At first I was surprised to find that a major copyright holder, the New York Times, supported a reasonable approach to copyright law.

Then I realized this was a mishmash of opinion from across the web. These were bloggers’ opinions, not old line newspaper opinions. And, of course, that turn of events fits in perfectly with the the way we’re used to looking at things. Grandpa can’t figure out how to get his ipod to work, and baby boomer CEOs are still amazed by the shiny surfaces of CDs.

There is some truth to that way of looking at the world, but another explanation is that old line copyright holders won’t, rather than can’t, see what’s obvious to the rest of us. Yesterday, I linked to an article that culled the archives of google books that pointed out the 180 the music industry has done since they were deeply involved in the copyright act of 1909.

Their goal was to get a new provision (section g) which would give composers (and thus publishers) the right to charge a royalty for these sound recordings. In strong opposition was the recording industry — which violently denied that the copyright holders should gain any share of the new market that (as they saw it) had been created out of thin air by technological innovation. To give copyright holders a veto over technology, they argued, would be fatal to the progress the Copyright Clause was designed to promote.

Its probably possible to make the argument that the music industry of 1909 was filled with young turks who saw the times changing, and now its filled with old timers who still see the world as it was decades ago. But, its also possible that the music industry was simply on the other side of the eight ball. In 1909 the music industry had yet to take advantage of the opportunities that were out there. So they pushed for laws that would allow them to take advantage of opportunities. Now, however, the music industry is on the other side of the equation. It has taken advantage of opportunities and wants to close those opportunities to others in order to preserve their aging business model.

Now, that’s a lot of words to say something that seems rather obvious. However, virtually all of the music industry’s arguments are framed in terms of morality, but history shows us that this isn’t about morality, its about money. And just as the music industry argued in 1909 for laws that would allow it to make the most amount of money. Today they are doing the same.

The difference?

In 1909 their arguments resulted in laws that produced greater contributions to our culture. Today their arguments stifle contributions to culture.

Echoing from the Past

July 19, 2009

From this article about the fight surrounding the 1909 copyright act:

That’s Philip Mauro of the American Graphophone Company — who later became a leading religious writer — and at the end he is striking the note that all the technologists did. The music publishers had a web of contracts in place with which they would create a “trust”, a monopoly, that would dominate music and restrict its availability to the public. As Mauro saw it, on the one side was the threat of monopoly, the squelching of innovation and the greed of the content owners, who were exploiting a misconception about the absolute quality of property rights. “All talk about dishonesty and theft in this connection from however high a source is the merest claptrap for there exists no property in ideas musical, literary or artistic except as defined by statute.”

And that, friends, is as true today as it was then.

The kindle is a wonderful piece of technology. I don’t own one, but I’ve gotten the chance to marvel at one from time to time. The problem isn’t what the technology is able to do, but what its allowed to do.

From here:

This morning, hundreds of Amazon Kindle owners awoke to discover that books by a certain famous author had mysteriously disappeared from their e-book readers. These were books that they had bought and paid for—thought they owned.
1984A screen shot from The MobileReference edition of the novel, “Nineteen Eighty-four,” by George Orwell that was deleted from Kindle e-book readers by

But no, apparently the publisher changed its mind about offering an electronic edition, and apparently Amazon, whose business lives and dies by publisher happiness, caved. It electronically deleted all books by this author from people’s Kindles and credited their accounts for the price.

And there’s the problem with the Kindle. You don’t actually own what you own. We already knew that you’re not allowed to resell “your” books or trade “your” books the way you can, well every other non-Kindle book you own. Now it looks like the books you bought and paid for aren’t yours if the publisher decides to change their mind.

The real punch line in all this? The two books in question are George Orwell’s Animal Farm and 1984.

Of course the real, revolutionary question that might better be asked is why are two books which have fundamentally shaped American culture, who’s author has been dead since 1950 are still under copyright?

From Wired’s blog:

Keyboard cat, the posthumously famous feline formerly known as “Fatso,” is a perfect example of what passes as a mass-market phenomenon these days. With over four thousand videos to his name on YouTube and millions of views, keyboard cat has “played off” everyone from Glenn Beck’s woozy guest to TechCrunch’s Michael Arrington (NSFW audio).

But not everyone gets the joke. Keyboard cat will no longer be collaborating on YouTube with Hall & Oates, whose label, Warner Music Group, excised the audio from a video including Helen Hunt’s turn as a teenage drug casualty in the 1982 film Desperate Lives, the Hall & Oates hit “You Make My Dreams Come True,” and — of course — the mighty keyboard cat, who plays off Hunt’s character with the help of the two erstwhile pop stars.

Warner Music Group didn’t think this was a worthy use of Hall & Oates’ music, so it hobbled what CNET is calling “the greatest music video ever”

And now we run into the biggest issue with copyright law in the United States: Derivative works. Derivative works are any work based on one or more pre-existing works. Examples include hip hop songs that sample other artists, Mona Lisa with a mustache, and fan fiction.

While there are fair use considerations in play here, the reality is that the body of work by courts on the use of derivative works has been used to make the production of derivative works extremely costly and difficult, as is the case with this story.

Fair use of derivative works has been ruled that in order for a fair use defense to apply the new work must bring some new insight that the works on which they are based do not. Now, I may not be the keen eyed observer of poetry and music that others are, but I would guess that what Hall and Oates were so cleverly singing about in the 80s with “You make my dreams come true” was probably not what keyboard cat was bringing to the fore with Helen Hunt’s drug-crazed lunacy (and, really, is there any other way to appreciate the stylings of Helen Hunt?).

Yet, the video is gone, crushed beneath the legal boot heel of Warner Music Group.

This is a primary example of where copyright law needs to be reformed. Copyright law should be encouraging the creation of new art (even the silly kinds of art such as keyboard cat), not being used to discourage it. When it comes to derivative works, the standard needs to be whether or not the new work has the effect of largely replacing the work on which its based. So if a hip hop artist samples Frank Sinatra, the chances of the new song taking many sales away from Sinatra’s estate isn’t going to be all that great. However, if one hip hop artist samples another there is a much greater chance.

Copyright law shouldn’t be a club used to smash new works, but that’s exactly how its being used in this case.

MPAA Fights the Future

July 14, 2009

gunnery-sergeant-hartman-pointingIts no surprise that the MPAA wants to bust up the most well known sites for file sharing. But, now it seems this is something more than a corporate giant looking to roll over anyone who obviously represents how doomed their outdated business model is.

The MPAA is currently seeking judgment against isoHunt and its founder Gary Fung. Stephen Fabrizio, the MPAA lawyer on the case said:

But the judgment doesn’t go away. If Gary Fung creates a legitimate website, we’ll be there. If he sells that company for $100 million, we’ll be there. For the rest of his life we’ll be able to pursue that judgment.

That doesn’t sound anything like a business just doing business. In fact, that sounds remarkably personal.

Lets be honest about what’s going on here. The MPAA is trying to make an example of isoHunt and Fung. The message they want to send is: we will fuck up your life beyond repair. The thing is that a business that is doing legitimately well takes actions that actually make a difference, it doesn’t need to rely on symbolism. And make no doubt about it, that’s what this is all about and both sides know it. Putting the hurt on Fung’s future isn’t going to change a single detail for the MPAA’s business model by itself, and so they hope that by destroying Fung’s future they can send a message.

Fung knows the nature of the game he’s playing too. He responded:

I’m doing this for the future. When we talk about copyright we should be more forward thinking. It is a huge issue for the culture. The current state of copyright might not be the future state. And there’s increasing adoption of BitTorrent, even by large media. That is a glimpse of the future.”

While we lack Fung’s enormous balls (which, we assume, the MPAA has taken out a restraining order on to avoiding being crushed underneath them) and technical skills we’re all on board with his vision for the future. We also assume the MPAA sees what’s coming as well, or else they wouldn’t be trying to put Fung’s head on a pike for everyone to see.

Actor, comedian, and writer Stephen Fry who was the warm up act for the Itunes Live London Festival went rogue.

After outlining the history of copyright, he went on to say that, in the entertainment industry’s pursuit of the file-sharers, he suspects “that my business – the film business, the television business, the music business – is doing the wrong thing”.

He described what he called the aggressive prosecution around the world of those who illegally download. It did no good, said Fry, to label these people as criminals.

He mocked “those preposterous” commercials on DVDs telling audiences “you wouldn’t steal a handbag”. He said he wanted to ask whether people in his industry are “so blind… as to think that someone who bit-torrents an episode of 24 is the same as someone who steals somebody’s handbag”.

Thank God someone inside the industries that have decided their business model depends on extorting money from their own customers is saying what’s obvious to everyone who isn’t an old media CEO.

What’s interesting about all this is that Stephen Fry would seem to be the perfect candidate for buying into the way the film, television, and music industry has gone about their business. His living is made exclusively in those industries, he’s well off, and he’s 51 years old. This should be a guy linking arms with Lars Ulrich and Dr. Dre in their support of suing the crap out of their own fans.

A quick perusal of his biography, however, reveals what may be the difference:

Fry has a long interest in internet production, including his own website since 1997. His current site, The New Adventures of Mr Stephen Fry, has existed since 2002 and has attracted many visitors following his first blog in September 2007, which comprised a 6,500 word “blessay” on smartphones. In February 2008, Fry launched his private podcast series, Stephen Fry’s Podgrams, and a forum, including discussions on depression and activities in which Fry is involved. The website content is created by Stephen Fry and produced by Andrew Sampson. Fry is also a supporter of GNU and the Free Software Foundation. For the 25th anniversary of the GNU operating system, Fry appeared in a video explaining some of the philosophy behind GNU by likening it to the sharing found in science. In October 2008, he began posting to his Twitter stream, which he regularly updates. In February 2009, he became the second-most-followed person on Twitter after Barack Obama. On May 16, 2009, he celebrated the 500,000-follower mark: “Bless my soul 500k followers. And I love you all. Well, all except that silly one. And that’s not you.”

Fry is clearly a man who has been shaped by his experience with the internet. He’s not an outside observer, enraged by the digital model that’s reshaping our world, instead he’s a part of the digital model. His arguments are clearly the arguments of a man who understands the world as it is now, he’s not busy trying to stuff the genie back into the bottle, instead he’s understood the shift that’s taken place and is trying his best to tell those who haven’t realized the world has changed that they’re acting profoundly ridiculous.

Probably the funniest part in all this is that perhaps the only reason that Fry was a part of Itunes Live is because he is such an integral part of the digital model. His twitter stream, website, blog, and podcast are what have given him the audience so that he’d be asked to be a part of this event. Part of the shift to the digital model is the currency, old media is obsessed with cash, the digital model is obsessed with influence. Fry is influential because he has an audience, and because he has an audience and influence money will follow.

And that’s how the world works now. Stephen Fry figured it out, most of his contemporaries haven’t.

Digital Model

July 12, 2009

Around here we’ll be using the term “digital model” quite a bit. So, it might be good to define it a little bit.

Cassette tapes to CDs
analog to digital

What we mean is a total paradigm shift from one way of doing things to the other. The old way of doing things, the analog model, is that record labels, represented by the RIAA controls everything. They control who gets signed, what terms they’re signed under, how they’re marketed, how they get distributed, and that control meant that the record label gets the lion’s share of the revenue generated by sales.

The digital model might be defined by what it isn’t, more than what it is. No longer is art funneled to the masses by controlling what movies, music, or books show up on the shelves of retail stores, or the big screen. Unfortunately old media companies that thrived under that model are unwilling to change the way they do business so they do everything they can do suppress the distribution of art via any other avenue.

A digital model usually includes going directly to fans, usually by using some sort of online distribution, but also through putting on live shows, encouraging recording of live events, and sometimes even just giving away art for free or simply accepting donations. A digital model generally has very low overhead costs, at least in comparison to traditional models, and generally makes very little use of traditional copyright holders such as the MPAA and RIAA.

Usually successful digital models produce a small, but dedicated fanbase and freedom for artists.