Advocacy and Ending Copyright Infringement

Editor’s note:  We like thinking through every area of culture here at Mere-O, which is why I’m delighted that we’re going to spend a little time talking about the way technological changes have affected people’s ability to make money–and what we should do about it.  Matt Miller goes first, Stephen Carradini will write on Wednesday, and then on Friday they will do a dialogue on the issues that come up.  Thanks for reading.  — MLA

The Internet’s already over two decades old, and we still haven’t figured out how to cope with its potential for copyright infringement.

Any creative medium that can be digitally replicated finds itself in danger—music, film, photography, and every form of writing. Widespread pirating, Google Books, and other digital distribution methods threaten to make art something that consumers expect to get for free, always and everywhere.

Professionals in all these fields continue to feel acute anxiety at the potential that digital distribution could destroy their livelihood—and they’re right to feel this way. Similarly, anyone concerned about the ongoing artistic vitality of our culture should be concerned about a future in which it’s impossible to make a living in the arts. How are artists to make money when their work can be copied and distributed with such ease?

DRM is killing music, and it's a rip off! Paro...

DRM is killing music, and it’s a rip off! Parody of home taping is a rip off. Based off Image:DRM Is Killing Music.png (Photo credit: Wikipedia)

Many people have proposed or attempted solutions to the problem, but without much success or variation: in essence, all the proposals I have seen boil down to three approaches. And only one of the three, in my view, offers us any hopeful way forward.

The first approach is that most frequently taken by the big media companies: find a way to regain control over the means of copying and distribution. This might mean enhanced digital rights management (DRM) software; it might mean refusing to publish e-books; it might mean lobbying to enhance copyright law via SOPA/PIPA.

The problems with this solution are myriad, ranging from the rage you induce in consumers (and some artists) to lost revenue from refusing to engage in the digital market. Bottom line: increasing copy restriction doesn’t work, because those dedicated to circumventing DRM or copyright law are always more nimble than those dedicated to enforcing them. 

The second approach has been advocated by a range of figures who have attained guru-like status with a certain audience, from Derek Webb to Seth Godin. The former filmmaker Tony Comstock (now a yacht captain known as David Ryan) sums this perspective up concisely, if with some contempt: “I was reading yet another article preaching give-it-away-for-free (the it being your book, your record, your film – your whatever could be digitized) and then sell your true fans the very special limited edition, gold foil wrapped, signed collector’s edition, or if not that, a t-shirt or a stuffed animal or whatever.” Artists are thus encouraged to use their art—the work of their hearts, if they’re any good—as a loss-leader to sell merchandise. Although this tactic might provide an artist a living, it’s hardly a recipe for a vibrant culture: it expects that we should get sublime art for free, while shelling out cash for a knick-knack. There’s something wrong with that equation. Comstock calls this strategy “at best . . . an ugly kludge,” and I’m inclined to agree.

The failure and artistic bankruptcy of these first two means of dealing with the digital revolution made David Lowery’s recent “Letter to Emily White at NPR All Songs Considered” all the more heartening. In his widely-distributed letter (which you should read in full if you haven’t), Lowery proposes not some technological or marketing gimmick to defeat the Internet—the first and second methods, in essence—but a moral re-education of the public. To the college intern White, he writes, “I also deeply empathize with your generation. You have grown up in a time when technological and commercial interests are attempting to change our principles and morality. Rather than using our morality and principles to guide us through technological change, there are those asking us to change our morality and principles to fit the technological change—if a machine can do something, it ought to be done. Although it is the premise of every ‘machines gone wild’ story since Jules Verne or Fritz Lang, this is exactly backwards.”

Lowery proposes no legal, technological, or practical solutions to digital copyright infringement: instead, he practices advocacy and moral education. In this, he demonstrates a more hopeful view of the public than either of the first two approaches. DRM, copyright, and loss-leader marketing assume that those who illegally get their art for free now will never be willing to cease their criminal ways—therefore they must be constrained into lawfulness or tricked into paying for another (less valuable, but also less copyable) product.

In contrast, Lowery’s advocacy assumes that people can be persuaded to change their behavior based on an ethical appeal. On this level alone, I’d be more inclined to favor Lowery’s advocacy over the other two solutions—I want to believe that people are capable of positive moral change, as the Gospel indeed suggests I must. But on a more practical note, I would suggest that Lowery’s tactic is actually more likely to work than DRM or loss-leader marketing. The ever-increasing growth of the organic and local food markets show us that people are indeed willing to pay when they are convinced that certain purchases are more ethically and culturally responsible than others. If artists can further Lowery’s moral advocacy, then, there may be hope for their careers as well as our cultural vitality.

email
  • Eric E

    This of course raises the question of how we are to act ethically when it comes to the digital and the arts. Derek Webb says he would rather I download his music illegally than listen to it on Spotify because at least I’d might feel guilty about the former. Jay-Z and Paul McCartney had no problem with Danger Mouse’s The Grey Album but the Beatles copyright holder did (that is, the artists aren’t always the owners). You have open source/free software like Linux (and there is even a burgeoning open source hardware movement) where distributing for free and/or modifying things is encouraged. Cory Doctorow copyrights his stuff but gives it a creative commons license. Quentin Tarantino’s movies are basically stolen ideas from previous movies (“I steal from every single movie ever made. If people don’t like that, then tough tills, don’t go and see it, all right? I steal from everything. Great artists steal, they don’t do homages.”) Kirby Ferguson says EVERYTHING is a remix. And some people question the morality of the very idea of copyright.

    I’m not saying I agree with everything above, just that the morality of copyrights is quite complicated and when you talk about “moral advocacy” I’m left wondering what exactly you mean by that.

    • http://www.chriskrycho.com Chris Krycho

      Fundamentally, copyright is and always has been – at its core, rather than at the areas where it is abused – about protecting the ability of a creative to make money off his or her work without it being stolen. Prior to the advent of the internet, this was pretty straightforward: it was impossible to do what you can do with a few clicks today and make any piece of media instantly accessible to any person anywhere in the world who has an internet connection. Copyright is essentially a legal means of enforcing what we all once agreed was a moral issue: taking people’s hard work without paying for it, when that hard work was in the form of intellectual creativity – whether written, played on an instrument, or what have you.

      Moral advocacy, then, comes down to this: people must learn to value the creative and his or her work such that we pay for what we consume. Simple as that. Of course, how to accomplish that end is both complicated and difficult. But it is a necessity if we wish to have a flourishing culture, for culture cannot flourish when those who contribute to it are devalued – as indeed they are (and must be) when we are unwilling to spend any money to support what they have made.

      • Eric E

        In some sense, this is true but not entirely. My understanding of the history of this is as follows. Copyright started out as an agreement between Mary I of England and the Stationers’ Company. Mary got the ability to censor printed material and the Stationers’ Company got a monopoly over printing. It wasn’t about creativity or the artists, it was about censorship and monopoly. In 1695, this agreement ended and their monopoly was over. The Stationers’ Company obviously didn’t like this and attempted many times to get their agreement back. In 1710, the Statute of Anne was enforced and it re-instituted the monopoly of the Stationers’ Company but it gave authors the rights to their works. However, not a lot changed for the authors in practice the printers would pay a lump sum for the rights to the book, which is exactly what they did before the Statute of Anne. And then, even though the US Constitution contains the Copyright Clause, the first US copyright laws were based on the Statute of Anne (ironically, the copyright act of 1790 was pretty much copied word for word). Even the Copyright Clause didn’t say anything about “paying for what we consume,” its primary purpose was “To promote the Progress of Science and useful Arts.”

        So it isn’t as simple as you say. There is a balance between the promotion of creative work by individuals and the promotion of a creative culture/society. In our moral advocacy of the individual, we can’t forget the culture.

        • http://www.chriskrycho.com Chris Krycho

          Good point on the history. I realized after posting that my first statement was an overstatement. It might be more accurate to say that American copyright has largely functioned in the way I outlined, whatever its historical origins (on which I was less clear; thanks for the info!).

      • http://evangelicaloutpost.com J.F. Arnold

        “But it is a necessity if we wish to have a flourishing culture, for culture cannot flourish when those who contribute to it are devalued – as indeed they are (and must be) when we are unwilling to spend any money to support what they have made.”

        That last clause — that culture contributors are necessarily devalued when we do not spend money on what they make — is an interesting one, I think. It assumes that monetary value is the most important, or at least the way that we can measure whether some culture-maker carries any weight.

        I like this series, and I like where it will go during the rest of the week, but something that’s always made this tricky for some people is the underlying assumption that money functions as our primary source of value. If an artist does well they will be wealthy, and if they don’t then they will be poor. The “best” artists are those who make the most money, until they make too much, and then we think they sold out. It’s an interesting trend, though: those who make the most money eventually only make music for the money, and then we say they’ve gone the wrong way.

        • http://giftsoutright.tumblr.com/ Matthew Miller

          “That last clause — that culture contributors are necessarily devalued when we do not spend money on what they make — is an interesting one, I think. It assumes that monetary value is the most important, or at least the way that we can measure whether some culture-maker carries any weight.”

          No it doesn’t. It assumes that if we want artists who can truly dedicate themselves to their craft (and thereby attain a high level of aesthetic excellence), they need to be able to make a living. That doesn’t make monetary value the most important. It just means that artists need to eat like everybody else. This doesn’t mean that weekend-and-evening artists can’t make good work–but surely we want to support truly gifted folks in spending all their time making cool stuff.

          • http://evangelicaloutpost.com J.F. Arnold

            I agree with you. I’ve seen a lot of people make the argument, however, and they tend to also end up assuming that money is the primary way to measure and/or determine value. So I wanted to clarify.

          • http://www.chriskrycho.com Chris Krycho

            Matt gets at what I mean, but I think your clarification an important one – especially in a culture that too often tends toward a mercenary outlook.

          • http://giftsoutright.tumblr.com/ Matthew Miller

            Fair enough, James, and thanks for the clarification. We do indeed want to avoid having the discussion go that way.

      • http://giftsoutright.tumblr.com/ Matthew Miller

        “Copyright is essentially a legal means of enforcing what we all once agreed was a moral issue.” This. A deeply flawed means, of course–I deplore ever-lengthening copyright like anyone else–but the point stands. Thanks, Chris.

        • http://giftsoutright.tumblr.com/ Matthew Miller

          And by “like anyone else” I mean “like anyone else except Disney.”

          • http://www.chriskrycho.com Chris Krycho

            Ugh. Disney.

  • Luke W

    I’m a Nashville musician, songwriter, arranger. I work with and know many people at all levels of the music business, from executives to artists to session players. I understand this article is centered on the question of how to deal with the “problem,” but I’d like to challenge the premise that there is a problem. And remember, I’m one of those people who makes their living in music, one of the people who’s on the verge of starvation, or so I’m told.

    Every new distribution technology has elicited this response. The first phonograph was declared to be the death of music, because people would no longer attend the concert hall now that they could listen to a performance over and over. Then they monetized the new system and everyone made more money than ever. When radio arrived, same story. Panic, then a plan to monetize, then everyone made even more money. The music industry fought cassette tapes, once again predicting the eminent death of creativity. The cycle continues and every time, death is averted and the pie only grows larger with each advance.

    Every new distribution method allows some Emily Whites to avoid paying. A certain percentage of people always will. But the majority are always willing to pay a fair price. Case in point: Author Neil Gaiman experimented with giving away digital copies of his books through his website. He tracked his Amazon sales and found that, rather than sales declining when it was available for free, they shot up, particularly on the title he was giving away. That’s not what’s supposed to happen, according to huffy executives.

    The industry is ringing the familiar bell of impending doom because they make their money selling plastic disks and bound stacks of paper. But people have access to more music and literature than any time in history — and more importantly, artists and authors have more access to the people who might like their wares. The insistence that people are being conditioned to expect free art is a component of this argument. Strawmen building strawmen.

    Again, I know my comments are a sidebar to the aim of this article. A discussion of moral advocacy is interesting in itself, but in this case, is based on a flawed premise, a conversation about an immodest emperor who is in fact, fully clothed.

  • http://bookwi.se Adam Shields

    In some ways I want to push back about using the word ‘ethics’ with copyright. I know that there are reasons to have copyright and I know that it can encourage creativity. But it can also encourage repression.

    My understanding is that copyright was originally given as a special approval of the crown. Copyright in the US constitution is not a guarantee of a right, but a limitation of a right. And that right has been expanding to near infinity, which seems to violate the intent of the limitation.

    And the irony is that while there is creativity in the world, that all creativity is built on prior art. So there is very little that in some way has not taken part of another work to create it.

    So I am not against copyright as an idea. But I think starting with the idea that copyright is an unmitigated good is the wrong starting point. I tend to be fairly utilitarian with this sort of thing. Copyright limits access as much as anything else. So I believe we need to roll back copyright as part of anything else that is done to modify it.

    I have seen several studies that try to look at the optimal length of copyright. And most seem to agree around 20 years is best. So even adding 50% would drastically limit what we have now and encourage more use of works to be adapted into new forms.

    • Jason E. Summers

      Adam,

      You make a very good point (which I’ve also addressed elsewhere http://www.capitalcommentary.org/patent-reform/innovation-intellectual-property-and-constitution ). Before we attach moral implications to violation of copyright, it seems to me that we ought to first understand what copyright is for. And clearly, as you note, it is not to guard some unlimited right we have in ideas, because no such right exists.

      Copyright is but one of many ways to balance private gain with public good. It ought not be enshrined.

      js

  • Peter

    Thank you for the thought-provoking article. As an intellectual property attorney in Tennessee, I must agree with Luke. There are already a plethora of heavy-handed legal remedies available to the artist and the content owners, and the copyright term is ridiculously long. The recording industry, the movie industry and the publishing industry should stop pining for sympathy (Sony sued video-cassette machine manufacturers in the 80’s and grandmothers in the 00’s!) and use technology in a positive way.

    I also note that artists are the first to complain about infringers and to demonstrate moral outrage about digital copying, but are right after prisoners on death row when it comes to looking for free and accounting advice.

  • http://menliketreeswalking.blogspot.com Matthew Loftus

    I would agree with Luke W above and say that, as a fairly active music consumer, the idea that your work is a “loss leader” for the gold foil plated special edition teddy bear is kind of silly. Most artists give away some of their music to get people to listen to it, and then they buy more music. I just downloaded Matthew Perryman Jones’ album “Land of the Living” from Noisetrade and will probably buy the album so I can have a physical copy and because I really, really like the music and think Jones deserves ten of my dollars for it. I’ll probably drop another 30 on his back catalogue and see him the next time he’s in town. I haven’t done this for every album or sampler that I downloaded on Noisetrade over the years, but certainly enough to make it worth it.

    That said, I’m glad the OP spent most of its time on talking about how to get people to act in an appropriate and moral way, because I think that’s most important. But building a relationship between the artist and consumer is a really important part of that. I stole some music from a friend’s hard drive and later supported that artist’s Kickstarter (and hosted multiple house shows!) I still feel guilty about that, though, because now I’m sort of friends with the guy. Certainly, though, stealing the music in the first place led to me becoming a fan and then a zealous financial supporter…

  • http://jaketolbert.com/blog Jake T

    Some great comments in response to the OP here. The one thing that I think is important to remember is that while this issue SEEMS to be a moral/ethical one, it’s also very much an economic one, namely an issue of supply and demand.

    Never before in the history could creative works be infinitely reproduced at a cost that approaches zero per copy–with the advent of digital art (whether music, film, etc) and the internet, the physical barriers have dropped and suddenly, there’s an infinite supply to meet demand.

    While I agree that it’s an ethical and moral issue that we need to financially support artists, I have a hard time understanding how it’s an ethical issue that we have to buy music–if there were machines that produced an infinite number of loaves of bread at zero cost, what would happen to the price of bread? It would plummet to basically nothing, simply because there would be enough supply to meet demand.

    Again, please note that this is different than saying that artists should work for free. However, to create some sense of artificial scarcity (as DRM attempts to do) is, in my opinion, akin to lying.

    Unfortunately, I’m not wise or creative enough to explain how artists will get paid when their work is infinitely reproducible–I think we’ll see folks figure that out over the next 20 to 50 years–amazingly, I think artists ARE already figuring it out (there’s more great music available now, even legally, than there ever has been–spend 20 minutes on YouTube, Last.fm or Spotify if you don’t believe me).

    I don’t, however, believe that a moral ethics campaign to fight against the basic laws of economics is a sensible solution to the problem.Our ethics don’t have to change–stealing a CD from a store is still wrong. But we must realize that stealing a physical CD is NOT the same as making a copy of a copy of a copy of a copy of a copy, all of which were created for free.

    • Joseph Rhea

      Jake,

      While it’s certainly true that it’s becoming increasingly cheaper to produce works of art, potentially cutting out middlemen like distribution companies and retailers (does FYE still even exist anymore?), it still takes SOMEBODY time and effort to produce whatever it is – artists/recording studios, authors, etc. It’s costing someone time, and that someone is really hoping that they will be paid in a way that makes it worth their time.

      I’m an aspiring writer who’s married, working part-time and in school full-time, and I can testify that creativity takes time and energy. Don’t get me wrong: it’s a hobby too, and I’ll write for the rest of my life even if I never get published. But I would hope that someday I could have cushions of time and money to be able to make more art (if people ever want it), and me never getting paid for the art I produce means I don’t really have any kind of cushion. It’s HARD to make art while working and having a family.

      Bottom line: if we want to make “creative” a profession in ANY way (i.e., that does anything to support me and my family), there needs to be a way for the worthwhile creative to earn money. Easy data transmission aside, that means there has to be some way for his or her time and effort to be rewarded. The new methods may streamline the production system and reduce overall cost, but we still got families to feed and would love not to have to make art between 10 PM and 2 AM for our whole lives.

  • David Ryan

    Hello and thanks for the shout out!

    “Yacht captain” sounds a little swanky for what I’m doing these days. I usually say I’m a boat-builder and charterboat captain; and yes, we sell MON TIKI T-shirts and other branded merchandise, something I never did when I made movies for a living.

    And since your first commenter called him out. Kirby Ferguson is my brother-in-law. . He came down from Canada and slept on my couch during a NYC film festival. That’s where he met my sister. True story!

    • http://giftsoutright.tumblr.com/ Matthew Miller

      Thanks for stopping by, David. And thanks for your thought-provoking essay. Terminology clarification duly noted.

  • Michael Elam

    One of the things I like about the piece is the assertion that the problem of copyright (forgive me if this is too reductive) is essentially one of moral perception. I think that’s right. The cynic in me (i.e. me), however, wonders if the problem isn’t inevitably perennial. I suspect that even with shifts in technology, violating copyright is just going to be a problem. (Think about the problem introduced by mimeographs or copy-machines, or the dastardly inclusion of cassette records with record players.) I do believe, however, that we should educate people on the goodness of practicing charity and responsibility. But I hope we don’t expect the problem to disappear. It will re-cloth itself and sneak to some other part of our cultural experience. My two cents.