Copyright may make creative work more expensive, but without it we'd all be poorer

When Charles Dickens first came to America in 1842, he gave a series of speeches in which he asked the US government to extend copyright protection to works by foreign creators. At the time, American printers could legally publish British novels without paying authors, which Dickens, not unreasonably, resented. Although his motives were largely mercenary, Dickens argued his point with references to writers less fortunate than himself. The law he suggested would have made books by British authors more expensive in the US, but it was opposed most stridently by American newspapers that profited from reprinting British work—and which also lobbied Congress to keep the law as it was. Then, as now, the publishing business can be that much more profitable if one can attract an audience without paying for content.

In many ways, Dickens was the Metallica of his day: a successful artist who stood up for creators’ rights at least partly on principle, misread the mood of the American public, and was vilified in the media as a result. Both resented the way businesses were built on their work. Both had the misfortune of protesting this during a media-business boom—“mammoth papers” in Dickens’ case, according to University of Illinois scholar Lawrence H. Houtchens, and the dot-com bubble in Metallica’s. Both, incidentally, also made quite a bit of money on tour.

The “copyright wars,” as activists rather grandly call the debate over who should profit from the distribution of creative work online, aren’t exactly new. The author and activist Cory Doctorow acknowledges as much in Information Doesn’t Want to Be Free: Laws for the Internet Age, a slim volume organized around three principles be believes explain the online world. Copyright receives so much criticism because it lasts too long, covers too much, and is enforced too aggressively online. But that doesn’t mean it’s not important, or that it’s impossible to enforce fairly online, as some activists believe. For years, Doctorow has occupied the fringes of this debate: He once gave a speech called “How Copyright Threatens Democracy” that has to be seen to be believed (it’s on YouTube). And although his book offers some savvy advice about making a living as a creator in the online age, it ultimately says less about the internet than about the views of a particular group of academics and activists who have come to define—and too often to limit—the debate about how the internet should be regulated.

Doctorow begins his book by pointing out that no one ever made money complaining about piracy, so creators should focus their efforts on adapting to the digital age. Fair enough. But it’s absurd to suggest that pursuing new business models, even very successfully, means artists should simply accept the loss of their rights. It’s one thing to make fun of major record labels for suing individual consumers—a stupid strategy that cast them as bullies and did little to reduce piracy—and quite another to look the other way while Kim Dotcom, who ran Megaupload, made millions of dollars from a service that thrived on piracy.

No right is absolute. Even in this brave new world, one man’s right to fly his drone surely must end where another man’s nose begins.

To online activists like Doctorow, it’s both the best of times and the worst of times: Creators are thriving online, while big corporations are trying to shut down the future. Doctorow says technology has brought down the cost of producing creative work, but just because cameras are cheaper doesn’t mean cinematographers are—or that they should be. He suggests that users who can buy content when and how they want won’t pirate as much, and some research backs this up. But that’s hardly the whole story. In September, Radiohead’s lead singer Thom Yorke released his second solo album as a $6 download—and pirate sites were flooded with copies within days. Doctorow even goes so far as to claim that imposing secondary liability for copyright infringement on websites externalizes costs, when the fact is that many sites externalize the cost of drawing an audience by turning a blind eye to piracy. YouTube is a fabulous service for many reasons—including the way it pays creators who generate traffic—but pretending it didn’t benefit from piracy, even if you believe that tradeoff was worth it, seems ridiculously naïve.

To his credit, Doctorow is one of the few copyright critics who seems able to admit that technology companies aren’t on any side but their own, and he does offer some suggestions on how creators can use the internet to get exposure and make money. He points out that the fact that artists can release their own work online has forced labels to offer them better terms, which is more important than most people realize, and that hundreds of laid-off media executives can now be hired a la carte to do publicity, promotions, or almost anything else. Other tips seem past their sell-by date: Bands were selling T-shirts long before the internet. Doctorow also recommends asking for donations, which seems to work well for artists who are likeable or larger than life—regardless of the quality of their work. But shouldn’t we judge creators by the character of their content rather than the content of their character?

Doctorow’s three laws, the organizing conceit of his book, sound a bit dated as well. His first law—“Any Time Someone Puts a Lock on Something That Belongs to You and Won’t Give You the Key, That Lock Isn’t There for Your Benefit”—concerns digital rights management (DRM), such as the copy-protection on DVDs, and the law against circumventing it, a common bête noire of copyright critics. He suggests this hurts artists because it gives distributors too much power, which may well be true—Amazon will always control the market for Kindle books. But is the problem really DRM, or that the internet lets big companies consolidate power? YouTube and eBay don’t use DRM but they still manage to dominate their respective markets. Doctorow’s second law states that “Fame Won’t Make You Rich, But You Can’t Get Paid Without It,” which simply isn’t true. Ever heard of Max Martin? Google him—and his net worth.

Doctorow’s third law, which gives his book its title, is that “Information Doesn’t Want to Be Free, People Do.” Who could disagree? The question is: Free to do what? Doctorow criticizes policies set up to punish copyright infringers by taking away their internet access, which he suggests should be a human right, as it is in Finland. But he rather conveniently ignores the fact that creators have human rights already: The Universal Declaration of Human Rights states that “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” (This is balanced, as it should be, with the right “to participate in the cultural life of the community.”) In any case, no right is absolute: Even in this brave new world, one’s right to fly his drone must surely end where another man’s nose begins.

Reading books like Information Doesn’t Want to Be Free inspired my own law: “Any book that attempts to enumerate the principles by which the internet operates is less a work of nonfiction than a pitch for speaking gigs.” This make sense given Doctorow’s ideas on how creators can make money, and more power to him—let a thousand business models bloom! The problem is that these books often read like PowerPoint presentations: punchy, clever, and divided into very short sections, as Doctorow’s is. If this is the future of books, I’m already nostalgic for the past.

Doctorow’s conclusion about copyright is that it has always been an “industrial regulation”—a pejorative way of pointing out that it has always been intended to regulate businesses, rather than private behavior. True enough. But if you look at the copyright debates of the past two decades, the problem isn’t only that copyright has expanded to cover things it shouldn’t (which is true), but also that internet services have upended traditional notions of public and private behavior—often by design, in order to evade laws. No consumer was ever sued for copying an album for a friend in his own home, nor should one ever be. But there’s a big difference between that and distributing an album to anyone who wants it with a file-sharing system like Grokster. In that case, shouldn’t Grokster bear legal responsibility for operating a platform that encourages infringement? In a 2005 decision, the Supreme Court ruled that it does.

YouTube is a fabulous service for many reasons, but pretending it didn’t benefit from piracy, even if you think the tradeoff is worth it, seems ridiculously naïve.

Without condemning copyright, Doctorow seems to believe that it’s ultimately incompatible with the internet. He worries that digital-rights management will cripple computers in ways that make them easier to compromise, as a rootkit on some Sony BMG Music Entertainment CDs did in 2005, but it takes considerable imagination to conclude that copyright represents one of the larger threats to online privacy. This year, security researchers discovered two major weaknesses in open-source software, Heartbleed and Shellshock: Should we worry about open-source systems as well? And if Doctorow worries about movie studios trying to figure out whether private YouTube videos contain infringing material, one wonders if he’s ever read the terms of service for Gmail.

There’s also more to copyright than making money, even if Doctorow’s book doesn’t deal with it—or, weirdly, even mention it. In Continental Europe, especially France and Germany, creators have “authors’ rights”—a more exact translation than “copyright” of the French droit d’auteur—which gives them some control over how their work is presented, sometimes even after they sell it. This, too, has been the subject of centuries of debate, which UCLA history professor Peter Baldwin ably recounts in The Copyright Wars: Three Centuries of Trans-Atlantic Battle. It’s a well-researched book, full of informative and occasionally amusing history on international treaties, ideas about authorship, and why the French get so angry when we colorize old movies.

A book like Baldwin’s is long overdue, since Americans and Europeans don’t always agree on what copyright is, let alone how it should work. Several months ago, I was on a panel with a European Union policy maker—a German-trained lawyer—who compared the debate over personal data (what we in the US call privacy) to the copyright debate because they’re both “emanations of the spirit.” In the German legal tradition, with its emphasis on dignity and persona, this makes perfect sense. In the US, copyright is more about economics; if an American lawyer mentions a spirit it’s usually one that comes in a bottle.

As Baldwin shows, these two copyright traditions are anything but absolute. As far back as 1783, the Massachusetts Copyright Act stated that there was no property “more peculiarly a man’s own than that which is produced by the labor of his mind.” Today, American creators can sometimes stop uses of their work that they find objectionable (although this often involves trademark rather than copyright): David Byrne sued former Florida governor Charlie Crist for using the Talking Heads song Road to Nowhere in a campaign ad which ended in a settlement and an apology from Crist. Europeans, in turn, have come to see copyright as property, or at least an important export.

Baldwin also argues that copyright has expanded to cover too much work for too long—which is hard to argue with now that it lasts 70 years after the death of an author. But he might also have noted that this protection is purely theoretical: Most works can be downloaded illegally within a few minutes of their release, if not before. The current situation is worse than Baldwin thinks: We now have a system that offers the worst of both worlds, preventing the re-use of old work without actually protecting creators.

Oddly, Baldwin has an easier time unpacking 19th-century legal debates than he does understanding the current copyright conflict between the media business and Silicon Valley—which is mostly just a business dispute framed in the loftiest possible terms. He identifies a “pleasant coincidence of interests” between copyright critics and tech companies—quite an understatement given that the latter often bankroll the former. (Google, for instance, has supported Public Knowledge and the Electronic Frontier Foundation, among other organizations.) The real conflict, just as in Dickens’ day, is between authors and their representatives on one side and those who would profit from distributing their work without compensating them on the other; just as in Dickens’ day, both copyright champions and critics still dress up their own interests in high-minded appeals. Baldwin also suggests that most culture is produced by businesses and universities as opposed to the independent artists envisioned by the shapers of copyright law, but those institutions often depend on people who depend on copyright. (This review, for example, is funded by a university but written by a freelance journalist who very much needs to get paid.) As Baldwin himself acknowledges, the “salaried intelligentsia . . . rallied behind the digital ideology.” The key word here is surely “salaried”—would professors be so sanguine if tenure, rather than copyright, were at risk?

The assumption behind both of these books is that copyright is a necessary evil that must be balanced against the dictates of the digital revolution, as well as a public interest in cheaper access to creative works. But the digital revolution has been driven at least in part by a hunger for new ways to access the same kind of creative work that existed before the internet—for all of YouTube’s wonders, many of its most popular clips are major-label music videos. More important, there’s more to the public interest than letting consumers save money on movies and books. (Although academics seem to have a hard time with this concept, the public doesn’t: US households spend far more time watching cable television than YouTube.) “Copyright law serves public ends,” Justice Ginsburg wrote in her majority decision in the Supreme Court case Eldred v. Ashcroft, “by providing individuals with an incentive to pursue private ones.” Dickens wrote largely to make money, but his work enriches us all.

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Robert Levine is the author of Free Ride: How Digital Parasites are Destroying the Culture Business, and How the Culture Business Can Fight Back, as well as the former executive editor of Billboard This story was published in the November/December 2014 issue of CJR with the same headline.