“Fifteen years of utter bollocks”: how a generation’s freeloading has starved creativity — A great essay from author Chris Ruen, whose excellent book Freeloading: How our insatiable appetite for free content is starving creativity has recently been released in the UK. “Any desperate excuse was good enough, so long as it justified the original campaign. Otherwise, the people who fought against copyright in this battle would have to confront the fact that they were never carrying the flag for freedom or ‘openness’, but for aggression, entitlement and selfishness masked by superficial delusions of grandeur.”

5 Major Publications that Cover Copyright Well — From Jonathan Bailey at PlagiarismToday, a nice list of mainstream news sources with above average copyright coverage.

Aereo Hits Roadblock in Effort to Become Cable System — Back in the District Court following the Supreme Court’s remand, Aereo pursued a new line of argument: that it is a cable system, and thus entitled to carry broadcast programming under the Copyright Act’s Section 111 compulsory license. This week, the Copyright Office rejected that argument (though it provisionally accepted the application until the court rules on the issue). Aereo still has the option of bringing the question to the FCC, but that would subject it to a host of regulations, including the need to negotiate retransmission consent with the broadcasters.

DMCA’s protection of copyright management information applied to non-electronic works — Evan Brown provides a heads-up on a recent decision involving § 1202, a lesser known section of the DMCA that prohibits the removal or alteration of “copyright management information.” The question here was whether that provision applies “only to electronic works intended for distribution over the internet, or whether it applies to more traditional works such as hard copy technical drawings.” The court here chose the latter.

Fishman on Creating Around Copyright — “It is generally understood that the copyright system constrains downstream creators by limiting their ability to use protected works in follow-on expression. Those who view the promotion of creativity as copyright’s mission usually consider this constraint to be a necessary evil at best and an unnecessary one at worst. This conventional wisdom rests on the seemingly intuitive premise that more creative choice will deliver more creativity. Yet that premise is belied by both the history of the arts and contemporary psychological research on the creative process. In fact, creativity flourishes best not under complete freedom, but rather under a moderate amount of restriction.”

13 Comments

  1. “In fact, creativity flourishes best not under complete freedom, but rather under a moderate amount of restriction”

    That’s debatable, and certainly only is true where the author self-imposes a restriction. A poet might produce greater works by choosing to adopt a particular meter or form. But if some authority came along and threatened to sue the poet if he used unapproved forms, or unauthorized rhyme schemes, we’d rightfully view that as being ridiculous. Perhaps Fishman means to suggest that obedience to copyright claims should only be voluntary?

    Or alternatively, if it is okay for third parties to dictate limitations on creativity to authors, all in the authors’ best interests of course, wouldn’t limiting or abolishing copyright (thereby limiting the author from creating works which are meant for profit, but which have no economic value outside of copyright) be just as valid as any other limitation?

    I’ve not read the paper, but if the quote is a representative highlight, I don’t think that I’m missing much.

    • I’ve not read the paper, but if the quote is a representative highlight, I don’t think that I’m missing much.

      Don’t worry, I didn’t read your comment either.

    • If you take the time to read the cited paper you will find that the meaning you are ascribing to the quote is off the mark.

      • Pro Se–
        Well, I read the paper; it’s still garbage. I’d just as soon have the time back. My point stands: limits can indeed be good for creativity, but they must be voluntary in some respect. A poet can decide to write a sonnet, or something else. A musician can decide to write and record a pop single or some sort of experimental twelve-tone piece. A filmmaker can decide to shoot in black and white, or in color, a silent picture, or a talkie.

        Perhaps some choices have pressure behind them. The movie studio will only finance the filmmaker for color movies with sound; the record label will not sign a musician or pay an advance for something they don’t think will sell. Most people don’t read poetry anymore outside of greeting cards or school assignments. The artist is still free to bow to this pressure or not. Some are willing to live by what’s commercially viable, or what the norms of a particular art field are, while others have no use for these conventions. This is fine too, because it’s still up to the artist.

        Copyright is mandatory. It’s a limit on free speech, and as such, should always be judged critically. Fishman’s article only makes sense in a world where people are only obligated to obey copyright law if they feel like it. Even I regard that as more fantastical than if I could ride a dragon to work every day.

        Otherwise, his argument is no different from saying that we ought to bring back the Hays Code, or require that all songs be patriotic. After all, creativity will flourish under such restrictions, as artists try to get around them! That’s ridiculous, and so is Fishman’s defense of copyright.

        My advice to the copyright maximalists: Don’t grasp at straws like this. Your argument is fundamentally about greed, and predictably, you have a lot of money behind you. Stick to that; it’s your strength. Don’t try to pretend not to be horrible. It’s as embarrassing to watch as the attempts by Fox News to make a conservative version of The Daily Show.

        • Copyright is mandatory. It’s a limit on free speech, and as such, should always be judged critically.

          See Terry Hart’s post to Anonymous on Copyhype.com on July 18, 2014 at 5:04 pm (“Don’t worry, I didn’t read your comment either.”)

  2. The thing that makes people want to destroy the concept of copyright is not that copyright is inherently restrictive, but that so many rightsholders have made it impossibly difficult to actually get permission to do something.

    I’m sure that artists would be happy to pay, like, ten dollars to get unlimited sample rights to a song (or maybe they pay forty dollars a year and they get the whole BMI catalog, sort of thing). But nobody will ever actually do that, because to the rightsholders, it costs money to make a deal like that. The amount of time to set something like that up would cost more than they’d ever hope to see in revenue from it. So by saying “no samples” they’re saving themselves money!

    • but that so many rightsholders have made it impossibly difficult to actually get permission to do something.

      C’est La Vie. Too bad. That’s what an exclusive right is. If you don’t want to pay money, go start your car, record that, and use that sound instead of ripping off The Art of Noise.

      Thanks.

      • You’re substituting zealotry for thought.

        The point is that people want to pay money, but the rightsholders won’t let them. The larger rightsholders have created a system where if you’re not talking millions of dollars then they aren’t interested in hearing from you.

        • Well that’s just to damn bad. You have the right to make your own millions and then do the same thing to others who want to pay you (but then you don’t require it), like J.K. Rowlings who create Harry Potter—-she didn’t ask anyone to pay for their work so that she could use it. Thanks.

        • The point is that people want to pay money, but the rightsholders won’t let them.

          That’s a funny way of looking at it. I’d like to pay only a dollar for healthcare, but the insurance companies “won’t let” me, either.

          How exactly do you envision a market working if the pricing is structured so that everyone can pay the absolute smallest amount of money they can think of? We can look to the market for recorded music as a quick example.

          Forty dollars a year for full derivative access to an entire label’s catalog?! Frankly, that’s insulting. Do you hear yourself? That’s less than a subscription to Spotify! And you’re not thinking this through; how many people do you think would cough up that money? A thousand? Two thousand? There aren’t all that many viable remix artists out there, and even fewer with cash to spare, so holding back and waiting on the $100,000 clearance for a one-time use would be the equivalent of 2,500 of your licenses. Transactions which, as you rightly stated, would cost more in administration than it’s worth. I don’t even want to ponder what would happen to the legal status of the remixes if one decided not to renew their license next year!

          In a very budget-friendly studio, $40 would only cover around 20 minutes of time. That’s likely not long enough to get the instruments set up and sounding good, and to position the microphones. Not even enough time for the drummer to show up, late, as usual. If you’re going to pull a “record at home!” card, I’ll point out that $40 doesn’t even pay for half of the lowest acceptable quality microphone for recording tasks (i.e the Shure SM57, which is a terrible microphone).

          Further, you then have to wade into the murky waters of what qualifies as a derivative work? If I have full sample access to a label’s catalog, at what point can I be stopped from simply “remixing” tracks to sound just like the original and selling what is effectively a copy of a song as my own work? What if I sample only 15 minutes of “Endless” by Keith Jarrett, and tack a record scratch to the end? Just a remix, right? (Actually, I can think of a better sample. Jam in the quote from The Simpsons’ Lionel Hutz, “…this is the most blatant case of false advertising since my lawsuit against the film The Neverending Story.” See?! It’s ‘commentary’ on the original work, which isn’t, in fact, endless. Parody!…er… satire? Who cares? Money, please!)

          Look, to be totally honest, I am a remix artist (despite my loathing of that term). I’ve been doing it for more than a decade. This whole “Woe is the Remixer!” lament/argument from the monied interests in the digital advertising game is a distortion of reality. Derivative artists have been thriving in music for decades! The eighties were bursting at the seams with remixes. By the nineties, the game was saturated and boring. Find any old pop single on vinyl and witness the minimum of three remixes of the single on the B-side. Remixers get paid for mixes, not in royalties or record sales, so they have no financial interest in the ownership rights of the tracks/files they’re using. They are hired for the job, and get paid one time, generally pretty well. Better than the original artist in many cases, because they are hired like an audio engineer, mix engineer, or mastering engineer. They take their money upfront and they don’t need permission to ply their trade. Whoever plans to publish/distribute/sell the remix needs permission.

          Beyond that, a quick perusal of Soundcloud, or of the many forums dedicated to sample-based music, makes it hard to argue that remix music is being stifled in any way. I imagine hundreds are uploaded to Soundcloud every day. There’s too much of it as it is. Eventually, the past will be mined dry. In my opinion, we’ve already come up against that reality. The world doesn’t need another remix. We could use another Beatles.

          I can see no need to re-write copyright law to favor remixers. It’s madness. Without the original (expensive) recording, there is no remix. Besides that, it is trivially easy to work around an uncleared sample. Interpolate it. For $40, you can probably hire for an hour a young musician to record whatever you want. And you will own that recording to use however you’d like.

          • One problem: You are assuming all the music uploaded to SoundCloud is authorized.

          • Patrik–
            “How exactly do you envision a market working if the pricing is structured so that everyone can pay the absolute smallest amount of money they can think of?”

            We have compulsory licenses in copyright now, as do many other countries. A mechanical license can cost mere cents, we’ve had compulsory mechanical licenses for over a century, and the sky hasn’t fallen, and the market is still here. It’s not a big deal.

            “Frankly, that’s insulting.”

            So? I don’t know what an appropriate amount would be, but I do know what the appropriate measure is how well it will benefit the public. How authors react to it is, for it’s own sake, irrelevant.

            “Further, you then have to wade into the murky waters of what qualifies as a derivative work?”

            We already have statutory definitions and good caselaw on this.

            “They are hired for the job, and get paid one time, generally pretty well. Better than the original artist in many cases, because they are hired like an audio engineer, mix engineer, or mastering engineer. They take their money upfront and they don’t need permission to ply their trade. Whoever plans to publish/distribute/sell the remix needs permission.”

            Wrong. Creating a remix involves making copies and almost certainly preparing a derivative work. These are infringements standing alone, regardless of whether or not the remix is ever later distributed. If you’ve been engaging in creating remixes without permission, you’ve been breaking the law. Further, since copyright is a strict liability statute, even if you take all reasonable precautions to ensure that you are not infringing, if it turns out that you still don’t have the necessary permission (perhaps the person who hired you has lied convincingly), you’re still on the hook. Distribution is not necessary for infringement, nor is it the only kind of infringement; it’s just one more sort, along with several others. If you’ve been operating professionally under your misunderstanding all this time, you may want to review prior work to make sure that you aren’t exposed to liability, and may wish to consult with a copyright attorney licensed in your jurisdiction.

            “Beyond that, a quick perusal of Soundcloud, or of the many forums dedicated to sample-based music, makes it hard to argue that remix music is being stifled in any way. I imagine hundreds are uploaded to Soundcloud every day. There’s too much of it as it is.”

            What, are you like Joseph II, complaining that Mozart’s music has too many notes? There’s never too much art. In fact, one of the primary goals of copyright is to cause there to be more art than there otherwise would be. We don’t know it isn’t being stifled now. It could be that if we opened the flood gates, hundreds of thousands of remixes would be uploaded every day. As those Franklin Mint commercials always pointed out, past performance is not an indication of what will happen in the future.

    • Relevant:
      http://sitasingstheblues.com/faq.html

      Q: Can’t you negotiate a special deal, since this is so small-scale compared to a distributed release?
      A: There was no way to negotiate their contract, because it would have cost them more to negotiate than they would have gotten from me. The contract is $3,500 per song, and it would have cost them more than $3,500 for their lawyers to revisit the contract and modify it.
      I must emphasize this is a system problem. This is not an individual’s problem. Everyone involved in this is truly just doing their job. It’s the system itself that is broken. If you can’t negotiate the contracts because it costs more money to negotiate a reasonable deal than they could earn, it is crazy. I borrowed $50,000 to decriminalize the film, just to make it a little bit safer to give the film away for free, which is crazy.