Must Reads

McGrath on the State of the Copyright Debate

Denis McGrath has a must-read post on the state of the copyright debate in Canada.  I come in for some criticism in the post but I agree with many of his points and think it is well worth reading.  For the record, I stand by what I say in posts on this blog but I do not moderate the discussion that follows. 

38 Comments

  1. Devil's Advocate says:

    “Creators” vs. “Pirates”
    The trouble with “creators” like McGrath is that they view this as some complex argument between “them” and “The Freeloaders”, and always ultimately center their sights on some form of miraculous “protective measures” as the answer.

    These impossible “solutions” they keep pushing for are actually the chief cause for concern in all of this, and the biggest argument for both copyright abolition and the need for a new business model for music.

    Not only are the creators asking for the entire Internet ecosystem to be turned upside-down in their honour, but even if it were, they’d still see no extra money from the very mechanisms that are already failing to pay them now, for whatever reasons.

    Most creators cannot see past their own industry’s propaganda, or their own world, and have no idea of the processes at play here, or how their demands negatively impact not only their fans, but everyone outside of their industry, on a global scale.

    The fact that all the arguments for added “controls” and “protection” are so “complex” is a statement in itself that copyright has been defeated by the Internet. And, that’s the inconvenient, but “simple” part of the argument that people like McGrath choose not to wrap their heads around, instead turning it around as some bizarre “anti-creator” sentiment.

  2. Denis McGrath says:

    “Wow,” he said, “that’s” a lot of “quotes.”
    The problem with the practice of “quoting” to indicate dubious claims is that it behooves the “learned commenter” to offer a “solution” that’s better than the “propaganda” they’re railing against.

    Your comment’s got a whole lot of airquotes, but I’ve read it twice through now and I don’t really see a single fact here.

    Copyright is not an argument. It’s a system. The argument is about how to reform and enforce that system.

    The argument is, in fact, complex. As are most issues of law that touch upon individual rights, collective rights, artistic expression, industrial policy, culture, freedom of speech, and economic and industrial development.

    This issue impacts all of those areas.

    Less easy air quotes. We’ll all be better off.

  3. RagnarDanneskjöld says:

    A good read, but
    “The problem with gimme, of course, is that it’s hard to plug into any kind of self-sustaining economic model by which artists get paid for their labors.”
    I think this is a truth that a lot of the GIMME’s recognize. But they argue that industrial media shouldn’t be forcing laws to make criminals out of citizens for uses that have historically been acceptable (lending a book?) and delaying the inevitable demise of the current music/movie/etc industry. The use of the term economic model implies that Mr. McGrath believes in economics and therefore supply and demand. The technology of digital copy and distribution makes the supply of a digital copy infinite and therefore the price negligible. I agree with his views on reproducibility. Instances of art where supplies are limited can have value. Live performances (concerts, readings, exhibitions) are services with limited supply and have value.

    Timeline of creation is a moot point. I can spend a lifetime becoming the worlds best paper airplane pilot but that in no way entitles me a monetary reward. Reward is the key term. Spending the time honing a craft is the RISK. A monetary compensation for something you do with that craft is the REWARD. There’s no guarantee that an artist will ever make a dime from their art just as there is no guarantee that a plumber will ever talk anyone into letting him fix a faucet. Before you spend that time honing a craft you have to accept that risk.

    In the end, I enjoyed the article and I hope I’ve interpreted his point accurately.

  4. Denis McGrath says:

    Yes and No
    You’re right on the first point. There are very few content creators who are down with restrictions on lawful uses.

    As for the “inevitable demise of the current music/movie/etc. industry” you need to take “current” out of there. Because we’re not talking about current. We’re talking about the thing itself. We figure this out, movies and TV keep getting made. We don’t. They don’t.

    That’s the reality. People don’t work for free. Anyone who argues for any kind of wide open copyright without recognizing this fact is playing an intellectually dishonest shell game.

    In a world where the content — the intellectual property — could be hived toward a physical product there was an easy relationship. But now because the intellectual property, the former product, can be instantly reproduced does not mean that the value of the intellectual property reduces to zero.

    Or it does, in which case, pretty soon there will be no new TV, Movies, or Videogames made ever again.

    The second part of the argument comes to amateur vs. professionalization. It’s not an apt argument. There is demand for TV shows — the bittorrent rates proves it.

    The better analogy is pharmaceuticals. Costs of developing drugs are high. The drugmakers enjoy an exclusive period, after which there are generics available that have the same chemical compound, that are, in fact, the same drug, but cost less.

    This arrangement happens for all sorts of product. The fact than anyone argues against this for intellectual property is the outlier, not the arrangement vis a vis intellectual property itself.

    The discussion of different ways to recoup for that property in a post digital world is a discussion that could be happening with full involvement of content creators & persons interested in copyright on the consumer level.

    That’s not happening — and it’s because of a bunch of naive bunkum thinking from your side of the aisle.

    You know you’re doing a bad job of making your case universal when you take artists & content creators and cause them to SIDE WITH HUGE MULTINATIONAL CORPORATIONS.

    Think about it.

  5. Chris Brand says:

    Re: Yes and No
    Thanks for commenting here, Denis.

    “We figure this out, movies and TV keep getting made. We don’t. They don’t.” – interesting assertion, and clearly something that a lot of people believe. Nobody knows for sure, though, do they ? I personally feel that as long as there’s a demand for movies and TV, somebody will figure out how to profit from satisfying that demand. I don’t see any reason why paying for the content would *have* to be part of that model, although it certainly could be, so I certainly don’t see why we’d want to guide businesses towards a “sell copies of content” business model. I’d point to the fact that TV gets broadcast over-the-air today for free, and that box office takings continue to rise despite every movie being available for free online, as indications that I your assertion may not be fact.

    When the cost of creating one more copy falls to almost zero, that should be a great opportunity for innovative companies to make a lot of money (and indeed, there are plenty of examples of just that). (Oh, and please don’t be intellectually dishonest by implying that a cost of zero means a value of zero, unless you’re willing to give up all that free air you’re breathing). Of course, huge multinationals that have gotten fat from selling us multiple copies of the same thing for vast amounts of money will find it difficult to adapt and will do whatever they can to keep that money flowing their way, and yes, they’ll be able to convince a lot of people who grew up with a system where you can make a lot of money from selling content that there’s no alternative. That doesn’t make them (or you) right.

    Sorry, I just don’t see the sky falling.

  6. A good read, points on both sides are represented to a point
    As a digital content creator and consumer of digital content, I personally believe that once you have purchased a piece of media weather it be movies, books, music, podcasts, etc, you purchase the rights to consume that media however you want. If you want to listen to a song that you purchased on a CD, or itunes, record, what ever you should be legally allowed to do that. Consumers should not be charged again to change the format of the content. Now if they choose to do that, it is a different story they either don’t have the time, knowledge or capability to do that. However if you purchase something and change the format yourself that should be legal. That is the underlining discussion is about. As for pirates, freeloaders and people who just want everything for free, you will never change their mind, and trying to block them is a losing battle. It’s time for the media companies to change their thinking when it comes to their business model. It’s time to start thinking mass scale. Make the content cheap and convenient enough that if people loose their copy of what ever it is they just go buy another one instead of looking for it, or trying to download it. It may mean having more advertising, or other forms of media to bring in more income for the content creators but since we live in a digital world where having hard copies will be less common place it is best to think of this now instead of a world where your being nickel and dime to death over missing the content you want to consume.

  7. Policing Us
    Nice piece Denis McGrath, can’t honestly say it has swayed my opinion of this circumstance that much. I’d say we both agree that tough times are ahead, for independent artists, no matter how this plays out.

    I’m curious, how would you propose policing and enforcing copyright law. It seems to me that the only effective control over digital transfers will be constant monitoring of all the exchanges between consumers’ computers. How can this be acceptable behaviour? Would we also be OK with having every phone call monitored, and every piece of mail opened and read? While you acknowledge that consumers deserve some freedom, it would seem that you advocate a system that will necessitate an unprecedented level of monitoring and scrutiny in Canada. Additionally, I question whether this is an element of enforcement that an independent artist will be able to utilize. On the surface, it looks to me like it will take an iron oligarchical will and funds to maintain it.

    I have argued previously that, in the case of movies and music, the external forces which have affected the market have undermined the value of the product significantly. I am of the opinion that, if the suppliers to the old home entertainment market want total to retain control of their product before/during and after consumption, that they should move back to their controlled environments (theatres and arenas/venues, for example) then both the consumers’ and suppliers’ desires stay in tact. Really, it is apparent to me that this conflict of social interests is rooted in a loss of revenue of the suppliers. If, for example, a niche for certain types of automobiles dries up, manufacturers are expected to give up on that market and find new markets to supply. Why should we have the digital media’s will forced on us, when the whole economic/infrastructural base for their perpetuation already exists? Movie attendance would go almost certainly go up, concert proliferation would increase, and the vacant spot left by the large suppliers in the home entertainment market would almost certainly be filled by other unable, at this time, to access that market in a meaningful way.

    Why do these markets deserve a legal will over our lives when the capacity to serve both needs already exists?

  8. @Dennis
    There are problems with your agrument as well here especially:

    “The discussion of different ways to recoup for that property in a post digital world is a discussion that could be happening with full involvement of content creators & persons interested in copyright on the consumer level.

    That’s not happening — and it’s because of a bunch of naive bunkum thinking from your side of the aisle. ”

    While many on your side of the aisle may blame Geist for this, the truth is all you have to do is look no further than the actual people in industry who support talks on successes, and different business models, and the multi-nationals are not listening:

    http://techdirt.com/articles/20090303/0129163958.shtml

    The people representing industry who want to stomp out P2P file sharing and to whom creators are listening to in reality have gotten several opportunities around the globe to do so, and it hasn’t extracted any value for content owners, nor deterred the use of these programs.

    Creators like yourself are so naive to believe that law will solve your problems, when the past 10 years you guys are still eating Kraft Dinner, because the multi-nationals are not interested in seeking a pay raise for content creators, they have a fetish right now to control the uncontrollable. It has NOTHING to do with compensating creators, nothing to do with right or wrong.

    There have been several positions open up on the table to help extract IP value from the digital marketplace in the form of monetization, but that has been flattly rejected by the multi-nationals, which means money for creators in the current system is being TURNED DOWN by these groups because of their fetish for control.

    “As for the “inevitable demise of the current music/movie/etc. industry” you need to take “current” out of there. Because we’re not talking about current. We’re talking about the thing itself. We figure this out, movies and TV keep getting made. We don’t. They don’t. ”

    IRONMAN 2 just grossed 7.5 million in one afternoon in the theaters:

    http://www.hollywoodreporter.com/hr/content_display/news/e3iea8f9cfddb155917db3f5d86f8183f6f

    What you are saying isn’t true. 10 years of so called “demise” and movies are still being made and making money after 10 years of P2P use. People are still buying DVD’s in Canada. I purchase a huge amount of video games for my PS3. You have no factual basises to prove your assertion.

    “The sky is falling, the sky is falling!” Dude, take some time to peer out your window and look up. The sky is still there. It’s positions like yours that’s making it impossible for us to come to the table as an industry and start extracting money from IP. What’s needed is a different model to do that, which means some people like the multi-nationals will lose money and no longer control what they once did. That’s it.

    Now if you want to go on believing that law and reform is the answer, than you will not be getting paid any extra income at all, nor will your situation improve, and there is ample evidence of this in countries where reform has taken place. Why don’t you stop pointing the blame at Giest, look in the mirror, and politely extend that middle finger and smile. That’s who’s to blame. If you want a seat at the table, than you have to recognize who’s a fault, and know exactly what any IP reform will do when industry has no clue or is refusing to put forth any understanding of the economics at play, nor the market it faces. That’s the problem with creators pay cheques, even in countries where “optimal” reform has taken place. Canada will be no different.

  9. Denis McGrath says:

    Jason, are you aware that you just went one, two, ten and skipped straight to an equivalency model where I as content creator = multinational corporations rejecting monetization of internet forms? Did you realize that you did that?

    Did you miss my point that the very act of doing that is what I was speaking against? That through that lazy linkage & moral equivalency you jettison the one group that could actually lend moral heft and authority to your copyright position?

    You have, in fact, in one post, repeated the mistake that you guys have made in this whole fight. You’ve proved the point of my post.

    Don’t quote Iron Man2 numbers at me, man. My life, my interest in copyright has not a goddamn thing to do with Iron Man 2 and its 100 jillion dollar opening weekend, any more than your desire to transfer your CD tune to a non-DRM device has to do with the profits of the Sony corporation.

    There’s two things that happen immediately when a content creator steps into the fray of this debate. 1) somebody immediately wants to reframe the debate to the music industry, because the evil predatory practices there are best known and documented, and least defensible, and 2) everybody has to “big up” the argument as quickly as possible so that we’re not talking about people and mortgages, but corporations and billions of dollars.

    Bring it down to earth, study other approaches to copyright, and you find that there is actually a sensible middle ground. It already is operating in many jurisdictions in Europe. It can work.

    Prof.Geist freely admits that he argues from the positions he argues from, but stops short at offering solutions for artists. Which is fine. He’s an academic. He’s allowed. But that means that his vision too, is incomplete. And by wilfully turning anybody who opposes what you’ve read here into Sony or Apple or Disney, you’re just pulling the same game.

    It’s still not as dumb a game as the guy above who tries to make the long, long, long stretch that the inevitable result of what I am suggesting is monitoring everyone’s phone calls (we’re not stopping there, either, buddy, I won’t stop until I have the right to date your little sister!) but it’s also not real world, or very helpful.

    Confabulation conflagration — it’s the stock and trade of this copyright. And the surefire sign that most of the people doing the arguing haven’t done things like negotiate contracts, pay mortgages, manage projects, negotiate corporate environments, etc. If you want to be taken seriously, talk real world.

    And do me a favor, ok, if nothing else? Stop turning me into fucking Sony. I am not Sony.

  10. Long Stretch?
    Perhaps I was not pedantic enough with my sentence, Denis. What I was saying was, monitoring all the data flow in and out of my computer is akin to fully monitoring any other forms of communication I employ. Why is it, the thought of “Listening to all my phone calls and opening my mail” is outlandish, but “monitoring all my computer communications” is an acceptable control? How are American consumers being “caught” right now, random selection?

  11. Captain Hook says:

    @Denis McGrath
    “You know you’re doing a bad job of making your case universal when you take artists & content creators and cause them to SIDE WITH HUGE MULTINATIONAL CORPORATIONS.”

    Fair enough.

    Conversely you know that you’re doing a bad job of making your case universal when you take consumer & privacy advocates (not to mention other creators) and cause them to SIDE WITH GIMMIE-EVERYTHING-FREE PIRATES.

    Arrrrrrrr.

  12. Denis McGrath says:

    I guess the larger question for me is,
    why are you asking me about anything to do with monitoring your computer?

    What does that have to do with what I wrote, or the thrust of my position? It doesn’t. But what it DOES do is (hopefully for you) reframe the debate on ground that you want to rail against: DMCA! Draconian Government Monitoring! Takedown and Notice! And that way you can argue against me just like you would a rep from Sony, or NBC Universal.

    You want to talk enforcement? Then ask that question of someone who’s in enforcement. Talk to ISP’s about traffic shaping, whatever.

    Reframing the debate to your easy enemies’ list is the intellectually lazy goto of the “copyfight” movement.

    I appreciate that Geist thinks he does all he can. But leaving out a whole consituency has distorted this debate. So that even now rather than talk about the real issues for creators, and maybe even get to a common ground approach where it could be consumers & content creators offering an alt view to Multinational digital locks fetishists, it’s you asking me about why I want to tap your phone lines?

    It’s pretty hopeless, really. And guys, thanks for putting up with me here, but I’m done. Sadly, my point’s proved and with no grownups willing to step up, I just think you’re all gonna talk amongst yourselves the way you’ve been doing for two years now.

  13. Debate
    Denis, my original question wasn’t specifically about monitoring (that was my opinion), but your trite reply and (consistent) topic deflection necessitated more specific clarification of my opinion. The thrust of your post at deathonastick, if I am reading correctly, is that artists are a special craft apart from your average market producer. They have special needs which are so different from other people, that they should have special provisions (copyright) to ensure their capacity to continue doing what they do. I’ll take at face value. The context of your post was within the information age, data exchange, and I asked was how you thought these special provisions would be enforced? I mean, FFS, here’s a quote directly from your post :

    “and I see absolutely no reason to think that “it’s too hard to police” is a valid argument why wide-open educational use of copyrighted materials should be expected.”

    Obviously, you DO have an opinion on the policing of it for educational purposes. I find it hard to believe that you haven’t given any thought to the policing of it outside the educational institutions.
    And really – “Reframing the debate to your easy enemies’ list”?? Enemy? Whew, I can’t help but think you were just looking for an argument and a reason to pout. I guess I don’t really need an opinion on this from you, I mean, hey, I basically agree with what your saying, everyone deserves to profit from good work, right?
    BTW, I called my sister, she, respectfully declines.

  14. The comment on sampling is completely misguided.

    The argument is that as an artist, copyright destroys the ability to create. Could you imagine if you wrote for a living and not being able to write “Once upon a time” or “This was the time we ruled” or anything along those lines? Because someone placed a copyright on a phrase or a certain group of words put together? That’s what sampling laws do. Sure you can clear one or two samples and make a song. But the days of making works of art like It Takes a Nation of Millions or Paul’s Boutique or 2 Feet High and Rising or etc, etc, etc are long gone.

    Artist were using the ability to take a couple of seconds and do this a numerous amounts of time and make complete new works or art. Most times you couldn’t even make out the original piece because the samples were chopped up, flipped around and made a completely new sound.

    Stick in your lane…

  15. @Dennis
    “Jason, are you aware that you just went one, two, ten and skipped straight to an equivalency model where I as content creator = multinational corporations rejecting monetization of internet forms? Did you realize that you did that?”

    Dennis, last year you posted on this blog a form of television advertising that is currently in use by your industry, and you went off on a tantrum on how wrong that form of advertising was, and how it doesn’t work, and can not be applied to the net? Do you remember that? I actually provided you with cost analysis as well, and you started arguing a form of monetization that industry is already using!

    You have no idea what you are talking about, and quite frankly from the quote above neither do I. You’re some unemployed TV writter, who thinks the sky is falling, than when confronted with actual numbers to prove you wrong, you don’t want me to talk about it:

    “Don’t quote Iron Man2 numbers at me, man.”

    Lets see the intelligence in this debate shall we:

    “Bring it down to earth, study other approaches to copyright, and you find that there is actually a sensible middle ground. It already is operating in many jurisdictions in Europe. It can work. ”

    Where’s the proof? Links? In fact When the Sweden put together their reform there was close to a 30 – 40 percent drop in internet traffic. Do you have the numbers that reflect what the losses where in the digital economy during that 8 month period? What about the level of piracy in Sweden? Did that drop as well as a result?

    The UK sales are down as well which is why they pushed through the Digital Economy Act. Don’t tell me that a 3 strikes rule was implemented because digital sales were up? With France, no change in P2P traffic at all with the implications of the 3 strikes rule. I’ve posted links to all of this in this blog on other postings. I will post again, in this thread if you want me to. Show me what works in Europe to stamp out piracy and P2P? Let’s see the proof old man.

    This is a debate on facts..if you can’t provide any to the readers here, than maybe you should look out your window once in a while.

  16. @Dennis
    “Dennis, last year you posted on this blog a form of television advertising that is currently in use by your industry”

    Sorry should be:

    “Dennis, last year I posted on this blog a form of television advertising that is currently in use by your industry..”

  17. @Dennis
    You are accusing us of exactly the same additude you have in this debate. The difference is, we have research and facts that we bring to the table. The only thing your side has is the “moral” issue of the debate. A lack understanding of those facts and the scientific economic data, is the ONLY thing right now standing between greater pay for creators. It’s bubbering idiots like yourself that have no scientific facts behind their arguments that turn this debate into something that will ultimately be useless to the creative community.

    If you want to engage on a higher level, break out the links and reports big boy. Let’s debate those rather than character shall we..indulge me.

  18. Facts, not Fails
    Alright McGrath, pick on someone your own size, let’s see a blog response to this:

    http://digitialmusiccopy.blogspot.com/2010/05/facts-not-fails.html

  19. Matt Gordon says:

    Economics, Balance and TV
    Addressing the supply and demand argument, although the marginal cost of one (“marginal”) person downloading one TV show is negligible, on longer timescales everything is marginal. TV shows like the Sopranos or Mad Men would not be made if they didn’t make money. Those are huge productions with huge costs. They are not loss-leaders like music tracks, and so the business model needs to be different.

    TV shows need to be paid for. There’s a lot of good news here though – the number of people paying for cable TV and the average time spent watching TV is growing each year. The most watched shows today have more viewers than the most watched shows did 10 years ago. And people generally like to watch things at the same time – given the option of watching a TV show live or downloading it to watch later, most people choose to watch it live.

    I don’t like the argument McGrath used about a museum – paying for cable and downloading a copy isn’t like paying for admission and taking home a monet. It’s like gong to the museum and being able to taking a picture of the painting home. If someone is a fan of a painting, even though they are taking a picture home, that doensn’t disclude them from buying related swag in the gift shop.

    People shouldn’t have to pay every time the open their favourite book. We need to strike a balance between a model that allows TV shows to make enough money to be produced and giving consumers use of material they’ve paid for.

  20. “The problem with the copyfans & the fair use now advocates of all stripes is that they have a wonderful ability to view the debate in the most simple of terms. We can categorize those terms thusly:”

    If I’m reading McGrath’s blog posting correctly, he thinks simplifying the debate is the problem with the debate then goes on to categorize (simplify) the opinions on the opposite side of the debate. Hmmm hypocrite much?

    Furthermore, McGrath replies to comments here on Michael’s blog with: “do me a favor, ok, if nothing else? Stop turning me into fucking Sony. I am not Sony.”

    I’m an amateur 3D artist and McGrath just lumped my opinion in with a “gimme” crowd. In the words of the great Dennis McGrath: Do me a favor, okay, if nothing else? Stop turning me into fucking gimme. I could point out every mistaken assertion the author makes in this blog but I’ll leave it up to other readers to laugh at the big brush Mr McGrath uses to paint everyone who disagrees with him. I enjoyed the part where he paints the picture of a starving artist (me) in order to further his argument. McGrath sounds like he needs to live a day on the street because he certainly doesn’t appreciate how good he already has it.

  21. “We figure this out, movies and TV keep getting made. We don’t. They don’t.”

    First of all, this is obviously false, since the Soviet Union had rich culture, yet no copyright protection as we know it. Second, we have long figured it out — you even gave an example in your own blog — education. If media is so important, surely taxpayers will be happy to support it.

  22. Matt Gordon says:

    @Alexey
    Alexey, If culture is paid for by tax dollars, who decides what culture gets the money?

    Part of the reason we have big budget epic TV shows is because the shows need to be epic to make enough money to be epic. With culture paid for through taxes, there is no incentive for companies to make TV better – too easily this could inflate costs and reduce quality.

  23. Matt Gordon says:

    Culture will always be made. There would always be amateur TV shows. There would always be amateur movies and music too. With no copyright, people will still make YouTube videos. The argument is for premium content. If there is no revenue, big budget TV would not be made. Us pirates need to recognize that.

  24. Matt, science operates largely on government funding, while avoiding unreasonable censorship and having plenty of massive projects, including the International Space Station and the Large Hadron Collider. To me, this gives hope that the entertainment industry can be very successful without lowering itself to extortion, spying, or DRM.

    With Canada already supporting artists publicly to a significant extent, we have the infrustructure to gracefully adapt to changing technology. Of course, this mainly benefits our own artists, and that does not sit well with our southern neighbour.

  25. Crosbie Fitch says:

    Jason K is perspicacious
    “The people representing industry who want to stomp out P2P file sharing and to whom creators are listening to in reality have gotten several opportunities around the globe to do so, and it hasn’t extracted any value for content owners, nor deterred the use of these programs.

    Creators like yourself are so naive to believe that law will solve your problems, when the past 10 years you guys are still eating Kraft Dinner, because the multi-nationals are not interested in seeking a pay raise for content creators, they have a fetish right now to control the uncontrollable. It has NOTHING to do with compensating creators, nothing to do with right or wrong.

    There have been several positions open up on the table to help extract IP value from the digital marketplace in the form of monetization, but that has been flatly rejected by the multi-nationals, which means money for creators in the current system is being TURNED DOWN by these groups because of their fetish for control.”

    NB I made a copy of Jason’s good work, but I didn’t steal it.

    Publishers aren’t interested in developing business models that pay intellectual workers for their intellectual work, because they’ve never been interested in paying intellectual workers anything except as little as possible. Moreover, they know exactly how to pay intellectual workers. They’ve been doing it for centuries.

    What they aren’t in the business of is selling intellectual work. No, they’re 100% focussed on selling copies and controlling the distribution channels by which intellectual work is received by those who want to receive it.

    The problem is, for them, that market is over. One can no longer sell copies or control distribution channels – though they’re still trying (making the laws ever more draconian, qv ACTA).

    The publishers don’t give a damn about helping the intellectual worker sell their work because they’re not in that business. They’re certainly not interested in figuring out how to help the intellectual worker sell their work direct to those who want to receive it as that removes the publisher out of the value chain (along with their 99% cut), which would be madness.

    So, the intellectual worker of today has to leave the publisher to pursue their folly of trying to sell copies to people who can make their own copies for nothing (selling snow to Sámi).

    The intellectual worker now has the problem of how to sell their intellectual work to those who want to receive it. And those who want to receive it have the problem of how to commission their favourite intellectual workers to produce it.

    I’m labouring the distinction between intellectual work and copies because too many people still think they’re one and the same (indeed, are hypnotised to believe that). The market for copies has ended (as the more astute publishers might one day realise). However, that doesn’t mean the market for intellectual work has ended. People still want novels and movies produced even if PDF and MPEG copies of them cost nothing to make. It is thus the intellectual work that is valuable – not the copy, and persisting in this popular petulance that the law must make it otherwise is unbecoming of any intellectual worker worthy of the term.

    So, publishers, gone! Defunct. Dead as dinosaurs. Let’s hear nothing more about them. They are irrelevant to the imperative we face.

    And that mission, for those willing to move beyond complaint to developing a solution, is to explore how intellectual workers and those who want to receive their work, can exchange that work for money. After all, this is the foundation of all commerce. It’s all about voluntary and equitable exchange.

    Unfortunately, whilst I could tell you the solution now, there is a perverse, inverse relationship between the severity of a problem and the likelihood that whoever professes to have a solution will be found credible instead of being considered a charlatan. But I’ll give a URL anyway: contingencymarket.com (and again, perversely, there is pressure against making this a hyperlink).

    Suffice it to say, the answer is in the question. If the question is “How does an intellectual worker exchange their intellectual work for the money of those who want to receive it, at a price both agree on, and without threat or coercion?” then the answer is “Via an exchange – via a mechanism that facilitates the exchange of intellectual work for money between a producer and many customers”.

    The sale of copies is irrelevant. The very idea of selling copies an 18th century anachronism (along with the 18th century privilege of a reproduction monopoly we call copyright).

    The market for copies has ended. The market for intellectual work continues unabated.

  26. @Crosbie Fitch
    Thanks for the kind words and I am in agreement with your statement. In this debate, we deal with a lot of emotions, because art and the creation of art is very emotional. But the emotions of this debate on both sides neglect to answer fundamental questions. Has reform actually worked in other countries? Over the past 10 years how has the creative industry benefited from these reforms? Have these reforms in other countries ignited the needed spark for and explosion of innovation? The answer is no across the board. There’s a very good reason for that.

    That doesn’t mean that reforms are not needed, rather a more in depth look at the economics of the switch to the digital paradigm in order to “extract” the value of IP from the market and develop reforms that are more realistic to what has taken place. Because everything is now so interconnected towards our digital economy, there is a significant risk at a time of economic turmoil, if we put the wrong reforms in place with a lack of understanding of how those reforms will effect each and every industry, than we could be looking at damaging our economic stability nationally.

    We Canadians should be held above the rest of the population in the world. We’ve had a consultation in which the Canadian people want to help put forth alternatives to pay our artistic talent, when in other countries, citizens couldn’t give a rats ass about their creators due to the bad blood industry has split over the years. This has fallen on deaf ears with some in our creative communities.

    McGrath can pull out the wine and cheese all he wants. Law isn’t the answer, it’s part of it. There’s a much bigger issue facing the creative communities that represents a lack of understanding on how the digital economy currently works even with reforms in place. The creative industries were at one point well known for adapting to market changes, promoting within that market, and above all understanding the market they were faced with. In the past 10 years I see nothing from the above in countries that have put forth reforms, all I see is a continuation of industry wanting more unrealistic reforms and demands on governments rather than moving forward with investment in area’s in which could benefit artistic talent and their overall pay, all the while the creative communities have been basically left with a few boxes of Kraft Dinner for meals and blaming file sharing and the public even after reforms have been met to their standards.

    In order to make copyright relivent, we need to build it into the networks through monetization. I think we’re starting to see, especially over the past few months, that Canadian Creator Groups are more open to that idea now, and are searching for ways to do this. It’s only the “multi-nationals” in this debate that have flatly rejected the idea of monetization and legalization of file sharing in large part because they will lose the market share and control. But in doing so, they have flat our rejected any future income for artistic talent.

    Those like McGrath who whine and complain about not getting a pay raise, and start discrediting those who are actually trying to ensure his future success and income are actually doing more harm to themselves than anyone else.

    Whatever the case maybe, I surely hope that the creative communities get the reforms in law they want, because maybe more eyes will open up when these reforms don’t do anything for these communities, and also open up possible damages in other areas, and within other industries.

    The writing so to speak, is already on the wall. This needs to play itself out now as it has in many other countries, and creators like McGrath will have one hell of a hard time with credibility issue the next time around. They will be very lucky to get a seat at the table.

  27. I’m stunned that mash-ups aren’t an issue for any of use. Many of the most popular YouTubes use TV and movie characters that someone else created, set to music that someone else created, without paying any royalties. That sucks. It’s harder and harder for professional writers to get work because the internet competes for eyeballs. Having your material stolen out from under you so “amateur” video-makers can sell ads on their website, using your work, sucks.

    Create your own characters and music, people. Not as easy as you thought, is it?

  28. The Essence of Parody
    @Lizzie.
    Not as funny, I’d wager.

  29. RE: Lizzie
    Yes. So by all means, they should be fined at incredibly ridiculous levels and/or put in jail. I mean after all, the guy who makes a funny alternate ending to Batman I or makes a Hitler-meme video in order to make a point is obviously a criminal.

    I on the other had, prefer to see it as a sign that people do consume content, and are simply showing their affection for said-content. After all, they are doing it for non-profit, fair use purposes. I should emphasize the NON-PROFIT part of the statement, since we do it for fun and that’s all. I’m sorry, but just because I watch clips of a certain movie doesn’t mean I ever had an intention to go see the movie. In fact, maybe seeing this clips will make me want to see the movie.

    Furthermore, there are a lot of popular YouTube videos that aren’t clip mash-ups, such as the Angry Video Game Nerd. I watch him because he is free of the censorship and editing that would be necessary to put him on television.

  30. Captain Hook says:

    @Lizzie
    Yours is a very interesting comment. And very revealing too. That is, as much as the creative industries talk about how important our culture is, they (you) really don’t see it as most people see culture. You see it as a product to be bought and sold and consumed. The people who consume it, and the people who mash it, on the other hand, see it as real culture. It comments on society, shapes its audience, is shared, and is reinterpreted to make more comments on society. Your ‘product’ is the medium that others use to communicate.

    After it is created and ‘consumed’ it becomes a part of the consumer just as learning our mother language becomes a part of us. That is what culture is after all. The cultural industries on the other hand are not interested in culture per se. They are interested in products.

    Culture has been around for a very very long time. Much longer than copyright, and will be around for another very very long time, even if copyright is not. We had culture before we had cultural products, and even if we never had a single cultural product produced ever again, we will always have culture. It will always grow, evolve, and be a part of us.

    That is why mashups and YouTube are not an issue for most people.

  31. @Lizzie
    Remix can be a form of expression and free speech:

    Do you think this form of speech should be illegal?

  32. Crosbie Fitch says:

    Not ‘extracting value’, but free exchange.
    Jason, in a free market goods are exchanged for something of equivalent value to both parties. However, that is not value extraction. When you sell a basket you exchange it for an equivalent good, or an equivalent amount of money. Value extraction is an attempt to charge the recipient of the basket each time they obtain value from the basket, i.e. each time they use it or anyone else does. It’s certainly a lucrative aspiration from the producer’s perspective, but it’s not sale or exchange. There is no right for a producer to extract the value from a product, only to make whatever equitable exchanges others will agree to.

    This applies just as much to intellectual workers as to material workers. There is no right to be paid each time someone hears your song, reads your book, or watches your movie. Publishers are certainly trying to engineer that (via technological and legal means DRM/DMCA/ACTA), but it doesn’t demonstrate the exchange of intellectual work in a free market.

    Others are proposing to tax the Internet in order to disburse the tax to copyright holders in proportion to the use of (value extracted from) the copyrighted work. Again, this is the unsound folly of another form of value extraction. Of course, its proponents can cite the lack of constraint on making copies as a point in its favour, but that doesn’t justify abandoning a free market in favour of taxation. In many ways copyright is already taxation – it’s a tax on cultural exchange paid to copyright holders. Taxing the Internet at the ISP simply makes it more obvious.

  33. pat donovan says:

    forward: This was sent to the author
    DIGTAL state of affairs. you’re gonna hate the last few lines.

    Ok, MOST of your rant is correct.
    BUT…

    Marx said politics serves the eco elite… which makes sense if you don’t want to back losers.

    Unfortunately, LONG past the point of making any sense. The digital age is like hockey and concert piano.. only Gretzky is gonna make the grade anymore.

    (we’ll ignore the fact the hockey talent pool is shallow, mostly ’cause it’s expensive to walk.)

    Corruption? Corps still tend to eat their young, elites are self-serving, and mickysoft has 4 pirate copies out there for every paid for one. THAT’S LIFE now.

    black radio stations, anyone? (yes, we’re gonna go back to that fun kind of society. A orbital stat promo there, eh?)

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

    Here’s the fun part. Your comments on fair-usage don’t go far enough.
    Ideas ARE cheap but, (produce connect, popular.) you want to be paid for hustling, as far as I can tell. Right?

    bad command.
    BAD, bad command.

    Ideas are a LOT more vital that you seem to realize.

    I write, vid, play, etc. As best I can, and stopped worrying long ago about being paid for it.
    Not enough traffic to make it worth-while as a life.

    here’s a comment I left on arstech. Don’t let it inspire you.

    If it does… what’s it worth to you? what are you likely to do with/for these things?

    (these are my opinions and for a reasonable fee, they can yours too)
    (small, simple and I won’t tell you which brit editor i stole ’em from)

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

    yeesh. what’s SF? Stories about the effect of tech on people via a new mythology as problem solving.

    SF is/has a three phase development, JUST LIKE THE WEB!

    exciting science stories. ie: the web was exciting, it was tech driven, then drama took over.

    yeesh. SF for decades was considered children’s fiction, not anything serious.

    just like the web.

    packrat


    http://packrat.comicgenesis.com -comics
    http://www.youtube.com/area163 -film

  34. @Crosbie Fitch
    A few years ago back in the Napster days, Madonna released something on those networks. She named the file as one of her top hits at the time, and it ended up her swearing at everyone for downloading her tune. It got around quite a bit on the file sharing networks. The day I heard this, was the day as a producer started treating the internet as a “medium”. The medium is the message. This should be applying to the internet, and should have been applied by content producers back in 2000 – 2001. We wouldn’t be in these talks with respect to reform and by all accounts “interfering with the free market” right now if it was. The ad market is slowly maturing due to the reluctance (not by investors, but by industry) to move forward with the “medium” approach to online content. Had the content industry moved forward in 2000 with monetization, we would have been in the new golden era for content producers.

    The television industry has just started to realize this, and throw up entire shows and seasons on the network sites such as CTV, CBC etc. That only happened when the “traditional” ad market crashed starting in 2008, because investors wanted to move towards digital content. A similar thing is happening in music. More people are turning to the net to listen to music, which can be monetized. Podcasts can be a huge source of income for artistic talent and producers, along with site sponsored concert streams.

    The equivalent value of media has not changed, it has just shifted mediums, and I completely agree with you with respect to adding taxes to access this medium is not the best approach, but anything other than suing marketplace partisipants, or stripping access to this marketplace is for now a step in the right direction. At least we are starting to talk about different idea’s on how to monetize content rather than control free market to the benefit of a few, not the many.

    History repeats itself. We’re going through basically the same fight industry put up with respect to Radio when it provided “free” content to listeners, but eventually a business model was developed so that both can survive. There are already business models available in some industries that are not only cost effective but have been proven to work within traditional media:

    An excellent book on monetizing music and extracting “Value” can be found here:

    http://www.lulu.com/product/paperback/music-20-essays-by-futurist-gerd-leonhard/10301332

  35. Crosbie Fitch says:

    Legislative tweaking of an 18th century privilege is not quite the same as a change in business model
    Jason, you are right to observe that when cultural exchange or distribution appears unstoppable (pirate radio) that business adjusts, but this has not been through change in business model, but through the introduction of yet another compulsory copyright license.

    This is papering over the cracks of copyright’s fundamental conflict with the ever improving efficiency of information and communications technology. It is not a change in business model.

    So I’d readily agree that with the chasm opened up by the Internet in the walls of copyright’s ability to prevent unauthorised reproduction/communication of published works, there ain’t no wallpaper strong enough.

    We’re going to need a new business model.

    I suggest that means abandoning the idea of being able to charge a royalty or tax on the sale or exchange of copies, and to move wholly to the commercial exchange of intellectual work between vendors and customers (artists and fans), i.e. disintermediating the publisher’s role entirely such that the notion of a copy as a precious commodity evaporates like a vampire impaled by stake.

  36. Chris Brand says:

    @Matt Gordon
    “If there is no revenue, big budget TV would not be made.” That’s obvious, yes. The problem I have is when the assumption is then made that “if we don’t change copyright to give the multinationals what they’re asking for, there will be no TV revenue” I’ve seen no evidence that that’s true. If anything, the fact that TV shows are still being made (and therefore must be making money) despite all being available for free online, indicates that it is false.

  37. “I suggest that means abandoning the idea of being able to charge a royalty or tax on the sale or exchange of copies, and to move wholly to the commercial exchange of intellectual work between vendors and customers (artists and fans), i.e. disintermediating the publisher’s role entirely such that the notion of a copy as a precious commodity evaporates like a vampire impaled by stake. ”

    I don’t think it will go that far. I think definitely the intermediary role has changed, and that change will need to bridge the gap between artists and fans, and the intermediaries will take on more of a one stop shop from production, media and industry contacts, to management, to promotions, to online tracking, to advisers and creators and managers of the talents image online. We’re already seeing this type of hybrid label appear in the indie music markets. This is where a large portion of the money is currently located right now, and there is a huge demand by talent (at least in music) to fulfill this need.

    It is a switch in business model, but a lot of the above is purely on commission based work. The void right now is with taking on new talent, and funding new talent and new media. Once talent is established it’s a bit easier to move forward with the above mentioned business model, you can fund these things once the project or talent is making money.

    In music copyright from physical sales served as almost a “loan” for the funding of new projects. Artists would sign a “deal” in return for singing over the copyrights to the intermediaries to payback that loan. This is how traditionally this industry works. There is something that needs to be put into place to replace this funding. Digital Sales and Physical sales are just not providing enough money for this. Artists themselves usually pay huge money out of their own personal capitol (and that’s if they can afford it) when first starting out for website design, and online social profile development which should be handled at the label level and can’t be right now and is needed to compete in a global market. In order to make money, you have to spend money. Our government has a host of grants available for small business startups, something needs to be in place to help facilitate new talent or new media productions coming into industry in almost the same way.

    The model of copyright still needs to be in place, but adapted in my view towards something that is more relevant than on sales, and distribution. In order for new business models and innovation to emerge we still need this model to help facilitate change in this area (which is the reality of the situation), but rather than suing fans, and spanking them by stripping internet connections away, this mode of compensation needs to be built into the networks in a more reliable and sustainable way in order to fund future talent and industry, in much the same way our cable tv and radio business models work. Simply spanking the internet user, hasn’t and will not fill this void, it will probably make it worse.

    I hear a lot of times from fans that artists can basically make a name for themselves online. Some have, but it’s like winning the lottery and a huge gamble. It’s one thing to look on the success of a few, it’s another to actually try and duplicate that success yourself. Pick a unique name and try it yourselves. The reality is that the market right now is flooded with talent, both good and bad (and I think this is just awesome for consumers and creators, more choices, and better quality because the competition is plentiful), but in order for people to like your music they have to listen to it first and create traffic on your site or profile. The hard part is getting enough people on your myspace or website in order to create a snow ball effect and get interest in your music, even if you are using social media such as twitter, myspace, Ilike, etc. This is where promoters and creating a digital image is important, and like I said above, it’s often a huge out of pocket expense for talent, and you have to be able to stand above everyone else in order to get the hits needed. This process can take sometimes overnight if you hit a golden Beebe, but realistically it takes about 2 years for new talent to become somewhat established online. It’s that 2 year gap in which most of the work and imaging is done, and talent isn’t making enough through touring to cover the expenses needed.

  38. Crosbie Fitch says:

    New business model means end for current intermediaries, but can be new ones
    Just as publishers would once advance money to artists in exchange for copyright in order to sell copies at monopoly protected prices, tomorrow’s audiences will advance money to discoveral agencies to discover and commission the art and artists they like (with no monopoly).

    The same sort of thing happens. Similar amounts of money change hands. It’s just back to front, and far more efficient, with the distribution of revenue a lot fairer. That means more artists get paid a decent amount (though stars don’t become plutocrats), and there are only modest incomes for intermediaries (the end of the 1% royalty aka 99% cut).

    Copyright is not a model. It is an 18th century privilege, an anachronism upon which the publishing industry’s current business model is based. It is the fact that copyright is disintegrating (becoming ineffective) that a new business model is required. If copyright could be ‘kept’, we wouldn’t be having this conversation. There is nothing of copyright to keep except the dust of a dead vampire.

    I suggest that rather than worship at its altar in vain hope of resurrection, you move on. Face up to a future without copyright. The Free Software Industry is doing so. I suggest all other intellectual workers do so too. Encourage your fans to share your published work, to promote you, and your true fans will commission you, whether to perform live or to produce a studio recording. Your audience can make their own copies for nothing – and will. Audiences without enough artists can also commission discoveral agencies to find more artists and commission them to produce more art.

    We are all Alice going through the paradigm inversion of a cultural looking glass and we must all undergo radical and uncomfortable reprogramming in the process.

    My sympathies…