SOPA/PIPA isn’t a business problem; it’s a culture problem

January 22nd, 2012

In the wake of this week’s remarkable SOPA and PIPA turnaround in Washington, Christopher Dodd, the former U.S. Representative turned U.S. Senator and now chairman of the Motion Picture Association of America, thinks that Hollywood and Silicon Valley need to meet. “Mr. Dodd said he would welcome a summit meeting between Internet companies and content companies, perhaps convened by the White House, that could lead to a compromise,” according to the New York Times.

Prominent New York venture capitalist Fred Wilson essentially accepted the invitation, saying we need a new framework that is based on a shared set of goals and objectives. “The PIPA/SOPA framework was litgation heavy and very invasive,” he wrote. “It was “we are going to do this to you.” It’s not surprising the tech industry didn’t like it one bit.”

As much as I respect Fred Wilson, this is a clever way of positioning “the problem” as one between two industries, entertainment and technology. Okay. That’s fine, but “the problem” is really between the MPAA and RIAA and the people formerly known as their customers. If you think Fred Wilson speaks for the people, you’re mistaken. Fred is one of the genuinely good guys, but his view is quite business-centered. So who speaks for us in these negotiations?

This isn’t a business problem; it’s a cultural problem, and it must be framed as such in order for these businesses to get it right. It is indeed a legal issue, but it tends to get framed in an archaic setting. That’s the real problem here. If you really want to understand the scope of the issue, take the 14 minutes necessary to watch Clay Shirky’s explanation or read his take here.

Shirky notes that the copyright cartel wants to eliminate the sharing of creative works, just as they’ve wanted since creative works first became an “industry.” As a creative person who’s published books and songs and performed those songs as well, I don’t believe the arts are industries, so they shouldn’t be treated as such. The only fiscal beneficiaries of the arts should be the artists and that begins with being seen, read, heard, watched, etc. I oppose the suggestion that the sharing of works costs artists jobs, and I resent it when this is used to justify arguments that prevent people from seeing, reading, hearing, watching, etc. I further reject the suggestion that a self-serving “professional” hierarchy should the sole determinant of what is seen, read, heard, watched, etc. We’ve  gone nuts with deep pockets needing to protect their status, and this has blinded everybody to the revolution that’s taking place around us.

I have a lot of books in my library and continue to obtain both printed and electronic versions. But I’ve given away more than I actually possess, for I believe that artistic works should be consumed. That’s their purpose. The copyright industry tells me, however, that if my friends who “borrowed” those books wanted to read them, they should have bought them for themselves. This is why I’m so vehemently opposed to legislation such as SOPA or PIPA. At core, such thinking is unnatural, for the artist benefits in ways beyond monetary compensation.

Besides, the harm that these companies are experiencing is self-inflicted, because these industries profit by manipulating and gouging the very people their products are intended to entertain. Treating customers as “eyeballs” for profit is not only disrespectful; it is contrary to the very essence of creativity’s gifts. We hear about how artists are   disrespected in our culture, but that disrespect begins with the industry that exploits their gifts for profit alone.

People have had enough, and the disorganized, chaotic demonstration against it last Wednesday evidenced a dissatisfaction far beyond what a simple business negotiation can deliver. Copyright is not property. Period. Let’s get that right, and the rest will fall in place.

Posted in Copyright, Culture | 3 Comments » |

Righthaven rulings impact everyone

June 22nd, 2011

Via Wired:

A federal judge ruled Monday that publishing an entire article without the rights holder’s authorization was a fair use of the work, in yet another blow to newspaper copyright troll Righthaven.

The newspaper industry has generally been quiet about this whole Righthaven nonsense, and it deserves what is happening in the wake of these rulings. I wrote about this a year ago.

Suing is the last thing we want to be doing for only two outcomes are possible. One, fair use provisions are solidified and possibly even expanded, which will weaken the argument that traditional media companies want to use in protecting their “property.” That would not be good for them. Two, fair use takes it on the chin, which would give traditional media companies a sense of power and victory. In this case, others will seize the opportunity presented, and people will go elsewhere, New York Times be damned. That would not be good for media companies either.

Rather than talk some sense into Righthaven’s “client,” it appears we chose to sit back and hope. Instead, this stream of anti-Righthaven court rulings is establishing a very dangerous precedent for copyright future suits, and the industry will rue the day it decided not to get involved.

Chalk another one up for the personal media revolution.

Posted in Copyright, Legal | 2 Comments » |

Broadcasters win one, for now

February 24th, 2011

Of all the disruptions facing traditional forms of media today, none is greater than that which is threatening the value-through-scarcity of the broadcasting/cable arrangement. The broadcasters won one in court this week, when a U.S. District Court in New York issued a preliminary injunction against ivi, Inc. The injunction stops the company from streaming copyright-protected broadcast programming online, creating an online form of cable at much lower rates than cable itself ($4.99/mo).

According to the Associated Press, the court rejected ivi’s reasoning that it is “entitled to the same rights to distribute broadcast programming that federal copyright law automatically grants cable TV operators.” The court found that ivi does not qualify as a cable system.

The company is being sued by a host of entities, including local broadcasters in Seattle and New York. ivi said it will shut down its broadcast offerings while it appeals. In a press release following the decision, ivi CEO Todd Weaver sounded a lot like protestors in the Middle East.

“This fight is for the people and their right to choice and control over their own entertainment — and it will continue. The oppressive big media networks must open their doors to innovators or they will inevitably fall. People want responsible choice, not the one-size-fits-all television offerings imposed by powerful media interests.”

ivi argues that this is an issue for the FCC and not the courts under copyright, an argument they have little chance of winning. The content within the signals that ivi retransmits belongs to its creators, not the public. I do think, however, that ivi is right in stating that sooner or later, program creators are going to have to realize that the old model of forced scarcity — and for which they can charge an arm and a leg — can’t last forever. Personal broadcasting — including content marketing by the people formerly known as the advertisers — is on the rise, and if Hollywood (and the National Association of Broadcasters) isn’t careful, it’ll find itself on the wrong end of the public’s attention curve.

Consider that the rapid growth of what Borrell Associates calls “non-ad spending” among advertisers includes their own programming, and that these people would be very happy with any distribution model. They are, after all, the folks with the money that support all this programming in the first place. Here’s what Gordon Borrell told me on the subject:

The onset of digital media has accelerated the trend whereby businesses are spending more on non-traditional forms of advertising. Traditional advertising as we know it has gone flat, while “non-advertising” forms of marketing have increased — like spending money on their own websites, paying for product placement in programs, giving away products and services for free via the Groupon program, paying to have their websites optimized for search engines, etc. The table below shows that businesses spend twice as much on “non-advertising” marketing than they do on traditional advertising. To look at it a different way, you might say that advertisers, like consumers, now have control of the media.

Consider also that all of the forecast models for the future show a dramatic increase in online video usage. Search and unbundled distribution options will rule the roost, not some programmer’s view of what to watch when and where. Google TV and everything like it will have their day. The broadcasting industry must be on the forefront of this and not be fighting every attempt to develop the marketplace. As we learned with music, the people will have their way. Does the NAB have the courage and smarts to lead the way, or will we simply try to stop it in the name of short term results?

ivi’s approach on all this has been bold and in-your-face and, as such, could be seen as almost laughably naive. “They’ll never get away with it,” is a logical response. The noise they make along the way, however, will resonate with everyday people, and that’s a problem no matter what the courts decide.

Posted in Broadcasting, Copyright, Disruptions, Legal | No Comments » |

Columbus media group trips over itself

January 6th, 2011

The Dispatch Broadcast Group, a division of Dispatch Printing, which operates, among other things, the Columbus Dispatch, apparently had their attorneys tell YouTube to pull the video of Ted Williams, the homeless announcer. This happened this afternoon, after 12 million people had viewed the video (when I first saw it Tuesday, I was viewer #32,681). This is among the dumbest moves I’ve ever heard of by a legacy media company. Oh, they have the right to do it, but it’s just so foolish, because it assumes that people will come to their site to watch the video. They won’t. Not under any circumstances. Besides, if they did, they would be out of town viewers, nothing local advertisers would care about. Moreover, even if they did, the bandwidth would choke them.

The audience of YouTube is varied and loyal. Much better to have a YouTube channel and put your videos there – yes, for free (that’ll change) – than to play this idiotic game with people. It breaks every link that’s been passed around and pisses everybody off. Nice.

Posted in Copyright, YouTube | 1 Comment » |

Viacom rolls the dice on every media company

August 11th, 2010

The decision by Viacom to continue its pursuit of a lawsuit against Google and YouTube is the last, dying gasp of the old guard. Viacom can’t win, and that means the old guard can’t win, which has ramifications far beyond Viacom. The risk you take when you vow to pursue your position to the end is that you will, in fact, reach the end — your end.

A much better strategy would be to work with Google to craft something that’s workable for everybody. That would require compromise, and rather than do that, Viacom is putting the golden goose on the chopping block. By choosing to push its view that YouTube violated its copyrights, Viacom risks those copyrights in ways it can’t even imagine today. I say that, because Viacom cannot win this war. Even if they did get a favorable decision — they won’t — it wouldn’t stop the fundamental disruption to media. It would, in fact, accelerate it, because people are simply fed up with being milked and squeezed at every turn in the road by the copyright-as-property industry. History is filled with incidences of laws wearing out their welcome on cultures, and the downstream revolt after a favorable Viacom decision would make the current one seem like child’s play.

Maybe Viacom actually wants a Supreme Court ruling, but from where I sit, the only people who gain by this are the lawyers.

Posted in Copyright, Culture, Google, YouTube | 2 Comments » |

Our soul needs our attention

August 7th, 2010

I’m awash in emotion this Saturday morning. Weekends allow me the chance to drift, to let my mind wander the paths that it chooses instead of those I force upon it during the week. The Web is a great gift to mind wanderers, because its unstructured paths can (if you’ll let it) produce a sort of mind fuck serendipity that enables this wandering. I’m aware of a deep sense of soul this morning, and I want to write.

I began today with a YouTube video of an old Kurt Vonnegut speech to college graduates in Albion, Michigan. This came via Mediagazer, via kottke.org.

Vonnegut’s statements about how the arts grow your soul is what got me going. His view was that trying to make a living through the arts is the wrong way to view creativity — that it, instead, was the path to growing your soul, something about which he was extremely passionate. I profoundly believe this, and it’s a big part of what shapes my views of copyright and how badly we’ve mucked things up in that arena. The “copyright industry” sticks its bony fingers through the soul of creativity by turning it into a business. Shame on us.

As a writer, I believe that creative endeavors such as the arts should reward those who bring things to life from nothing, but I am strongly opposed to treating copyright as property law. Nobody owns creativity. It all comes from one source, and that belongs to everybody. I’ve written about this many times (here).

The soul. If you believe numerology, mine is an old one. Sometimes I think so; other times, I think it’s a child. I’m not sure when I first became aware of my soul, but I think it happened when I was very young. Soul awareness produces a kind of give-a-shit attitude about the usual trappings of life, and that’s always been my curse. The soul taps into the Lifestream of all things, because, as C.S. Lewis was fond of saying, “humans are like amphibians — living in two worlds at the same time.” The soul is where those two worlds meet and play in a never-ending here and now.

I call these two worlds life (small L) and Life (capital L). The only place they meet is in the here and now, and that reminds me of Blaise Pascal’s wonderful thought from The Penses:

Let each one examine his thoughts, and he will find them all occupied with the past and the future. We scarcely ever think of the present, and when we think of it, it is only to take light from it to arrange the future…So we never live, but we hope to live, and, as we are always preparing to be happy, it is inevitable we should never be so.

Trust me: if you can find the here and now, you’ll never want to leave. Finding it, however, isn’t easy. Regret, shame and resentments bond us to yesterday, while fear and anxiety keep us in tomorrow.

My mind then took me to Woodstock, more specifically Crosby, Stills, Nash & Young’s song (video below) about the event and the particularly haunting line that “we’ve got to get ourselves back to the garden.”

That is our quest, humankind’s ultimate quest, and it separates those more interested in Life than life. The baby boom generation seemed to grasp the capital L, which was a major threat to those who made a good living with small L life. I mean, who needs to get back to the garden, when this life produces a gardenesque living anyway?

But it’s an illusion. Small L life isn’t “real,” or perhaps I should say it doesn’t matter. What is the end of small L life anyway? As Crosby, Stills, Nash & Young sang, “Mother Earth will swallow you.” If you believe small L is all there is, then I feel sorry for you. On this issue, I side, again, with Blaise Pascal.

Ah, the soul? Nobody knows for sure, but I think the soul lives on somehow, some way, and perhaps that’s why Vonnegut’s words are so meaningful this morning. He advised everyone in that audience to go out, write a poem, show it to no one, and then tear it into pieces and scatter it. That simple act, he noted, would grow your soul, and, oh my, what that would do.

I think nations have souls in a way, too, and that ours is currently very sick. We’ve spent far too much energy at the feeding trough of mammon and not nearly enough time of late growing that soul. As Dylan wrote, “You’re gonna have to serve somebody,” and a day of reckoning awaits all of us. You want to know the solution for everything that ails America? Our soul is sick and needs attention. We need to create again and again and again.

So thanks for coming along on my journey this morning. Do yourself a favor and create something today. Perhaps if we all do that together, we’ll somehow find our way back to the garden.

And that would be pretty cool.

Posted in Copyright, Personal, Philosophy | 2 Comments » |

When does it belong to me?

June 27th, 2010

I’m fascinated by the way institutional America is fighting back against the culture shift underway. Its first argument is that everything about it is “bad,” and that’s followed by attempts to rewrite rules — and even history — to hang on to the money machine they used to own. I don’t deny the right to do this; I just find it intellectually stimulating and amusing at the same time.

I was just yesterday talking about the era of my life, which included the rise of rock-n-roll. Here’s how that all worked:

Band made record
Band or agent pitched record to radio stations
Good music = good ratings = advertising money
Airplay = record sales
We “bought” records and albums
The record (usually a 45) belonged to the buyer
We shared our 45s and albums at parties, etc

It was always all about record sales back then. Performers appearing on The Ed Sullivan Show saw record sales jump the next day, and that was the objective. Then came The Grateful Dead with a business model that emphasized experiencing concerts over record sales. The Dead didn’t give a crap who did what with their music, because the experience of the event was the main thing.

Fast forward to today, and we find an industry — the recording industry — struggling to maintain its grip on music, because technology has made it easier to do what we did in the 60s — share “our” music with our friends. In between, we had the cassette generation, a big part of which was copying “our” records or tapes to share with our friends. In the digital world, however, copying has been shifted to mean stealing. In order to get to that, the whole industry has had to shift the understanding of buying any form of music. We don’t “own” it anymore; we “lease” the rights to play it in the form it was purchased. If push came to shove in this understanding, it would be illegal for me to burn a copy of a CD even for my own use.

This smacks of wool over the eyes to somebody like me, but to younger people, I suppose it’s just the way things are.

And isn’t it odd that the model of the Grateful Dead is becoming more viable for others in the music industry? Their scarcity model — that of experiencing performances — has held, while the mechanical, one-potato, two-potato, three-potato, four model of “the industry” is crumbling. In this way, the Dead will live forever.

This model of “lease” instead of “buy” is now circulating amongst the lawyers representing any arm of the copyright industry. If I buy a movie video, I can’t make a copy for my daughter across town; I must physically take her the original, which, at least for now, she can watch. I say “for now,” because if you follow the lease model out to the end, my daughter should have to pay for even watching my original on a different DVD player than my own.

Last week, a Federal judge rightly sided with YouTube in the $1 billion dollar suit filed by Viacom over copyrighted videos uploaded by YouTube users wanting to share them with friends. The judge booted the suit stating that the Digital Millennium Copyright Act provided safe harbor for YouTube. Viacom is appealing. They have to, because their belief is that if you only “lease” a video, you cannot share it with friends in this manner. I think the appeal is dangerous, because they will lose that one, too, and then where will this new way of thinking be?

So does anything I “buy” from the copyright industry really belong to me? On that question hinges the future, and it’ll be fun to watch the twisting and turning in Congress and the Courts.

Posted in Copyright | 1 Comment » |

NYT lawyers play RIAA

June 8th, 2010

You just can’t make this stuff up.

In a mystifying move that only benefits the pockets of the lawyers involved, the New York Times has caused the popular iPad RSS reader, Pulse, to be pulled from the Apple system, because the reader pulls material from the newspaper’s RSS feed. That’s right. Since Pulse is a paid application, the Times figures they are benefiting financially from Times content. Hence, the cease and desist.

Where to begin?

Firstly, the Times — unlike other publishers — provides only links and a sentence in its RSS feeds, so who are we kidding here? Content? This outrageous legal bullying is based in a bullshit, pedantic argument that is contrary to the concept of feeds in the first place. If you don’t want people using your damned feeds, then don’t publish them.

Secondly, because the Times publishes nothing in its feeds, the best Pulse can do is provide visitors to the Times site? Kara Swisher has images of what Times content looks like in Pulse, and I encourage you to go on over and take a look. W. T. F.? Is not Pulse doing the Times a favor? Of course it is; that’s the economy of the link.

Thirdly, if this is the tact that the Times truly wishes to pursue, it’s path to irrelevancy is certain. Pay walls are an understandable reaction to revenue declines from print, but the Web is not print, and this is an attempt to extend the pay wall concept to distributed media via licensing. It will not and cannot work, because the Web won’t allow it. The Times may be within its rights (we’ll see), but closing doors to those who would distribute content closes doors to users, too.

I have been saying for the past ten years that, sooner or later, the lawyers who represent the status quo would attempt to restore things to the way it used to be and that this battle would be long and ugly. Media companies should take a lesson from the RIAA, who ended up suing its own customers in a similar tact. That will likely be next for the Times.

The absurdity of all of this flows from the illogical notion that we don’t “buy” content anymore; we only pay for the right to read, watch or listen to it. This will explode in the faces of those trying to protect their “rights,” because nobody has asked the people formerly known as the customer if this was acceptable.

The New York Times took an enormous step backwards with this move. I wish them well.

UPDATE: Staci gets a response from Robert Christie of the Times, who says the app violates their terms of use (of RSS). Staci rightly suggests we haven’t heard the last of this.

Posted in Copyright, Legal, Newspapers | 1 Comment » |

Jobs’ “freedom from porn:” well-intentioned treachery

May 16th, 2010

I agree with those who’ve said, in the wake of Ryan Tate’s early morning email exchange with Steve Jobs, that Jobs will regret a certain statement:

Tate:

If Dylan was 20 today, how would he feel about your company?

Would he think the iPad had the faintest thing to do with “revolution?”

Revolutions are about freedom.

Jobs:

Yep, freedom from programs that steal your private data. Freedom from programs that trash your battery. Freedom from porn. Yep, freedom. The times they are a changin’, and some traditional PC folks feel like their world is slipping away. It is.

The path to hell is paved with good intentions, and I’ve no doubt that Steve Jobs means well here. He’s also expressing dangerous thinking, however, for the ultimate question about the future Web is who calls the shots? Human history proves that we are either ruled from within or ruled from without, and well-intentioned exterior rulers come and go, often to be replaced by those whose intentions aren’t so pure.

After the invention of the printing press, one of the first cultural influences was the printing of erotic novels. Sex apparently sold then as it does now, and of course, there was a hue and cry against such from the moralists. But the freedom of what to print came with the ability to print, and erotica has always been a source of both demand and profit. What would have happened if some well-intentioned ruler was in charge of all printing presses back then?

The imagination cannot be kept in darkness; it must see the light of day, and to restrict one aspect thereof is to restrict every aspect. You want to know why America is so innovative? Read the Constitution and the Bill of Rights. We respect freedom. Steve Jobs respects his interpretation of freedom. It is treachery disguised as a smile with a piece of candy.

But Jobs’ world is a private place, a private network where he can and apparently will do as he likes. Thankfully, he’s not in charge of the bigger picture, so we all have the ability to disapprove by not participating. This is why, for all it’s wonderful goodness, I will not buy any Apple product, laptop, phone or tablet. Steve Jobs represents a dying age, one in which the haves have and the have-nots never will. He functions as the governor of his devices, and that’s fine, but I can choose not to live in his state.

In the Apple world, copyright is property. Those with cash can play, knowing that nothing they create can be stolen, because nothing is ever really purchased. It’s rented, and that’s the way the copyright industry wants it. I can’t share anything I rent, which makes the industry happy, but it’s really just a smokescreen for the real issue of that same industry peddling garbage in the name of art. You want that one song? They want the album price, and you’ll pay it, because they control access to the song. You don’t think this is the issue? You’ve just lost control of your TV’s input (and output), so don’t complain when that finally becomes real to you.

“First, they came for the downloaders, but I wasn’t a downloader, so I didn’t do anything…”

Apple’s view of the apocalypse is the chaos of an even playing field, and so Jobs would naturally shift the idea of a revolution away from openness to that which is controlled, for the status quo needs freedom from those who would disrupt it. I’m sorry, but the Bob Dylan of my youth would disagree.

So here’s a prediction. Two worlds will continue to evolve, one that takes us backwards, deep into the bowels of modernism’s command-and-control; and a second that advances the concepts of openness and the even playing field. The copyright industry’s self-delusion is that it alone can make money from information and entertainment.

We shall see.

Posted in Copyright, Culture, Disruptions, Legal | 2 Comments » |

You just lost control of your TV

May 8th, 2010

In an unprecedented but unsurprising move yesterday, the FCC has granted the copyright industry the authority to tamper with the output of your television set. It matters little what anybody says about so-called “consumer demand” (why do they always say these things are our idea, huh?) or protecting against piracy, the bottom line of the decision is loss of control in your own living room.

The film industry can block outputs on home television equipment so studios can offer first-run movies while preventing viewers from making illicit copies, U.S. regulators said.

Temporarily disabling the outputs will “enable a new business model” that wouldn’t develop in the absence of such anti-piracy protection, the Federal Communications Commission said today in an order.

The copyright industry applied for this a couple of years ago, citing losses in DVD sales to rental kiosks, the Internet, and mail order. They wanted a way to beam the movies directly to us without any middleman taking a cut. The industry, of course, says this is due to consumer demand.

I don’t doubt that video-on-demand (VOD) is the way to go, but there was nothing stopping the industry from doing this already. They’ve now created a theatrical paradigm, which, of course, means unwanted messages (a.k.a. “marketing”) will eventually be tossed in with it. Nobody knows how to exploit a captive audience like the copyright industry.

Oh, and wait until the networks (and cable nets, too) decide they want a piece of this exemption.

As always, Dan Gillmor is on top of the issue and offers a wonderful comparison to the old “Outer Limits” television series. Dan is such an advocate for us against all this, and his analogy is spot on. I fully expect the law of unintended consequences will rear its ugly head, and the FCC will one day have to eat crow.

Posted in Copyright | 3 Comments » |