Our Corporate Overlords, Technology and The Law

Copyright Shaming Won’t Work

I’ve been reading Cory Doctorow’s latest book: Information Doesn’t Want to Be Free and it’s a good read. There is a lot of good stuff in here, even if I don’t exactly agree with his insistence that the world is as good as ever for artists who want to create work and get paid for it, despite the abundance of new ways to share that work online. Doctorow does offer a fresh perspective to the “copyfight” and his foundational arguments are compelling.

Including this one: shaming and prosecuting people for copying digital artworks without permission is futile and it’s mean. I’m not talking about people who are making money from ripping and reselling exabytes of digital art. (I refuse to resort to the stark and depressing term “content” to describe what humans make to express themselves.) I’m talking about the threats and actions being taken against individuals who acquire media from unauthorized places or in unauthorized ways for their own use, and who share it with friends, which is what most “piracy” is. Don’t get me wrong, I am very concerned about artists getting paid. I tried to making living as an artist for many years and I know many people who do it now. I want them to get paid for their work and I struggle with how complicated it has gotten for that to happen, but this is nothing new. Being a professional artist has always been very very hard. I also think that the companies that publish and distribute creative work deserve to get paid. But the problem we’re facing is not simply that a bunch of people are sitting at home copying files and thereby negatively impacting the incomes of artists and their enablers, it’s the entire ecosystem of arts and entertainment that has changed radically, and the villains in the highway robbery known as the “entertainment business” are still the same villains as 20 years ago–the major record labels, the movie studios, and, as Doctorow points out, the newly powerful “intermediaries” like Apple and Amazon. Working adversarily at times, and in concert at others, “the industry” has reimagined important parts of the arts business model in ingenious and artist-cheating ways that offer few, if any, additional benefits to “honest” consumers. While reinventing the business, the industry has gone to astonishing lengths to create new crimes and to increase the seriousness of old ones, and their motivations have virtually nothing to do with artists. It’s unfortunate that most working artists have to labor under the overbearing advocacy of the arts and entertainment industry, because artists still do have rights to assert. It’s just not clear that they would choose to assert them the way Sony and Universal and Amazon do.

I have copied music and movies. Lots of them. So have you I imagine. In the prime of my music-making and consuming life in the 1980s, 90s and early 2000s, I inhaled new music. I bought a great deal of music, but I also made cassette tapes and burned CDs of other people’s records, tapes and CDs. I watched entire seasons of The Sopranos on VHS tapes lovingly mailed by a girlfriend’s mom. These things were and still are illegal and I had some vague understanding that this might be “wrong,” but I didn’t care. Why? Because I was still paying good money for the stuff all the time. I was (and still am) supporting artists in myriad ways, and a lot of people still do, albeit in new ways that may not be tabulated as “units” like the old days. A key difference has transpired in the relationship between consumers and creative products. In the days when most media arrived in some sort of package, I felt I had complete ownership rights over what I bought. Total control of it once it was in my hands. The emerging business model now is “licensing.” You pay to use some intangible media, but you can’t do anything else (legally) with it, like share it with your spouse or friends. This is a significant paradigm shift for consumers who have been passing around books for hundreds of years, and recorded media for over a century. This radical shift how creative works are bought and paid for–especially the new limits inherent in the deal–is totally frustrating for people who just want to buy a record and then lend to friends. The business model of “use it for a moment and it’s gone” wasn’t built for us, and it pisses us off and makes us fairly sanguine about breaking the rules so that it does work for us. This is exacerbated by the fact that the same technology that makes media increasingly intangible, also makes it much easier to share. This is not the fault of the sharers, and the industry has also benefited and found lots of new ways to make money from the same intangibility. Copying files remains very easy to do, and since it’s easy, we’re all going to use the objects we have at our disposal because that’s what free, imaginative people do.They don’t wring their hands and recite honor codes handed down by corporations when they want to hear a song. That’s why I owned a tape-to-tape deck in the 1980s and used it to copy music. Trying to convince people not to use the tools in front of them is simply untenable. Making us all outlaws over it is a Kafkaesque absurdity.

Here is a scenario: My wife Sarah and I take a trip together and bring our Kindles, each loaded up with four books. Sarah finishes a book and says “you’ve got to read this.” I say “great, I just finished my book. Give me yours.” The problem is that its stuck on her Kindle and she wants to read one of her other books. She’s not much interested in the rest of mine. Here is where the trouble starts: I just want to borrow a fucking book. I don’t want to manage user accounts or visit an Amazon website to arrange a 14 day loan, or whatever laughably paltry solution they offer. If, at that moment, someone handed me a little box that could make the two Kindles share books, but it ran an illegal program and using it violated some non-negotiable terms of service I was forced to agree to in order to have any technology in my hands at all, I would very likely say “fuck it” and “yes please.” In one form or another, this is what is happening everywhere, except that it’s a lot simpler to copy using the Internet, and it’s not going to get any harder. Making it a crime is not the solution.

This is a rant that does not offer solutions to the bottom-line challenges for artists, and I know that. There are serious problems with the business of being a working artist in the 21st century and file-sharing does play a role. But it’s technically infeasible to stop people from sharing media files, and the sharing is as old as the means to record and preserve the work. It’s incredibly easy to right-click and choose “save,” which is why it feels like, at worst, a “thought crime” and not a real crime at all. No amount of shaming is going to stop that, and prosecuting people only demonstrates a very scary sort of corporate power that we are seeing more and more throughout society. There are other ways to get people to pay for art, and a lot of that reward the artist directly rather than through huge entertainment corporations. Live performance, pay-what-you-will schemes, merchandising, etc. These aren’t optimal money-makers for all creative artists, but it works for some artists, and arguably has given rise to new types of creativity. Whether or not the new deal rescues art-as-we-knew-it is an open question, but I don’t think we can continue to rely on the arts-business models of the 1950s and 60s. It was a good time, but things have changed.

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