How Internet copyright laws let Big Content get away with paying less to artists

I've written an essay on how copyright enforcement laws let entertainment companies get away with paying less to artists for the O'Reilly Tools of Change blog. The ToC folks asked to to contribute something related to the keynote I'll be doing at their annual conference in NYC next month, as part of my tour for Homeland, the sequel to Little Brother.

In other words, by asking governments to ascribe liability to these “intermediaries” (services that sit between creators and audiences), the entertainment industry is demanding that the Internet be scaled back to something that’ll fit in cable TV’s bathtub. Something where only people with a lot of capital and clout can speak and be heard. Something where big entertainment companies can use their money and power as a wall to stop anyone from challenging their pride of place.

When a big star goes into a record-company negotiations, she isn’t limited to saying, “Sorry, that deal’s not good enough, I’ll see what I can get across the street at your competitor.” Now she can say, “That’s not good enough, I can do better on my own, like Trent Reznor did.” Or, “That’s not good enough, I can hook up with a new kind of music business,” like Madonna did. But only if the intermediary liability is small enough to allow all these different kinds of companies to clamor for artists’ attention and products.

When a successful beginner like Amanda Hocking or EL James comes before a big publisher who wants to take her from indie to pro, the worst deal they can offer her has to be better than the best deal she could get for herself, or from one of the new startups.

Put it another way: There’s never been a time when tight controls over distribution were good for artists: fewer labels always means worse deals for musicians; fewer studios always means worse deals for filmmakers, actors, and other film professionals; fewer publishers always means worse deals for authors.

Liability vs. leverage


  1. It’s so difficult to get artists, musicians, and writers who aren’t techie, or who don’t have many techie friends, ‘up to speed’ on the implications of various internet/computer issues, notably piracy, DRM, and the Internet.

    It does require some long and well-backed-up arguing and discussion, eh.

    Maybe you can make hand-waving arguments like: “Listen, if whoever is behind the “Red October” command-and-control malware that has infiltrated many governments’ most sensitive computers and networks – undetected – for at least five years, what chance do YOU have of not being, as friend likes to put it, screwed, nude, and tattooed?

    Adjust to the new realities, or else.

  2. There’s a big difference between a tight distribution bottleneck and the general problem of enforcing copyright. Ultimately copyright enforcement is all about the artists and the artist controls enforcement until he or she signs away that control.

    You’re right that a tight bottleneck is bad, but that’s more a matter of the structure of the marketplace.

    It doesn’t really matter if Amanda releases her music through a major label or an indie, piracy robs her (and her label) in the same way. It’s much easier for her to be cool about it as an indie, but ultimately copyright is the only tool in her belt.

    1. No, the artist has their talent. The only tool the corporation that can only hire talent has is copyright. Many artists and authors have shown that copyright enforcement is not the only way to ensure a revenue stream – Cory being a relevant example here. I’ve purchased Cory’s books in physical form because I read his earlier stuff for free from I like his work and he connects with his fans.

      Ultimately, due to to the analog hole, everything copyrightable can be copied. Copyright enforcement has failed time and again to be anything more than be a mild annoyance to those who want to violate copyright. But giving people a reason to buy when they could just violate copyright is a practical business model.

      1. Wait. There’s a difference between giving away your work for free and not using copyright. Open source software relies on copyright to force users to behave in certain ways. It does force them, it just doesn’t force them to pay money.

        Cory, for instance, uses copyright to prevent people from releasing his work under DRM. It can’t be done without violating copyright and he hates DRM so much that he would probably go all MIT on anyone who released his book under DRM.

        Copyright is the artist’s friend– until the artist trades it away for money and a contract. Copyright is the union card for artists.

      2.  …giving people a reason to buy when they could just violate copyright is a practical business model.
        This. Music piracy lowered drastically after iTunes showed up with low pricing and a model for selling singles instead of albums (both of which the major labels had to be strong-armed into accepting).

        People didn’t have to buy an entire CD, and they didn’t have to hunt down a quality copy of a single track they wanted on P2P. Having it readily available for $1 was more convenient.

        Accessibility. Affordability. Quality. Speed. These are consumer desirables.

    2. The trouble is, this tight distribution bottleneck lets labels say “we’ll expose your music to the world, but only if you sign over your copyright”

      So the artist can retain control so long as he doesn’t want to use the wide distribution network, because the price of using that distribution network is to relinquish control.

  3. I’d like to hear stories from artists that have had to stop producing art/content (or at least, stop putting it out) mainly due to their “product” being pirated instead of being purchased.

    In my experience, the content that gets pirated the most is also the content that is most popular and is making the most money.  The correlation is not perfectly direct (some content gets pirated more in proportion to how well it sells, and some content sells more in proportion to how much it’s being pirated) but it’s usually there.

    I’d be curious to see the case where a particular piece of content gets pirated in extreme amounts, while not selling much at all.  Then we could look at the causes, and even we can find such cases, I suspect we’ll find that other Big Media stupidity is the main cause, such as draconian DRM (UBIsoft requiring an Internet connection at all times to play their PC games, staggered release windows — usually penalizing Australia, and so forth.)

    I’m really having a lot of trouble imagining an artist trying to make money off his or her art, and not being able to, while the art itself is getting pirated in ridiculous amounts.

    1.  Don’t worry, people will just keep repeating the same bullshit without actually offering any evidence.  Eventually, believing otherwise will be put into the DSM-V as a type of personality disorder.

  4. I’ve known artists who have personally sold more copies of a record than the number given by the record company in their sales report. Now that record stores are gone, I see little value in signing with a label. 

  5. It is important that musicians get compensated for their work. However, the industry does more than just employ the artists. I bet they put a lot of that money towards finding more new artists as well.

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