Thursday, August 15, 2013

The Future of Copyright (that will never, ever happen)

Here’s what I see as the logical future and structure for copyright law. I've written lengthy essays on this topic (those three links) which have -- I hope -- somewhat deeper analysis of the problems involved. (At any rate, now you have the links for future reference.) While my initial concerns with online flaunting of copyright were epistemological, I think the economics are no less problematic and ought to be addressed within the prinicpled framework of promoting science, the arts (I'm of the opinion that all arts are useful), and the general cross-pollination of ideas, information, and civil discourse that's the creative fuel of our society and democracy.

To my mind digital piracy is all about ease of access. Online culture has evolved to be wholly open-access and global. Speaking as an entertainment lawyer who's been practicing nearly two decades, I've come to the opinion that attempts to constrain digital behavior by legal or technological means are futile at best, overreaching at worst. Such laws cannot be effectively or equitably enforced, and such technologies are at best ephemeral and susceptible to circumvention. This reduces piracy of copyrighted works to an economic problem that can best be addressed by changes in business model. Looking solely at the situation in which the music industry finds itself, Amazon, eMusic, iTunes, Spotify, rdio, Pandora, Daytrotter, Bandcamp, and others are making inroads by offering inexpensive alternatives, but have not to date outcompeted the proliferation of pirate sites.

This being the case, what should Congress and the Copyright Office's roles be? The simplest solution would be to take "infringement" out of the equation entirely through changes to the copyright licensing and royalty model: specifically, by enacting universal compulsory licensing against statutory royalties. The various statutory royalty rates, which would be brokered by the Copyright Royalty Tribunal, via consent decree, or through some other public and transparent means, ought to be negotiated with copyright owner representatives (stakeholders), yet remain cognizant of market pressures (balancing retention of incentives for independent license negotiaton while rendering illegal competition by infringing nonparticipants significantly less economically viable), and likewise be balanced with public policy goals (facilitating distribution and access). For example, one might expect rates to scale slightly based on the popularity of a particular creative work, though such a scheme need not be implemented.

With compulsory licensing, the development of massive digital libraries to which all would enjoy free and unfettered access would cease to be controversial; digital access would become legally frictionless, whether implemented jointly or independently by the Library of Congress, Google Books, a consortium of academic institutions, or others. What's more, copyright holders could then be assured payment against access/usage (the way ASCAP, BMI, SESAC, and SoundExchange meter statutory royalties) by direct sampling of this database and known pirate exchanges (which of course would not be publicly supported, but ultimately rendered competitively superfluous in this scheme). This does not "socialize" intellectual property, since collection and payment are equally administerable by licensed private actors (whether for-profit or nonprofit entities) as they would be by government.
Where does the money for payments come from in this model? The answer would depend on how it is set up, but I think it can derive from a variety of sources. First, the private sector. Here, the framework already exists. Commercial providers from Google Books to Rhapsody would be obliged to pay into a re-allocable pool, demonstrate that they are themselves administering payments appropriately, or else be subject to lawsuit for noncompliance (this is the ASCAP, etc. model, and the funds ultimately derive from advertising or subscribers/fee payers for commercial entities and grant funds, tuition revenues, and tax deductibles for qualifying nonprofits). However, I think this would have to be supplemented by public sector (federal) funding, for which the taxpayers' ROI would be not only the emergence and availability of vast, open public digital repositories but frictionless access to content from any existing source (because all performance, copying, adaptation, and use would now be "fair use" compensated on an equitable basis to eligible copyright owners from the central funding pool).

Another benefit of making all copyrightable works subject to compulsory licensing against a statutory royalty supported by pooled federal and/or private revenue for limited periods of time (copyright duration), would be to shift copyright enforcement away from haphazard punishment of infringement (as all uses would be permissible either via compulsory or negotiated license or by fair use, collections and payments subject to regular, auditable reporting) to policing fair and accurate attribution of all works, preserving intellectual integrity and promoting accountability. This does require a modest change to the current conceptual paradigm, as rightful owners would lose "control" over adaptations and derivative works, but then the very idea of controlling access or usage of any work incarnated as digital media is essentially illusory anyway. Far better to establish a steady, transparent, and publicly auditable revenue stream that promotes and enables an unfettered, public exchange of ideas.

All this the US can implement alone, but any universal scheme really ought to involve international participation (Berne Convention signatories) if not administration (I think private, non-profit ASCAP-style aggregator/distributors could be licensed to handle enforcement and administration of the collection/payment side of things, though I'm grudgingly willing to allow for national or multinational agencies to take this on). Nor is international participation far-fetched, once this legal change is effected. After all, Berne signatories will want their constituent copyright owners to be eligible to receive payments brokered from the central pool. Until they sign onto such a treaty, monies otherwise owed Eurozone members would be reserved or reallocated to undeserving American artists. Even for those few droit morale states remaining, I tend to think that following the money would trump matters of principle, especially given the renewed emphasis this policy would place on credit to original and underlying works (a real boon to provenance enthusiasts).

So there you have it. I don't argue that these changes would be any easier to perfect than proposed fixes to the DMCA or the PIPA/SOPA counterlegislation OPEN. However, I do believe that they would prove to be more robust and congruent with consumer (and creator) behavior. More extensive background and shoestring analysis can be found in those of my other essays to which I linked above.

As it happens, I ran these ideas past a colleague working in the electronic games industry last year, and the following dialogue emerged:

As I understand it, your proposal basically does away with the use of supply and demand pricing for copyrighted works, at least with respect to creators. Of course, most creators have little power, so publishers (including movie studios, record labels, book publishers, etc.) are an oligopsony. Creators who managed to get published will typically assign away all their rights anyway, so the state-set prices wouldn't help them. Any attempt to set prices low would be met with massive resistance. But, again, without market pricing, there is no way to find a market equilibrium. There's a good argument that the market is already malfunctioning because of the monopoly power of copyright, with prices kept artificially high. Given the political power of the content owners (i.e., publishers), it seems more likely than not that prices will be set higher than they should be, which is a massive subsidy to an already profitable industry. (Not that there aren't already examples of this.)

My feeling on this is that the brokering and monitoring of statutory royalty rates moves price setting from the marketplace (currently broken by uncontrollable piracy and subsidized erratically via irregular and inefficient enforcement in various courts) to direct negotiation as overseen and faciliatated by the Copyright Royalty Tribunal. Market forces still rule in this negotiation, however. For one thing, historic pricing data would have evidentiary value (to be argued by universities, libraries, and taxpayers), but I think that the imposition of compulsory licensing will help keep major industrial copyright owners (publishers, distributors, and promoters) honest. If they get greedy and use their money and influence to push for prices higher than the market will reasonably bear, they will be suffocated by competition from freebooters. All they will have done is exchanged the costs of pursuing and prosectuing infringers for the costs of pursuing and prosecuting re-distributors who refuse to pay into the revenue pool -- having lost the moral and legal authority to force digital consumers to pay them directly. In other words, the present and inextinguishable threat of piracy can be coopted into a market counterbalance, but only if it is in a sense legitimized through compulsory licensing.

Your total compulsory licensing scheme means that no publisher could ever get exclusive rights to anything. So a successful book could immediately be republished by another company, any successful music could be reissued, etc. This creates a huge free-riding problem. Why be the first to take a chance on investing in the cost of producing something when you can just wait for someone else to do it and then republish? Furthermore, the fixed royalties don't help the free-riding problem. If a work is successful enough, it will be profitable to republish and pay the royalties. Why wouldn’t the cannibalized sales from the creator/original publisher will be worth more than the royalties it gets as compensation? How is this fair to the creator?

It’s not ideal. My interlocutor raises an excellent point, but again, I'm trying to factor free-riders into the overall economic balance rather than view them as a subversive force external to the ecosystem. Piracy is the worst form of free-ridership, in that pirates impose anti-theft vigilance and policing costs which detract from the efficiencies of the marketplace. Legalizing redistribution might increase the prevalence of bootleggers, but if so, these would be bootleggers paying out statutory fees to the copyright holders. Whether or not bootlegging disincentivizes disproportionately large investments in content creation ($100M+ blockbuster films, say, and I think that's dependent on business model, since I could certainly imagine the commercial viability of capitalization by sales of in-content advertising and product-placement fees -- paid directly by contract from advertisers to the creators, and quite possibly with economic incentives based on viewership, etc., thereby turning bootleg distribution into cost-free redistribution and promotion for the producers), I think the guarantee of income will make it easier for more marginal creators (all the indies) to be more prolific. Digital access and lower barriers to re-distribution should increase their audience and their income stream. For some, that will just be pocket money, but others may find sufficient income to professionalize their output. Either way, to the extent the primary purpose of copyright is precisely to foster such increased output, the status quo may well change, but back toward fostering more widespread development creative works.

In fairness to my colleague, I cop to not having yet fully thought through the bootlegger issue in the context of video game production. These can be every bit as expensive as blockbuster films, and in many cases with greater risk exposure for many independent creators. Whether that forces the console/PC game industry toward a Kickstarter-driven (which assumes a trusting, inpaying fan-base) or subscription-based SAAS/SAAP model or more product-placement (assuming there are advertisers willing to gamble on other than tried-and-true franchises like Halo or GTA... which, if so, would get tired pretty quickly, and I'm not sure I want a console marketplace that's limited to Nabisco-themed or -sponsored product), or something else... well, I guess I need to think about whether my approach is viable for all content. If it isn't, I'm not sure I'm comfortable with the inefficiencies of leaving format ghettos (the way that sound recording performance rights are currently). My software friend views the bootlegger/freerider problem (whether posed by my system, an alternate approach, or viz. the status quo) as conceivably resolvable through a minimum period of exclusivity, if a much shorter one than we have now. While my proposal targets the orphan work issue, it does so at the expense of recent works whose owners are known. However, I have good reason for not limiting the reproduction and distribution rights solution to orphan works, rather than all works. Leaning all-or-nothing minimizes administrative inefficiencies. Any carve out would have to exempt/grandfather exploitations of "orphan works" to the date a legitimate owner emerges.

The public performance/public display rights are good candidates for your compulsory licensing scheme. While there is a moral rights argument for these rights, the U.S. has never used that basis. Without underlying moral rights, there's no real reason to allow blocking a performance. (OK, there's an argument that a really bad or offensive performance might hurt the value of the underlying asset; I don't know if there needs to be some sort of dilution type claim or if this is just a price to be paid for free speech.)

So long as they get proper pay and attribution for their original creation, I don't see any reason to allow copyright owners to block performances/redistribution by others, whether of copies, covers, or more sophisticated derivative works. I think our mashup age is now sufficiently sophisticated to distinguish the maker's work and opinions from those of the remixer, whatever the content being discussed. Oft-times this results in props back to the original creator (here I'm thinking specifically of the animation genre created by exploiting screen captures of action within MMRPGs with redubbed audio).

What happens to the first sale doctrine? This matters with electronic media, because without first sale, every time a piece of music or a video is loaded into the memory of a player, a royalty needs to be paid. Maybe that's a good thing.

This is something that must be brokered. Under the model I have proposed, redistribution of material is always subject to a tithe against the statutory royalty scheme. It's just that individual consumers end up oblivious to P2P sharing costs, as these are borne/paid out of the wider pool (which is why I have it partially subsidized by taxpayers... ignorance is bliss, and fair is fair; there's no such thing as a free lunch).

You're arguing, I think, for the obsolescence of fair use.

 Not at all. I think fair use ought to remain a reasonable defense against requiring contribution to the royalty pool or toward payment of statutory royalties. This poses a slight challenge to the paying entities' sampling algorithms (the ASCAPs, etc.), but to my mind, proper statistical sampling ought to be able to account for this. Fair use can be quantified as much as any download/stream/performance.

But do we price based on how much of a work is used or some other factor? Or is it the same royalty for a 4 word quote as for reproducing the entire piece? There are a lot of moving parts to consider.

Aren't these issues with us in our present system? I'm not sure the reforms I propose have any real effect on this. Recourse to compulsory licensing at statutory rates ought to help set the bargaining table, not eliminate incentives for creators and users to negotiate.

he problems that libraries and museums face might be better served by simply giving them an exemption directly or a low compulsory license, in the name of public interest. We already have exemptions for non-profit educational institutions, so this isn't a big change.

I'm okay with this (the library issue might be more controversial), but as stated, I think administrative efficiencies and enforceability favor the in-for-a-penny-in-for-a-pound approach. However, I must admit to pure legal fantasy. As Kirby Ferguson concludes his brilliant four-part video series "Everything is a Remix," without a groundswell of activism, this is all so much pie-in-the-sky. However, I see no such groundswell emerging, nor why should there be? Consumers are happy with the unsettled status quo, be it piratic or otherwise. The RIAA-dominated distributors still believe that they can fight the changing climate, or at least belatedly fight to the surface of the tsunami by buying into iTunes, Amazon, and subscription services. The new normal need not be lamented or resisted; it’s no mass-extinction event, just a sea change. Artists and their art will adapt to the environment, whatever it may be, resulting in innovations. Certainly diversity of output has never been greater. The lingering corruption and inefficiency trouble me, but perhaps I have too heightened a preference for orderliness.

Friday, April 9, 2010

up|next: Proposing a new paradigm for museums and libraries

This note continues my thoughts elsewhere in this space on copyright, content, and technology. My few faithful readers will recall that a few years back I wrote a blog article that primarily considered the changing role of museums. In that essay, I concluded that museums (and arguably libraries as well) should:


1. Be an authority:
* seek out authors and remain vigilant about properly attributing all sources;
* keep primary source material alive and digital so that it can be referenced;
* build semantic widgets to accurately and efficiently tag their "good stuff;"
2. Be a filter:
* dedicate resources to portal activity to identify others' "good stuff;" and
3. Be a good citizen:
* participate in discussions to create statutory royalty reservoirs


I believe in collaboration and openness in all that educators and academics do professionally, from wikispaces to promoting and hosting development platforms for multi-use open source software to finances. I think that today's digital environment requires us to think about information/ideas/content more as virtual and intangible things than the ephemeral material forms of expression which may embody them and would therefore propose that we have at least two major points of focus.

The first focus should be on the promotion of reasoned discussion, whether by increasing knowledge through novel, peer-reviewed research; by asserting the credibility and validity of others' data and promulgating same; or by developing and providing trustworthy, safe places (such as this wiki) and means (both through legal constructs like copyright law as well as technologies like OMEKA or Synchrotext) for people to access this information, juxtapose/associate it with other concepts, internalize and/or analyze these, and then exchange views with one another.

The second focus should be on preservation and validation of the primary source material that lies at the foundation of this idea marketplace and renders it epistemologically sound. This preservation would include not only traditional provenance research and conservation of physical objects, but also their ongoing digitization, storage, and migration. I think this work would include (as I believe it already includes) collaboration and consensus on international standards and protocols for not only acceptable metadata/semantic data but also file formats and reproduction/resolution scales.

If we accept these two areas of focus -- one on assuring and creating a fair, safe marketplace for idea gathering and exchange, the other for establishing a reliable repository for the content itself (and I think commercial publishing is headed in that direction) -- then is the distinction between museum and library still meaningful? Independently, I think the strength of any museum or library lies in its expertise and source of authority. Yet collectively I think we will gain the most by sharing development of and responsibility over mastering both the ephemeral and tangible aspects of knowledge that is the basis for our respective existence.

Martin Gomez , City Librarian at the Los Angeles Public Library, has cited OCLC studies showing the public more interested in expedient access to content than authoritative access to content. However, I think libraries and museums are in control of their own respective brands and what they deliver. There's no reason users cannot get both -- an expedient place to access "good" content (irrespective of format or length) that through its services and imprimatur assures this content is accurately sourced and attributed. Further to this vision of a library as community “third space,” I agree that the future of libraries should be envisioned in a manner separate from their current ties to old technology (i.e., printing press and CDs as opposed to print-on-demand, e-books, and MP3s). But what would this look like? I propose a new model for maintaining a single, vast central (largely digital, so really dispersed) repository and converting independent local libraries into branches that can tap into this central core as portals, third spaces, and integral maintainers of our collective knowledge infrastructure.

When source material is digitally generated, stored, searchable, and downloadable, doesn't it make more sense to have a centralized repository (like the Library of Congress) handling digital preservation and distribution protocols serving to/through existing infrastructure of brick & mortar local outlet branches than the arbitrary hodgepodge we have now that favors urbanites over would be rural users? I wonder what it would cost to support/transition to this on a national scale as against the current tax base for public libraries? Funding would need to cover not only upkeep of central + branches + storage + internet connectivity/outlets but also micropayments to creators based on usage (a la ASCAP/BMI/SESAC). I’d love to see someone present objective research findings on this, though my intuition is that revenues would offset costs. What’s required is legislative leadership to make this happen.

Local tax dollars already go to support local branches, as does federal funding for library systems in general (IMLS, NAS funding, LOC, NIH, etc.). Economies of scale and the metadata and the ongoing efforts within the digitization standards community both suggest savings inherent in a centralized knowledge bank (so to speak, it probably wouldn't be centrally stored, just centrally managed and overseen). Copyright protection and the public domain have long been matters of federal (and international) law. I'm starting to think these issues are in reality less a matter of centralized consolidation and control (digital copying is almost impossible to staunch now) than finding the most efficient and effective means of retention and distribution. Write once, serve many.

What's more, changing our cultural paradigm for information development, storage, and retrieval might even benefit those in (presently) underserved areas. Current brick and mortar library branches could continue (and possibly increase) the technology access functions they currently perform (among the other valuable services they provide), and with print-on-demand units, could even make the occasional or rare print material available for those who prefer to carry things out. Policy decisions would have to be made about what materials might be made available (should the library carry movies, for example, or a Netflix subscription?) and the availability of viable competing business models would surely be part of the debate (even with a micropayment royalty structure, would libraries unfairly compete with rental services?) but those are discussions that are already ongoing.

I respect those who make the argument that museums should not thus be lumped in with libraries, since museums are also content creators and interpreters, not just content repositories/users. I agree that this is an important distinction, but I disagree that it is a meaningfully generalizable one. How should we regard organizations like presidential libraries who maintain in-house experts not just to collect, preserve, and promote access to information but also to cultivate and publish new research? How should we regard small, local, but communally-funded children's museums whose content is limited to manipulation of material objects, a modest library of Seuss and Szieska, and coffee bar cultural events targeting parents of young children? I’d argue that these distinctions are more about individual mission, expertise, and resources than about the authority, credibility, and promulgation of knowledge and culture which I think inherent in the branding of education-driven institutions. Nor am I concerned about the obsolescence of professional training in library sciences or museum studies, as I know from my own experience as a Johns Hopkins instructor that appropriate programs of study can be crafted to fit any professional paradigm. (That is to say, if we build it, they will learn.)

But back to my central point in favor of redefining our paradigm of museums and libraries to better account for what I see as 21st century digital reality. By removing any ongoing independent responsibility to acquire, track, or maintain a (digital) collection, the content itself would be further democratized. This, I think, renders it cost-effective for more local branches or depots to be built in remote or rural locations. I ran these ideas past Rob Billingsley at the Smithsonian American Art Museum (thanks to Facebook), who responded: "Form follows function... Public Libraries have been adapting with Bill Gates Computer Centers, broader reference sources (Internet) to answer visitor questions, loaning books on CDs and DVDs, online training, filling in the digital divides, etc. No reason for them not to continue on that path, but there is a need to go pro-active, not "build it and they will come."

Yes! Library and museum directors, are you listening? Our patrons will adapt and in fact adopt that which makes their access to content easier. For example, we are already seeing different browsing strategies from the shelf-strolling to which many of us have been accustomed. The AI/semantic tagging-enabled suggest functions ("Readers who liked this also liked...") is already much in vogue, and both Google Books and Amazon's "Look Inside!" features allow would-be readers direct experience of the text (to say nothing of music and video streaming).

With mobile smart phone adoption increasing at a global rate and the advent of hybrid technologies like the iPad, Kindle, and Sony Reader (each of which is sort of a weak cell-connected laptop), we are pretty close to this reality. But the legal, funding, and administrative infrastructure would have to be radically overhauled to bring it to light. Are these thoughts about obsolescence and metamorphosis correct or do they show fundamental flaws? If they are apt or a reasonable predictor for one possible and desirable future, might we not try to start imagining and building the framework for this here (on the blogosphere)?

As the previous page cites indicate, this dialogue emerged in the context of an IMLS up|next wiki page in early March, 2010. In the context of this virtual discussion, a member named library4881 who self-identifies as a “Library Director for a very small Community College in eastern Montana” wrote:
Montana has twice the land mass of Wyoming and twice the population. Montana is the 4th largest state in the U.S. with a population of about 1 million; Wyoming has about ½ a million. I bring this up, because we have never had the population to support all that our citizens need. We cannot replicate every library (public, school, academic, special, tribal libraries). The current economic conditions exacerbate the situation. We simply have to share our collections which mean we share our users. …I had used the WorldCat.org site in the past for our students to do research and was impressed with the access we had.

Again, I say all of this because I also read in one of these responses that there was no one place to get ‘all’ of the information (I would reference The Long Tail: Why the Future of business Is Selling Less of More by Chris Anderson) and we would not be able to freely access lesser know[n] titles, lesser know[n] publications, digitized items from local/state/federal: libraries/museums, historical societies, state and federal documents as well as digitized journal articles. I am looking for a solution that would allow our community and state to have access and be able use the social technology that would give them that access.

I think Library4881's points lie at the root of my arguments for considering the cost-effectiveness of a main central repository/multiple delivery paradigm (elaborated elsewhere on this Wiki) for libraries/museums/archive infrastructure over the present one for all digital and digitizable content. Nor would this be inconsistent with those who would wish to preserve the integrity of the current independent museum/library paradigm, since under my proposed scheme the precise nature of delivery/access, curation, maintenance of physical collections, and moderation or cultivation of third space/community interaction could (and by rights ought to) remain for each independent branch to determine as befits the needs and resources of their respective constituencies.

The likening of information to water is not an original one, but is nonetheless a highly apt analogy. We collect, filter, sanitize, and store water in central reservoirs which we then supply via a network of pipes whose usage can be monitored and (if desired) metered to end users to use as they see fit. Would it not be as efficient to treat information the same way, serving to approved libraries, museums, and archives through MAX and Internet2 pipelines for use and redistribution (etc.)? To consider the viability of such a scheme, we should prepare and then review the ROI from repurposing and supplementing the existing architectures that make it possible for us to treat information as a liquid commodity against the ROI from using the same current and evolving technology to perpetuate and perfect our current ways of doing business.

I am not so na├»ve as to think this a simple matter of reallocating funding and fiat direction. I respect that the complexities of jointly-sharing responsibilities and infrastructure which are now in many cases independently if redundantly maintained, and therefore quantifying the costs and constraints of effecting cooperation (including possible revisions to the existing copyright regime) might in itself be challenging. However, isn’t that what we are asking here? For us to challenge assumptions?

As it happens, half of the research and analysis I suggest (e.g., on the digital preservation/repository side of things) has now been concluded. The National Science Foundation convened a blue ribbon task force to consider the respective costs and benefits of developing a central digital repository. In their recommendations for action, published and discussed earlier this month, they agree that modification of the copyright laws is a good idea. You know you’re onto something when even the NSF is advocating cultural revolution. I have no doubt we will ultimately see this change come to pass, but I see no reason to wait on current trends to shake out a new world informational order. Who will step forward to lead (and not be led by) the coming revolution?

Friday, September 11, 2009

Toward Multi-Museum Multi-Media Collaboration - A Plea for Joint Effort

Join the Synchrotext revolution! My guest blog at the AAM Future of Museums can be found here with a technical addenda (a PDF) here.

Monday, March 16, 2009

Social Media Resources/Collaboration Effort

I've been working with the Federal Web Managers Council on social media to produce a wiki with information of interest to the government and other organizations.

Our charge is to pull together best practices and other resources for the benefit of government agencies. The members of the subcouncil are working hard to develop formal recommendations and guidelines for using these technologies for the Federal Web Managers Council.

These resources are likely to be of interest to everyone, including the museo tech community, so I'm cross posting the link to the wiki here:

http://govsocmed.pbwiki.com/FrontPage

Thursday, February 26, 2009

The Arts Need Better Arguments (and these are...)

These are my immediate reactions to Greg Sandow's 2/19/2009 opinion piece, which I posted originally on Facebook.

Sandow's states his principle argument as:
The San Francisco city government is facing a $576 million budget deficit. Cuts have been proposed, some involving public health. For hours at a meeting of the city's Board of Supervisors, there were protests from advocates for homeless people, medical clinics that serve the poor, and many other worthy groups.

So somebody proposed an alternative -- cut funding for the symphony and ballet. The matter hasn't been resolved, but would you like to be the opera representative, arguing to keep your funds, with people from endangered clinics in the room?

To this, and to Sandow's essay as a whole I have two reactions. First, I think Sandow makes excellent points about the relative (perceived) economic value of arts and cultural organizations as against, say, AIDS clinics. However, this pits an abstraction (the arts) against an organization with a specific, concrete benefit (treating AIDS sufferers and fighting the spread of the disease). Continuing only along the lines of this given example, promotion of the arts means assurance that information and awareness about AIDS -- its effects, its impact, its prevention, efforts to control its spread and treat sufferers -- is widely communicated, appreciated, understood, and felt; that problem-solving necessary to productive response is engaged; and that a community of like-minded and -motivated individuals is established to turn that problem-solving into action. Of course, the arts are relatively inexpensive (in that a little support often goes a long way toward increasing awareness and communal development), so in general the 'either-or' model that forces funders to choose between concerts and clinics is a false one. We can and should fund both. That said, the parable (itself a thought-model we get from the arts) of give-someone-a-fish vs. teach-someone-to-fish applies here. We need to promote concerts if we hope to have clinics.

Second, Sandow perpetuates the canard that popular culture and the arts are somehow separate things. They aren't. They have equal validity and each is fully worthy of support. A diverse forum yields greater understanding. When I speak of 'support of the arts,' I mean specifically funding initiatives, activities, and organizations which increase this diversity. I think there is no greater cause for humanity than promoting empathy and mutual perspective, while simultaneously creating a space for productive problem solving and galvanizing each other to action. That's what the arts (and humanities) do. The point should not be to distinguish such works from mainstream culture, but rather to find ways to stimulate and expand the mainstream to absorb messages in a broader way and from a broader field than simple commercial transactions make possible. That's chiefly why I think the arts merit (require) support, and of course I would target sources outside the present embrace of popular culture not because they are somehow "better" or have greater validity, then simply because they need the amplification. To maximize personal resonance and the depth of these experiences which make us committed citizens of the world, we should engage avenues for interchange that are paradigmatically distinct from those which are popular in the moment (theater, music, games, visual art, literature, etc.). To make possible a broader appreciation or receptivity to other people and the surrounding world, we should facilitate development of artistic skills and knowledge (musical literacy, numeracy, science, familiarity with immediate and distant history and culture). To personalize the direct and indirect consequences of our actions and omissions, we should seek out and amplify those narratives which are not (or less) presently being heard, not because the stories lack power but because the narrators do (be they victims of Katrina, Myanmar, or the conflict in Sudan).

**********************

A friend of mine asked whether we could create an 'elevator answer' version of this and like observations. (While initially confused, I have since learned that this means not so much one that is uplifting as one that only takes about 5 seconds to give.) It pains me to attempt this; I call on David Letterman's reaction to Rush Limbaugh's demand for “a simple yes or no” to what should properly have been a nuanced question (“But I’m a thoughtful person.”) Since in my case, it’s more about being long-winded than thoughtful per se, I figured it couldn't hurt to give the soundbyte effort a shot. Perhaps try:
Promotion of the arts and humanities is an investment in freedom of speech. It is the warp on which our social fabric is woven. Its absence inspires demagoguery; its price is ignorance.

That's pithy enough for an elevator ride, but I'm not sure it's intelligible. How do you pack anything with examples in the context of bare rhetoric? It’s the kind of thing that risks giving the humanities a bad name.

All in all, I think it’s best to let a better (and justifiably much more widely read) blogger make my case.In a post that also ran on February 19, Andrew Sullivan calls upon works by Orwell and others not just for support of his position, but for its very inspiration:
But back to Orwell. For Orwell, in Nineteen Eighty-Four particularly, eschewing torture is about saving the possibility of truth (the best other evocations of this point that I've come across can be found in plays: The Crucible and, more recently, The Pillowman).
Sullivan is here commenting primarily about torture, but speaking to my larger point about the validity of the arts even as he relies on multiple works of literature to bring his thoughts to full flower. If I am not alone in regarding a life deprived of such well-nourished intellectual roots as torture, then perhaps we can say,
Saving the arts is about saving the possibility of truth.
Not bad for an elevator argument, I think. Uplifting, to boot?

Friday, October 10, 2008

No Museum is an Island - Picking at the Safe Haven Fallacy

Kurt Stuchell is interviewed here about his proposed new social networking site for museums called Museum and Educational Social Network (MESN). As stated in the article, the intent is "to create and maintain a safe place for young people to socially interact with museums and professionals." It appears to be a return to the safe haven concept.

It will be interesting to see how this experiment plays out. I wish Kurt success, but personally, am extremely skeptical. By removing Museums from the mainstream of social media to its own island you risk making them a backwater. Refining this metaphor, you reduce the likelihood that casual browsers and the merely curious will stumble across Museum content (and then become future seekers) in their everyday ramblings. I think people are more surfers than seekers, initially going to one of a few trusted sources (their e-mail, their banking info, the front page or funny pages of their hometown newspaper) and then letting their curiosity or social proof ("Hey, what's interesting all *those* people?") lead them onward. We appreciate well-crafted linearity, but learn and explore associatively, from one tangentially-related distraction to the next.

The dead link safe haven established and promoted by the government and briefly championed in the early 2000s by Smithsonian's Center for Education and Museum Studies (Smithsonian Education) haven't been resoundingly successful, which is perhaps not a surprise. Even little kids realize that you sell more lemonade from a street corner than from a cul de sac -- the advantages from increased foot traffic overwhelms the appearance of safety. What's more, it's a false dichotomy, since Museums like other users aren't limited to pursuing a single outreach methodology, except to the extent of their staff's limited resources. Why should museum staff invest duplicate effort? I've come to think that Facebook's power lies in its unlimited and free access to all, its enforced simplicity (despite its less customizable new design), and chiefly, its reinventability (the thing that makes Museum apps like Artshare work). Plus it has already grown its own audience.

Seems to me that offering a new business model is by itself insufficient to achieve the goals of promoting museum content in new ways on the web. Anyone wanting to establish a Facebook competitor will have to offer materially distinct functionality (say, shared web tools a la GMU's Omeka, or the kind of annotated blending of media attempted once upon a time by Smithsonian Folkways' Synchrotext, about which more here, here, and in parallel invention, as used by the New York Times and better still, in Washington Post's Debate Decoder). Even at that, substantial investment would be required to seed content and establish value. Users cannot (or perhaps better, should not) be obtained through fiat, but by the consistent presentation of valued, superior content with the least barriers to entry (even where those barriers are merely those of direct navigation).

Content providers like Museums succeed where they coexist with, invite the participation of, and facilitate feedback from an unrestricted audience and wither when they establish ivory towers. Like I said, should be an interesting experiment. As they always do, truth and talent will [win] out.

Monday, August 11, 2008

Building A Free Society: Toward A More Perfect Copyright Law

According to Matt Mason in The Pirate’s Dilemma, “Copyright laws are encroaching on the public domain, but if the history of pirates is anything to go by, such laws are not often observed, become impossible to enforce, and eventually change.” (p. 99)

Okay, folks, get ready for a rather lengthy review of The Pirate’s Dilemma, or rather, a brief review of Matt Mason’s book, followed by a more extended discussion of some of the ideas contained therein as they relate to two recent DC Bar-sponsored programs in conjunction with my current thinking about copyright law. For my fellow pedants, this essay is a logical partner to the April 3 note I called, A Digital Needle in the Haystack: Finding the Good Stuff Online, which considered problems of online plagiarism and provenance as well as the part from my 2/11/08 Kickoff to an odd-thoughts blog, a relevant paragraph of which could easily serve as the synopsis of The Pirate’s Dilemma (and this very post), to wit:
So here's my rule in our great goldfish-bowl of a world. If you like anything you see badly enough that you feel it should be copied and spread like gospel (or even perhaps smeared like cream cheese)... go ahead. Take it. Do with it what you will. Just please be sure to credit your original source (that would be me, I believe, as the author here). I make no claims to originality, except in the copyright sense. All my thoughts and work are surely derivative of whatever I've consumed (and the more recent, the more influence on the regurgitation), but at least it's been processed through this man's wetware.
My point here is less to quote myself, than to indicate the emergence of a new zeitgeist from a mere two data points. First, the brief review. Matt Mason’s book is a quick read that offers glib patter (e.g., "DJ Fezzy is getting ready for his set. It’s a cold, dark Christmas Eve in his studio, and the time is coming up to 9:00 p.m. Fezzy has come pre¬pared for a crazy-hot show, packing an arsenal of scripted material, instruments, and records, set to deliver a sonic blast of talk radio and live music. Then he’ll throw down on the wheels of steel," p. 39, referencing the first radio show broadcast in 1906 by Reginald Fessenden), lots of annoying internal hype (e.g., "That is… perhaps the most important economic and cultural question of the twenty-first century," p. 4; “The game has changed,” p. 236), a bunch of fascinating anecdotal examples of “piracy,” and a game theory-inspired model for contemporary business, sans analysis or conclusion. The anecdotes and the initial definition of the dilemma (compete with or try to suppress piracy?) are the book’s strength, and worthy of a couple hours’ browse. The book’s weaknesses preclude a need to read, however, given that much of the text is given over to filibustering platitudes and inconsistent (and therefore largely meaningless) application of the concepts “piracy” (used here to cover a gamut ranging from any crime that can be construed as social protest to any unregulated activity that has market potential, such as the first broadcasts that emerged with the discovery of radio transmission), “punk capitalism” (which ranges from idealistic kids working for love rather than money to do-it-yourself entrepreneurship), and “hip-hop culture” (the vaguest term of all, which Mason applies to everything from “youth culture” or “youth movements” as a whole dating back to the mid-to-late ‘80s to anything involving the combination of pre-existing elements that Mason likes to call remixing irrespective of context, as he uses it freely to reference collage, architectural influence/homage, music sampling, and which extrapolates as well to grade school papers derived from traditional secondary source material).

Let's forget about Mason's book now and deal simply with its eponymous dilemma -- whether it is more effective to defeat pirates indirectly by competition or directly by force. In that vein, I recently attended the first in an anticipated series of symposia whose overarching theme is, "Creative Industries in Transition." On this day, the topic was "The Continuing Vitality of Music Performance Rights Organizations," featuring a talk by UC-Berkeley Law Professor Robert Merges (hosted by rights organization BMI), the big take-home being (surprise!) that so-called music PROs like ASCAP, BMI, and SESAC are needed now more than ever to serve as clearing-houses and collective bargainers for rights holders because through economies of scale, they help minimize transaction costs.

All of this I think begs the question: what is copyright for? To channel Lawrence Lessig for a moment, why do we bother with it? Originally, the idea behind our copyright law was threefold. (1)Allow creators to control the way in which their works could be exploited (the concept of 'droit morale,' moral rights) so that, by virtue of this control, society could (2) provide creators a means of making a living, so that (3) society would benefit from a constant influx of new, creative ideas. No control, no money. No money, no (or at least insufficient) new ideas. In other words, bestowing and limiting copyright protection basically came down to incentivizing production and creating a framework for negotiation that enables distribution for the benefit of the public and ideally assures the livelihood of sufficiently popular creators. Understand that for these purposes, we don't care about the guy who sings for his shower-head or the gal who writes for her desk drawer. From a public policy standpoint, if a tree falls in a forest and no one is around to broadcast a sound recording, there is no sound.

Accepting the logic of copyright's original premises as a platform for negotiation between creator (owner) and would-be user (audience/owner) raises a surfeit of interesting questions about the nature of control we impose by law on those who would enjoy creative works (essentially, anyone with an iPod) or allow to be imposed by creators as a contingent requirement of further use or enjoyment (essentially, freedom from theft, distortion, and plagiarism). How much protection is needed to administer and enforce creators' rights to get paid and manage the exploitation of their work? What kind of controls or barriers to access should we allow (technological, legal, etc.), and how do we balance the transaction costs of seeking & granting permission against the societal benefits of free use? Should we allow a distinction between authorship and ownership, and if so, when the values of growing (or circulating) communal wealth and growing (or circulating) communal knowledge are in opposition, which should prevail?

If you buy that copyright was established primarily as an economic regime to lubricate the cogs of creativity (as I do), then I'd argue that the best way of addressing these questions and likewise the piracy 'problem' is by maintaining a close relationship between the actual cost to create, copy, adapt, and/or distribute creative works and the amount of control we give to creators or copyright owners. Your average sculptor, photographer, or designer of drapes needs no incentive to express themselves, only the wherewithal to spend their time doing so and still afford the oatmeal needed to fuel their waking existence. Application of the current copyright protection regime must ape market behavior, and if we want to see the emergence of vastly expensive shows, we must find a way for producers to reap a return on their collective investment. There's no guaranteed return from copyright protection to assure creation: the point of monopoly is less to minimize the monopolist's risk than to give them sole power to manage it, so fair punishment to the fools who brought us "Heaven's Gate."

Now consider the flip-side to the 'cost = control' premise, namely that the cheaper production and distribution are, the fewer controls we should impose. "Cheaper production? Cheaper distribution?" asks the guy typing these thoughts on a workstation for instantaneous upload to a blog and worldwide publication. Welcome to the age of digital democracy, in which the costs of production and distribution are for all intents and purposes universally low. Under this economic analysis, we must relinquish the ideal of allowing copyright owners control of works of authorship in today's digital world. Take movies again, for example, which in their Hollywood blockbuster incarnation are notoriously expensive to produce and distribute. If it doesn't (or needn't) cost much of anything to shoot a decent video and post it on YouTube (or digitally transmit to theaters), we don't need to grant so much as a limited monopoly to assure the producer breaks even. We can move the point of risk assessment back from the point of exploitation (what's the best way to maximize my profit?) to the point of production (how can I best afford to make something right now?).

You see where this is leading. Is (the need for) copyright protection obsolete? Should we keep fiddling under the hood or is it time to send the car to the scrapheap? I'm almost there, but have one more service station to visit -- Ethos.

The foregoing discussion has conveniently ignored the social justice component(s) of copyright policy. In so doing, I do not mean to gainsay the value of an author's moral rights. I think it would be a shame to allow the willy-nilly destruction of a creator's art or reputation, simply because the quid pro quo of creation renders control irrelevant. Expedience should not dictate our ethics, but to the extent that enforcement costs resources (time, money, and effort), I do think that practical considerations force us to become more precise about the protections we afford. Even in the context of the droit moral the digital world challenges the traditional paradigm of copyright control.

Increasingly, we are choosing (or forced) to sacrifice privacy for convenience. Cell phones invite eavesdropping, electronic banking invites identity theft, and social apps make us exhibitionists in a virtual, parasocial community. Data mining and semantic data association facilitates targeted communication (and observation) in a way that threatens even the inherent protection of anonymity. Our world is beginning to resemble a giant terrarium, such that it is becoming impossible for a tree to fall in a forest without being seen by somebody. In such a context, attempts to control (in this case meaning "prevent") exploitations of creative works are futile. If you don't want anyone to read your thoughts (or hear your music, see your drawing, taste your recipe, etc.), you'd best keep them to yourself. Therefore, society must relinquish the concept of control as a moral foundation of copyright. This level of copyright protection is now available only to those who can afford to pay for enforcement, and is not viable in any case.

Isn’t that where we've come to with orphan works? "Good users" who purport to be public stewards of knowledge and ideas (museums, documentarians) had been hamstrung by copyright protection in cases where the legitimate owner of a work could not be readily identified. Authorship/ownership is left ambiguous for many works (fonts, field recordings, collective efforts), perversely chilling exploitation even by users who would be only too happy to pay a reasonable usage fee or whose usage might otherwise be encouraged and let gratis. A recent DC Bar panel at Arent Fox called, "Will Orphan Works Finally Find a Home?" established that new laws resolving this issue are imminent. You can get into the nitty-gritty of this issue (as well as the nuts-and-bolts of recently passed legislation) here.

As you can see, each special interest group and pending bill articulates the details of their orphan works solution slightly differently, but the commonalities are these. If you make a good-faith attempt to identify and notify the legitimate owner of a work ahead of time and come up blank, you're free to make use of the work however you like at no cost. If and when the legitimate owner emerges, you either negotiate a reasonable use fee or stop using the work. Of course, it's not so simple, since the greater your investment in use, the greater the leverage of the revealed owner. For this reason, each proposed legislative solution tries to find a way of defining "reasonable compensation" or a transactional mechanism for establishing one. At the panel I attended, representatives of the Copyright Office recommended against imposing a compulsory royalty scheme such as the one that exists for digital rights in sound recordings and music publishing, claiming that the (transaction) cost of the bureaucracy needed for oversight and enforcement was too clunky and expensive. Still, a formal orphan works resolution is imminent, even if the business model takes a while to fine tune.

Ugh! Those pernicious transaction costs, the friction that impedes the free exchange of ideas and trade! Well, wait a minute, let's recast this in light of what we know about our digital universe. Taking time to identify the legitimate owner has a cost -- if nothing else, then as a judgment call. Negotiating with the owner costs at least the value of time. Enforcing one's entitlements in the courts has an absolute cost, but that's arguably the penalty of living outside the Badlands. It seems to me that what we have in orphan works is a system whereby we say to good actors, "Go ahead and use whatever you like however you please until you get caught. Then pay for it." If we agree that some kind of regime is necessary to regulate the payment part of things, why apply this only to orphan works? To my mind, we're still trying to fix a copyright protection scheme that our would-be frictionless digital environment has rendered irretrievably broken.

WHO-OAH, THERE'S A SOLUTION...

(Thank you, Steve Miller.)

In keeping with my "Digital Needle" take-homes:
Here, then, are a few things that museums should do to assure the continued purity and vitality of the marketplace of ideas in an increasingly-polluted digital world:

1. Be an authority:
  • seek out authors and remain vigilant about properly attributing all sources;
  • keep primary source material alive and digital so that it can be referenced;
  • build semantic widgets to accurately and efficiently tag their "good stuff;"
2. Be a filter:
  • dedicate resources to portal activity to identify others' "good stuff;" and
3. Be a good citizen:
  • participate in discussions to create statutory royalty reservoirs
I think the foundation of copyright law needs to change from its obsolete "control" paradigm to a purely moral foundation of attribution and transparency. The pirate's dilemma as defined by Mason disappears when pirates are legally recognized as legitimate entrepreneurs as opposed to parasites. Acknowledging a situation that already exists, once a creator makes a work, it's "out there," and has to be considered fair game for anyone and everyone to exploit. In the digital environment, if we want to continue to incentivize creativity, then I think the way to do so is to be sure that creators receive the credit they are due. By recognizing legitimate authorship through enforced attribution, we allow the public to directly engage and support creators while at the same time protecting them from later distortions for which they are not responsible. By requiring transparency of authorship we assure the provenance of creative works that is so critical to the preservation of their communicative value. For those exploiting the works of others for fun/profit (by re-publication, broadcast, or other distribution; by sampling or adaptation; by display or performance; etc.), mandating transparency of cost/compensation allows the public to distinguish among those exploitations that they feel are fair in an otherwise crowded forum.

In one sweeping move, we eliminate piracy and the concept of the public domain. All uses are legitimate, all uses are fair, and copyright protection subsists for as long as a creator's estate is on hand to stand up for the right to be counted. Maximizing income from exploitation is a business problem, not a creative one, and the marketplace should be allowed to take care of itself (albeit, as I think will happen, on the backs of the orphan works' compensatory solution, more on which below). As the Lynn Ahrens song says, we impose law to "establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity," and I think these are best accomplished by restricting copyright protection to promoting the ethical values of fair attribution and fair competition (in the form of mandating a transparent marketplace).

Who pays for all this free content? As Trey Parker and Matt Stone so eloquently put it in "Team America," freedom isn't free (although as they would have it, it costs $1.05, which is right now higher than the cost of the average download). It's easy to be dismissively glib here, but it has been pointed out to me by my intellectual superiors that economic incentive is a founding problem in the recognition and promotion of intellectual property. Absent a legal framework (control) to force negotiation between creators and subsequent users, the only way to assure compensation for creators is via the establishment of a compulsory licensing scheme. This, in turn, opens the door to the endless fighting over rates, the constant lobbying for re-regulation or legislative changes that take forever to implement, and the incessant fiddling in the market and Capitol to set rates at a level to protect those with the least power or by volume of exploitation, all of which will inherently change the business structure to make it possible for people to still enjoy the production of movies/operas and other complex or high-investment creative undertakings. Got that?

Not to repeat myself, but isn't that what we're coming to with orphan works? If we're setting up a scheme to regulate fair compensation to re-discovered copyright owners for otherwise grandfathered (meaning uncontrolled) exploitations, and we're groping toward a mechanism which nonetheless favors exploitation (that is, remains affordable), then economies of scale would favor extension of this model across the full spectra of creative endeavor, from architecture to zither recordings. Understand that as I conveniently gloss over the issue of monetization, I do not mean to imply that I regard this as a trivial problem. Establishing the playing field that will allow for a reasonable quid-pro-quo structure is arguably the lynchpin holding together the existing copyright structure. However, I do think these issues are resolvable and that the time is ripe to take them on. Heck, I think it's essential we do. If this blog could act as a call to arms in service of initiating this dialogue, so much the better. You'll excuse me for suggesting that the parameters yielding a new, practical, and fair payment regime for creative works will likely require much lengthier consideration, analysis, and surely heated debate than can be afforded by this short essay.

This note began with Matt Mason, and so it seems fitting to end there as well. As he writes on p. 159 of The Pirate's Dilemma:
"This new democracy looks a lot like the model used by the music business in China. A total of 95 percent of all CDs sold there are pirate copies. This is because there are such tight restrictions on the legiti¬mate sale of foreign media, and also because in Chinese society, the idea of paying for downloading music is, by and large, considered ridiculous. Recorded music is effectively a public good, free at the point of consumption. Yet a large middle class of artists make a living there, primarily from live performances. As columnist Kevin Maney wrote for USA Today, “Chinese rock stars aren’t getting as wealthy as, say, Michael Jackson, but . . . why should they? Only a relatively few American rockers ever sell enough CDs to get fabulously rich. Should society care if rockers can’t afford to build their own backyard amusement parks?”
I say no, but society should care if rockers can't stand up and demand recognition for rightful authorship, and if commercial exploiters can hide or camouflage the means by which they exact ROI from their investment. Free speech and sunshine are the cornerstones of a strong democracy. They lead to an informed citizenry, or at least to a cacophony of voices that vent the public boiler continuously enough to keep it from exploding (or if not, to give we-the-people sufficient warning signs to hopefully proactively, positively intervene before an explosion can take place). And while ideas and expression are freed from artificial constraints, popular creators can still commoditize themselves by selling access to their performances, appearances, participation in new projects, and commissioning of new works.

The digital revolution invalidates the traditional copyright paradigm, but presents a tremendous opportunity for social progress. Embracing change rather than fighting it is the best (or at worst, least disruptive) way to move forward. We must therefore retool the law to accommodate works whose circulation and evolution cannot practically be controlled and which it is legal folly to persist in trying to prevent.

Talk amongst yourselves.