Notes: "Free Culture" Ch. 5 Piracy

PIRACY I

The recording industry estimates loss at about $4.6 billion every year to businesses that do nothing but steal others people’s copyrighted content, copy it, and sell it without permission of copyright owner. 

 

"The MPAA estimates that it loses $3 billion annually worldwide to piracy" (63).

Lessig iterates: Piracy is wrong – legally and morally. Three arguments in favor of piracy:

1. "...in any case, it does no harm to the industry. The Chinese who get access to American CDs at 50 cents a copy are not people who would have bought those American CDs at $15 a copy. So no one really has any less money than they otherwise would have had" (64). But there are still people who can afford to pay for those DVDs they pirated who should have paid the copyright owner.

2. "Extremists in this debate love to say, 'You wouldn’t go into Barnes & Noble and take a book off of the shelf without paying; why should it be any different with on-line music?' The difference is, of course, that when you take a book from Barnes & Noble, it has one less book to sell. By contrast, when you take an MP3 from a computer network, there is not one less CD that can be sold" (64). -- weak argument for the morality of piracy, still.

3. It actually helps the copyright owner: "When the Chinese 'steal' Windows, that makes the Chinese dependent on Microsoft. Microsoft loses the value of the software that was taken. But it gains users who are used to life in the Microsoft world. Over time, as the nation grows more wealthy, more and more people will buy software rather than steal it. And hence over time, because that buying will benefit Microsoft, Microsoft benefits from the piracy" (65). The addiction strategy does work as a marketing tool. But we should still let companies decide when they want to give their stuff away for free. 

Lessig concedes: Not all "piracy" is wrong.

Distinction between piracy and p2p sharing: "For (1) like the original Hollywood, p2p sharing escapes an overly controlling industry; and (2) like the original recording industry, it simply exploits a new way to distribute content; but (3) unlike cable TV, no one is selling the content that is shared on p2p services" (66).

PIRACY II

"The key to the “piracy” that the law aims to quash is a use that “rob[s] the author of [his] profit.” This means we must determine whether and how much p2p sharing harms before we know how strongly the law should seek to either prevent it or find an alternative to assure the author of his profit" (66-67).

Napster didn't do anything new – they just put together things that independents had already developed (67).

Four kinds of file sharers:
1. Users who download instead of purchase

2. Those who want to listen to music before they purchase it

3. Those looking for content that is either not on the market or too expensive. Net damage is zero if the content isn't being sold anymore

4. Users downloading content that is not copyrighted or the owner is giving it away

Only the 4th is legal, and the 1st is the most harmful. "Type 2 sharing is illegal but plainly beneficial. Type 3 sharing is illegal, yet good for society (since more exposure to music is good) and harmless to the artist (since the work is not otherwise available). So how sharing matters on balance is a hard question to answer—and certainly much more difficult than the current rhetoric around the issue

suggests" (69).

Still, it is difficult to determine just how harmful p2p sharing is. Often times, those seeing loss in profits blamed technology for the problem, to be solved by banning or regulating it (69).

So the question we must also pose is "how harmful type A sharing is, and how beneficial the other types of sharing are." If type 2 outweighs type 1, then sharing is clearly beneficial (70).

"But let’s assume the RIAA is right, and all of the decline in CD sales is because of Internet sharing. Here’s the rub: In the same period that the RIAA estimates that 803 million CDs were sold, the RIAA estimates that 2.1 billion CDs were downloaded for free. Thus, although 2.6 times the total number of CDs sold were downloaded for free, sales revenue fell by just 6.7 percent...
If I steal a CD, then there is one less CD to sell. Every taking is a lost sale. But on the basis of the numbers the RIAA provides, it is absolutely clear that the same is not true of downloads. If every download were a lost sale—if every use of Kazaa “rob[bed] the author of [his] profit”—then the industry would have suffered a 100 percent drop in sales last year, not a 7 percent drop" (71).

"If efforts to solve the problem of type 1 sharing destroy the opportunity for type 4 sharing, then we lose something important in order to protect type 1 content." Society does not just lose money from p2p sharing -- it is also enriched (73).

But the war is still against all file sharing. When Napster said it could reduce all copyright infringement down to 99.4%, the district court told them that wasn't good enough. "If 99.4 percent is not good enough, then this is a war on file-sharing technologies, not a war on copyright infringement... zero tolerance means zero p2p" (74).

Our culture has not always been like that. The law usually strives for balance. The two main goals of copyright legislation during the compromise affecting records and player pianos were 1) "to [assure] that new innovators would have the freedom to develop new ways to deliver content" and 2) "[assure] that copyright holders would be paid for the content that was distributed." They were worried that if copyright holders (CRH) could charge however much they wanted for their content, then one medium's CRH would stifle a different medium, OR that letting a medium use copyrighted material for free would "unfairly subsidize cable." So Congress compromised to "assure compensation without giving the past (broadcasters) control over the future (cable)"(75).

Of the Supreme Court case for the movie industry vs VCR recording, the court wrote "Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials. Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology" (77).

"In none of these cases did either the courts or Congress eliminate all free riding. In none of these cases did the courts or Congress insist that the law should assure that the copyright holder get all the value that his copyright created" (77). New technology always creates this fight with the old medium, and everyone is concerned about protecting their property.

Notes: "Free Culture" Ch. 4 Pirates

FILM

"Creators and directors migrated from the East Coast to California in the early twentieth century in part to escape controls that patents granted the inventor of filmmaking, Thomas Edison. These controls were exercised through a monopoly “trust,” the Motion Pictures Patents Company, and were based on Thomas Edison’s creative property—patents. Edison formed the MPPC to exercise the rights this creative property gave him, and the MPPC was serious about the control it demanded" (53-54).

By the time Edison's law enforcers got there,  the patents had expired. Patents then granted the

patent holder a truly “limited” monopoly (just seventeen years) (54).

RECORDED MUSIC 

"But the law governing recordings gives recording artists less. And thus, in effect, the law subsidizes the recording industry through a kind of piracy—by giving recording artists a weaker right than it otherwise gives creative authors. The Beatles have less control over their creative work than Grisham does. And the beneficiaries of this less control are the recording industry and the public. The recording industry gets something of value for less than it otherwise would pay; the public gets access to a much wider range of musical creativity. Indeed, Congress was quite explicit about its reasons for granting this right. Its fear was the monopoly power of rights holders, and that that power would stifle follow-on creativity" (57).

RADIO

"But it doesn’t. Under the law governing radio performances, the radio station does not have to pay the recording artist. The radio station need only pay the composer. The radio station thus gets a bit of something for nothing. It gets to perform the recording artist’s work for free, even if it must pay the composer something for the privilege of playing the song" (59).

You compose a song and have someone famous record it. Every time a radio station plays it, you are compensated but the singing artist is not. Thus, the radio pirates the value of the work from the artist every time they play it on the air (59).

CABLE TV

1948: "When cable entrepreneurs first started wiring communities with cable television in 1948, most refused to pay broadcasters for the content that they echoed to their customers. Even when the cable companies started selling access to television broadcasts, they refused to pay for what they sold. Cable companies were thus Napsterizing broadcasters’ content, but more egregiously than anything Napster ever did— Napster never charged for the content it enabled others to give away" (59-60).

The copyright owners said: "All we are asking for is a very simple thing, that people who now take our property for nothing pay for it. We are trying to stop piracy and I don’t think there is any lesser word to describe it. I think there are harsher words which would fit it" (60).

"Copyright owners took the cable companies to court. Twice the Supreme Court held that the cable companies owed the copyright owners nothing" (61). OHMYGOD they didn't fix it for 30 years!! (61)

****

"Every generation welcomes the pirates from the last. Every generation—until now" (61).

Notes: "Free Culture" Ch. 3 Catalogs

Jesse Jordan and the RPI system
RPI = Rensselaer Polytechnic Institute
Recording Industry Association of America (RIAA) filed a lawsuit against him for copyright infringement because he tinkered with the code for RPI's site's search engine, making it easier to access content, which he did not create or post. For this "willful infringement," they demanded he pay a fine of $15,000,000 (48-50). Two other students faced similar lawsuits from RIAA.

"If you added up the claims, these four lawsuits were asking courts in the United States to award the plaintiffs close to $100  billion—six times the total profit of the film industry in 2001... [the RIAA] demanded $12,000 to dismiss the case" or in other words, Jesse's entire savings (51).


"The recording industry insists this is a matter of law and morality. Let’s put the law aside for a moment and think about the morality. Where is the morality in a lawsuit like this? What is the virtue in scapegoatism? The RIAA is an extraordinarily powerful lobby. The president of the RIAA is reported to make more than $1 million a year. Artists, on the other hand, are not well paid. The average recording artist makes $45,900. There are plenty of ways for the RIAA to affect and direct policy. So where is the morality in taking money from a student for running a search engine?" (52).

Now Jesse is an activist. He's trying to set the record straight, and point out the absurdity in the RIAA's actions.

Notes: "Free Culture" Ch. 2 Mere Copyists

CH 2: “Mere Copyists”

In photography, photogs are allowed to capture anything in the public space (Copyright:public domain)

"For just as there is a grammar for the written word, so, too, is there one for media. And just as kids learn how to write by writing lots of terrible prose, kids learn how to write media by constructing lots of (at least at first) terrible media... One learns to write by writing and then reflecting upon what one has written. One learns to write with images by making them and then reflecting upon what one has created." (36.) Media Literacy

Elizabeth Daley: 'From my perspective, probably the most important digital divide is not access to a box. It’s the ability to be empowered with the language that that box works in. Otherwise only a very few people can write with this language, and all the rest of us are reduced to being read-only.'

"'Read-only.' Passive recipients of culture produced elsewhere. Couch potatoes. Consumers. This is the world of media from the twentieth century" (37). 

"Education, Daley explained, is about giving students a way of “constructing meaning.” To say that that means just writing is like saying teaching writing

is only about teaching kids how to spell" (39).

"[Blogs] are arguably the most important form of unchoreographed public discourse that we have. That’s a strong statement. Yet it says as much about our democracy as it does about blogs. This is the part of America that is most difficult for those of us who love America to accept: Our democracy has atrophied" (41). (juries)..."But for most of us for most of the time, there is no time or place for “democratic deliberation” to occur" (42).

Blogs vs. Mainstream media: "This different cycle is possible because the same commercial pressures don’t exist with blogs as with other ventures. Television and newspapers are commercial entities.They must work to keep attention. If they lose readers, they lose revenue. Like sharks, they must move on.
But bloggers don’t have a similar constraint. They can obsess, they can focus, they can get serious. If a particular blogger writes a particularly interesting story, more and more people link to that story. And as
the number of links to a particular story increases, it rises in the ranks of stories. People read what is popular; what is popular has been selected by a very democratic process of peer-generated rankings" (43). "Blog space gives amateurs a way to enter the debate—“amateur” not in the sense of inexperienced, but in the sense of an Olympic athlete, meaning not paid by anyone to give their reports" (44).


"But it affects democracy in another way as well. As more and more citizens express what they think, and defend it in writing, that will change the way people understand public issues.... it is a rare human who admits that he has been persuaded that he is wrong. But it is even rarer for a human to ignore when he has been proven wrong. The writing of ideas, arguments, and criticism improves democracy" (45).


"...tinkering is no longer an isolated activity that you’re doing in your garage" (46). We used to tinker with our cars, small electronics, alone in our rooms. Now, when we tinker with things like open source code (free software or open-source software (FS/OSS)) we are letting others all over the Net see our work... creating a "community platform."

Notes: Lawrence Lessig "Free Culture" Intro - Ch. 1

Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity"

"To Eric Eldred—whose work first drew me to this cause, and for whom it continues still."

Introduction
Free Culture is about the troubles the Internet causes even after the modem is turned off. It is an argument about how the battles that now rage regarding life on-line have fundamentally affected “people who aren’t online.”

We come from a tradition of “free culture”—not “free” as in “free beer” (to borrow a phrase from the founder of the freesoftware movement), but “free” as in “free speech,” “free markets,” “free trade,” “free enterprise,” “free will,” and “free elections.”

The opposite of a free culture is a permission culture "...creators get to create only with the permission of the powerful, or of creators from the past"

"Does that sound unconservative? Not to me. The concentration of power—political, corporate, media, cultural—should be anathema to conservatives. The diffusion of power through local control, thereby encouraging individual participation, is the essence of federalism and the greatest expression of democracy."

"technological meme pool"

"Corporations threatened by the potential of the Internet to change the way both commercial and noncommercial culture are made and shared have united to induce lawmakers to use the law to protect them... They are succeeding in their plan to remake the Internet before the Internet remakes them (9)."

It seems there is a new "war" now between "piracy" and "property," (10) provoked by the Internet (17).

"There has never been a time in our history when more of our “culture” was as “owned” as it is now. And yet there has never been a time when the concentration of power to control the uses of culture has been as unquestioningly accepted as it is now... Or is the radical shift away from our tradition of free culture yet another example of a political system captured by a few powerful special interests?" (12)... "...we are allowing those most threatened by the changes to use their power to change the law—and more importantly, to use their power to change something fundamental about who we have always been" (13).

Part 1: “PIRACY”
Person-to-person sharing (p2p) has an efficiency which does not respect the traditional lines of copyright laws. "A generation of Americans, the warriors warn, is being raised to believe that “property” should be “free.” Forget tattoos, never mind body piercing—our kids are becoming thieves!" (18).

WRONG: "Creative work has value; whenever I use, or take, or build upon the creative work of others, I am taking from them something of value. Whenever I take something of value from someone else, I should have their permission. The taking of something of value from someone else without permission is wrong. It is a form of piracy" (18)

"Instead, in our tradition, intellectual property is an instrument. It sets the groundwork for a richly creative society but remains subservient to the value of creativity. The current debate has this turned around. We have become so concerned with protecting the instrument that we are losing sight of the value.

The source of this confusion is a distinction that the law no longer takes care to draw—the distinction between republishing someone’s work on the one hand and building upon or transforming that work on the other. Copyright law at its birth had only publishing as its concern; copyright law today regulates both" (19).

"Rise of the Creative Class" Richard Florida

CH 1: Creators
Disney

Japanese publishing of manga, or graphic novels..."Doujinshi are also comics, but they are a kind of copycat comic. A rich ethic governs the creation of doujinshi. It is not doujinshi if it is just a copy; the artist must make a contribution to the art he copies, by transforming it either subtly or significantly" (25-26). "This market exists in parallel to the mainstream commercial manga market. In some ways, it obviously competes with that market, but there is no sustained effort by those who control the commercial manga market to shut the doujinshi market down. It flourishes, despite the competition and despite the law" (26).

Even though Japanese copyright law technically bans these copycat comics, one Japanese man admitted that there simply aren't enough lawyers to defend these cases (27). "Would Japan be better off with more lawyers? Would mangabe richer if doujinshi artists were regularly prosecuted? Would the

Japanese gain something important if they could end this practice of uncompensated sharing? Does piracy here hurt the victims of the piracy, or does it help them? Would lawyers fighting this piracy help

their clients or hurt them?" (27-28).

"Scientists build upon the work of other scientists without asking or paying for the privilege. (“Excuse me, Professor Einstein, but may I have permission to use your theory of relativity to show that you were wrong about quantum physics?”)" (29).

2.26 Notes

Lawrence Lessig's "Free Culture"
The Causbys: chickens died when military planes flew over their yard. What is "your property"? Does the air space above it count? 

Steamboat Bill and Steamboat Willie: copyright lasted 14 years, then 28, and then the life of the creator. Disney has so far maintained ownership of Mickey Mouse, but lobbying Congress. But... SBW owed "ideational debt" to SBB, and many of Disney's stories came from folk tales, legend, oral history. #scumbagDisney

doujinshi: Fan fiction in the form of comics. Using the same characters. It's Japanese, where there are much different rules for intellectual property.

Copyright Criminals

Who gets the credit, and the money? Money and art

"We're all turning into DJs"

Anthony Berman - entertainment lawyer/douchebag

people who used to be miffed by sampling found out how much money they could make on copyright

Cheap and easy -- say the older generation of people, opposed to sampling. It's absurd to say samplers are "instrumentalists"

Modern music producer/sampler/DJ:instrumentalist as photographer:painter

"all these other artists that I'm sampling... they're in my band!"

Sage Francis: modern music producer

"Funk is the DNA of hip-hop"

Digital sampling came in the 1980s - the equipment was cheaper, more people knew how to make it.

"Sample police" -- lawyers and bullshit

The Bomb Squad -- four musical masterminds, bringing in sounds

"reality record" -- what you hear back on the streets is what you hear on the record... and then you hear that on the streets!

"Nobody took hip-hop seriously until it started making a lot of money." The copyright holders realized they could profit by charging artists for sampling their tracks

De La Soul got in a lot of trouble for sampling -- and sued

Biz Markie and Gilbert O'Sullivan: made a parody of "Alone Again," G.O'S fules a huge law suit. AS IF MUSIC CAN BE ERASED PAHAH. The judge called it "Biblically incorrect."

They weren't trying to steal or take what wasn't "theirs" -- they were creating, vibing. It was an unwritten code of the hip-hop world. You can't copyright a sound.

Sampling clearance emerged as an industry. Put pressure on artists to be honest about samples from the beginning. 

Now that creating includes asking for permission... the definition of musical creativity has changed. "It is cheaper to cover an entire song than to sample 3 seconds of it." If you change the words or recontextualize it, you're screwed. 

Paying over $100,000 to sample one song! "Now you're telling me that my style is too expensive?"

No rapper ever thanked Clyde Subblefield "the original funky drummer" for his drum beats. No credit, no mention, no compensation. (besides Melissa Etheridge)

There aren't many original that make more money than the pieces they sample from. 

CULTURE IS ABOUT COLLAGE -- FORGING THE BITS INTO SOMETHING STRONGER. 

Danger Mouse' "The Gray Album" from 2004: mashup between The Beatles' White Album and Jay-Z's Black Album. One of the most successful albums of 2004, if it had been for sale. Nobody made a dime. 

The people who make the technology do it so we can make music and create and move on. Wouldn't it be nice if we could just get on with it. The law may be too involved in, and an underground is growing because the "outlaws" cannot afford the lawsuits.

Subblefield says the credit is more important than the money. 

"That's how society moves forward. It evolves from taking old things, and changing them."

Soundtrack?

That was quick – White House acts on Swart's demand for free information

"White House Grants Aaron Swartz's Wish: Taxpayer-Funded Research Will Be Free"

Gerry Smith writes in his article for the Huffington Post that the Obama administration just granted Aaron Swart's wish by directing federal agencies on Friday to make the results of federally-funded research freely available to the public within one year of publication.

The Office of Science and Technology Policy wrote on Feb. 22, "in a policy memorandum released today, OSTP Director John Holdren has directed Federal agencies with more than $100M in R&D expenditures to develop plans to make the published results of federally funded research freely available to the public within one year of publication and requiring researchers to better account for and manage the digital data resulting from federally funded scientific research."

The memorandum was addressed to "the heads of executive departments and agencies" which "with more than $100 million in research and development expenditures" (Dr. John Holdren).

"In a 2008 manifesto, Swartz said sharing information was a 'moral imperative' and advocated for 'civil disobedience' against copyright laws pushed by corporations 'blinded by greed' that led to the 'privatization of knowledge.'"  Smith writes of Swartz. #PDFtribute

Some people marvel that this was not done earlier. As the reddit thread on the Huffington article put it, "Whenever you hear Republicans say they want to privatize a piece of the government, what they are really saying, is that they want tax payers to fund a private monopoly." - "I don't think this type of thing is limited to Republicans, unfortunately." - "Greed doesn't have a single party. It's all-inclusive." - "And it's global."

I don't think I agree that the whole issue itself started out of greed. In a time when information simply could not be shared as easily, or as cheaply, publishing and sharing (printing journals or books) would have been an expensive process. I wonder if, when government-funded research only resided in libraries, they allowed the public to access them for free.

Now the problem of sharing inexpensively has been resolved with the Internet, but the old laws about sharing information took longer to adapt to technology's affordances. More important than the laws themselves are the people of power who uphold them, and have built empires upon the old way. They are the ones resisting change and progress; their fortunes depend on an antiquated system.

This is not to undermine the challenge publishers will face when required to restructure their system. Making articles freely accessible will likely take a big chunk out of their profits, and someone is going to take the financial hit for that.