The Open v. Closed Culture Smackdown

Dan,

Thanks for your response to my com­ment. I hope I did­n’t come off sound­ing hos­tile to you or your web­site. That cer­tain­ly was not my intent. This issue of how — or even whether — peo­ple are com­pen­sat­ed for their cre­ative work in the dig­i­tal age hits close to home for me. I’m not one who likes to give per­son­al infor­ma­tion on a pub­lic blog, so I will just leave it at that. I too do not agree with every­thing Lanier says, but as a tech­nol­o­gist and musi­cian he has an inter­est­ing per­spec­tive. He under­stands the enthu­si­asm for the new tech­nol­o­gy but he also sees the seri­ous­ness of its unin­tend­ed con­se­quences. But many are bliss­ful­ly unaware.

I real­ly love this web­site. For me it sym­bol­is­es the best of the new land­scape. The oppor­tu­ni­ty for life­long learn­ing through online uni­ver­si­ty lec­tures and oth­er web mate­ri­als is a great thing for peo­ple. I just hope for a future where such things can exist with­in a sys­tem where one per­son­’s free­dom does not neces­si­tate anoth­er per­son­’s pover­ty.

Well, actu­al­ly, “closed cul­ture” is an accu­rate descrip­tion for a monop­oly-based sys­tem in which one must get per­mis­sion before shar­ing or re-using cul­tur­al works.

(Mike, if any of that sounds inac­cu­rate to you, I’d like to know which part.)

Nobody has a “right” to a par­tic­u­lar busi­ness mod­el. Copy­right is fair­ly young, about 300 years old, and in its cur­rent hyper­tro­phied form it is real­ly only some decades old. Artists and writ­ers have been, um, art­ing and writ­ing for much, much longer than copy­right has been around. That’s not sur­pris­ing, giv­en that copy­right was invent­ed as a com­mer­cial monop­oly to sub­si­dize the dis­tri­b­u­tion (print­ing) indus­try, *not* as an eco­nom­ic basis for cre­ativ­i­ty itself. See http://questioncopyright.org/promise#history for more about this.

No one is argu­ing that artists should­n’t be able to make a liv­ing direct­ly off what they cre­ate. That is, in fact, what Nina Paley is doing — and she’s being very pub­lic about the num­bers, too. See http://questioncopyright.org/sita_distribution#results .

What we are argu­ing is that no one should have a monop­oly on the dis­tri­b­u­tion and use of cul­ture. If the word “monop­oly” makes you uncom­fort­able, please ask your­self why, because it is a pre­cise descrip­tion of what a copy­right is: a gov­ern­ment-grant­ed exclu­sive right to dis­trib­ute cer­tain infor­ma­tion.

That exclu­sive right was just a pol­i­cy deci­sion, not some kind of nat­ur­al moral right. It was a deci­sion made before the Inter­net exist­ed. Now that we have a world-wide, per­fect copy­ing machine, the pol­i­cy is cost­ing us more than it ever has before — the “oppor­tu­ni­ty cost”, if you will, of copy­right has risen dra­mat­i­cal­ly. What Nina is doing is just demon­strat­ing what his­to­ri­ans of copy­right have known all along: that it was not designed to pro­vide an eco­nom­ic basis for cre­ativ­i­ty, and most cre­ation is not actu­al­ly sup­port­ed by it any­way.

It’s just a busi­ness mod­el, like deliv­er­ing ice in trucks. If some­one invents the refrig­er­a­tor, there won’t be any more ice trucks (unless the gov­ern­ment rules that you’re not allowed to make full use of your refrig­er­a­tor, which is what’s cur­rent­ly hap­pen­ing with com­put­ers and the Inter­net). And yet, there won’t be any short­age of ice.

If you’re real­ly wor­ried that art will dis­ap­pear with­out copy­right, or that artists won’t be able to earn a liv­ing, then you haven’t been pay­ing close atten­tion to how artists have real­ly made their liv­ings all along.

The main argu­ment we’re mak­ing is about free­dom: that it’s wrong to pre­vent peo­ple from shar­ing cul­ture just to pre­serve a busi­ness mod­el.

But even eco­nom­i­cal­ly, Nina’s film has done bet­ter than most inde­pen­dent films do. Also, Nina is hold­ing her­self out as a mod­el, in full knowl­edge of what both tra­di­tion­al restrict­ed dis­tri­b­u­tion and free dis­tri­b­u­tion offered. If she thinks she’s doing bet­ter with free­dom, that’s pret­ty hard to argue with :-).

Is any­one real­ly claim­ing that copy­right is how most art is paid for, or how most artists make their liv­ing? If there is evi­dence for this propo­si­tion, let’s hear it. But most of what I see around me con­tra­dicts that idea.

It would be wrong to sim­ply assume that because we’re used to think­ing of copy­right that way, it there­fore actu­al­ly serves that func­tion. That would be a bit like assum­ing that when a leg­is­la­ture pass­es a bill called the “Clean Water Bill”, it must there­fore actu­al­ly be about clean water, since that’s how they want you to think of it.

Mike Caprio writes: “The only ‘peo­ple’ ben­e­fit­ing from copy­right are cor­po­ra­tions and those who can afford the legal costs of tak­ing every offend­er to court.”

Are you kid­ding? I have earned my liv­ing through the pro­duc­tion of copy­right­ed mate­r­i­al for many years and I am not a cor­po­ra­tion. I have many friends and col­leagues who also make (or until recent­ly have made) their liv­ings by cre­at­ing copy­right­ed works. We are/were a part of the dis­ap­pear­ing cre­ative mid­dle class that Jaron Lanier talks about — and which you appar­ent­ly did­n’t even have a clue exist­ed.

Karl Fogel writes: “And, to make it a bit more per­son­al, I’m a pub­lished author — as in, the books are in book­stores — whose books are avail­able under open licens­es.”

And are you also gain­ful­ly employed by a pri­vate, for-prof­it, open­source soft­ware com­pa­ny that makes mil­lions of dol­lars in rev­enue around the world by pro­vid­ing tech­ni­cal sup­port ser­vices to a seg­ment of the very infra­struc­ture that makes the changes we are dis­cussing here pos­si­ble? I’m just try­ing to under­stand your true inter­est in this dis­cus­sion, Karl.

On one of your web pages you say you are anx­ious for the day when the cost (hence val­ue) of what I and oth­ers cre­ate will “go to zero.” I won­der how you would feel if you woke up one morn­ing to find that the val­ue of your labor had gone to zero? What would you do then? Would you set up a Pay­Pal account for dona­tions? Or ped­dle t‑shirts that say, “Out-of-Work Soft­ware Programmer/Technical Con­sul­tant”?

Mike Caprio your com­ments, in con­trast to Kar­l’s, seem ingen­u­ous. You talk about the prob­lem of artists toil­ing under abu­sive work-for-hire arrange­ments, but what you obvi­ous­ly don’t under­stand is that while the val­ue of our copy­right­ed work has plum­met­ed in the past decade (because of the dig­i­tal rev­o­lu­tion) the large cor­po­ra­tions have gained more and more lever­age over us. My col­leagues and I have been increas­ing­ly forced into ever more restric­tive con­tracts.

As the val­ue of copy­right­ed work approach­es zero (to use Kar­l’s love­ly phrase) only those who con­trol vast blocks of it have any bar­gain­ing pow­er. The very trend you are cham­pi­oning, Mike, favors the cor­po­ra­tions over the lit­tle guy. So your open­ing state­ment (that there are no “peo­ple,” but only cor­po­ra­tions, ben­e­fit­ting from copy­right) is well on its way to becom­ing a self-ful­fill­ing proph­esy. Thanks!

And if you doubt my state­ment about this trend favor­ing cor­po­ra­tions, Mike, think for a moment: Do you real­ly believe the polit­i­cal pow­ers that be will one day wake up and force a cor­po­ra­tion like 20th Cen­tu­ry Fox, which spent $237 mil­lion mak­ing “Avatar,” to sim­ply give their prod­uct away? The free-con­tent sin­gu­lar­i­ty will not arrive. But it does­n’t have to in order to squeeze out the small inde­pen­dent artists who had once made their liv­ing by cre­at­ing some­thing of val­ue (and I don’t mean t‑shirts).

Any­way, why restrict our­selves to sell­ing t‑shirts? When the demand for those dries up (because every­one is sell­ing them) we can always sell Chi­clets.

Mike, what exact­ly do you do for a liv­ing? Would you be will­ing to share some of the details of how your income is made?

Mike, how do you fig­ure that there’s a direct cor­re­la­tion between “copy­right vio­la­tion” and cor­po­ra­tions try­ing to wield more and more pow­er over peo­ple? You think cor­po­ra­tions would­n’t do that with­out the pres­sure of “plum­met­ing val­ue”? Maybe you should­n’t let the cor­po­ra­tions define the val­ue of your work and then let them decrease it when­ev­er they see fit. Maybe you should take a look at Aman­da Palmer and see how she makes more mon­ey con­nect­ing direct­ly to her audi­ence than she does giv­ing all her rights to a cor­po­ra­tion that does­n’t care one whit about her art or about cul­ture.

Are you seri­ous­ly say­ing that copy­right is the only thing pro­vid­ing you with an hon­est wage? How do you think peo­ple made mon­ey before copy­right exist­ed? Why is your liv­ing wage tied to the issue of cul­ture and art? Artists make art for the pur­pose of mak­ing art, and maybe also show­ing it to an audi­ence; col­lect­ing a salary for work is a dif­fer­ent thing, and has lit­tle to do with art and cul­ture. The inter­sec­tion of the inter­ests of artists and the ben­e­fits con­ferred to them by copy­right is very small, because copy­right restricts their audi­ence from see­ing their works.

If the mid­dle class is dis­ap­pear­ing it’s because of class war­fare, not because of peo­ple mak­ing copies of things.

I don’t real­ly appre­ci­ate either that you’ve com­plete­ly side­stepped my points with­out even try­ing to address them. Do you real­ly not care that the pub­lic domain is shrink­ing? Would you rather that cor­po­ra­tions owned all cul­ture? Maybe you’re only inter­est­ed in col­lect­ing a salary, and not real­ly in pro­duc­ing art? If such is the case, I ful­ly under­stand you not car­ing about cul­ture at large.

Hi Bar­ry,

Yes, that’s cor­rect: I would nev­er object to Nina Paley’s right to do with her work as she pleas­es. My con­vic­tion is that she and any­one else should have the right to deter­mine for them­selves how, with whom, and on what terms they share the fruit of their cre­ative labors.

As for copy­right reform: Yes. I would like to see the laws returned to some­thing like the pre-1998 terms. I was opposed to the Son­ny Bono Act when it passed and I’m even more irri­tat­ed with it now that I can see how it has caused a younger gen­er­a­tion (Mike Caprio, for exam­ple) to see copy­right as some­thing which is only for the ben­e­fit of cor­po­ra­tions.

In my view, a just copy­right law is one which pro­tects a cre­ator’s right to pre­serve the integri­ty of his or her work and reap what­ev­er ben­e­fits may come from it for the dura­tion of his/her life­time, plus some rea­son­able exten­sion to pro­vide for imme­di­ate heirs. When I say “rea­son­able exten­sion,” I’m not exact­ly sure what that would be. Maybe the 1976 lev­el of 50 years beyond the author’s life was too much. I don’t know. But 70 or 95 years is far too long.

I dis­agree with the idea of an annu­al fee, and the tiered sys­tem you describe sounds hor­ri­ble. It would rachet up the pres­sure on the copy­right hold­er as he/she grows old­er and increas­ing­ly infirm. Where’s the human­i­ty in that? In the old days there were cas­es in which authors with poor busi­ness acu­men or lousy rep­re­sen­ta­tion lost their copy­right by miss­ing the one 28-year renew­al dead­line. Are you sug­gest­ing they should now be exposed to that sort of per­il on a year­ly basis? Who would end up on the short end of the stick under this sort of scheme — the big cor­po­ra­tions, with their legion of lawyers, or the lit­tle guy?

Your com­ments are very inter­est­ing and con­struc­tive, Bar­ry. Thanks.

Mike:

I sus­pect we dif­fer in what we under­stand the pur­pose of copy­right to be.

I believe that copy­right, in the Unit­ed States, was jus­ti­fied as a means of advanc­ing a unique nation­al cul­ture. It was intend­ed (offi­cial­ly, at least) to encour­age cul­tur­al pro­duc­tion by insti­tu­tion­al­iz­ing in a lim­it­ed way the legal fic­tion that prod­ucts of human thought can be regard­ed as prop­er­ty. The pur­pose was to incen­tivize orig­i­nal and cre­ative intel­lec­tu­al work by giv­ing the author of that work a restrict­ed peri­od of time dur­ing which she could pub­lish it and still main­tain her exclu­sive right to refine, revise and exploit it. I don’t believe that it is mere­ly coin­ci­dence that the amount of time orig­i­nal­ly allot­ted was rough­ly com­pa­ra­ble to the amount of time it takes a human being to grow into a young adult.

I don’t believe the inten­tion was to help insure a secure career path for artists and thinkers — any more than fed­er­al law insures such a path for teach­ers, bankers, phar­ma­ceu­ti­cal design­ers or firearms inven­tors. The point, it seems to me, was to pro­vide a time dur­ing which the work could be nur­tured by its cre­ator. It would then pro­vide ben­e­fit to soci­ety as a whole by pass­ing into pub­lic domain.

There­fore, I would con­sid­er 50 years far too long a time to grant exclu­sive rights. There­fore, too, I would favor a tiered approach to annu­al copy­right fees (start­ing at, say, $25 and grad­u­al­ly mov­ing up to, say, $150). The inten­tion here is to try to assure that the cre­ator con­tin­ues to val­ue her cre­ation suf­fi­cient­ly to war­rant that the rights to it not be released to the pub­lic.

I gath­er from your remarks that you don’t share my inter­pre­ta­tion of copy­right — but I am not clear on what your inter­pre­ta­tion is.

Can you explain it to me?

Thanks.