So what we have is a compensation crisis, not a copyright crisis.
By Andrew Orlowski - July 22, 2005
The fur is flying. John C Dvorak thinks Creative Commons licenses are a solution looking for a problem. What is the point? he asks. Advocates of the scheme say he's ignored an important detail. At this stage in the debate, both parties are in danger of talking right past each other, so in the best El Reg tradition, let us try to bring harmony where there is discord.
The debate is much more interesting than Yet Another Argument About Copyright because it reveals how people value human creativity, and that's something we're all entitled to have a say in. It also reveals what people really mean when they claim their position is "good for society" - and again, it's our obligation when someone with this purpose pops up to shake them down vigorously, and see what rolls out of their trousers. In this case there is much merit on both sides of the exchange.
Creative Commons is an intriguing experiment to granulize the rights a creator has over his or her work, and to formalize what today is largely spontaneous and informal. The first point is made repeatedly by Dvorak's critics, but having digested 300 comments on Slashdot, almost of all of which are critical, I haven't seen a genuine attempt to answer his broader question. How is it good for us - for all of us? Will the trains run on time? Will babies be fed? Will artists be compensated for their talents? As a defense of a very self-consciously idealistic "movement" this is surprisingly inadequate, and supports his argument that it's more pose than platform.
Behind the scheme is the recognition of a very real problem. The permission mechanisms by which rights holders grant or deny the reproduction of artistic works haven't kept pace with technology. It's now very easy to reproduce an image or a piece of music, but it remains just as easy, or difficult, to get the permission to use it. We now have an abundance of material available to us, they ask, so can't we do more with it?
It's a reasonable question, and Creative Commons is an attempt to answer it.
Let's look closer at what it is. Creative Commons applies the principle of the GPL to creative works. The GPL is a license based on strong copyright law which allows the author to say how a product is used. Under a GPL license, you must agree to disclose the source code. Under a Creative Commons license, and they're proliferating like bunny rabbits, the author can also grant or permit certain rights.
And here the problems begin. Engineering recipes, or source code, aren't the same as works of art. They express different things; people expect different things of them. You expect different things of a Billie Holliday record than a source code compiler. We'll go into much greater depth on this in a moment.
But listen to the Creative Commons advocates and you'll notice a few patterns emerge. Narratives of control and subjugation proliferate. A 1984-style dystopia is just around the corner, they fear. Many Creative Commons evangelists are quite other-wordly computer utopians, memorably satirized by Garry Trudeau in the character of Jimmy Ray Thudpucker. This is no bad thing in itself, but a sense of the broader perspective is lost. The Creative Commons people are inclined to indulge in a kind of technological determinism, and the value and necessity of compensating gifted creative people is neglected. As we shall see, this leads to the quite unpleasant misanthropy and snobbery common in techno-utopian circles.
Let's remind ourselves of a dirty and quite inconvenient little secret.
Copyright's Dirty Secret
From at least one perspective, this is a good time to be alive. We have an abundance of affordable cultural goods from around the world. Better communications have all but removed some hideous inequities. It's no longer the case, for example, that Northern Soul artists were dying in poverty ignorant of the fact that thousands of people were celebrating their music on the other side of the Atlantic at all night parties. So the current structures, for all their problems, benefit both the artists and the public.
As we've pointed out before, storage and transmission technologies are always in flux, and the social mechanisms we invent around technology flex and morph to fit. The principle of copyright seems to endure as stubbornly as capitalism did for Marx, who characterized it as being in a state of permanent and terminal crisis.
That's not a bad way to think about copyright: some boundary case somewhere is always threatening to break the agreement for good. Outside of some of the internet's echo chambers, however, the sky isn't falling, and there's a broad popular consensus in favor of the principle itself. We just haven't arrived at the social mechanism yet; although, there's a consensus emerging on what it should roughly look like.
Computer networks, in their many forms, aren't going to go away.
I've had hundreds of conversations with people in the music business, from artists to promoters to recording rights holders, and the subject of the inequity of copyright has only been raised twice. I didn't meet anyone who didn't have a sense of injustice about some or several parts of the business - phrases like "thieves" and "greedy bastards" came up a lot - but when copyright puts food on the table, it's hard to argue it's at fault.
So what we have is a compensation crisis, not a copyright crisis.
The only people who insist otherwise seem to be the computer lobbyists. And here the argument begins to look less utopian than it does a case of special pleading. The system is broken, they plead, because their particular boundary condition is under stress.
I'm really sorry to have prick this bubble: many people want to Get Their War On over copyright. Things looked much more perilous for rights holders in the 1920s with the advent of radio, but things, as they do, worked out. And I can think of other copyright injustices today that are as bad or worse than having to make a phone call to a rights holder, and here's one in particular.
Two years ago a film biography of the poets Ted Hughes and Sylvia Plath appeared. The audience for this movie in its various forms was millions - and it didn't contain a single line of poetry, as both the Hughes and Plath literary estates refused permission. What, you might wonder, was the point of a film about two poets that contained none of their poetry?
Writers have a much harder time clearing rights from literary estates than do budding film makers, a favorite example of the Creative Commons evangelicals. It's simply another boundary that's under stress. There's a tremendous consensus too that copyright terms have been extended to the detriment of the public domain. The internet enthusiasts have fought this case, but lost so badly that the US Supreme Court is unlikely to return to the issue for many years.
The social contract that's endured for over a hundred years is really simple. The rights holders can't control the flow of culture - but they can make money off it, and this is willingly given with various provisos. As long as they don't get too greedy, and charge too much; as long as they continue to invest in the storage and transmission technologies that make it more accessible; and most importantly if they ensure that the money goes round fairly: then everyone's pretty much happy.
So why the dystopia and high anxiety?
I've written as much about DRM as anyone in the past five years - and some of the discoveries have been quite nasty. But I don't believe, in the end, that the sky will fall. This faith is less based on heroic hackers riding to the rescue, and rather more because the people who put the DRM on music don't think it will work either. We can expect a Prohibition-length era of lousy value for money songs and great inconvenience, but privately, rights holders know that if their business is to have a future, it's going to be based on finding and promoting talent - not on controlling you.
To really understand why such themes of control, paranoia and domination occur with such people, and to understand Creative Commons thinking, we have to look into the mind of the techno-utopian. Ugh, you're thinking ... and no, you don't have to dress up as a Star Trek character to go there. But the psychology is really interesting, and turns out to be quite different to how the rest of us see the world.
The strange death of remix culture
If you listen to the special pleading from a Commons supporter, the end of world really is at hand.
"There's a class of speech that's not possible at all without P2P technologies," the Commons' most prominent evangelist, Lawrence Lessig, told the Library of Congress recently. They're confident that an abundance of tools will lead to an abundance of creativity. This is a materialistic perspective which takes no account of history. Culture simply follows what's available to it. Much of the most life-affirming music we have is a product of two cultures that have lived through tragic histories: Jewish and African.
Or in a coda that Orson Welles wrote for himself, as Harry Lime in The Third Man-
"In Italy, for thirty years under the Borgias they had warfare, terror, murder, bloodshed - but they produced Michelangelo, Leonardo da Vinci, and the Renaissance. In Switzerland, they had brotherly love. They had 500 years of democracy and peace, and what did that produce? The cuckoo clock."
Even more troubling than the equation of material abundance and creativity, is the Commons supporters' idea of creativity itself.
One of the main motivations behind Creative Commons is creating a public domain repository of works that can be re-used. This seems an odd time to proselytize "Remix Culture", which has been on the retreat for ten years now.
But for a certain kind of computer nerd, for whom life is mediated through the phosphorous portal of the notebook LCD, it's only just begun.
In recent years, we've seen a return to authenticity, and a resounding rejection of smart aleckery and the ironic. Forms such as folk have lost their stigma, and full-on, early 70s rock is the most popular form of music for teenage English kids. There's nothing ironic about getting drunk, jumping and down, and falling over, so this is all very healthy. People simply ran out of patience with jumpy, glitchy cross cuts.
It's true that mash-ups have been a fun fad, but it's equally true that the pigopolists have done little to stop this flagrant copyright abuse - it's a novelty form that only increases appreciation of the original work of art. And originality is something computer evangelists have a really hard time getting to grips with. At times they only seem able to appreciate art "ironically", which is not appreciation at all, but a form of snobbery.
Your neurosis is not a lifestyle
"Remix Culture" isn't so much a celebration of culture as it is of the machines that make it possible.
It's also based on a lie, or if we're being charitable, a wilful mis-reading of history. All art borrows and recontextualizes, and it's impossible to keep up with this even say in one field, on a daily basis. In this avalanche of mutating cultural forms, no computer is required. We hear musicians borrow a rythmn, steal a style, and cover a song, all within the successful copyright framework as it stands today. By tying recontextualization to one very specific activity, the Commons supporters are either being intellectually dishonest, or showing the limitations of their own experience.
(I'm sorry guys, but if you want a shiny new computer, just go right ahead and buy one. You don't need to pose as Che Guevara on the way - just handover the money.).
Computer evangelists find all this difficult to grasp, because their world is limited by what the computer can do. So Lessig is undoubtedly sincere when he says that an abundance of technology leads to creativity, and restrictions on technology lead to cultural improvrishment. For him and people like him, it's probably true. But the rest of us don't define ourselves by the limitations of computer systems or computer networks.
It's a crippled view of human creativity. Beethoven doesn't need to be re-mixed - he needs a good orchestra. And Billie Holliday isn't enhanced by overlaying some beats. Nor is something special simply because it's passed through a DMA bus, or a Cisco router. History in the end judges what endures and what doesn't, so our responsibility - and it's such a burden! - is to celebrate what's good.
Ay, Carumba! Chileans get the Creative Commons makeover
As Dvorak points out, license proliferation is a very literal solution to what is already informal, human and spontaneous. The Mash Up kids just went ahead and, er... mashed, and they haven't had to pay dearly for their juxtapositions, as rights holders have recognized the benefits. Want to use a sample? Go ahead and use it. With a nudge and a wink, you'll probably get away with it. If you reach number one with that sample, expect to hear from the original artist. This isn't so hard to understand.
So where does creativity come from? Here's Lessig again, this time from a Slashdot interview from 2001:
"When the power of creativity has been granted to a much wider range of creators because of a change in technology the law of yesterday no longer makes sense."
Well, if he means that the law must adapt to keep pace with the social acceptance of technology, then he's quite correct: you'll have noticed there are no mules on the freeways these days. But the rationale he cites - with our emphasis added - is the key. For Larry, the gift of creativity really emanates from the machine. Although he grew up in the 1970s, punk must have passed him by completely; the punks proved all you needed was three chords and some imagination.
Meanwhile the Creative Commons has produced its own confirmation of these problems.
The repository itself is a testament to the art that's produced when unoriginal people are given computers. In fact, with a few exceptions, it's very hard to find anything creative there at all. It's hard not to think of it as the largest Clip Art library in the world, but one to which all good women and men must donate.
Two years ago I heard a similar call to arms, when a conference presenter urged everyone in the audience to devote half an hour each day to writing a weblog. That's half an hour less playing with the kids, taking the dog for a walk, or reading a book, but, he insisted, "half an hour isn't much to give up".
I was reminded of John F Kennedy's inaugural address: "Ask not what the internet can do for me, but what I can do for the internet"!
Defenders of the licensing approach say it simply adds to the range of choices an artist has available to them, which is quite true. But it's also slightly disingenuous to urge performers to forego the commercial option that might lift them out of poverty. The great Ray Charles died too late to discuss this with a Creative Commons enthusiast, but I'd love to have heard his response.
Perhaps they could have minted a special tin cup, with a CC logo, to get him started.
Why do the computer evangelists have such a hard time recognizing originality, when for the rest of us, our lives can be transformed in one sublime instant by hearing it?
And why the reluctance to think about social agreements that reward the gifted people who give us such pleasure?
Is it, as Jaron Lanier suggests, a fear of subjective experience? It's certainly cultural deafness on a deep and debilitating level.
Why the recourse to mechanism - the need to have every T crossed, every i dotted, and a license for every possible occasion?
Why the lack of patience or understanding with art forms that require those skills, such as following linear narratives? Parents with Asperger's children will recognize the symptoms instantly.
If this particular revolution requires us to adopt such a view of the world, then it has little prospect of success. Creative Commons is a cute pose, but the problems it seeks to remedy go unsolved. Finding a way to reward creators, which the project doesn't even attempt to address, remains more urgent as ever. ®
Dvorak: Creative Commons Humbug [PC Magazine]
Andrew Orlowski comes to us courtesy of the Register.
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