The State of the Copyright Debate

I LIKE MICHAEL GEIST.  I think he's smart, I think he's provocative and writes well and certainly knows his issues from his perspective.  But when he reports on creators' issues (and challenges going forward) with any new copyright law, this is the general quality of comment he attracts from his legions of copyright fans:

Heres a tip...
Hey, creators of music, movies, any type of IP, heres a tip. The world is changing, they way you do business has to change as well.
Try creating something that people will actually PAY for, like something decent for a change 

Oh to be twenty-one (or thirty-three) and to be so blasé and dismissive about complex issues.

The problem with the copyfans & the fair use now advocates of all stripes is that they have a wonderful ability to view the debate in the most simple of terms.  We can categorize those terms thusly:

Gimme.

The problem with gimme, of course, is that it's hard to plug into any kind of self-sustaining economic model by which artists get paid for their labors.  Add to this the fundamental ignorance that people seem to have about the entire structure by which content creators currently get paid. You'll often hear this expressed as "I buy a book once, why do I have to keep paying for it?" or some such thing.

The impression seems to be that the true value of the art is paid for by the consumer at point-of-purchase. And that artists and content creators want some cushy deal that nobody else gets. (Ie: I paint your house once, and you keep paying me to paint your house for five more years, or until five years after I die, or whatever.)

What makes the idea of the art fundamentally different is three factors:  1) reproducability 2) timelines of creation 3) life of the artist

In the case of 1) reproducability let's take a painting, like the Picasso that sold for a record number this week.  It's easy to understand why that fetched so much: it's unique.  Picasso painted it, and it's the only one, and people like Picassos.

Consider what it would be like if the Rolling Stones had recorded, say, Exile on Main Street and everybody knew how great it was, maybe there had been a listening party or something, and then only one person could buy it.  How much would that recording be worth?  What about The Godfather? There was a film fest in 1972 and they showed The Godfather and everybody went apeshit, and then Francis Ford Coppola sold the film -- the original negative -- to one guy.  And then only he got to show it to friends & lucky people. How much would that cost?

Obviously with these kinds of art, a market developed for reproductions. In fact the whole model of making money was based on reproduction & distribution of those copies.  The artist creator gets a percentage of each copy, mass produced, rather than imbue all the value in the one, unique work. (ie: the painting, though in the case of the Picasso, there is both -- reproduction rights, and the value of hte unique original.)  So we bought our Picasso posters & prints for dorm room walls, and our Godfather DVD or VHS box sets.  So long as everything was physical, it was hunky dory.  But digitization changed the value proposition -- because now the physical product that would kick back whatever percentage to the artist (instead of its true value in a lump up front a la the auctioned Picasso) doesn't sell anymore. Now, digital bits can flow freely -- and do -- through bit torrent networks & sharing sites & burned copies handed from friend to friend to friend.

"I pay for cable so I've paid already so I shouldn't have to pay a levy for a PVR."

No, Chester. What you did there, was pay for the pipe to bring content into your home.  You paid the admission price to the museum.  That doesn't give you the right to go home with the Picasso.  You can be as petulant as you want; stamp your feet all you like. The facts are just not on your side here.

The problem then as it currently exists in our imperfect world is that the cure has been worse than the disease.  People who've lawfully bought DVD's of their favorite show find they're locked down with DMCA anti copy crap that keeps them from playing them on the device they want, or from playing it on two computers, or streaming it to another location in their house... in short, the idea of what people want to do, lawfully, with the media they've bought and paid for has expanded, but the system is trying to keep it locked down.  This is retrograde and contrary to the way that people want to use media.

The idea of blanket licensing & levies is a more European idea that says, "look, people will use it how they use it.  We may not get 100% of the money for other uses, the way we used to when "other uses" meant film, TV sale, audio book on tape, trade paperback, etc. -- but we will at least get part of that money. And that is way better than suing your customers or gumming up everything with stupid digital locks that the nefarious types are just going to break anyway, leaving you in the position of punishing your most ardent fans or consumers.  And content creators are the last people who want that.

2) Timelines of creation.  Inevitably, when I challenge some asshole directly about "why should I have to keep paying blah blah blah" and find out what they do, they're somebody who wants to talk about things in terms of their job.  So let's do that.

We'll take me as an example.  I get paid to write now. It's a precarious job, because I'm totally self-employed, and I can't collect unemployment benefits. My income swings widely from year to year, yet I can't average the income, so when I make a lot, I can't put more of it away because I'm taxed like a Wall Street CEO, and when I make mouse fart money I can't even go on pogey.

Add to this the fact that, just like a doctor goes to Med School for years, and interns, and goes through residencies to get to where they are, I had to teach myself to write.  It took years.  More than a decade of pounding out crappy scripts in my spare time, not making a dime, working one or two jobs I hated.  Artists do the same thing, but have to somehow afford paints and brushes or canvases. There's more than one artist I know who spent their time choosing between whether to eat or buy another canvas one day.  I have a friend who's an opera singer who blows me away with the rundown of the costs of vocal coaching, exercises, money to go to places to audition, other professional training.  All of this to get to the point where -- if they're lucky -- if they're very, very, very lucky, you might hear of them, and maybe want to buy something they made.  Now you get to see if their investment in themselves-- let's call it "sweat equity" -- pays off.  We can all make fun of Michael Bublé now, but truth is the guy worked his ass off for a lot of years to learn his craft.   Watch a bit of Tréme and see how all those musicians enjoy cushy wonderful, gala-ridden lives getting to make a living.  I got a brave bit of prediction for you here:  those braying loudest on the copyright file: put you in that life and you couldn't cut it, even if you had the talent.

In short, part of what you're paying for that "every time" isn't the thing you've got in your hands. You're amortizing the entire apprenticeship period of that artist for when they weren't making a goddamn dime.

The timelines of creation are long.  And the initial purchase price of a movie ticket or a DVD rental or an Itunes track does not fully reflect that sweat equity.  In a world where the purchase of physical items breaks down, something needs to rise to replace that, so that the true value of the creative work can flow to the artist.  Believe me, left to themselves, the corporations will always figure out a way to get you to shell out more -- and for the most part, you'll do it happily -- be it a Happy Iron Man Meal or some piece of shit that you don't need.  And that will never flow back to the person who did the initial creating.  Joe Schuster & Jerry Siegel had to sue to get money out of Superman, the character they created that made Time Warner BILLIONS. No, where people like the brave commenter above leave the track is in trying to get the artist paid for their labour.  That's why these guys, so long as you bray about what your rights should be & crap all over efforts for artists to earn a living, or comment ignorantly as above....well....you can lick my sweaty neck.  (I was going somewhere else with that, but my Mom occasionally reads this blog. Hi Mom.  Thanks for the casserole.)

3) life of the artist

Let's take the case of Yann Martel.  Yann Martel was a big deal in 2001 for publishing Life of Pi.  Book clubs, Booker Prize, the whole magilla.  Martel's been working on his followup for years. It's 2010.  That's nine years. Nine years to come up with the new book.

And it came out. And critics are shitting all over it.  It's starting to look like it might be a big flopperoo.

Ouch.

Once again, the artist takes a huge risk -- and it might not pay off. And there's a limited number of those things that you have in you.  A novelist's career might span thirty years -- but it's going to have a number of flops.  And the flops that make you nothing still take the same sweat, and tears, and toil, and time, and psychic grit to get through as the lauded successes.  Courtney Love is just as batshit crazy when she puts out her good CD's as her bad ones.  Clint Eastwood's lovely, meticulous filmmaking might give you Million Dollar Baby, or something lesser like Gran Torino, or hell, Space Cowboys. That's just the way it goes.

A TV writer has a shelf life, as well.  There's some cruel math at work.  You start out a young turk, have a few years to rise up.  Maybe you get lucky and do something that hits, or maybe you don't and are a journeyman. But if you get 15 years in before you get aged out that's pretty lucky indeed.  You have to make your bones how you can, fast as you can -- from as many different ways as you can.

The point is, the model is not, and never has been the same as a builder who builds a house and sells it to you.  It is much more like an owner of a house on the beach that's very desirable and lovely that rents it out to people because it's desirable and lovely.

There is a lot that's shitty about copyright now that many artists don't agree with.  I think that the copyright terms, which are now more than 75 years after death (what they call the Disney exemption, because that prevented Steamboat Willie from falling into the public domain) are ridiculous.  I think there's got to be a way to allow mashups & stuff to happen.

(And keep in mind that there are mechanisms that do work here. Onceuponatime the argument was all about how hip hop was going to be killed by the man because of having to clear samples.  Most samples were illegal. Now most samples are legally cleared.  And there's no hip hop anywhere on the shelves, or on the Itunes charts, right?  Please.)

I think that when it comes to something like "fair dealing" it's a finer slice. I think works should be able to be used for comment, parody, satire -- and limited educational use. But you know, agreements were reached on things like copying for school use in textbooks and things - and I see absolutely no reason to think that "it's too hard to police" is a valid argument why wide-open educational use of copyrighted materials should be expected.  I also think it's a bit odious that Educational representatives, most of whom have pensions & tenure -- ie: job security, are arguing against a fair compensation regime for people who are essentially self-employed freelancers with none of those economic cushions.

I'm a consumer too.  And I certainly think that current law does not work for the consumer and how our relationship to media has changed in the last few decades.  And I sure as hell don't think a draconian, DMCA-style U.S. law will make things better.  And the law should be forward-thinking, to encompass and provide a roadmap of how to do things in NEW media not conceived yet.

(At the very least, I would like the next law to deal with the fact that for years I've been able to lend a friend a book -- but now I can't do the same thing for an e-book. That, to me, is a restriction of my rights.  And maybe if they want to go that way then an e-book really shouldn't be priced anywhere near a trade paperback.  I'm not paying Amazon $14 for something I can't lend.  $9, we'll talk.)

What I do know, is that in the copyright consultations last year, the thing that depressed me most was the disconnect between the people doing the creating, and the so called "copyright activists" demanding their "gimme."

It seems to me that if you're an "expert on copyright law," with legions of followers with whom you exhibit great influence, then part of your responsibility comes with truly engaging on the creator side of the equation, and figuring out a stand that you can articulate to your followers that doesn't involve content creators assuming all of the risk in the brave new world going forward.  It's not enough to demand.  You have to engage on a creator-friendly, not just consumer-friendly solution to the problem.

Because, quite frankly, you may be educating your followers on things like "fair dealing" and "digital locks," but a quick scan of your comments section shows a paucity of understanding of creator issues, and a powerful desire to roll people like me up in there with the big bad "them."

I don't think of myself or my friends as "them."  But by allowing that linkage to go unchallenged,  you hurt the very cause you claim to espouse, and wind up looking like someone fronting  another self-interest group who may be agitating for a pyrrhic victory:  widespread use of copyrighted materials isn't going to get you too far once nobody can afford to make any.

Except, I guess, Sony.

All Michael Bay, all the time.  Enjoy that world.  Brr.

UPDATE:  Not often, but sometimes you get a comment that you read and think, "well that's a way better ending to the post than mine was."  So it's promotion time!  I'll give commenter John the last word on this post.  Please feel free to continue discussing in the comments below. I'm going to bow out for a while because I'm still really quite ill, and I think it's time for a little hard napping.

John writes:

Nice work -- your posting is making the digital rounds.

I agree with you on almost everything you've written, and most of my disagreements would be minor quibbles on language. For instance, I despise much of the vocabularly of the larger copy-debate. Words like "draconian," "corporatist" and "DMCA-style" start my eyes a-rolling.

Unfortuanetly, that's exactly the vocabulary that gets the mob excited, which I guess is why it's so often used. What's the point of having an accurate, meaningful, well-informed discussion on the way to new legislation, when you can shout DMCA in a crowded theatre and start a stampede.

The leaders of the copyfight were all invited very early on to genuinely engage with professional creators, and it seems clear they all consciously chose a different constituency -- "lowest price is the law" consumers. It's a shame for everyone.


Amen to that.