Copyright's Paradox: brilliantly argued scholarly book tackles free speech vs. copyright
Among copyfighters, Neil Netanel is rightly hailed as one of the most important writers and thinkers in the field (he's one of the few people whose words are quoted on a photocopied sheet over one of the toilets at the Electronic Frontier Foundation!) and his latest book, Copyright's Paradox, cements that reputation.
Copyright's Paradox unpicks the contradiction that has made the copyfight so compelling to so many of us: the tension between copyright as a tool to drive expressivity and creativity, and the power of copyright to censor those whose creativity involves remixing, quoting, parody and so on.
Netanel explores the history of copyright through this free speech lens, starting with the first copyright statutes in the 18th century and moving through the history of American publishing, the explosion in reproduction technologies at the start of the 20th century, and the horrible mess that is the 21st century.
Netanel is a scholar, and he brings a scholar's comprehensive, wide-ranging perspective to copyright, but his writing lacks all the worst characteristics of scholarship -- that is to say, it's not boring, confusing or abstruse. His writing manages to sparkle and inform, making a coherent and airtight argument for a looser, more liberal copyright as the best solution for freeing more speech, making more money for more artists, and undoing our present harms. There's something almost engineer-like in the argument developed in this book, it feels like a really well-made machine for convincing people of the need for liberal reform in copyright law.
Best of all, Copyright's Paradox offers solutions, a set of simple legislative recommendations that are both realistic and promising -- solutions that will end the copyright wars without destroying the public interest or the fortunes of artists.
Copyright's Paradox
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I will say this. This is the first time Cory has posted about Copyright issues while acknowledging with equal force that P2P doesn't have a moral leg to stand on and artists have the right to sell their work on their own terms rather than get pushed around by non-paying faux-sumers.
My belief has always been that the laws as they stood in the pre-Sonny Bono copyright era were the fairest. Internet radio, which did not exist back then, is going to have to pay a different rate because of the synergistic and international nature of the internet vs terrestrial radio. Some new business models work only on exploitation and some old business models don't work when music is commoditized (but Tower Records already went out of business so you can't complain).
But faux-sumers are going to have to admit to themselves that artists and writers, on the whole, do not benefit from the rampant unauthorized distribution of their music. There may be a "Sweet spot" where free distribution of music gains an artist a maximum number of interested consumers, but with free music freely available that "sweet spot" is probably met within the first day that a song is on pirate bay or whatever and after that the "free rider" inefficiency takes over.
And the amateur filmmakers and remixers are going to have to admit to themselves that they're work is a stepping stone to learning to do it yourself and DIY is and always is, better than using someone else's work.
Sharing doesn't have a moral leg to stand on. Right.
I bet you were the kid who refused to let anybody else play with his ball.
I don't think anybody really disputes that. But artists don't really benefit from anything you can do (they certainly do not benefit from any money that you give to their record label). Come up with a working system that benefits the artists, then we'll talk.
(On second thoughts, learn to spell first, that was barely readable)
Neener, you're being very creative in your reading of what I wrote above -- and you've totally failed to characterized Netalel's thesis.
Netanel devotes hundreds of pages to systematically demolishing the idea that " DIY is and always is, better than using someone else's work."
For example, would Shakespeare have written better plays if he couldn't rip off his contemporaries, the Greeks, and anything else he could lay hands on? Would WIND DONE GONE have been better if she hadn't explicitly remixed GONE WITH THE WIND? Would Tolkien have been better if he hadn't had Norse, Finnish, Icelandic, etc mythology to rip off? Would Lotus 1-2-3 have been better if Mitch Kapor hadn't copied the designs of Visicalc? Would Excel have been better if it hadn't copied Lotus 1-2-3? Would Mickey Mouse have been better if Walt hadn't ripped off Buster Keaton?
If you really believe that "original" expression is universally desirable -- or even really possible -- I urge you to read Netanel's book.
What's more, the legitimization of unauthorized distribution is at the center of Netanel's proposals to legalize file-sharing. After all, the legalization of unauthorized (but compensated) use in radio and recording are what broke the previous deadlocks.
The idea that artists should demand technically impossible locks on distribution of their works (as opposed to compensation through blanket licenses) is utterly without historical precedent. It's a dumb, dot-com-era business-model that has proved a total, absolute failure.
Every effort to create an authorization block in online distribution of digital works has not only failed to enrich artists (how much money from RIAA lawsuits has found its way into artists' pockets? Precisely $0.00) it's also materially failed to stop or even slow file-sharing, and shows no sign of ever doing either.
The pre-Internet-era copyright law you celebrate above was FULL of legalization of mass-scale, commercial unauthorized use of copyrighted works for cable operators, radio stations, recording artists and jukebox and live performance.
Mass-scale, commercial unauthorized use is the status quo and has been since 1909, when phonograms were legalized.
The single biggest shift in copyright law since 1976 has been the notion that there's somehow something wrong with mass-scale, commercial unauthorized use.
My bone with copyrights is that big media wants them to be treated as, and wants to retain more rights than physical items.
Here's a scenario. I want to buy a table for my house. Right from the start, I can tell pretty well what tables are going to work with my house, color scheme, personality, number of users, etc. I can buy a table with a high expectation of compatibility, and I can examine it fully before purchase. There's no buying the table, getting home, and finding out that 80% of it is cardboard. But even if I do get home and find out that it's not a fit, I can return the table to the store.
Not so with media. At the store, I probably can't listen to the CD before I purchase it. It's a crapshoot whether 80% of the tracks will be worth listening to. If I buy it, get home, and discover that I don't like it after all--well, tough. I can't return it. Maybe I'll be able to sell it to a used record or book store for a tenth of what I paid, if I'm lucky.
On top of that, I can't do what I want with my legitimately purchased copyrighted items. Although backups are considered fair use, the DMCA prevents me from backing up my DVDs. Space-shifting is probably fair use, but I have to use a marker around the edge of my CD in order to rip it to my iPod.
Then there's the fact that copyright exists solely to give artists a chance to make some money on their art. By effectively making copyright last forever (with a series of extensions lobbied to various governments), the copyright cartels are, in essence, no longer respecting copyright. If they aren't, why should we?
Of course, I'm too chicken to do anything about it. Though I might win a court case if I had the *AA's resources, I just don't have them. I wouldn't be able to afford their "generous" settlement offers, much less a court battle. As such, I swore off media that's not free or free, or both.
Huh. Shakespeare's "borrowings" from Europe and his contemporary dramatists were just that: there wasn't a workable copyright system in place then. Even more so for Tolkien's artistic thefts: do you really expect the Beowulf poet to arrive from 1000+ years ago with a battalion of copyright lawyers at his back? These are truly bad examples to use to debate the pros and cons of copyright versus non-copyright, free use versus non-, etc.
I get truly saddened when I see that this debate has stagnated, and that the only examples ever brought up are for digital media like music and computer files. I work in scholarly publishing, where copyright is essential for small presses to recoup the costs of production on the market. It's that simple. I really wish all the free-use advocates who are so damn thrilled that they can download the new Radiohead album for free (?!?) would look at other industries involved in the copyright debate: small publishers work on a vastly smaller scale than those bad, bad music companies. Steal their content all you want, but keep your hands off ours, thanks.
Also tiring is the artist-corporation dyad, which pits the Promethean artist versus those bad, bad corporate goons who want somehow to steal the artist's fire and keep it for their bad, bad selves. But what about the legions of production assistants, engineers, and other behind-the-sceners who produce content for the masses? Are they somehow not to be paid for their work in the new free-use utopia? The copyright debate needs to be remodeled to take into account the work, rights, and issues of these workers, who aren't middlemen but, often, vital parts of the production process. Copyright protects these actors and their investment in content: pretty simple. If you want a future in which all visual media looks like YouTube, sounds like Cassiotone for the Painfully Alone, and reads like a badly edited (read, unedited) blog, then fine, but many of us DO NOT, and many of us have an active stake in producing quality content that doesn't suck. Like vital science journals that need to be accurate to be of use. Like history books that provide facts and analysis. Etc.
Cory, thanks for that. I spent about ten minutes trying to type up a decent response and failed. Nicely put. I'm looking forward to picking up this book.
the best example of this is folk music -- a form of music that in its very definition demands a sharing and reshaping of songs, so that each person who a "folk" song passes through adds something ... and then A.P. Carter went and copyrighted all those english and scottish songs gestating in the hills and broke the circle ... I also remember as a kid in community theater, who scared we were of Tams-Widmark, the people who gave us the books to do shows. There were stories of them somehow knowing if you changed any dialogue in a 30-year-old Rodgers&Hammerstein musical. Why shouldn't a small town take an old musical and mess it with a little? Make it more regional -- isn't that a modern day food tenant?
Is there a link to a free pda download of this work? Not being snide here, I'm actually curious.
I'd like to ask a bit of a lazy question: does this book demonstrate with objective evidence that copyright accomplishes its one and only justifiable goal of increasing the number of artistic works available to the public?
Considering that control group data may not be available, I would be willing to accept a reasonably clear statistical analysis to this effect.
Still, the notion of "copyright reform" presupposes that copyright provides value by accomplishing its justifiable goal. (That is, unless you fall into the vanishingly tiny segment of society that makes a living through art, in which case you may think that copyright has the added goal of helping you put food on the table. I understand -- as an average computer programmer, I often wish there were a government-sponsored monopoly system that benefitted the IT industry as well. If wishes were horses...)
@bshock #9, there is in fact a government-sponsored monopoly system that benefits the IT industry. It's called copyright...
Of course, in the IT industry we also have much better data about the degree to which that copyright achieves its goal. It so happens that the IT industry leverages those government-granted monopolies in two very different ways - FOSS and proprietary software - and we can compare the outcomes on a variety of metrics.
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Maybe someone should send a copy of this to Spielberg, Dreamworks, Viacom, and Universal Pictures now that they're on the receiving end of a highly publicized copyright infringement lawsuit.
Spielberg Ripped Off Hitchcock Classic - Lawsuit
http://www.reuters.com/article/entertainmentNews/idUSN0844655020080908
I'm surprised the anti-DMCA camp isn't having a field day with this ten-day-old story by now. Or maybe I'm reading more into this story than what's there - ie. Spielberg pirates, Dreamworks pirates, Viacom pirates, Universal Pictures pirates.
In other words, Hollywood pirates.
It'll be interesting to see what Hollywood chooses for its defense story. But what's more likely to happen is Hollywood will pay to quash the story. The only question now is .... how much.
Then again, maybe the problem is who filed, or rather didn't file, the lawsuit.
Where's the RIAA/MPAA when Hollywood really needs them?
"[A]rtists have the right to sell their work on their own terms rather than get pushed around by non-paying faux-sumers."
Sheesh, some people really have it in for public libraries.
My problem with DRM is that it's plain dickishness. It assumes anyone using media intends to misuse it. It's like printing books in pale red ink to prevent people from photocopying them. (A few music publishers actually do this, BTW.) Since most publishers/authors want people to read their books, they don't do this. Presumably recording artists want people to listen to their music. Why make recorded media more difficult to use (i.e., prevent legal format shifting)?
A similar example: A composer friend of mine recently had a work played by an orchestra. It was recorded live, and in the middle of the work the engineer turned all the levels to zero for about ten seconds. This, apparently, was to prevent the recording from ever being broadcast. It also prevented the composer - who didn't get paid for the hundreds of hours he spent ACTUALLY WRITING THE MUSIC - from using it for grant applications or portfolio CDs.
The odds of an unknown young composer getting an orchestral work played on the radio are about 10000000 to 1. It is a virtual certainty that an unknown young composer will apply for grants and workshops. So why is the first case even brought up, let alone prepared for?
The idea of a blanket licensing system for P2P is brilliant, and probably easier to administer than the radio system. The P2P hosts pay ASCAP or SOCAN or whatever fees for every track that gets uploaded, track the number of shares, and ASCAP/whoever pays the artists as for radioplay. I assume the P2P hosts are making money somehow, so why shouldn't some of it go to the artists? That way listeners get to source music easily without being criminals, and the artists get paid.