Going after copyright reformers is risky business. To digital zealots, defending copyright is like advocating the return to the typewriter. (I personally like typewriters; I own several and I recommend a wonderful 1997 Atlantic piece on them at Longform.org). Going after sworn copyright opponents is what Robert Levine does in his just-published book Free Ride — How the Internet is Destroying the Culture Business and How the Culture Business can Fight Back.
The pitch: Digital corporations are conspiring to promote the free ideology that has been plaguing the internet over the last decade. With their immense financial firepower, the Googles and the Apples and the Silicon Valley venture capital firms that funded Napster did whatever it took to undermine the concept of copyright. From lobbying the United States Congress to funding free-culture advocates, they created a groundswell for rip-and-burn products that would sell their MP3 devices. They got lawmakers and pundits to pave the way for a general ransacking of intellectual property — from music to journalistic content. Once Levine makes his point, he explores possible solutions to restore value to creativity (We’ll address these in a future column).
Needless to say, Robert Levine has produced a non-politically correct opus. And that’s what makes his book fascinating.
To start, the author reframes the famous quote, “Information wants to be free.” Free Ride recalls the complete sentence as far more nuanced. This is actually what tech writer Stewart Brand said at an 1984 a hacker conference:
“One one hand information wants to be expensive because it’s so valuable. The right information in the right place just changes your life. On the other hand, information wants to be free, because the cost of getting it out is getting lower and lower all the time. So you have these two fighting against each other.”
Few quotes in recent history have been more twisted and misinterpreted than this one. Everyone jumped on Stewart Brand’s distinction between collecting information and making it available to the audience. While the cost of the former remains high — at least for those producing original information, or content — the marginal cost of broadcasting it fell dramatically, and that is what sparked the idea of a zero-cost culture. Yet, “media products have never been priced according to their marginal cost,” Levine says, and therefore, free is an idea that’s hard to defend.
As described in Free Ride, US lawmakers played a critical role in opening the floodgates of piracy and copyright violation on the internet. On October 28, 1998, Bill Clinton signed the Digital Millennium Copyright Act. That law, says Levine, gave a “safe harbor” to internet service providers and some online companies. No longer liable for copyright infringement based on the actions of users, Levine writes that the “safe harbor made it easier for sites like YouTube to become valuable forums for amateur creativity. But it also let them build big businesses out of professional content they didn’t pay for.” That, he says, is how Congress created YouTube. (Google purchased it in 2006 for $1.65 billon).
The book’s most spectacular deconstruction involves Lawrence Lessig. The Harvard law professor is one of the most outspoken opponents of tough copyright. For years, he’s been criss-crossing the world delivering well-crafted, compelling presentations about the need to overhaul copyright. When, in 2007, Viacom sued YouTube for copyright infringement, seeking more than a billion dollars in damages, Lessig accused Viacom of trying to overturn the Digital Millennium Copyright Act. It was a de facto defense of Google by Lessig who at the time was head of the Center for Internet and Society at Stanford University. What Lessig failed to disclose is that two weeks after closing the deal to acquire YouTube, Google made a $2-million donation to the Stanford Center, and a year later gave another $1.5 million to Creative Commons, Lessig’s most famous intellectual baby. To be fair, Levine told me he didn’t believe Lessig’s positions on copyright were influenced by the grants from Google. Moreover, Google set aside $100 million to fight the Viacom lawsuit. Numerous examples throughout Free Ride show how technology companies are committed to influence public policy. Ironically, Lawrence Lessig’s newest crusade at Harvard is about corruption in Washington.
Robert Levine’s book could be disputed on a few items.
- One, he’s too kind to the music industry. (His view may have been influenced by his tenure as executive editor of Billboard magazine where he witnessed first-hand the self-inflicted deterioration of the music industry.) The music business missed all the trains: (a) it defended the physical model up to the last minute even as its annihilation seemed unavoidable; (b) it extended as long as it could the double screwing of consumers and artists alike (sadly, poor analog artists have been replaced by poor digital ones).
- Two, he tends to forget the general complacency of content creators toward all forms of digital looting. I’ve often described in the Monday Note how publishers – blinded by the short-term appeal of the eyeball count – became consenting victims of all sorts of aggregators (see my Lenin’s Rope series).
- Three, the advent of free content has in fact unleashed talent. Unknown authors have been able to rise from obscurity thanks to direct access to the audience. And some have found alternative ways to make money (more on this in another future column).
Lastly, the unfolding of technology made the relaxing of copyright unavoidable. The Digital Millennium Copyright Act may have accelerated the transition but it didn’t cause the upheaval. Today, BitTorrent file transfer for music and movies accounts for about 10-12% of the internet bandwidth consumption, and YouTube accounts for 11%. Pirated content represents almost 100% of the former and about a third of the latter. Huge numbers, indeed, and huge losses for the music and movie industries. But Netflix with its legitimate content now accounts for 30% of the entire internet traffic (Hulu has less than 2%) and iTunes is growing faster than ever. And some economists do consider that giving up a large quantity of content for free is the price that must be paid to preserve a marketable share.
The music industry paid a terrible price during the digital transition, with a drop of 50% of its sales in one decade. But it would be unfair to make lenient lawmakers and internet pirates the main culprits. Unbundling played a critical role as well, just as in the newspaper industry. Being able to buy a single song on iTunes (instead of an album), or hoping that a single article on a web page will generate enough viewers to pay for itself (instead or purchasing an entire bundled newspaper) caused a great deal of damage.
As plagued as it is by piracy, the movie industry is immune to the notion of unbundling, which partly explains why box office revenue between 2006 and 2010 rose by 30% outside the United States and by 15% in the US/Canada market. Although the number of moviegoers is slipping, the industry has been able to find its way into the digital world.
Robert Levine’s book is a must-read that reframes the debate on the evolution of copyright. In an unusual way, it encompasses a European view on the issue (Levine lives part-time in Berlin). That makes the book even more interesting as countries explore ways for content creators to finance their work while not killing the formidable creative freedom unleashed by the digital world.
—frederic.filloux@mondaynote.com
Free Ride, By Robert Levine is published by Bodley Head in the UK (available now on Amazon UK)and by Doubleday in the US (available oct 25 on Amazon US) and is also available the iTunes iBook Store.
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12 Comments
“To be fair, Levine told me he didn’t believe Lessig’s positions on copyright were influenced by the grants from Google. ”
That only makes Levine and Lessig liars. But that’s not exactly news.
Steve Jobs, by Pixar, is the largest shareholder of Disney. How is he able to make this digital (numeric) transition better for business also for it?
What’s the source for Netflix’ alleged 30% share of all Internet traffic? Netflix being three times as large as YouTube worldwide is hard to take at face value. I believe I have read that Netflix have a significant share of bandwidth in the US during PRIME TIME hours, not worldwide 24/7.
>>>That only makes Levine and Lessig liars. But that’s not exactly news.
I am very much open to reasonable criticism, but if you are going to call me a liar – much less imply I have a habit of being so – I would like to see some evidence.
“Pirated content represents almost 100% of the former and about a third of the latter. Huge numbers, indeed, and huge losses for the music and movie industries. ”
Failing to capture potential income is not a financial loss (i.e. spend $100 for $75 in revenue). n.b. ‘pirated content’ = potential income.
If Levine says that he doesn’t believe that Lessig was influenced by the grants, then why bring it up? In my experience, Dr. Lessig has always been very up-front about the sources of funding and what he does and does not do to avoid conflicts of interest. I find the implications of the word “ironically” use here rather offensive on his behalf, especially if Levine did not find an impropriety. It is a fine line to be sure, between groups the support what you are doing giving grants, and groups trying to influence what you do by giving grants. But I have never heard anyone that had a clue accuse Lessig of being influenced in this manner.
While I think that Congress is dearly in need of the reforms Lessig advocates, I am somewhat sad that he has turned his attention there. I just don’t think he has much hope in that direction, alas.
I don’t believe Lessig’s opinions were influenced by the Google grants for the simple reason that he’s been saying essentially the same things since Google’s founders were undergrads.
Copyright must be relaxed for the simple reason that the current system is insanely unbalanced in favor of copyright cartels, and against the interests of both creators and consumers of content. The attack on YouTube and other platforms for user-supplied content give away Levine’s real intent, which is to attack any disruptive competition to the traditional copyright cartels.
And one final note — in the past decade, musicians’ incomes, both as a fraction of music industry income and in absolute terms. The only folks getting thrashed by the digital revolution are the record companies, who richly deserve it.
“Trying to make digital files uncopyable is like trying to make water not wet”-Bruce Schneier
There is (effectively) no copyright on the internet. Yes, I can’t turn around and sell other people’s work, but any careful person can copy and distribute whatever they want for free, with no fear of consequences. This isn’t a good or bad thing — just the nature of digital. Smart people have already cashed in on that fact, and used it to make truckloads of cash. People who pretend that digital materials can be somehow regulated will gain nothing (unless, like Levine, they write pointless books for clueless people to buy).
BTW- iTunes massive success has already proven that the whole Napster fiasco was entirely created by music publishers’ refusal to enter the online realm themselves. Businesses who don’t give their customers what they want can expect their customers to seek alternatives. That this is still seen as something shocking tells us all we need to know about lessons learned by Big Media.
To be clear:
I do not think Google influenced Lessig’s position on copyright, since his position has not changed much. HOWEVER, I think everything he says should be taken with a grain of salt, and I do not believe his anti-creator campaign would get so much attention if it was not funded by Googlebucks.
Would Lessig still believe as he did if Google did not give money to most of the organizations he’s involved with? I suspect so. Would Stanford Law School have launched an aggressive campaign to expand fair use just after receiving $2 million form Google if it had not received that money. I do not think so. Would Sergey Brin’s mother-in-law have a leadership position at Creative Commons if Google had not given the organization so much money. Hard to imagine.
Lastly, it is important to remember that courts have rejected almost all of his arguments.
There are probably a couple of other points that I’m not sure the book made or not, however they were at least relevant to my own decision making with respect to the music industries revenues:
1. Quality of Content or Greed:
Increasingly the industry (with the collusion of artists) would place 1-3 attractive tracks with 9-12 lower quality offers and charge the full pricing of the album. Overall quality appeared to suffer (IMO) and so when un-bundling became relatively easy the buyers increased the quality per their $. I’ve never pirated a piece of music and my album purchases declined for precisely this reason and they would have declined due to this whether the digital revolution occurred or not.
2. Copyright went through a relatively long period of strengthening prior to the current (argued by the author) relaxation.
https://secure.wikimedia.org/wikipedia/en/wiki/Copyright_Term_Extension_Act
So society – it could be argued – has been relatively generous to content owners overall. Not sure whether this was addressed in the book also.
3. Obsolescence
A proportion of the music (and other) industries revenues were made by periodic licensing. As formats shifted the same licensed content was resold on new (or worn out) content. Digital destroyed this proportion of revenue (that arguably wasn’t deserved).
4. Bone headed DRM or treating your paying customers like Thieves
The content industries protect their current revenue in ways that badly inconvenience the legal users of their content. Regional coding of DVDs is an example. I’ve lived all over the world and so need to ensure that I’ve unlocked all DVD players that I buy to Region zero so I can use all the content I’ve legally licensed. Other various copyright protection schemes cause inconvenience. There is no exchange mechanism in place to legally and inexpensively exchange content for a fee to avoid these inconveniences (leading to 2 above). As a result I despise the content delivery companies and restrict purchasing.
Given the above a proportion of Music Industry Revenues deserved to drop as technology improved even without the argued copyright relaxation occurring.
“…any careful person can copy and distribute whatever they want for free, with no fear of consequences. This isn’t a good or bad thing — just the nature of digital. Smart people have already cashed in on that fact, and used it to make truckloads of cash.”
Yes, innumerable ISPs and aggregators and piracy sites and ad companies have “cashed in” on the the great web 2.0 fleecing of the creative class. That’s not news. What point are you trying and failing to make?
My favorite Lessig quotes come from his appearance on The Colbert Report:
Lessig: “Like people build in Flickr, a free sharing economy, and then Flickr makes money on top of it – a commercial economy.”
Colbert: “So the ‘Hybrid Economy’ is that everybody else does the work, and Flickr makes the money…”
Lessig: “Don’t tell anybody this…”
LOL
Anyone who refers to Lessig’s position as “anti-creator” must be a parody of something. Is this published by The Onion? I guess there’s good money in willfully distorting other positions to get attention.
The analogy that opens this piece is a little inaccurate: “To digital zealots, defending copyright is like advocating the return to the typewriter” and then the author goes on to defend typewriters. Actually, to say that copyright needs no adjustment for the digital age is to say everyone should be forced to use typewriters in order to protect the typewriter industry and the creator of typewriters. Since Filloux hasn’t used a typewriter for this post, I think Levine should write a book vilifying him as a virulently against the creators of all typewriters.
How could Filloux be so heartless, I wonder?
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