A Search for Comity in the Intellectual Property Wars: symposium at The New York Institute for the Humanities at NYU, April 28-30, 2006 [slides, audio, transcripts]
Recently, in writing about a DRM scheme, I used the analogy of the Star Trek
food replicator to explain why it made no sense to turn infinite goods,
like content, into artificially scarce goods. There was a lot of back
and forth in the comments about the appropriateness of the analogy,
though I still think the basic point stands: it makes no sense to
artificially limit an infinitely available resource. In fact, it only
leads to bad things. However, one of our readers has written up a
fantastic blog post where he tries to present a similar, but much, much better analogy:
A better analogy would be if the replicator only made tomatoes. You
could have as many tomatoes as you wanted, they'd always be perfect and
delicious, and they'd always be free. This would put tomato farmers out
of business. But these tomato farmers could likely start growing
something else instead. And what happens to the rest of the economy?
Pizza and pasta restaurants suddenly find that a major ingredient in
many of their dishes just became free. Now, for the same dish, they can
charge less, or buy higher quality ingredients, or make more profit.
And if you're a really talented cook specializing in tomatoes? Your
skills are now in very high demand.
And there is still a demand for the people who bring the
tomatoes from the replicator to your table. There is still a demand for
the person who stews and cans the tomatoes, or dices and seasons them.
And all the other food items, the ones that aren't in infitnite supply,
still need people to produce, process, and distribute them.
This is what's happening in the music industry, and starting
to happen in the publishing industry. Some parts of the industries are
finding their functions obsolete. Instead of looking at the money they
could save with electronic distribution, and what good use they could
put that money to, the industry is seeking new laws and regulations to
limit the infinite supply so business can continue as usual.
Even if every single song, book, and movie was distributed
digitally for free, there would still be a need for the music,
publishing, and movie industries. There would still be demand for
editors, producers, marketers, and all sorts of other services that
these industries have always provided.
Reasonable people aren't calling for the abolition of the
music, publishing, and movie industries. They're just asking these
industries to look to the future, and stop trying to limit supply to
protect obsolete business models.
Read that over a few times. It's about the best description/analogy of what we've been trying to say here that I've ever heard.
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As a whole bunch of you have sent in, the musician Moby has put up a blog post where he suggests the RIAA should be disbanded for its $1.92 million win over Jammie Thomas. While (unfortunately) he gets a few of the facts wrong (they didn't sue her for
$2 million, but it's what the jury chose -- though it is accurate that
the RIAA has clearly suggested it has no problem with the statutory
rates for infringement in the past), his overall point is sound. It's
ridiculous that the RIAA thinks this is the proper strategy:
argh. what utter nonsense. this is how the record
companies want to protect themselves? suing suburban moms for listening
to music? charging $80,000 per song?
punishing people for listening to music is exactly the wrong
way to protect the music business. maybe the record companies have
adopted the 'it's better to be feared than respected' approach to
dealing with music fans. i don't know, but 'it's better to be feared
than respected' doesn't seem like such a sustainable business model
when it comes to consumer choice. how about a new model of 'it's better
to be loved for helping artists make good records and giving consumers
great records at reasonable prices'?
i'm so sorry that any music fan anywhere is ever made to feel bad for making the effort to listen to music.
the riaa needs to be disbanded.
This isn't new territory for Moby. Way back in 2003, he got angry
after finding out that some of his songs were being used by the RIAA to
sue people, and stated: "I'm tempted to go onto Kazaa and download some
of my own music, just to see if the RIAA would sue me for having mp3's
of my own songs on my hard-drive."
Still, we're seeing more and more artists react poorly to the
RIAA, who still claims to represent them. Why is it that our
politicians still buy that clearly incorrect story?
There are currently two high profile RIAA lawsuits taking place. One of them involves a Harvard professor and the other involves Jammie Thomas-Rasset.
Now the lawyers in both cases are forming a partnership to file a
class-action lawsuit against the RIAA to get back the $100 million that
they claim the recording industry stole.
Kiwi Camara represents Jammie Thomas-Rasset in a lawsuit that the
RIAA filed against her. There is a retrial taking place in Minnesota
next week. Harvard Law professor Charles Nesson is representing Boston
student Joel Tenenbaum in an RIAA trial as well. Kiwi and Charles are
the ones getting together to file the $100 million class action lawsuit
against the RIAA.
Camara did an interview with Ars Technica earlier this week and
revealed two pieces of evidence that will help his case. MediaSentry
was hired by the RIAA to track down the IP address of those who share
files. Camara is arguing that MediaSentry is not licensed as a private
investigator in Minnesota. This makes them running an illegal “pen
register” and their evidence should be barred.
Another approach that Camara is considering is making the RIAA prove
that they own the copyrights in question. If the RIAA or MediaSentry
cannot prove any of the above scenarios, then the cases will fall apart
for them. Camara’s approach is quite unorthodox.
Camara said that the RIAA basically committed a “technical screw-up”
when it came to claiming the proper copyright ownership. The RIAA
lawyers provided courts with “true and correct” copies of the evidence,
but they were not “certified copies” required by federal rules of
evidence.
The RIAA asked the judge to take judicial notice for these claims,
but the judge refused. The recording industry will now have a limited
amount of time to file for the certified copies. Camara already has
rebuttals in mind just in case the RIAA is able to get all of the
certified copies necessary for the case.
More news on the trial as it develops. Kudos to Ars Technica for their thorough coverage of this case.
You
are killing our creative industries. "Downloading costs billions," said
the Sun. "MORE than 7 million Brits use illegal downloading sites that
cost the economy billions of pounds, government advisers said today.
Researchers found more than a million people using a download site in
ONE day and estimated that in a year they would use £120bn worth of
material."
That's about a tenth of our GDP. No wonder the Daily
Mail was worried too: "The network had 1.3 million users sharing files
online at midday on a weekday. If each of those downloaded just one
file per day, this would amount to 4.73bn items being consumed for free
every year." Now I am always suspicious of this industry, because they
have produced a lot of dodgy figures over the years. I also doubt that
every download is lost revenue since, for example, people who download
more also buy more music. I'd like more details.
So where do
these notions of so many billions in lost revenue come from? I found
the original report. It was written by some academics you can hire in a
unit at UCL called Ciber, the Centre for Information Behaviour and the
Evaluation of Research (which "seeks to inform by countering idle
speculation and uninformed opinion with the facts"). The report was
commissioned by a government body called Sabip, the Strategic Advisory
Board for Intellectual Property. On the billions lost it says:
"Estimates as to the overall lost revenues if we include all creative
industries whose products can be copied digitally, or counterfeited,
reach £10bn (IP rights, 2004), conservatively, as our figure is from
2004, and a loss of 4,000 jobs."
What is the origin of this
conservative figure? I hunted down the full Ciber documents, found the
references section, and followed the web link, which led to a 2004
press release from a private legal firm called Rouse who specialise in
intellectual property law. This press release was not about the £10bn
figure. It was, in fact, a one-page document, which simply welcomed the
government setting up an intellectual property theft strategy. In a
short section headed "background", among five other points, it says:
"Rights owners have estimated that last year alone counterfeiting and
piracy cost the UK economy £10bn and 4,000 jobs." An industry estimate,
as an aside, in a press release. Genius.
But what about all these
other figures in the media coverage? Lots of it revolved around the
figure of 4.73bn items downloaded each year, worth £120bn. This means
each downloaded item, software, movie, mp3, ebook, is worth about £25.
This already seems rather high. I am not an economist, but to me, for
example, an appropriate comparator for someone who downloads a film to watch it once might be the rental value, not the sale value.
In
any case, that's £175 a week or £8,750 a year potentially not being
spent by millions of people. Is this really lost revenue for the
economy, as reported in the press? Plenty will have been schoolkids, or
students, and even if not, that's still about a third of the average UK
wage. Before tax.
Oh, but the figures were wrong: it was actually
473m items and £12bn (so the item value was still £25) but the wrong
figures were in the original executive summary, and the press release.
They changed them quietly, after the errors were pointed out by a BBC
journalist.
I asked what steps they took to notify journalists of
their error, which exaggerated their findings by a factor of 10 and
were reported around the world. Sabip refused to answer questions in
emails, insisted on a phone call, told me that they had taken steps but
wouldn't say what and explained something about how they couldn't be
held responsible for lazy journalism, then, bizarrely, after 10
minutes, tried to tell me retrospectively that the call was off the
record. I think it's OK to be confused and disappointed by this. Like I
said: as far as I'm concerned, everything from this industry is false,
until proven otherwise.
NPR.org, May 15, 2009 - When the first cryptic bits of news about Dark Night of the Soul
began trickling in earlier this year, it all sounded too good to be
true. Though the whole project was shrouded in mystery, it appeared
that Danger Mouse and Sparklehorse's
Mark Linkous, two of the most inspired artists making music today, were
collaborating on a new album. That alone was enough to get our geek
gears spinning with excitement. But there was an unusual twist that few
of us at NPR Music could make sense of: Director David Lynch was
somehow involved.
It all started back in March, at the South by Southwest music
festival and conference. A number of us on the NPR Music team had
noticed strange posters around downtown Austin, Texas, that read "Dark
Night of the Soul." They looked like movie posters and had David
Lynch's name on them, alongside names of some of our favorite artists,
like Danger Mouse, Sparklehorse, Vic Chesnutt, Jason Lytle and more. We
wondered if it was some sort of musical film.
Soon after our
Austin trip, NPR Music received copies of the mysterious posters in the
mail. No return address. Someone was messing with us. I tried to find
out more, but had zero success. Then, weeks later, I finally got a note
from a publicist with all the details we'd been waiting for.
It turns out Dark Night Of The Soul
is an album and the songs were written by Danger Mouse and
Sparklehorse, though the myriad singers featured on each track also had
a big hand in composing and producing the work. The album was initially
going to be packaged with a book of photos taken by David Lynch. But
now there's word that the music may never be officially released at all.
An
unnamed spokesperson for Danger Mouse says that "due to an ongoing
dispute with EMI" the book of photographs will "now come with a blank,
recordable CD-R. All copies will be clearly labeled: 'For legal
reasons, enclosed CD-R contains no music. Use it as you will.'" When
contacted, EMI declined to comment and wouldn't confirm whether the
label is even involved in the project.
You can order the book, sans music, from the official Dark Night Of The Soul Web site. In the meantime, you can hear the entire album here on NPR Music as an Exclusive First Listen.
I've listened to the record all the way through at least a dozen times, and can confirm that Dark Night of the Soul
delivers in every way you'd hope for. It's beautiful but haunting,
surreal and dark, but sometimes comical and affecting, with
ear-popping, multilayered production work. It just gets more
mesmerizing with every listen.
I finally got a chance to watch this great documentary on my flight home from Berlin yesterday -- perfectly fitting after participating in the ECLA State of the World Week conference on the Politics of Cultural Ownership, and then catching the surprise talk by Lessig at the Sophiensaele along with some of "my" students on my last night in town.
(I'll be remixing some screen grabs from this film for my powerpoint keynote at Iona College's inaugural Conference on Intellectual Property in June -- more on that soon!)
When it comes to remix culture, copyfight and crowd-sourcing, Brett
Gaylor walks the walk. The director of “open source documentary” RiP: A Remix Manifesto
released his feature-length film under a Creative Commons license and
even adopted Radiohead’s name-your-own-price business model when he
made the movie available online.
“We’ve gone to really great lengths to make this film as accessible
as possible,” Gaylor explained in an e-mail interview conducted after
announcing the download Monday. “It’s already on the Pirate Bay, and
that’s great — it’s another delivery format. We didn’t put it there
ourselves, though; we didn’t need to. Had we gone that route, it’s
fairly likely, given the realities of the film-distribution universe,
that we wouldn’t have these other opportunities to get the film to
people who still watch TV, rent DVDs or go to movies, which is, in
fact, most people. We wanted those people to watch this movie.”
Featuring mashup artist Girl Talk and luminaries like Lawrence Lessig, Gilberto Gil and Cory Doctorow, RiP: A Remix Manifesto debuted in Amsterdam and Canada last year and in North America last month. It opens theatrically Friday in New York.
The movie’s compelling analysis of sampling, sharing and
copyfighting was pieced together over six years, during which Gaylor
shared his raw footage with other filmmakers, some of whose remixes he
spliced into the film. Given the realities of remix culture, where
there is no such thing as a final cut, Gaylor subsequently offered the
movie online as a remix experiment at Open Source Cinema, which he founded and beta-launched in 2004.
Since then, the little doc that could has nabbed awards, screened at
panels and walked the tightrope between theatrical and internet
distribution, original art and open-sourced amalgam, without falling
off.
Gaylor talks about copyfight crusaders, the trials and tribulations
of the distribution war, and the joys of messing with the media.
RiP: A Remix Manifesto director Brett Gaylor asks fans to pay what they will for his downloadable doc. Photo: Mila Aung-Thwin
Wired.com: The pay-what-you-want initiative makes
perfect sense for this film, but I’m betting it wasn’t easy to pull off
from a business perspective.
Brett Gaylor: It’s been a peculiar road to get to
the point where we could release the film as a download, because
obviously this is something we wanted to do right from the get go. But
since we have so many partners that helped us make the film, including
theatrical and television distributors, it was a delicate balancing act
to make sure the good faith they showed in making the film would be
rewarded, that we wouldn’t undercut their efforts to promote and recoup
on the film by giving it away. So we waited a while before launching
the various online permutations. The National Film Board [of Canada]
put up a chaptered version during our U.S. premiere at South by
Southwest in March, and we embedded calls to action into each chapter.
Around SXSW, we partnered with two American partners —
Disinformation for our DVD release, and BSide for the theatrical side
of things. And at the first meeting I had with them, it became clear
that we needed to go down this road. We knew the film would appear on
file-sharing networks immediately and we knew the audience for the film
wanted and expected it to be online. So knowing that, we wanted there
to be a method for those who wanted to pay to do so.
Wired.com: Are you satisfied with the arrangement so far?
Gaylor: It’s still not moving as fast as I’d
ultimately like. The pay-what-you-can is at the moment just available
for those in the U.S., while some of the other world territories do
their thing theatrically or on DVD. And we, being the National Film
Board of Canada, and our production company EyeSteelFilm, want those
territories to be able to have a chance to define their own business
model, so it’s fair. Its been a lot of tricky e-mails.
Wired.com: How has the theatrical run gone, and how are you feeling about the New York City opening?
Gaylor: The theatrical run so far has been amazing.
In Canada, it played literally coast to coast, and there is something
immensely satisfying as a filmmaker to see your film’s title on a
marquee and have people watch it together on a big screen. We went to a
lot of lengths for it to work well in that format; it’s got big sound,
beautiful graphics and animation, and the cinematographer Mark Ellam did an amazing job.
It’s also really challenging to engage the public in theaters,
because you’re playing your film to this broad demographic. We had
people in the lineups at the AMC trying to decide if they’d go see Benjamin Button
or this crazy copyright remix movie, so that was a surreal pleasure. It
also generated a ton of press for the film, mostly great, but the film
enraged the right-wing papers in the country who took a lot of umbrage
with its central themes.
Battle lines over free culture are drawn in this RiP collage, entitled Copyright vs. Copyleft.
Wired.com: Tell us about the New York screening, which coincides with a panel from the Open Video Alliance about standards and practices.
Gaylor: We’re doing a sneak preview on Friday and
then following up with the launch at the Open Video Conference, which
I’m extremely excited to participate in. I was part of the initial
planning sessions for this group back in the fall, and it really feels
like a culmination of all this disparate work that has been going on in
the free culture world for years. Filmmakers, free software geeks,
remixers, lawyers, academics — all these different people who have been
working on these parallel tracks are starting to feed their work into
one another, and I find it incredibly inspiring. So it will be an honor
to show the film there. It’s a tough crowd, too!
Wired.com: What are your thoughts on the future of open video?
Gaylor: I’m generally optimistic about it. There
are a lot of challenges, for sure: Lack of universal standards,
third-party rights, bandwidth, access for the developing world, and a
lack of basic media literacy among users. On the flip side, I think the
internet will very quickly overtake TV as the content-delivery medium
of choice, and with that comes the opportunity for a genuine
participatory experience. I think the time is now for developing the
tools, standards and practices to make sure we don’t just see TV 2.0.
Party music remix champ Greg Gillis, aka Girl Talk, fights the good copyfight in RiP: A Remix Manifesto. Photo: Andrew Strasser
Wired.com: Talk about working with Girl Talk’s
Gregg Gillis and Negativland’s Mark Hosler on this film and its various
openings. What role have both played in the evolution of remix culture?
Gaylor: Working with Gregg was a lot of fun. One of
the reasons I wanted to include him in the film is because he doesn’t
see himself as a copyright crusader. He’s a serious musician whose work
points out a lot of flaws, contradictions and challenges in current
copyright law. The fact that he’s been able to reach such a level of
success without a lawsuit has created a lot of elbow room for musicians.
When you think about Negativland,
which had a fairly major lawsuit filed against them over a decade ago,
it’s obvious that things are changing. Negativland had a huge influence
on my life. Watching it take such an intelligent, activist stance was
very inspiring, and you could tell they were taking such joy in fucking
with the media. It was something I looked at and said, “Yeah, I could
do that! I want to do that!”
Wired.com: How about Lessig and Doctorow?
Gaylor: Their writing put some meat on the bones,
and framed the debate for a whole generation of copyright activists.
For a lot of people, it was like suddenly realizing: “That’s what kind
of activist I am.”
Wired.com: You’ve said in your blog that
“theatrical distribution is a war.” Can you elaborate? And what does
internet distribution, legal and otherwise, offer in terms of an olive
branch?
Gaylor: It’s a war in that you have to do so much
to get the proverbial butts in the seats. It’s extremely costly and the
stakes are high, whereas I think the internet gives some opportunities
to speak directly to an audience. With RiP, we tried to have
the best of both worlds. It was important that folks who weren’t
exposed to these issues were able to see it, but we also wanted to try
and lower the friction as much as possible to those who were active
online and who would really see themselves in the film.
Wired.com: Now that you’ve made a film on these
issues, has your mind changed about intellectual property or ownership?
What’s the tightrope there?
Gaylor: The classic copyright ones: Providing an
incentive, while at the same time ensuring the public’s access to the
work. Ultimately, that’s what I, and most people in this movement, are
pushing for — a balance. So the film release was a lot more “free as in
speech” than it was “free as in beer,” because it was important for me
that average folks could see the film on TV or in theaters. And
eventually, after a limited term (measured in months!), the film will
fall into the public/pirate domain and be copied freely.
Wired.com: Do you envision a day when theatrical distribution is a dinosaur, and we’re all paying to stream films online?
Gaylor: We’ll see how I feel about that in a year.
The remixing is just starting to take off, and I envision a time when
these sorts of interactions will create an environment where a
theatrical screening is to filmmakers what live performances are to
musicians. The ability to create something unique for a particular
screening or event allows you to offer an added value to that audience
member, as well as have something unique that’s different from what you
can get on a DVD or online.
