These days, there is a lot of discussion about "piracy" and "theft" referring to illegal copying. But obviously, the comparison of music downloading to stealing a car is absurd.
Yet, having rejected the idea that copying is stealing, problems still remain. If we want quality products, they must be adequately funded, and it is important for everyone to contribute their fair share. Instead of the inappropriate metaphor of "piracy" for illegal file-sharing, we should use the term freeloader. With this more accurate frame, we can go about figuring out what the issues are with the status quo, what level and sort of contributions are needed from everyone, and what mechanisms will best achieve a fair and effective system for media creation, publication, and access.
We face great challenges to maximizing open access, creative output, fair use, individual expression, individual freedoms, and fair wealth distribution. In this article, I am going to attempt to thoroughly discuss the issue, asking questions, proposing ideas, and sharing links to important resources. My goal is to take a broad view, focused on what is best for society as a whole while respecting individual concerns. Many questions lack clear answers, but the important thing is to face the questions and look for objective evidence.
I published my first album in 1996. There was no online music sharing. Inexpensive CD burners were not available. I bought commercial CDs and still had a sizable vinyl record collection. I also taped obscure radio shows onto cassettes, borrowed records from the library, borrowed and lent records among my friends. None of this seemed questionable in any way. I had aspirations to sell lots of copies of my albums and become a professional composer, at least part-time. And I believed in the idea of copyright.
When CD burners and Napster came along, I was decidedly opposed to illegal copying. I actually purchased multiple copies of obscure albums that I loved just so I could sell or give them to my friends. I wanted to share the music, but I didn't want to violate copyright laws.
Changing my perspective took over a decade as I slowly became desensitized to illegal copying. I recognized that my friends who illegally shared music were basically honest ethical people (I saw them as ignorant and careless rather than dishonest). The more I got involved in the music biz, the more I saw the economic injustices, the crass world of corporate sponsorship, musicians basically a tool to sell drinks at the bar… and then YouTube came along and all my classical music friends were putting up videos with performances of music that was still under copyright, such as pieces by Heitor Villa-Lobos composed in 1940.
Most people think of copyright violation as millions of people downloading the latest song from some file-sharing site and the recording artist getting nothing. But putting your amateur band's cover of an old jazz standard on YouTube is illegal too.
Struggling with these things, I started researching more about the history of recording technology, the history of copyright, the philosophy and politics of it all, cross-cultural perspectives… (did you know that radio stations originally had only live musicians who then pushed for banning the playing of records on the radio?)
In the end, my defense of copyright law turned out to have a very flimsy foundation. And now, just as more are people recognizing these problems, the defenders of copyright are becoming more and more draconian. Random folks today sharing some music recordings are marked as felons and forced into bankruptcy, while crimes in the financial world ruin entire companies and economies yet go unpunished. This is just crazy!
I first wrote this article in 2008. It was originally a short essay stating essentially: copyright issues are complex, people should try to be ethical and respect the wishes of creators, we ought to have shorter copyright terms, and maybe there's nothing wrong with singing a song you like in a YouTube video — basically: follow your conscience. Over the years since, I've thoroughly revised this article. I am doing my best to appeal to all sides and discuss the issues fairly, but I'm coming down more and more towards just acknowledging that the whole concept of copyright is dysfunctional.
Article I, Section 8, Clause 8 of the United States Constitution is known as the Copyright Clause. It empowers the United States Congress:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.Today, U.S. Patent Law retains the original limited time period. Any patented invention over 20 years old is now public domain, free for all uses, derivations, etc. Every year, a set of patents expires and the public domain grows. Meanwhile, inventors get 20 years with exclusive control over their idea in order to profit. While giving inventors this control isn't itself in the public interest, we hope that it motivates invention in the first place — which is in the public interest. Of course, if any aspect of patent law isn't effective for motivating useful creations, then that aspect is unconstitutional.
The original term for copyright was also reasonably short: 14 years. It was later increased to 28, and this was not changed until the mid-20th century. In recent years, however, thanks to lobbying from corporate media interests, copyright terms have since been raised to author's lifetime plus 70 years.
There is no evidence that such very long copyright terms "promote the progress of science and useful arts" and lots of evidence to the contrary. Thus, rather than reference the wording in the Constitution, interested parties have spread propaganda to promote a myth of natural rights of authors and inventors supported by terms like "intellectual property." An excellent essay on this issue is Misinterpreting Copyright by Richard Stallman. Another lengthy essay worth reading on the history of copyright is The Surprising History of Copyright.
To be clear, copyright is an appropriate term. It refers to the right to copy (and related activities like distribution). What copyright law does is limit this right to certain people. It takes away copyright from most people for the express purpose of motivating creation.
Today, it is common for publishers to say that they have the "right" to stop others from copying, distributing, or modifying their works; this is a completely incorrect use of the word. If you stop someone from doing something that isn't directly affecting you, you aren't exercising your "rights," you are exercising power. Having the copyright on something simply means you have the right to copy it, but the implication, given current law, is that this right is yours exclusively. Copyright law is about restricting rights. The question is to what extent this restriction is justified.
Determining optimal copyright terms: motivating creationIf we accept the singular goal of scientific and artistic progress, it is simply a matter of discussing what policies promote that goal. Of course, ends do not justify the means. Progress achieved through gross exploitation of creators is unacceptable. But let's leave the ethical issues aside for a moment and simply consider what motivates progress:
At Cambridge in 2007, economist Rufus Pollock created a theoretical model to determine the optimal copyright length that would maximize public benefit. His optimal copyright paper is lengthy and full of mathematically represented variables. Incorporating his points along with my own additions and ideas from elsewhere, consider the following framework:
Factors that benefit society overall
- more works
- freedoms of access, use, modification, redistribution
- decreased cost of copying
- works being of high quality and positive social value
- Reduced cost of production and distribution
- Access to past works in order to build new derivative works
- more funding for production, whether market-based or through grants (government or crowdfunding or otherwise)
- A level of copyright that achieves the optimum control and profit in order to motivate production
- intrinsic motivation in the creative process; and other non-monetary motivations such as fame, honor, and social-altruism
As the size of the back-catalog of works increases, the value of new works is less. For example, everyone could still have a lifetime of very diverse music listening if, effective immediately, no more music were ever recorded. Today, the overall value of new music recording is not zero, but it is less than when recording technology was new. Therefore, it is in society's interest to reduce copying restrictions. Less restrictions allow greater access to both old and new works, and we no longer have as much need to encourage new works.
Today there is actually more music being recorded and made available than ever before. This is due largely to technological changes which have reduced costs of production and copying. Record sales may be down (although maybe not, see Techdirt's report The Sky Is Rising), but sales of musical instruments, lessons, and recording equipment are up. According history professor Karl Hagstrom Miller (in his upcoming book Sound Investments: A History of Music Ownership and Theft), this trend is actually part of a long history of oscillations where less emphasis on professional music correlates with increased amateur music making. There's certainly no need to worry about music-making going away.
Promoters of stronger copyright restrictions seem to see only the decreased cost of unauthorized copying but ignore the correlated decrease in the cost of production and distribution. The existence of inexpensive photocopying and digital sharing means that the public should expect to pay less for access to media compared to when reproduction was more costly. Of course, these technological issues mean that optimal copyright terms can vary for different media.
Pollock's theoretical work determined that optimal copyright terms are between 5 to 40 years depending on specifics of the medium, with a median optimum of around 15 years.
Pollock's theory is intriguing, but it is based on traditional economics and its assumptions about everyone acting with calculated rational self-interest. As emphasized by Dan Ariely in his excellent books Predictably Irrational and The Upside of Irrationality, people are motivated by all sorts of things. We are generous and sharing as long as direct monetary transactions aren't involved, and we judge value more by comparison than by any objective factor. As long as our basic physiological needs are met, we feel successful and appreciated if our rewards are favorable compared to those around us, regardless of absolute levels. Furthermore, creativity and productivity are defaults in human nature. For society to benefit from our natural creativity, we only need to provide a fair enough system to avoid being discouraging. So even the short-term copyright restrictions that Pollock advocated may be unnecessary. These things warrant further research and discussion.
Addressing economic concerns of artists and publishers
When the rules are changed in the middle of the game, it can be quite unfair, and a lot of people become upset. Those with investment in traditional publishing are understandably defensive about copyright. They have been told over many years that they are entitled to the wealth and control that they assumed over their careers. And there are real concerns about simply removing a system that had provided economic stability without replacing it.
Sometimes, when musicians or other artists complain about needing to make a living, what they really mean is that they want to become wealthy while doing their dream job (such as being a professional musician). In reality, one can live happily and healthily with far less than what some Americans call "making a living," and just because you want to have a certain career doesn't mean you get what you want. Maybe society has a greater need for you to do something else. Of course, as Upton Sinclair said, "It is difficult to get a man to understand something when his salary depends upon his not understanding it."
Loss of income among professional and semi-professional musicians and other creators is an issue that should be of concern to others as well. It is a part of larger economic trends that have serious consequences. Jaron Lanier, in his controversial book You Are Not a Gadget, emphasizes the need to have a wealthy and substantial middle class in order to balance the power of concentrated wealth of the top tier of the upperclass. Essentially, reasonable middle-class wealth is a requirement to maintain our freedom and democracy.
Lanier also emphasizes that bulk mash-ups of amateur creations do not match the expressiveness and personality of individual artistic creativity. I agree, and I happen to greatly value original personal creativity. The vast majority of my own music and writing does not directly utilize any existing media, although I certainly draw inspiration from others. I have usually avoided even free sample loops or drum patterns in my music.
I don't want to see a world in which everything is just crowd-sourced mash-ups of preexisting loops and samples; but neither do I want a world in which those entities that control the most popular media have excessive influence and control.
Certainly the need for professional photographers is greatly diminished by affordable digital cameras, free/open-source software, free online forums, and Open Educational Resources. Society as a whole is richer now that everyone can create their own high quality photos. The danger is in giving undue control to monopolistic photo-sharing services, search engines, social network sites, and internet service companies. We should not accept a world in which statistical information-gathering machines controlled by a few big corporations insert themselves into our personal relationships, exploit our personal creations, and flash them back at us along with manipulative advertising.
To protect the middle class and the dignity of the individual artist, Lanier has many suggestions, ranging from questionable (a mandated system of micropayments to compensate content creators whenever data is accessed) to horrible (artificial scarcity via technological restrictions in the form of physical "songles" such as a necklace you must have in the room in order for a song to play). At least Lanier doesn't resort to the worst reactionary attacks seen in many defenders of copyright law, but while I find his concerns valid, his solutions are regressive.
Lanier promotes a myth of a 20th century where copyright was respected and artists made reasonable livings. In fact, most artists struggled, artistic material was as freely borrowed and adapted as ever, and big media companies were as exploitive and unjust to creators as they have ever been.
The answer to our economic troubles and inequity is not to work against the sharing of ideas, against the natural development of technology, or against changing business models. The answer is to work for open standards and stop the development of corporate monopolies.
Incidentally, the artificial scarcity created by copyright law has a less obvious effect which I haven't seen anyone discussing. Long copyright terms act as a sabotage against the use of older material, potentially reinforcing demand for new media. For example, when a musician is selecting non-original material to perform or record, they can choose either public domain or copyrighted material. Today, that means a choice between pre-1923 music and everything since. If the latter is chosen, it could include 40-year-old music or this year's hits — either one involves the same licensing costs and hassles. If copyright terms were shorter, then people might be a bit less likely to perform the latest songs. Consider this example: because all rock music is still under copyright, new rock music competes on an even playing field. If copyright terms were lowered, then new pop/rock artists would not only compete with the Beatles and other past recordings for attention, they would compete at a further disadvantage because the Beatles music could be utilized without cost or restriction. Of course, to suggest that this sabotage of public domain is a good thing is to commit the Broken Window Fallacy.
Trying to force artificial scarcity and related economic models on digital media is somewhat like selling bottled water. Ideological capitalists may suggest that any business that is profitable is a good business, but aside from the few places where there is no potable tap water, bottled water is a scheme to manipulate people into ignoring a free social resource that already exists. Bottled water is a wasteful and corrupt business. The existence of tap water doesn't makes shoplifting of bottled water acceptable, but the bottled water industry is on the wrong side of history. I wouldn't hesitate to tell a bottled water marketing executive that they ought to find a more respectable way to make a living. Most of us would be appalled if bottled water companies attempted to undermine funding for government-based municipal water systems, but today similar things happen in transportation, health care, and media.
Our current system is already committed to providing many resources for all citizens from clean water to public education. These universal things are great and could not be accomplished through the free market alone. However, our current system is inadequate to deal with the technological changes in media and such. Our welfare system discourages productivity because it subsidizes the poor (not to mention corporate welfare, that's a separate issue). This makes those in poverty feel undignified and dependent, and it traps recipients with the threat of benefit reductions if they start working more. The sight of freeloaders living on welfare can also discourage those who are working.
To create a more just system (and not rely on advertising or reckless consumption), it might be effective to simply provide everyone with minimal basic needs (healthy food, water, minimal shelter, essential medical care, and education). We could then eliminate special welfare for the poor. Those motivated by profit would still work in order to have wealth beyond the rough essentials, and those motivated by social status or by higher purposes would not be distracted by basic daily needs. The most realistic mechanism to achieve this is a Negative Income Tax (NIT). With basic needs met, everyone is free to pursue work on creative, scientific, or technological innovations. If these innovations are then available for widespread use without copyright or patent restrictions, it will only further our progress. I recognize that these ideas are quite controversial, but they should be included in the discussion.
The public library!
Another great example of an existing social resource is the public library system. Using the library, I have evaluated hundreds of guitar methods and general music books for teaching and personal use. In addition to the media available at my local library, the interlibrary-loan system allows me to access vast resources from libraries around the country (visit worldcat.org to search the content of the world's libraries). Many of society's greatest scientists, artists, businessmen, and teachers could not do what they do without the public library.
There are, of course, instances when people want continuous, long-term access to something or to truly consume it (such as writing notes in a book), but if everyone were to otherwise follow my advice and use the library for everything else, wouldn't that be great‽ Would it be substantially different from downloading illegally online? How? In our current system, it is often illegal for me to download from the internet the same movie I get it for free from the library. Is there any legitimate justification for this? I can think of some sloppy bad answers, but I know of no argument that holds up to logical inquiry. Any discussion of digital file-sharing needs to address this question. Do copyright-status-quo defenders want to eliminate public libraries or intentionally hamper them‽
Rather than fight against or limit the library system or wish for its obscurity, I would like to see expanding libraries. We should have musical instrument libraries, tool libraries, and much more. My local library (see AADL.org) already loans out framed artwork, telescopes, and energy meters, and some musical instruments, along with the traditional media! There is a digital public library of sorts online: archive.org. Unfortunately, libraries today are having their functions threatened by restrictive copyright laws and technical restrictions on digital media.
Creative Commons and derivative worksThroughout human history, creative art and music have evolved through constant collaboration and interacting influences. Of course, collaboration is fundamental to all aspects of civilization, as discussion in this great TED talk by Matt Ridley. Thus, the issue of copyright is not merely one of independent creations and concerns about copying and access. Creative artists commonly build on the products of the surrounding culture. Today's copyright laws restrict the possibilities of derivative works and collaboration.
Among the best and most entertaining overviews of derivative culture is video set Everything Is A Remix by Kirby Ferguson, and his follow up Embrace the Remix TED talk may be the best succinct summary of the whole issue.
For authors who wish to voluntarily share their otherwise exclusive legal rights, the best tool is a Creative Commons license. Accessible introductions to CC are at creativecommons.org/videos. I support the aims of CC, and I have given this entire website a CC BY-SA license. That means this essay and everything else I have shared here may be copied, distributed, sold, and/or modified — as long as you give me due credit and retain the same license for all derivatives. To consider doing the same for your creations, read this excellent guide: How To Free Your Work.
For more on the issue of derivative works, see the TED talks by Lawrence Lessig, a primary founder of CC. His book Remix is also available for free download with a CC license (but, hypocritically, it has a No Derivatives restriction, so you can share Remix but you can't remix Remix!) The book also inspired a wonderful and entertaining documentary movie: RIP: A Remix Manifesto (streaming online here). For more on the broader value of free and open culture, one of the best articles I've ever seen (about quilting, of all things) is: freemotionquilting.blogspot.com/2012/03/copyright-terrorism.html
Creative Commons was inspired by the Free Software movement (see my software page), which was founded by Richard Stallman. More recently, Stallman has clarified how the ideas of software freedom and cultural and creative freedom relate. If you can spare 85 minutes, check out his inspiring lecture: Copyright vs Community in the age of computer networks. I don't agree with everything Stallman says, but I respect his ideas. Some people (I'm one of them) think Stallman doesn't go far enough because he doesn't apply to other media all the freedoms which he advocates for software. Stallman's ideas have been adapted by others to create the broader Definition of Free Cultural Works.
On a side note, in his 2009 presentation, Stallman describes how copyright doesn't fully apply to physical objects like chairs. You can get a woodworker to copy a wooden chair, but it isn't practical for most objects. But with the development of 3D printers and scanners, this may become more widespread (see these amazing intro videos: printing a working wrench and printing a bicycle). We are likely to soon see this technology in relatively inexpensive forms. This brings up many concerns about copyright and freedom. Will we see DRM in scanners or printers that are designed to stop working when detecting unlicensed objects‽
Overall, we need to acknowledge that sharing is generally a positive human behavior which encourages social cohesion and collaboration. We need the freedom to follow these positive instincts (see the great book by Barry Schwartz, Practical Wisdom: The Right Way to Do the Right Thing).
As a music educator, I'm excited about the prospects for Creative Commons. For example, by allowing teachers around the world to modify existing resources, we have the potential to develop a superior music educational method. At cnx.org, Catherine Schmidt-Jones has already written some quality resources for music teaching, and these are all licensed under CC-BY.
In contrast, I've reviewed hundreds of traditional music publications from self-published guitar methods to the top-selling commercial and academic publishers; and I found lots of excessive redundancy. There's better and worse but nothing truly brings together the best ideas. The funding of the traditional copyright-supported publishing model is weighted in favor of the best marketing not the best quality. Quality may help something rise from the bulk, but best-selling lists are still populated by fancy-looking covers and content that is often adequate but unremarkable. All the big music publishers (Mel Bay, Hal Leonard, Alfred, etc) actively add to the bulk by printing nearly- or even exactly-identical content under many different titles (sometimes even credited to different authors!). This is all obviously to stuff the store bookshelf (or Amazon listings) with their items. This situation is a prisoner's dilemma. If one publisher cheats by printing many titles with the same content, it compels the other publishers to do the same to complete.
Creative Commons licensing is itself also something a prisoner's dilemma. CC licensing is based on individuals opting to give up the exclusiveness of their legal rights. This sets up unequal status between those who choose to license with CC and those who do not, thus putting unfair burden on volunteers who unilaterally grant others freedoms through CC. But until the legal situation is overhauled, CC licensing may be the best compromise between accepting unreasonable restrictions versus breaking the law.
What is copyrighted, anyway?
As pointed out (and boldly exploited) in the excellent inside-look at the music industry, The Manual: How to Have A Number One The Easy Way, not every aspect of a work is legally copyrighted. Copyright law defines a musical work by its melody and lyrics primarily. While there are a few other factors arguably possible within the law, it generally denies rhythm as a copyright element. Therefore, anyone can legally copy the latest creative rhythmic groove, put new lyrics and melody over it, and claim the result as copyrighted original work! In some sense, this is also an argument for derivative freedom because entire styles of music might have been severely restricted if someone were allowed exclusive copyright (or patent) on a basic rhythm. Many rhythms are not especially original, but the same can be said for lyrics, melodies, and almost any other aspect of a creative work! Virtually all creative works are derivative to some degree.
You seem like a socialist with all this talk about things being free and public commons. What about the 'free market'?
Of course, copyright arguments relate to political-economic ideology, but I am not convinced that anyone has figured out an actually ideal economic model. Socialism and capitalism both seem to get some things right and other things wrong in their assumptions about human nature. Milton Friedman, a strong free market capitalist, was an advocate for the same Negative Income Tax that I promoted earlier.
Within a theoretical utopian socialist economy, copyright would be unnecessary because creators would be paid by social funding and then all works would be made immediately public domain. While I think this might work, there are lots of concerns about how to make such a system fair, how to protect individual creative identity, and whether it would be adequate to actually motivate creators.
On the other extreme, a utopian version of pure laissez-faire capitalism would certainly not have our government-backed copyright monopolies. The unregulated market could otherwise have a mix of some of the things we see today: widespread voluntary sharing and attempts by companies at technological blocks to copying and modification (i.e. Digital Restrictions Management).
The practicalities of dealing with this today:
One issue of over-the-top laws like current copyright (and the extreme arguments by some corporate media companies and apologists) is that it criminalizes otherwise ethical and responsible people. It is far too easy cross the legal/illegal line of copyright today. Forwarding someone's e-mail without their permission is arguably a copyright violation (which is unrelated to any privacy issues). When someone recognizes that they've broken the letter of the law but know that they haven't done anything malicious or unethical, they lose some respect for the law as an institution. In his wonderful book The (Honest) Truth About Dishonesty, Dan Ariely calls this the what-the-hell effect as in, "if I'm a cheater and criminal already, then, what the hell, I might as well do [this other dishonest thing] also…"
I suggest everyone try to consider the larger perspectives and act according to what seems just. Where feasible, use the officially sanctioned resources for free access: the public library and Creative Commons or other freely licensed works. And in other cases ask yourself, "if I got this from the library would it be any different?" Support authors when you think it really makes a difference and when their behavior is respectful of the public. Be hesitant to buy into schemes like the Amazon's Kindle books which restrict flexibility in your use of the media and keep you tied in (see defectivebydesign.org). Be part of consciousness-raising, and don't allow arguments about "stealing" to go unchallenged; but don't drop to unethical behavior in your use of media. Don't be a careless freeloader. Contribute creatively to the commons and use a CC-BY-SA license. Support political movements to reform the law to be more in line with what is just, sustainable, and respectful of our basic freedoms. Push also for economic reforms so that livelihoods aren't tied to regressive copyright restrictions.
The need for some lawWhile restricting copyright seems to have an overall negative effect, we cannot merely abolish the law. As I mentioned above, we need to make sure we still have some effective mechanisms for fairly funding creators. That issue is something I am working on in a major project which I will mention here when it is ready to announce.
Another issue is: to act on your right to copy and modify, you must be technically able to do so. This means open access to source code for software and unrestricted media otherwise. Today, the term copyleft is used to describe licenses that require such access for all derivative versions of a work. Such licenses require copyright law. Otherwise, people could release software without readable code or add DRM limitations to digital media. Thus, any reform of the law needs to account for these issues.
A thorough political proposal which I feel addresses these concerns well (except for its validation of the lousy term "Intellectual Property") and has a fair and compromising approach:
Anyone who still isn't convinced that the existing copyright system is broken should read about Happy Birthday To You.
Advocates for the strictest copyright restrictions may see my views as one side in a pro-copyright vs Free Culture debate, but I am not dogmatic. I welcome thoughtful feedback that truly considers my ideas. I have changed my perspectives over the years and my mind is not set in stone. I want to hear about any ideas or thoughts which I may not yet understand. Also you might want to consider the broader context, such as cross-cultural views.
Thanks for reading!
UPDATE 2013: I am now creating a platform meant to solve all these dilemmas. Check out our work-in-progress at Snowdrift.coop.