Commentary: A Response to Denis McGrath on the State of the Copyright Debate

Denis McGrath from Dead Things on Sticks had an interesting commentary on the state of the copyright debate today in Canada. Drew Wilson felt the need to respond.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

Drew Wilson’s commentary:

McGrath had some interesting comments on a recent posting on his blog. I think it what he does is cover a sore spot that has sadly been a part of the debate for some time. That sore spot has been some of the more extreme sides of the debate which includes people who think they have a right to own absolutely every conceivable thing in the known universe without having to pay for it.

Before I get any further into my response, I should note that I am, in fact, an artist myself. I create music from time to time and have invested considerable time and effort in to researching new business models that responds to the digital age for years while still allowing for some compensation in return. I would consider myself a content creator as well with a bit of a twist.

Backgrounder

Toward the beginning of the copyright debate, way back when Napster was just being discovered by the masses, the debate was barely even known. Heck, even I wasn’t really involved in the copyright debate myself at the time. At that point, the idea of copyright, for most people, was just about as dull as a dusty tome shoved randomly in the deep recesses of a locked down archive. No one in the public really seemed to care and any debate was left to a handful of businesses and scholars. At least, that’s how I viewed that cryptic symbol at the bottom of textbook intros and in fine print on CD covers at the time.

File-sharing, for the most part, changed that. As time went on, copyright became the new hip thing to talk about. Over the years, more and more people discovered that copyright actually matters to them. That was thanks, in part, to the record labels, movie studios and other big copyright holders when they were responsible for getting the DMCA in to law in the US. Things changed at a faster pace ever since. I know, a crude and quick way of looking at something so ridiculously complicated as copyright in the past century, but I’m trying to keep this from being longer than it needs to be.

The Over Simplification of the Copyright Debate

File-Hoardin’

There’s a few places McGrath talked about how things were getting overly simplified. I’ll highlight an example of this:

The problem with the copyfans & the fair use now advocates of all stripes is that they have a wonderful ability to view the debate in the most simple of terms. We can categorize those terms thusly:

Gimme.

I would actually also place them in the category of file hoarders – a person who just downloads everything for the sake of downloading it and, at times, just not paying a dime for anything. It always pains me to admit that such people do exist and they’ll always exist. I have, in the past, seen places where people almost actively encourage this kind of attitude. I also believe that these kinds of people don’t win any favours in the copyright debate.

However, there is one other fact that one should know about these kinds of people – they are surprisingly not that common. I believe one smart person once described it as a newspaper vendor. Someone drops some money in, opens it up and takes a paper. Someone else drops some money in it, opens it up, and takes the whole bundle inside. Why doesn’t everyone do so? Why do so few people do so? There’s an inherent trust that when someone pays for one paper and gets access to the whole bundle, that they’ll take only one. You can still see these things on the street. Why would the newspaper industry even use these things? Because people can be trusted enough to be honest enough. While this does seem simply little more than a philosophical point, I’ve covered studies that show that this is the case online. People do try before they buy.

Rather then just rely on theory and an overwhelming bunch of evidence, I also take in to account personal experience. I’ve spoken to many people over the years and ask them if they pay for music after they downloaded it for free. Most of the responses have been, “absolutely” with that look of, “duh, that’s the ethical thing to do”.

Content creators also have, in fact, taken this knowledge and taken the extraordinary risk of putting the theory to the test and it paid off big time. Just do a little research for “In Rainbows” and “The Humble Indie Bundle” as a few examples.

I also feel that it is unfair to blame any downfall of the copyright debate on simply the people who expect everything for free now now now without bringing in the other extreme into the equation. Yes, I’m talking about the people who feel that copyright should be locked down so tight that no artist would ever survive. The ones who also think every file-sharer on the planet should be locked away in jail. People who keep screaming, “You’re stealing my stuff” no matter what you tell them. People who just resort to baseless claims and insults to prove their point all the while claiming to be speaking on behalf of every artist on the planet.

It is these kinds of people I have even less respect for because of their contribution to polarizing the debates to two extremes. I’ve spoken to people like them over the years. When we even get anywhere near the issue of copyright, they get all red faced and scream bloody murder that art is extinct because of file-sharing. When I disagree with some and tell them that I’m an artist as well, it’s quite a site to see the claws come out as they scream at you for being responsible for cheapening music and that I need to immediately stop what I’m doing. Ironic that they are the ones screaming for more rights to artists, yet they tell me I have no right to do what I want with my own content. I pray that, one day, I’ll have a recorder in my hand the next time I find myself in this bizarre situation.

In short though, while both extremes aren’t helping the debate much, show me a debate without these extremes and I’ll show you a debate that no one cares about. The important thing is that people are actively engaged in this debate and that makes all the psychopathic comments and slanderous hate mail I get all worth while.

Getting Paid

I’ll highlight another valid point McGrath makes:

The problem with gimme, of course, is that it’s hard to plug into any kind of self-sustaining economic model by which artists get paid for their labors. Add to this the fundamental ignorance that people seem to have about the entire structure by which content creators currently get paid.

I won’t simplify this to “the times are a changin’” because that isn’t productive. However, the answer does lie in part within that overused cliche. It’s really a question of how deeply you look in to the subject and very few artists go through the process of posting music online without having to confront that question at some point in their career.

That moment, for me, was when I looked up a Creative Commons license for the first time. I went to the Creative Commons site hoping to make some sort of difference with the new adventure of producing music. When I looked at the distribution idea, I was totally game for that because the last thing I like doing was treating my fans like criminals. Then I hit that question, “Wait… how do I get paid again?”

Clicking through the site didn’t seem to yield much that perked my interest (or it was something that I thought I wasn’t ready for) so I was left to sit on that question for a while. Eventually, I concluded that there is no market locally for the “crappy techno” (as some so frustratingly call it) music, so that would dash my dreams of making big bucks anyway. Then it became a question of, “Why am I producing music at all then if I’ll never make any money around here?” The answer was simply that it interested me. Then I came to the realization that, “hey, I bet someone somewhere in the world would just happen to like my music. What better way than to commence this to the digital commons online?”

I didn’t know it at the time, but I was already, in the minds of the big copyright lobbyists, drinking the internet Kool-aid. It was a realization that I was engaging in something no other generation had even had the opportunity to try, using a global, world-wide distribution network.

What do you have to do before to get a track from Victoria, Canada to London, England? Well, you sign on to a major record label if your lucky, spend millions of dollars to produce the track in a professional studio, hope the track does well in the charts, sell hundreds of thousands of copies locally, enter in distribution agreements to allow for the track to be shipped/imported in to the country, and hope it sells there.

What do you do today? Spend a couple hundred bucks on some music software, produce the track on your own free time, get a service that allows you to post your music, hit upload and tell your friends. Artists can really appreciate how much cheaper the new way is to send that track from one side of the planet to another.

Oh right, that whole getting paid thing. I think mosts artists start out not making money on their work. That will never change and McGrath does spend some time detailing that. After a while, the artist can make some money in this scary new age that is the internet. You can pass the hat around for money if you like. The major record labels will hate you forever the moment you discover that it works.

The point is that content creators will have to know how to take risks not just with their effort in trying to be an artist, but also how they conduct business today. It’s a risk to strap loads of DRM on your music. It’s also a risk to give it away for free. At least put some thought on how you want to conduct business. The idea of people willingly paying for something they can get for free is absurd as far as a strict capitalist is concerned. Why should anyone believe otherwise? Then again, I’m sure a number of people thought the same thing when bottled water first appeared on store shelves too.

DMCA What?

There was a comment left for McGrath by “John” which McGrath seems to agree with and I’d like to talk about this particular point:

most of my disagreements would be minor quibbles on language. For instance, I despise much of the vocabularly of the larger copy-debate. Words like “draconian,” “corporatist” and “DMCA-style” start my eyes a-rolling.

While the “corporatist” term isn’t something I really come across, the other two are things I use for very good reason. I’ll address the third first. There is a very good reason I personally view previous (and the current for that matter) as DMCA-style. That’s mainly because it’s… oh how should I put it? Oh yeah! True!

What has been involved in the (gasp!) Canadian DMCA so often? Anti-circumvention and provisions that would make it easy for the major copyright holders to sue people en-mass. Now let’s take a quick look at the Wikipedia page:

The DMCA has been criticized for making it too easy for copyright owners to encourage website owners to take down allegedly infringing content and links which may in fact not be infringing. When website owners receive a takedown notice it is in their interest not to challenge it, even if it is not clear if infringement is taking place, because if the potentially infringing content is taken down the website will not be held liable. The Electronic Frontier Foundation senior IP attorney Fred von Lohmann has said this is one of the problems with the DMCA.

So what about anti-circumvention? The page says:

It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself.

Such ideas were incorporated into previous iterations of copyright reform here in Canada. I sincerely apologize for knowing what the hell I’m talking about.

As for the term “draconian”, you can look the word up in any dictionary or just look it up online:

Draconian as an adjective in English qualifies a rule as being of great severity, deriving from Draco, an Athenian law scribe under whom small offenses had heavy punishments.

If someone can logically explain to me how someone downloading a half a dozen songs for free can see that person being fined for millions and millions of dollars not be considered “small offenses [having] heavy punishments” (many in the US consider this unconstitutional by the way), I’m all ears. In the mean time, I’ll classify this as “draconian” thank you very much.

Artists Not Being Engaged in the Debate?

Another part of the letter from “John” was this:

The leaders of the copyfight were all invited very early on to genuinely engage with professional creators, and it seems clear they all consciously chose a different constituency — “lowest price is the law” consumers. It’s a shame for everyone.

I will personally disagree with this completely. I am aware of Michael Geist repeatedly citing artists and artist groups when discussing the copyright debate actually. In fact, I seem to recall a vast majority of people involved in the consultation saying that they agree that artists should get paid, so if the insinuation is that the consultation was exclusively about consumers, you couldn’t be further from the truth. Russel McOrmond often talks about the copyright debate through the eyes of a software developer. Dare I say that I frequently discuss copyright through the eyes of an artist? I’m sorry that John didn’t see experts engaging in the content creators side of the debate because he clearly missed that whole portion of it.

The fact in the matter is, every stakeholder during the consultation got a chance to partake in the consultation. Every side of many issues got discussed. Most agree (myself included) that copyright reform shouldn’t be (gasp!) DMCA-style through anti-circumvention and free reign to sue an entire country’s population to name two examples. The problem we face today is that the side of the debate with the most people on board (that evil, angry zealotry (Sam Bulte’s sentiment, not mine) pro-consumer side that seems to be such a dirty word lately) are the ones actively being ignored by lawmakers. Let me ask you this: Whats worse, a consultation that censors one side of the debate or a consultation that has a number of people cheering on one particular side of the debate?

Artists Are Not “The Man”

There is one particular point by McGrath that I agree with the sentiments:

quite frankly, you may be educating your followers on things like “fair dealing” and “digital locks,” but a quick scan of your comments section shows a paucity of understanding of creator issues, and a powerful desire to roll people like me up in there with the big bad “them.”

I don’t think of myself or my friends as “them.” But by allowing that linkage to go unchallenged, you hurt the very cause you claim to espouse, and wind up looking like someone fronting another self-interest group who may be agitating for a pyrrhic victory

It’s the idea that all artists are being tarred with the same brush as the record labels. This is something that drives me absolutely insane and it’s something that can be blamed almost exclusively on the major record labels.

The major record labels (CRIA as they are known in Canada) have long argued that they are merely acting on behalf of artists. Sometimes, it gets to the point that they seem to argue that they are acting in every artists best interest. It got to the point that big Canadian record labels had to break away from CRIA to state that CRIA is not acting on behalf of their interests, but rather in the interests of the A list labels (big four foreign record labels)

Some lobbyists working for CRIA have contended that artists are just wanting what CRIA wants. This is something that is not necessarily true as many artists have gone against these demands (just look up the Canadian Music Creators Coalition for instance)

I’m of the opinion that some users simply hear at some point that CRIA is just a bunch of people representing all artists and simply assume all artists want to sue the living daylights out of their fans. It’s highly unfortunate that some really truly believe that artists and entities like CRIA are one in the same, but that’s the sad reality of the copyright debate today.

Some afterthoughts

It’s not exactly the most productive thing to simply point out some of the minor differences between people who don’t treat CRIAs word as gospel. I think we need to focus on areas where a vast majority of Canadians do agree on.

One thing I think many Canadians agree on is that it’s not moral to sue someone who downloaded 5 songs for several million dollars. As someone once put it, you can’t say, “see you in court”, then “see you at the show”. Suing everyone is not workable, nor is it sustainable. There is a solution for file-sharing and mass litigation is not the solution.

Another thing many Canadians do agree on is that anti-circumvention legislation goes too far. There are fair dealing provisions that should be respected and having DRM override these laws is counter-productive if we have a hope of expanding Canadian artistic interests. DRM only makes enemies out of customers.

Hardly any Canadian wants three strikes. While its not at the forefront of the debate, I think it’s important to remember where just about every Canadian stands on this issue. Simply disconnecting someone based on mere allegations is not right, nor is it just.

As seen in the copyright consultation, many Canadians do agree that Bill C-60 (during the Liberal era) and bill C-61 (during the Conservative era) has been a monumental disaster. It showed that the Canadian government only listened to a handful of lobbyists operating on foreign interests and it showed that the Canadian government repeatedly does not care what Canadians have to say on the subject.

There is some disagreement, but I do think that Canada needs to put forth a blanket ISP levy so that file-sharing can be legalized. Suing people is not the answer. Disconnecting them on allegations is not the answer. Trying to gum up the internet through overarching blacklists and content filtering is not the answer. While a levy is not perfect, its way better than any other solution I have seen over the years. I think many can look at the SAC proposal as, at the very least, an excellent start.

Overall, I think the biggest problem Canada has right now in the copyright debate is a democratic deficit. The Canadian government has repeatedly in the past simply chosen one side as a winner and legislated accordingly. Unfortunately for Canadians, it’s not their side that’s winning. Canadians have to find some way to get the government to listen. Whether that’s through another consultation or voting in members of the Pirate Party of Canada, who knows? But we do know that minority governments aren’t going to be around forever to save Canada from a future Canadian DMCA. We can work out our differences later, but right now, we need the governments ear and that is something Canadians can all work together on.

Drew Wilson on Twitter: @icecube85 and Google+.



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