Copyright vs Creativity

Cory Doctorow spoke in Melbourne on Thursday night as part of the Meanland and Melbourne Writers Festival ‘Big Ideas’ lecture series. For those unable to attend, I have transcribed below as much as I could from my indecipherable notes on the lecture, ‘Copyright vs creativity’.

Rule number 1: If there’s a lock for something and you haven’t been given the key, it’s not for your benefit.

Digital locks are there to prevent unauthorised copies of digital works. However, warns Doctorow, Digital Rights Management (DRM) is there to reinforce the greatest lie: DRM exists to help you (the artist) and contain losses to piracy. Most countries have laws that prohibit breaking technology (or breaking DRM). You as an owner of a device cannot remove DRM from anything you’ve purchased for that device.

In actual fact, what it does is stop creators from authorising users across platforms, or having audiences across platforms. Therefore, we have a situation where creators are locked-in to distribution. It used to be that copyright belonged to people who created things. Now we live in a world where creators – and audiences – are locked-in to both distribution and platform.

‘Imagine audiences buy your books through the iPad,’ Doctorow put to the audience. As a creator, you could not authorise users to move to the Kindle if, for some reason, you decided to move platforms (or distributor). ‘It would be like Borders telling customers they could only use Ikea bookcases on which to shelve their books.’ If you as creator decide to change stores, you have to be certain that all those customers will follow – meaning they have to throw away all of their old books and buy new ones, or be satisfied owning parallel collections. He gave, as an example, the millions of apps touted for iPads and iPhones. On average, most of these app creators make very little, but can’t afford to go somewhere other than Apple because they risk alienating their audiences.

‘It’s about negotiating leverage for creators’ and individual artists having negotiating power. Being locked-in to distribution does not simply result in a lack of copy. This is a notion promulgated by the Magic Bean Vendors, who can be found everywhere, from DRM to the war on terror. They are organisations that create a problem, which everyone then needs to be protected from. They make obstacle courses in order to remove obstacles (hence, the purpose for their existence).

Doctorow suggested that what would we be most useful for creators would be ‘money per platform’.

Rule number 2 (aka Doctorow’s second law): It’s hard to monetise fame, but it’s impossible to monetise obscurity.

Most people will not get rich from making art. Most people, in fact, will not make a living from their art. We don’t have the kind of economy that rewards people who want to make art. And you can’t eat [website] hits.

If creators were only making art to make money, they would quickly find a better living. ‘Artists that make art to make money, that is not prostitution,’ said Doctorow, ‘it’s very, very, very cheap prostitution.’ Most writers could make make far more money in advertising and earn $100 000 a year, plus great working conditions.

So if the money does not exist, adding more copyright is not going to change the money that artist makes. Most people, unfortunately, will not pay for poetry. But we all know the story of a creator whose song is everywhere, while they live penniless and in obscurity. The way to get artists more money, suggests Doctorow, is to increase their leverage with publishers.

Artists do need publishers to navigate their respective industries. They are organisations – admittedly often wolfish organisations – with skills and specialisations that most artists do not possess, and do not have the time to focus on. ‘Every time I’m on tour, I’m not at home working on my book. Every time I’m at home working on my book, I’m not at the Frankfurt book fair trying to sell my book to other publishers.’

Doctorow then proffered his [in]famous BookScan manipulation scam, which his publishers had introduced him to. Basically, it involved concentrating school book tours on several influential (retail wise) regions, thereby creating high book sales in those regions, which then translated to a position in the NYT’s bestseller list, thereby ensuring many more sales of your book because it is in a position of prominence in nearly all bookstores. Etc.

The reason DRM is a bad idea is because it locks creators in to platforms without delivering what it’s supposed to be delivering. And everybody involved in DRM legislation has a financial stake in legislating DRM.

We all have safes and we understand the importance of them, admits Doctorow, but ‘we don’t put a safe in a bankrobber’s living room – because she’ll figure out how to open it eventually.’ And the DRM isn’t hard to break. It only takes one patient hacker, and then the technique spreads.

So these corporations are not interested in stopping or slowing infringement, they’re interested in law reform. Specifically, law reform that stops industry competitors.

Extending these laws, however, denies artists individual negotiating power.

Doctorow offered as an example the now total copyright over sampling. It used to be subject to fair use but copyright now covers sampling, clipping out, remixing – the whole music ecosystem in the name of protecting artists. As Doctorow pointed out: musicians have been quoting each other as long as they have been creating. This ‘quoting’ is integral to music production. Yet, the expansion of scope and copyright means that virtually every sound from your lifetime and that of your parents and even your grandparents is now owned by one of four record labels.

These DRM laws surrounding sampling are crippling cultural production, Doctorow warned. He returned to the idea of leverage with publishers and the need to support artists in making their work public. The more artists can do for themselves, the less dependent they are on insurers and licensing. Doctorow informed the audience that artists on iTunes receive about 1/7th of a 50% share of each song sold on iTunes. There is even a clause in the fine print about album breakages, and the percentage of the artist’s share that’s going to the label to compensate for aforementioned breakages (of a digital song!).

There is a difference between a social contract versus an economic contract, Doctorow posits: social is person-to-person, rather than person to corporation. In this kind of contract, audiences get to participate with artists and their art. Corporations distort the social contract (between artists and audience), and offer a contract the artist is expected to sign and agree to without a reciprocal contract.

Rule number 3: Information doesn’t want to be free, people do.

Doctorow explained the absurdities within DRM, using YouTube as an example. Here you have a site that uploads 29 hours of content per minute (at last count), and only around 1% of that content is infringing. Yet YouTube is expected to spend $500 per hour to monitor that content to prevent infringement – a practical impossibility. Doctorow suggested that we should be celebrating sites such as YouTube and PirateBay, because they are effectively hosting the largest libraries – of non-infringing works – in the world.

These publishing companies and insurers, however, are using surveillance retrospectively to show the user did something ‘naughty’. Therefore people who use the internet are no longer anonymous – these companies can view all the records of every website you’ve ever visited.

Many countries are now considering or adopting the 3 strike law in the name of preventing piracy: if you’re caught infringing three times – without proof, no less – you’re cut off from the internet. As is your household, because it’s generally impossible to cut only one person off the internet given the standard living arrangements of most people. Thus we are facing a period of collectively punishing households and families. A penalty, Doctorow says, that is so far removed from the crime. If you stole a DVD, you’d expect to pay a fine. If you stole many DVDs, you would likely pay a fine and have to do community service. You pirate copyrighted material on the internet, and you are cut off from everything the internet contains: information, social networks, political expression, infrastructure, news, organisation, culture, and so on and so on.

All this surveillance, censorship and control are having a very negative effect on society as a whole, says Doctorow. Governments, corporations or technologists should not be making decisions about use or copyright – these people all have vested interests and are engaging in aggressive corporate attacks via industrial regulation. As a result, the US is now regulating which people have DRM and what they do with it. Now they are talking about automating litigation – hardly laws and penalties you’d expect in a free society, reflected Doctorow.

‘This is why we fight,’ said Doctorow, ‘for the right to affordable, creative culture without copyright fear.’