a lecture on economic models given by people who don't seem to really grasp how it works, and who don't realize that arguing theoretics to someone with a concrete, measurable and immediate economic interest is a bit insensitive at best, and monstrous at worst.  It's especially welcoming when you spend a whole lot of your daily life discussing monetization with other groups, seeing presentations from Comscore, interacting with people working to monetize online efforts everyday. The newsflash, of course, is that nobody's figured it out yet. Not Jill, not The New York Times. We're all still waiting for that 9-year old girl in Passaic, N.J. to show us the way.  (Pick it up, there, Heidi. We're dyin' out here.)

In the meantime, one is supposed to put up with people who argue with a straight face that the baby & the bathwater must be thrown out. Because ... well ... um... because.

I didn't expect a whole lot of sympathy or a whole lot of uptake-taking on the Geist droids. What did strike me, though, is that in the lobs of arguments I've heard a hundred times before, nobody asked a question.  Nobody.  Nobody asked for a clarification about how TV is financed, or maybe how the "tour and merchandising" model of artist recoupment doesn't work across all forms.  See,  in the closed circle of "copyfight debate" they know how artists have it wrong, how corporations have it wrong, and the way forward is already completely decided.

When the copyright town hall chugged into Toronto last year, there was the predictable over-representation from the recorded music industry (the guys you love to hate) defending a business model that nobody outside of a record company would even dream of sticking up for anymore.
 Their arguments, hiding sins of excess from an industry that took exploitation of talent and practically forged a whole separate art form out of it -- screwitecture, let's call it...such are the documented excesses of the record industry that we shant go into them here.  

The fact that arguing for copyright for content creators involves sitting at the table with these guys is kind of like having to put up with pervy Uncle Eddie at the family wedding.  You hold your breath and try not to look as embarrassed as you really are inside.  (And you keep your ass out of reach of his freaky hands.)

But aside from the majors, there were some thoughtful contributions from creator groups -- and some truly passionate representations from artists & creators themselves.

That night, both before & after the town all, the brief chats I had with artists & creators mirrored  each and every conversation I've had with somebody who makes things for a living.   I'm always amazed by the thoughtful, measured attempt to wrestle with creator rights versus consumer good.  Most are unhappy with the current law, thinking it does too little to protect in some areas and too much to restrict in others.  There is no uniformity in boundaries or solution, but there is always a heartfelt, honest attempt to grapple with how to expand consumer rights in the way the digital world practically demands, without losing the thread that allows for fair renumeration.

When it came to the so-called copyfight side, however, we were treated to a few people arguing flat out in favour of piracy and a couple of university students, stumbling, ill-informed, unsure, arguing something that they felt in their heart but couldn't articulate clearly.  The failure was easy to understand. This was the real world, not the safe harbours of copyfight central, where the tiny demographic slice of internet people all agree.  They weren't playing to their closed epistemic circle.  Must have been scary.

You see the shallowness of understanding of the creator side in the response to organizations' like the WGC's position on collective licensing.  Based on already running, successful collection societies that are running in Europe to compensate rights holders for things like PVR use, timeshifting, tv rebroadcasting and such, the WGC proposes that one solution be a levy system. They're quick to jump on the "levy" part and scream how it's unfair, will never work, etc, but miss the second part of it, where the WGC suggests that now-illegal uses be made legal in exchange.

See, that's negotiation.  You give something up, you get something.

But even when you take out the pirates who don't think you should pay for anything, the bulk of copyfans in Geist Nation still approach the idea of negotiating a new copyright law as...say it with me, now:

"Gimme."

Even Geist's vaunted expansion in fair-dealing for academic use goes against the current grain.  Starting from "it should be free" goes against what's in place now with academic copying for textbooks & other materials.  If the cost is too onerous and does restrict legitimate research use, then obviously that needs to be looked at.   But it's a measure of the exclusion of the artist from Geist's roundtable that it seems to be an article of faith that "free" must be the default.  Well, uh... huh? Why?  Are Profs going to lecture for free now, too?  What about students. When you get those degrees & jobs are you gonna go work for free?

There's so much I wish for for consumers in a copyright bill.  I think terms of 75 years for copyright is ridiculous. I think that parody & satire should be codified so that Disney, or me, or anyone can't order a YouTube video removed through copyright law as a cudgel and censorious act to quash a video that makes a valid, socially desirable criticism.  Or even a wicked parody.  I want recognition of mashup art & I want consumers who pay for content to be able to use that content and view it on whichever device they want.

All these are points of negotiation, but I do have to say that I'm far less passionate about pushing them forward than I otherwise might have been because I know there is a significant constituency that believes I should have no rights over my creations at all.  A constituency that wants to speak for me, and then dismiss my voice as "not relevant to where digital culture is going." 

Finally, to those of us who have a longer-than-undergrad view of changing culture, one should remember and take the lesson of the 'original mashup' -- the audio sample.

There was a fierce battle at the beginning of the hiphop era over sampling.  Copyright holders sued to remove & ban songs that used unauthorized samples.   The law was used as a cudgel, sometimes with the blessing of the original artist, sometimes not.  The thought was that the sample devalued the original work.  People who wanted to use samples argued that it was new art, that it deserved to be heard.  Suggestions were made about licensing samples, making the whole thing legal -- and for a while there was squawking over that, too.  It would be too hard to decide the value. Who would police it?  Is it a good idea?

The point is, it got worked out.  Maybe artists couldn't use as many samples as they wanted, but the culture changed & absorbed the change, and everybody learned how to deal with it.

The bad road we started down in the digital realm is that the first responders -- the canary in the coal mine -- was the music industry. And they responded badly, first by denying there was a problem for too long, and then being talked into a strategy where suing your customers and trying intimidation was the answer.  It wasn't.  We lost a lot of time to that silliness.

A solution will come in the copyright debate, too. It might take a few tries, it might mean a bad law needs to be amended, but eventually we will wind up with something that allows, hopefully, for the most socially desirable outcome that balances a right for renumeration for labour with socially desirable consumer use.

Geist protests that he does the best he can, and doesn't agree with a lot of what's in his comment sections, but leaves it open in the spirit of the internet.  That may be so.  But the degree to which the Geistians have a hand in the future of copyright is directly inverse to the degree to which they continue to close ranks and insist they have all the answers, and everyone else is "the man."

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A note on comments on this post: this is a post on the semiotics of the debate. You want to critique what I have to say, go to town. But we're not arguing copyright in this thread, for the same reason that I closed comments the other day -- I'm not interested in having the same boring debate I've had a hundred times with people who simply aren't listening.