Companies are just waking up to how much they were already being pirated, and while they think it is a new thing deserving of new punishment, they are wrong on both accounts. Consumer piracy was widespread long before the Internet, because they have long priced their products far too high for a good portion of the market for a very long time.
The other side of this is that the increased enforcement is making these kind of laws more visible. IP law is one of those areas where the only people who traditionally have cared are industry types, politicians and aficionados. This is only an ethical issue for a very narrow band of educated content consumers - i.e. nerds.
Outside of this world, there is no moral debate. Your buddy has a CD and you want it, so you ask them to make a copy. If you like a girl, make a mix tape/CD/MP3 mix. The vast majority of the public has absolutely no moral qualms about sharing their stuff with friends, and the only thing the Internet has done is widen the circle of "friends" to mass production scale. The vast majority of the population does not actually believe in or follow existing copyright laws.
Governments might be able to beat this back for awhile, but the tech has been steadily moving to a point where connectivity and bandwidth are becoming widely available. The moral dimensions of this are pretty much moot. Sometimes technology kills viable industries without leaving anything of comparable value to replace them.
The actual content creators in the entertainment industries have already been thrust into the position of finding new ways to make money in this new environment. That's why every industry is investing more in spectacle and live performance, whether its a band putting together more tours or the movie industry investing in state-of-the-art stadium theaters with 3D and surround sound.
I suspect that the most fucked creators are going to be writers. Without much of a performance aspect to their craft, limited avenues for sinecure and staff positions and the easiest work to transmit, they have the least opportunity to branch out. Even so, I'm seeing a lot of movement in the self-publishing field - especially in the e-book and app world where companies like Amazon and Apple are assisting content creation for their own devices - so all hope is not lost there.
The cost, though, is being shifted downward to cover not the cost of production, but to offset the hassle of finding it through less legal means. That's going to be the new metric - prices that reflect value added in terms of customer ease instead of value being determined by artificial scarcity of product. The price, for applications, music and film/TV, seems to be settling at $1 per "piece" of content.
The creator crash has already happened outside of the major acts and movie studios. No amount of legal enforcement is going to do more than delay the transition to new business models.
No, the fact that they have enough money to sue you to death if they don't like you makes it the law. Sure it's not supposed to go that way, but that's how it works.
Is this a real argument? Should I respond to this, or just make a polite smile and ignore it like a racist grandmother?
What matters is how things actually work in the real life, not theoretical law. In theory, we're not supposed to be able to charge people for piracy in other countries where it's not illegal for them to do those things, but we do. Real life matters, not your romantic notions of the legal system.
As the link you quoted shows, yeah that's exactly what happens. It did get taken down, it only got put back up because the person they were up against was an EFF attorney. MLB has money, you don't, they win.
Edit: Ex-EFF attorney and founder of ChillingEffects.com.
Is this a real argument? Should I respond to this, or just make a polite smile and ignore it like a racist grandmother?
He's got a point, though. SLAPP suits - i.e. Strategic Lawsuits Against Public Participation - are a real issue. The idea that, even if something is not completely legal, the corporations have enough legal power to bankrupt you before a case even gets to the courts. You can win via a bad case if the other party cannot afford to fight.
That's especially true if the content creators can jurisdiction shop, finding courts that are less likely to penalize them for misusing the court system.
First, several of the things mentioned, like playing a cd for a friend, or describing a game, are not really illegal under current copyright law. There are provisions for fair use, which would usually include these kinds of things.
Just because the MLB claims something doesn't mean it's the law.
I'd have to do some more research into copyright law for playing a CD for a friend but here's a start: jolt.law.harvard.edu/articles/pdf/v19/19HarvJLTech161.pdf
This is a 50 page law review article. Are you just trying to intimidate me or something? Summarize it or don't bother.
The key here is licensing. A wonderful little contract made between the IP owner and you, the consumer. It’s not part any law, it’s a contract. Like the article in my other post says: the law “gives copyright holders the exclusive right to authorize certain acts, it does not define authorization or the manner in which authorization is to be implemented. A statutory gap exists.” That’s what licenses are for.
You want to watch an MLB game. You’re granted a license to watch the game, a very specific license, which prevents you from giving descriptions of the game.
When people unite together, they become stronger than the sum of their parts.
Don't assume bad intentions over neglect and misunderstanding.
I'm not sure you are understanding what was being referred to.
5% of artists make 95% of the money. That money is then reinvested in other artists, essentially trolling for the next big thing or what have you. As a consequence, a bunch of other artists who would not normally be super profitable are supported as well.
You don't understand how this works. Those 95% of people who "don't make it" are operating at a loss. The other 5% make 100% of the money. That money is not shared with all those other failures; it covers the costs of that one artist, and, if there's still money left over after that, the artist will earn royalties on album sales while the bulk of cash still goes to the record company.
Want to know what Eminem made per album at the height of his contract? Fifteen cents. How much did we pay per CD again? $18 fucking dollars.
Piracy literally has no bearing on this situation. This situation was already in place prior to Napster. This is because the record industry has an insane business model that makes it nearly impossible for anyone to be successful. Those 95% of artists don't get to keep struggling; they get booted from their contract, handed a bill for what their sales didn't cover, and the record company has the rights to the name you perform under and the music you made. If you re-record the songs, they will sue you. If you perform under the name you signed the contract under, they will sue you. And they will win.
But I guess that's just normal support, right?
Again, this is not just about the music industry. The music industry, as I mention in the post you quoted but seem to have ignored, is a particularly stupid industry.
Please realise IP does not just apply to music, nor does the 95/5 split.
Again, this is not just about the music industry. The music industry, as I mention in the post you quoted but seem to have ignored, is a particularly stupid industry.
Please realise IP does not just apply to music, nor does the 95/5 split.
And the majority of IP has little to do with this discussion. No one is worried about the enforceability of corporate intellectual property when it relates to the business sector. The chain of evidence that is required to prove that a design or piece of content derived from one entity and was used without permission by another is not changed by the existence of the internet in any way.
The issue exists at the level of consumer entertainment/educational products. IBM will always be able to sue Microsoft for lifting code.
Again, this is not just about the music industry. The music industry, as I mention in the post you quoted but seem to have ignored, is a particularly stupid industry.
Please realise IP does not just apply to music, nor does the 95/5 split.
And the majority of IP has little to do with this discussion. No one is worried about the enforceability of corporate intellectual property when it relates to the business sector. The chain of evidence that is required to prove that a design or piece of content derived from one entity and was used without permission by another is not changed by the existence of the internet in any way.
The issue exists at the level of consumer entertainment/educational products. IBM will always be able to sue Microsoft for lifting code.
I'm not sure what this has to do with the discussion we were having.
The main issue with the music industry seems to be they require you to pay back your advance while they pocket most of the profit.
I'm not sure what this has to do with the discussion we were having.
The main issue with the music industry seems to be they require you to pay back your advance while they pocket most of the profit.
The main issue with the music industry is that their product equals a file size of about 70-100 MB per album. That means that the technology to share it has easily has existed since the download days. So, they got hit first with the new realities. Data transmission rates are making movies easier to share, which is why the movie industries are hitting the legislators so hard for new IP protections.
The moral issues with the music industry business model have been around since the 1930s. The reason we weren't talking about them at any length before this is that the industry remained the only way of distributing music to the masses. That era's over, so we are debating how the laws should look in the new era.
He's got a point, though. SLAPP suits - i.e. Strategic Lawsuits Against Public Participation - are a real issue. The idea that, even if something is not completely legal, the corporations have enough legal power to bankrupt you before a case even gets to the courts. You can win via a bad case if the other party cannot afford to fight.
That's especially true if the content creators can jurisdiction shop, finding courts that are less likely to penalize them for misusing the court system.
It's been a problem ever since the Bleem case. Bleem won in court but Sony managed to bankrupt them, killing the software anyway. It's really been how most all IP law disputes have been settled since. Because the fact is unless you are a big company you do not have the money to fight a big company in court even if you're not breaking the law. I posted in the SOPA thread a bit of an example where Fox forced a documentary maker to censor part of his film because in the background someone was watching the Simpsons on TV.
If the best you can come up with against someone who's patently ignorant is to yell back at him, "Yeah? Well there's BOOKS, and they say you're WRONG!"
Then honestly you're not coming out of this looking great either.
Right, but that wasn't what was being talked about.
Usually, the 95/5 split is how companies that make content branch out. Blockbusters pay for indie films. Bestsellers pay for small release books. Small numbers of artists and such support a huge framework of art creation.
Apparently this isn't true in music because of the retarded structure of the contracts or something.
Apparently this isn't true in music because of the retarded structure of the contracts or something.
It's also not true in motion pictures. The ability of films to make hundreds of millions of dollars and reap no profits for anyone but the studio are legendary. That's why the industry runs on huge upfront salaries - the backend accounting is so fucked that it's not worth it to fight. Smaller studio-produced films never make money for their creators. Instead, they serve as business cards to get the big projects and large upfront salaries.
Publishing is the same. The vast majority of writers working for major publishing houses do not see any profits from their work, even when they sell well. The advance is what you make for most work, with any backend profits being gravy.
Maybe things are less fucked in the software/gaming industry. If so, it's the only content producing industry that doesn't play accounting games when it comes to actually sharing profits with creators.
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I'm not sure you are understanding what was being referred to.
5% of artists make 95% of the money. That money is then reinvested in other artists, essentially trolling for the next big thing or what have you. As a consequence, a bunch of other artists who would not normally be super profitable are supported as well.
You don't understand how this works. Those 95% of people who "don't make it" are operating at a loss. The other 5% make 100% of the money. That money is not shared with all those other failures; it covers the costs of that one artist, and, if there's still money left over after that, the artist will earn royalties on album sales while the bulk of cash still goes to the record company.
Want to know what Eminem made per album at the height of his contract? Fifteen cents. How much did we pay per CD again? $18 fucking dollars.
Piracy literally has no bearing on this situation. This situation was already in place prior to Napster. This is because the record industry has an insane business model that makes it nearly impossible for anyone to be successful. Those 95% of artists don't get to keep struggling; they get booted from their contract, handed a bill for what their sales didn't cover, and the record company has the rights to the name you perform under and the music you made. If you re-record the songs, they will sue you. If you perform under the name you signed the contract under, they will sue you. And they will win.
But I guess that's just normal support, right?
Again, this is not just about the music industry. The music industry, as I mention in the post you quoted but seem to have ignored, is a particularly stupid industry.
Please realise IP does not just apply to music, nor does the 95/5 split.
You're bad at this.
I know it's not about the music industry alone, hence my original post. I was merely pointing out how IP laws have been used to make gigantic corporations in the entertainment industry rich on the backs of people who are generating the content they usually don't actually own or have a right to.
It's called an example, and I'm sure if we broke down the movie industry we would see similar abuses.
Apparently this isn't true in music because of the retarded structure of the contracts or something.
It's also not true in motion pictures. The ability of films to make hundreds of millions of dollars and reap no profits for anyone but the studio are legendary. That's why the industry runs on huge upfront salaries - the backend accounting is so fucked that it's not worth it to fight. Smaller studio-produced films never make money for their creators. Instead, they serve as business cards to get the big projects and large upfront salaries.
Those same studios fund smaller projects.
Publishing is the same. The vast majority of writers working for major publishing houses do not see any profits from their work, even when they sell well. The advance is what you make for most work, with any backend profits being gravy.
Exactly. Your advance is essentially a gamble by the publisher that you will succeed.
Apparently this isn't true in music because of the retarded structure of the contracts or something.
It's also not true in motion pictures. The ability of films to make hundreds of millions of dollars and reap no profits for anyone but the studio are legendary. That's why the industry runs on huge upfront salaries - the backend accounting is so fucked that it's not worth it to fight. Smaller studio-produced films never make money for their creators. Instead, they serve as business cards to get the big projects and large upfront salaries.
Those same studios fund smaller projects.
Publishing is the same. The vast majority of writers working for major publishing houses do not see any profits from their work, even when they sell well. The advance is what you make for most work, with any backend profits being gravy.
Exactly. Your advance is essentially a gamble by the publisher that you will succeed.
The point is that, in most of these industries, the vast majority of the content creators do not make the profits. Since the original argument is that it protects "creators" but the reality is that it protects industries who may or may not use those profits to fund valuable work, we are back into the realm of amorality.
Which brings me back to my original point. The current system does not protect creators, it allows for the existence of a lottery that rewards a handful of superstars for their ability to serve as a brand. Technology is moving to the point where society is either going to have to let content industries reform under new business models - which is already happening - or create harsh, surveillance backed legal regimes to maintain the status quo.
In absence of a clear moral imperative, there is no upside into creating a new arm of the Homeland Security complex to police IP infractions. I'm in favor of getting the government to back off and let the chips fall where they may.
Apparently this isn't true in music because of the retarded structure of the contracts or something.
It's also not true in motion pictures. The ability of films to make hundreds of millions of dollars and reap no profits for anyone but the studio are legendary. That's why the industry runs on huge upfront salaries - the backend accounting is so fucked that it's not worth it to fight. Smaller studio-produced films never make money for their creators. Instead, they serve as business cards to get the big projects and large upfront salaries.
Those same studios fund smaller projects.
Publishing is the same. The vast majority of writers working for major publishing houses do not see any profits from their work, even when they sell well. The advance is what you make for most work, with any backend profits being gravy.
Exactly. Your advance is essentially a gamble by the publisher that you will succeed.
The point is that, in most of these industries, the vast majority of the content creators do not make the profits. Since the original argument is that it protects "creators" but the reality is that it protects industries who may or may not use those profits to fund valuable work, we are back into the realm of amorality.
Which brings me back to my original point. The current system does not protect creators, it allows for the existence of a lottery that rewards a handful of superstars for their ability to serve as a brand. Technology is moving to the point where society is either going to have to let content industries reform under new business models - which is already happening - or create harsh, surveillance backed legal regimes to maintain the status quo.
In absence of a clear moral imperative, there is no upside into creating a new arm of the Homeland Security complex to police IP infractions. I'm in favor of getting the government to back off and let the chips fall where they may.
What you are missing is that it is a lottery. But it's a lottery for the industry that pays the creators. And the thing with a lottery is, there's a ton of tickets that get bought but don't win.
Without the industry to support them, those vast majority of content creators who don't make a profit or don't make a huge profit wouldn't be able to keep going. The industry, because it's continually gambling on finding the "Next Big Thing", funds a ton of these people.
The music industry less so since I'd say because, apparently, they usually demand their advance back if you don't make up the money. Alot of other industries, like publishing (which I'm most familiar with), don't.
And IP is what allows this process to work since it means the investors (ie - the companies/studios/labels/etc) are guaranteed a return on their investment if it pays off.
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Without the industry to support them, those vast majority of content creators who don't make a profit or don't make a huge profit wouldn't be able to keep going. The industry, because it's continually gambling on finding the "Next Big Thing", funds a ton of these people.
This is verifiably false across pretty much any medium. The vast majority of people who create content do not see any significant return for their time, and yet they keep doing it.
The point is, these industries are set up so that industry always makes exponentially more profit from the content than its creator, and that is problematic.
What you are missing is that it is a lottery. But it's a lottery for the industry that pays the creators. And the thing with a lottery is, there's a ton of tickets that get bought but don't win.
Without the industry to support them, those vast majority of content creators who don't make a profit or don't make a huge profit wouldn't be able to keep going. The industry, because it's continually gambling on finding the "Next Big Thing", funds a ton of these people.
The music industry less so since I'd say because, apparently, they usually demand their advance back if you don't make up the money. Alot of other industries, like publishing (which I'm most familiar with), don't.
The music industry is also a great counterexample. What the crash of the major labels has meant is a massive reduction of A&R men developing small and midlevel acts. They've redefined themselves as the concert spectacle, ringtone producer and music licensing to businesses industry.
The end result of this has not been a devastating loss of musical culture. Instead, the number of working bands, available music and performing venues has exploded with the death of the music industry. The loss of that corporate funding structure has been a net positive for creators and fans.
The small/self publishing renaissance is also pointing that the publishing industry also might be much better off without the publishing industry. As with music, the diminishing number of officially backed "acts" has opened a door for independents to play on the same field. The amateur stigma is receding. If it follows music, the destruction of all the capital/business investment will be cheaper, better content for the audience.
The only industry where this argument falls apart is high-end scripted TV and film. There's still a high bar to reach to create that kind of content, and there's still an audience to see that material on large screens. For the smaller stuff, the bar to create has basically vanished. You could fund an indie film for the price of an average family car.
The major bars to quality output are acting and lighting. Acting would take care of itself if you started having more self-funded collectives. Lighting is also going to be revolutionized very soon by light-scanning technology in development. It won't be long before you'll be able to ape motion picture industry quality lighting via in-program filters and post-production on a home computer.
This is verifiably false across pretty much any medium. The vast majority of people who create content do not see any significant return for their time, and yet they keep doing it.
An interesting example of this is the documentary industry. While there are a handful of creators who have broken out - Michael Moore and Morgan Spurlock being the go-to examples - the average documentary maker is not in the industry to make money. They are there to make documentaries, show them at festivals and enjoy the public role of being a documentarian.
Some have larger social goals they want to bring awareness to through their films. Some have purely aesthetic motives. But no one in that industry is doing what they do to get rich. A lot of them don't even make money, but continue to make films because they like working in that world.
I know it's not about the music industry alone, hence my original post. I was merely pointing out how IP laws have been used to make gigantic corporations in the entertainment industry rich on the backs of people who are generating the content they usually don't actually own or have a right to.
IP laws have also been used to help artists make sure that gigantic corporations cannot censor, alter, exploit, or profit off of works that they own. Off the top of my head I can think of examples where bands have been able to use IP law to reclaim the ownership of their works from labels that fail to pay royalties, and so on. Not to say that more often than not that IP law is used against artists rather than for them, but demonizing IP law as being purely for corporations to screw over artists doesn't match the reality of the modern recording industry.
It's also hilarious to me that anyone thinks that gigantic corporations won't find ways to profit at the expense of artists and other creative types if IP laws are changed or abolished.
Without the industry to support them, those vast majority of content creators who don't make a profit or don't make a huge profit wouldn't be able to keep going. The industry, because it's continually gambling on finding the "Next Big Thing", funds a ton of these people.
This is verifiably false across pretty much any medium. The vast majority of people who create content do not see any significant return for their time, and yet they keep doing it.
The point is, these industries are set up so that industry always makes exponentially more profit from the content than its creator, and that is problematic.
Why? The industry makes more profit, yes - but it also assumes more risk as well.
IP laws have also been used to help artists make sure that gigantic corporations cannot censor, alter, exploit, or profit off of works that they own. Off the top of my head I can think of examples where bands have been able to use IP law to reclaim the ownership of their works from labels that fail to pay royalties, and so on. Not to say that more often than not that IP law is used against artists rather than for them, but demonizing IP law as being purely for corporations to screw over artists doesn't match the reality of the modern recording industry.
It's also hilarious to me that anyone thinks that gigantic corporations won't find ways to profit at the expense of artists and other creative types if IP laws are changed or abolished.
They still would. The framework around business use of IP is well established and on firm ground. It's the ability of consumers to infringe creator content that is at issue.
I have no trouble with B2B IP enforcement. I just don't want a business issue to push enforcement against individuals.
Why? The industry makes more profit, yes - but it also assumes more risk as well.
The problem is that, as the evolution of the music industry has shown, the value they add is minimal at best. When the music industry declined, the music scene exploded.
The concept of limited protection against copying for intellectual works is quite sound. It allows tons of people to make their livings creating movies, books and inventions that make our lives better. Society says: Hey, if you make something cool that's easily copied, we'll stop others from copying it for a while so you can sell it at a price that makes the long creation process worthwhile. Society benefits in the long run because after the time period expires, the work has been created and is free for all to enjoy at the low cost of copying. Make the period too short and it doesn't provide enough incentive. Too long you might have years added on to the protection term where society is not benefiting and no extra incentive results to create.
A tradeoff is inherent in the length of the term and it's here that all legislative effort should be focused. Figuring out a period of time that gives an incentive without witholding the work from the public domain for too long. And figuring out these different periods based on the type of work being protected. And figuring out which works need to be protected.
Unfortunately congress seems basically incapable of tackling this problem and sees copyright as way to give the most amount of money possible to content creators. They are simply blind to the public good aspect and focus on the expiration of copyrights as the event to focus on. They think of how person X created work Y sometime in the past, so that means that they own work Y and it would simply be a tragedy if they could no longer make money on it. Hence the two huge retroactive extensions of copyright in the United States. They should be focusing on when copyrights are issued. What kind of deal are they presenting to content creators? Does a protection of X years give them good enough prospects for an adequate living without being ridiculously long?
If I had my way they'd roll back all of the retroactive extensions and overhaul the entire system based on thorough evidence-based examination of the tradeoffs in different industries.
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Without the industry to support them, those vast majority of content creators who don't make a profit or don't make a huge profit wouldn't be able to keep going. The industry, because it's continually gambling on finding the "Next Big Thing", funds a ton of these people.
This is verifiably false across pretty much any medium. The vast majority of people who create content do not see any significant return for their time, and yet they keep doing it.
The point is, these industries are set up so that industry always makes exponentially more profit from the content than its creator, and that is problematic.
Why? The industry makes more profit, yes - but it also assumes more risk as well.
A $10,000 advance isn't really a risk for a multi-billion dollar corporation.
Quitting your day job and devoting yourself to a career as an artist, despite knowing that the odds are stacked against you? That's taking a risk.
A $10,000 advance isn't really a risk for a multi-billion dollar corporation.
Quitting your day job and devoting yourself to a career as an artist, despite knowing that the odds are stacked against you? That's taking a risk.
It is a risk, since those investments are spread out over a large scale. The issue is whether that risk actually represents added value.
The publishing industry is notoriously slow. It used to take years and multiple editors/agents/designers/marketers/distributors/retailers to bring a book to market. Now, a dude with a laptop can write and edit his book, design a cover and have it up on Amazon in a week.
The standard industry retort would be that they serve as a quality filter, since the stigma of the self-published author is that they are talentless or kooks. The trouble is, the Internet provides its own quality filtering functions, a lot of companies are providing products to make polishing e-books simpler and the current publishing houses long ago weighted their output toward schlock anyway.
Why? The industry makes more profit, yes - but it also assumes more risk as well.
The problem is that, as the evolution of the music industry has shown, the value they add is minimal at best. When the music industry declined, the music scene exploded.
Except that the "explosion" of the music scene predated the decline of the music industry (or at least the decline of CD sales). Technological advances radically expanded the access most people had to music, and that shift led to a decline in physical sales of CDs, not the other way around.
Also, the music industry (and are we lumping indie labels and distributors in here, or just major labels) can still provide substantial value for artists. Perhaps not as much for consumers as they did in the pre-Internet era.
IP doesn't need to go away. It just needs to be kept current and under constant review. It needs to be managed and applied correctly, or, by default, cast aside. It needs to be both vastly simplified and yet also is in dire need of some intelligent analysis and tweaking.
First and foremost, the term "copyright" is way more appropriate than "intellectual property." The latter is politically crafted for a certain perspective. It isn't property. It's a legally protected right to copy something. But misguided moral righteousness is leading many to pursue it as if it were property in the most ideal sense.
Creative works will exist no matter what we come up with. Try to imagine the worst possible absurd IP system you can think of... maybe it's no IP at all, or maybe it's draconian death-sentence for even looking at copyrighted material, or maybe it's surreal, like you can only distribute a work if you can make a chicken poop purple. Under any of these systems, creativity and innovation and art and business will exist.
What we want to do, though, is to encourage beneficial creativitity and innovation. We want to prevent market forces from decimating the incentive and drive to create new technologies or new music or new whatever. I think "no IP at all" is probably one of the better systems we could possibly create for this... but I don't think it's the best one, not by a long shot. I think we could do quite well with a minimal system of protections, which are temporary, limited in scope and power, tailored rationally to the medium, and above all, a system that imparts significant responsibility upon the holder if s/he wants to retain his/her rights.
Most IP was originally intended this way, I believe. Here are some specifics of what I'm suggesting:
1) Beef up the patent review process. No more patenting vague ideas of how something might function. No more taking an existing technology, adding "swipe to..." or "click to..." to the front of it, and getting a new patent based on that.
2) Tone down the severity of enforcement. No more "cease and desist until we figure out if you violated a patent." Treat them more like criminality - there needs to be at least some reasonable evidence that a patent was actually stolen, and a hard review of the patent to make sure it makes sense, all at the expense of the government, before the accused should be held to suffer business harm or legal fees.
3) Treat more IP like trademarks - if you want to keep your rights, you need to act like you want to keep them. If you aren't offering someone an option to download your movie for money, then don't cry too hard about them downloading it without paying. And you can't sit on a patent for 10 years waiting for someone else to come up with the idea and patent it and make a business out of it, and then sue them because your patent was first. This is a serious flaw with patents. Creating a billion dollar industry is way more work, and deserving of reward, than hiring a lawyer is. Let's not forget that. Same goes for other media. We should consider how much money a musician could make by playing live on tour, before we start accusing CD copying as theft. If you can be a millionaire on concerts alone, or even if a small-time musician can make several thousand selling t-shirts, then why exactly does the government need to protect your right to make a few more million on CDs, and a nearly-useless recording industry to make billions off that?
4) Serious hardcore regulation of the secondary market. I'm growing more and more convinced that all secondary markets need to be regulated, and I'm a fairly free-market kind of guy. If you don't know what I mean here - IP can be bought and sold. I don't think we can completely erase that fact. And I don't think it's always bad. But something tells me that a recording company shouldn't have the same kind of rights when it comes to the music created by an artist who died 50 years ago. Something tells me patents were never meant to be a never-ending corporate legal battlefield over technology in which there doesn't even appear to be hint of evidence that anyone actually stole any ideas from anyone else. And so on. We need to do a better job of recognizing whether we're really securing incentive to create, or just allowing secondary IP holders to abuse the law.
5) Fix perception (lol, easy, right?) Stop talking about "$50 million in damage from lost revenue." Not only is that number completely bogus as to any actual revenue that might have occurred, but you probably wrote it off as losses on your taxes. Meaning the amount you saved on taxes could very well be more than that amount of actual revenue you might have gotten from those pirates. Stop calling it theft. It isn't really theft. Stop calling it property, it isn't really property. Also, recognize that pirates are typically your best customers, too. That's just demographic fact.
6) Learn to monetize piracy. I saw a whole presentation on it. It was incredible. Some movie production houses track piracy and use the data to tailor marketing efforts and release schedules and stuff. They accept piracy as a source of data, and make money off of it.
7) Accept more responsibility for securing your own rights. You're the one who digitized it and marketed it and distributed it. You need a plan for how you will make people pay you for it. And I don't mean legalese. Don't just rely on the government. If you can create workable functioning DRM that doesn't tick off your paying customers, then we don't have a problem here. Again with the musician - there are plenty of arenas where you can play your music and people can't get close enough to hear without paying money at the door. That system works fine. Go do that. If you can make even more money selling CDs, great, but unless someone else is out-selling you on your own music, don't cry about being robbed.
I think it's important, as an opponent of the status quo, to acknowledge the tremendous benefits that exclusive ownership of ideas has had. Before patents required inventors to publish their techniques, we had trade secrets with obvious negative consequences. Famously, Damascus steel was invented more than a thousand years ago and then completely forgotten for hundreds of years. We still don't know what the hell Greek Fire was, to reach even further back into the mists of time. The OP describes something virtually identical to the patronage model for supporting art and artists, which may or may not be a step backwards as far as effectively promoting art goes.
Ownership is a key concept in our society, instantly understandable, with attribution and distribution of rewards built-in. I'm utterly aghast at the notion that, in the wake of decades of regulatory capture in the form of Mickey Mouse legislation and most recently the abomination that is SOPA/PIPA, posters are seriously suggesting that the best way to pay artists is to have the government do it. How long before Disney or Viacom or Newscorp has massaged that solution to benefit themselves without regard for the common good? It's practically untenable and even morally objectionable to have the ownership of ideas defined by artificial denial of access to them, but I think a realistic solution ought to maintain the right of a creator to be acknowledged even if they are not granted the right to exclude people from using their creation.
Even if attribution is secured by law, the problem with just throwing IP out the window and hoping that creators will be supported by donations is that people aren't selfless and aren't rational. Exclusive ownership solves half of this; the market "objectivizes" (lolAynRand) the distribution of rewards to creators. This fails the same way capitalism usually does when consumers make irrational purchases, but this failure has been defended as the best bad system we have available. But as some have already noted, the patronage model, in addition to introducing the problem of selflessness, actually magnifies the distortion that marketing can bring to bear on consumers' (or donors') decisions, resulting in less rational rewards for creators rather than more.
What I would propose as a solution would try to address the selflessness problem but frankly my ideas just tread water on the rationality one. So it's really an attempt to mitigate the damage of the end of exclusive IP rather than elevate us to a new plane of excellence in the propagation of useful ideas. Essentially, we all set aside a fraction of our income for the promotion of useful arts and sciences. We have a cultural tithe and a technical one, and though the sum is non-negotiable, individuals can choose just how much of a damn they give (possibly within limits?) about art vs. science. Using the technical tithe effectively is a much more challenging problem, so in the tradition of cowards everywhere I am going to leave that for someone else and conclude this post with my notion of the use of an art tithe.
We've seen an explosion of the use of social networking recently, and I think that a good way to address the selflessness problem would be to give donors (and remember everyone is a donor, if we enforce a tithe) something for their money: a public, electronic verification of their support. Just as people have shown off their CD or DVD collections for years, they would post the proportions of their tithes and the artists or organizations that they have chosen to support with them. The entertainment we consume is already as much a symbol of belonging to groups as anything, and this would leverage that to give people the feeling that they aren't just having their pocketbooks raided without reason, but rather "buying" the proof that they support something they value.
Except that the "explosion" of the music scene predated the decline of the music industry (or at least the decline of CD sales). Technological advances radically expanded the access most people had to music, and that shift led to a decline in physical sales of CDs, not the other way around.
I'm talking about the world in the aftermath of Napster. The "death" of the music industry has led to the explosion of working bands, an expansion of clubs and the growth of entire industries based around low-level merchandising of t-shirts.
That's a direct result. Clubs and scenes existed before, but the industry became much healthier when the bands trying to play the major label lottery were replaced by dozens of small businesses in the form of musical acts.
There is something immensely ironic to me about a class of people who consume more media, more often, than anyone else in human history arguing that artists and content creators really should just live on our sufferance and that their right to be rewarded for their work ends as soon as it dares inconvenience Great God Internet.
On a website forum founded on a culture/fandom built up around media that is available for free largely due to advertisements from media producers. And whose largest professional group other than unemployed/student is probably something involved in the generation of IP. Granted the latter is a guess, but programmers/designers/musicians/artists/writers/engineers/scientists have to make up a rather large chunk of the population here.
A $10,000 advance isn't really a risk for a multi-billion dollar corporation.
Quitting your day job and devoting yourself to a career as an artist, despite knowing that the odds are stacked against you? That's taking a risk.
It is a risk, since those investments are spread out over a large scale. The issue is whether that risk actually represents added value.
The publishing industry is notoriously slow. It used to take years and multiple editors/agents/designers/marketers/distributors/retailers to bring a book to market. Now, a dude with a laptop can write and edit his book, design a cover and have it up on Amazon in a week.
The standard industry retort would be that they serve as a quality filter, since the stigma of the self-published author is that they are talentless or kooks. The trouble is, the Internet provides its own quality filtering functions, a lot of companies are providing products to make polishing e-books simpler and the current publishing houses long ago weighted their output toward schlock anyway.
the large scale decreases the risk for the big publishers. They have no idea about whether a particular artist will make it big, but when they're publishing thousands of new products each year they know that at least a few of them will. Thanks to the law of large numbers, they earn a steady profit.
The individual artists though- not so much. Most of them can't earn nearly enough to live on, and have to spend most of their time working day jobs just to make enough money to eat. Then a few superstars make millions, often with ideas more or less copied from someone else anyway. This is a terrible system.
Except that the "explosion" of the music scene predated the decline of the music industry (or at least the decline of CD sales). Technological advances radically expanded the access most people had to music, and that shift led to a decline in physical sales of CDs, not the other way around.
I'm talking about the world in the aftermath of Napster. The "death" of the music industry has led to the explosion of working bands, an expansion of clubs and the growth of entire industries based around low-level merchandising of t-shirts.
That's a direct result. Clubs and scenes existed before, but the industry became much healthier when the bands trying to play the major label lottery were replaced by dozens of small businesses in the form of musical acts.
Uh, what? All of those things were bountiful before, during, and after Napster.
Also, you're claiming that the explosion of working bands, music venues, and indie merchandise companies is due to the "death" of the music industry when in reality it's due to the invention of the Internet and how that allowed music fans much easier access to music, merchandise, and tour info.
The "death" of pre-packaged music sales and increased consumer awareness of indie bands and venues are both effects of the Internet. One did not cause the other.
Uh, what? All of those things were bountiful before, during, and after Napster.
Also, you're claiming that the explosion of working bands, music venues, and indie merchandise companies is due to the "death" of the music industry when in reality it's due to the invention of the Internet and how that allowed music fans much easier access to music, merchandise, and tour info.
The "death" of pre-packaged music sales and increased consumer awareness of indie bands and venues are both effects of the Internet. One did not cause the other.
Uh, yeah. That's kind of the point. The internet is the how and why.
As for the rest, that's direct observation of the industry surrounding live music. It's a lot healthier now than it was in the eighties and early nineties. This is in no small part due to a massive culture change. The Internet age has created a strong class of small-scale entrerpreneurs who have made "being a band" into a job, and this has had positive effects on the music business as a whole.
The strongest subtle change has been the loss of status of the A&R man. It used to be that entire clubs would make their reps based on the fact that these guys hung out there. Now, most acts are more about building their Youtube hits and directly marketing their music to licensing agencies. Acts frequently turn down record contracts these days, because the acts are made up of businessmen with developed commercial models who have the freedom to walk away from bad deals.
Who is going to hand fistfuls of cash to someone without some sort of presentation?
Nobody, which was my point: crowd-funding venues require you to build a presentation in order to market your project (in Kickstarter's case, they recommend making a video).
This is much different from just going to a publisher, where the end product itself will be your presentation. You don't need to spend time making a separate project just for marketing.
EDIT: Of course, going to a publisher has it's own problems (authors refer to publishing houses as 'the publishing racket' for good reason), but it's far and away a superior route to Kickstarter. I mean, would you rather go to (say) Random House with a manuscript and receive a check-in-hand advance, or would you rather write the manuscript, then produce a video for Kickstarter and apply for crowd-funding that has a very slim chance of actually getting any money into your pocket at all?
Uh, what? All of those things were bountiful before, during, and after Napster.
Also, you're claiming that the explosion of working bands, music venues, and indie merchandise companies is due to the "death" of the music industry when in reality it's due to the invention of the Internet and how that allowed music fans much easier access to music, merchandise, and tour info.
The "death" of pre-packaged music sales and increased consumer awareness of indie bands and venues are both effects of the Internet. One did not cause the other.
Uh, yeah. That's kind of the point. The internet is the how and why.
As for the rest, that's direct observation of the industry surrounding live music. It's a lot healthier now than it was in the eighties and early nineties. This is in no small part due to a massive culture change. The Internet age has created a strong class of small-scale entrerpreneurs who have made "being a band" into a job, and this has had positive effects on the music business as a whole.
The strongest subtle change has been the loss of status of the A&R man. It used to be that entire clubs would make their reps based on the fact that these guys hung out there. Now, most acts are more about building their Youtube hits and directly marketing their music to licensing agencies. Acts frequently turn down record contracts these days, because the acts are made up of businessmen with developed commercial models who have the freedom to walk away from bad deals.
...do you actually have any first-hand experience with any level of the music industry? You seem to think there was no music before the mid-nineties or something. I don't get why you think "being in a band" wasn't a job before then.
Uh, yeah. That's kind of the point. The internet is the how and why.
As for the rest, that's direct observation of the industry surrounding live music. It's a lot healthier now than it was in the eighties and early nineties. This is in no small part due to a massive culture change. The Internet age has created a strong class of small-scale entrerpreneurs who have made "being a band" into a job, and this has had positive effects on the music business as a whole.
The strongest subtle change has been the loss of status of the A&R man. It used to be that entire clubs would make their reps based on the fact that these guys hung out there. Now, most acts are more about building their Youtube hits and directly marketing their music to licensing agencies. Acts frequently turn down record contracts these days, because the acts are made up of businessmen with developed commercial models who have the freedom to walk away from bad deals.
Except all of those benefits and changes are, at best, tangental to IP law. If anything, the Internet has made IP law more important to musicians and other artists because they can now assume more direct control over more aspects of how their music and merchandise is created and distributed.
Also, there were plenty of people who made "being a band" into a job in the '80s and '90s.
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
How do people feel about IP as it relates to fashion? I don't think its a stretch to say that luxury brands like Gucci and Louis Vuitton are very frequent victims of IP infringement, and these are companies which only sell physical products, not ideas. All that these brands have is the strength of their name, and without the exclusive right to use that name, and their associated logos and designs, the companies cannot function. The people making and selling the knock offs are not "stealing" from the brands in that they are not taking physical items, but they are taking away the right to be the exclusive user of the name. Now, I won't argue every knock off sold is equal to a lost sale, since the same people do not buy $10 knock offs and $1,000 real bags, but they do promote a culture of thinking you can have these items without paying for them, so it may be that someone who would buy one real bag buys 20 fakes instead, but they have still lost the sale of that one bag. Part of the value of having a name is having control over its use, and I think its pretty clear that every time someone uses that name in connection with a knock off, the actual brand has lost something of value, even if it wasn't the opportunity cost of a direct sale.
...do you actually have any first-hand experience with any level of the music industry? You seem to think there was no music before the mid-nineties or something. I don't get why you think "being in a band" wasn't a job before then.
Yes and yes. The point is that technology has made that setup far more normal and feasible to do at a profitable level. There are far less barriers to people turning a band into a small business than there were pre-Internet, so you've had an explosion of people doing it.
That's why I am saying that the live music scene is healthier. There are more working bands, doing more touring, to more clubs than there were a decade ago. Instead of dying up and withering away with the record stores, the live music scenes have actually thrived. It's healthier than it was in the 80s or 90s.
The Internet also allows small acts to build national followings with greater ease. That allows them to string together more profitable tours, as they can network with fans and have a better chance of getting out the word outside of club promotion - which is highly variable. It's also lowered barriers with researching, identifying and working with suppliers of merchandising.
That's all because of the Internet. More pertinent to the immediate discussion, this has been done during a period where the theoretical traditional source of income for a band - the recorded song - has largely been turned into a free promotional device.
How do people feel about IP as it relates to fashion? I don't think its a stretch to say that luxury brands like Gucci and Louis Vuitton are very frequent victims of IP infringement, and these are companies which only sell physical products, not ideas. All that these brands have is the strength of their name, and without the exclusive right to use that name, and their associated logos and designs, the companies cannot function. The people making and selling the knock offs are not "stealing" from the brands in that they are not taking physical items, but they are taking away the right to be the exclusive user of the name. Now, I won't argue every knock off sold is equal to a lost sale, since the same people do not buy $10 knock offs and $1,000 real bags, but they do promote a culture of thinking you can have these items without paying for them, so it may be that someone who would buy one real bag buys 20 fakes instead, but they have still lost the sale of that one bag. Part of the value of having a name is having control over its use, and I think its pretty clear that every time someone uses that name in connection with a knock off, the actual brand has lost something of value, even if it wasn't the opportunity cost of a direct sale.
"Fashion" as IP is very hard to defend. Unlike other cultural forms of art, fashion has always been transmitted as trend and copied style. The cult of the designer is very much a modern advertising gimmick. Copying popular fashions, especially aping the fashions of the elite classes, has always been a cultural trend.
And I say that as someone who thinks that fashion design is a genuine artform and a good designer is very much an artist. There will always be a market for expensive dresses designed for specific individuals by talented fashion designers. The ability to mass market that experience via artificial luxury goods is a condition of our copyright laws, and one that isn't standing up too well with cultural and economic exchange with China.
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
How do people feel about IP as it relates to fashion? I don't think its a stretch to say that luxury brands like Gucci and Louis Vuitton are very frequent victims of IP infringement, and these are companies which only sell physical products, not ideas. All that these brands have is the strength of their name, and without the exclusive right to use that name, and their associated logos and designs, the companies cannot function. The people making and selling the knock offs are not "stealing" from the brands in that they are not taking physical items, but they are taking away the right to be the exclusive user of the name. Now, I won't argue every knock off sold is equal to a lost sale, since the same people do not buy $10 knock offs and $1,000 real bags, but they do promote a culture of thinking you can have these items without paying for them, so it may be that someone who would buy one real bag buys 20 fakes instead, but they have still lost the sale of that one bag. Part of the value of having a name is having control over its use, and I think its pretty clear that every time someone uses that name in connection with a knock off, the actual brand has lost something of value, even if it wasn't the opportunity cost of a direct sale.
"Fashion" as IP is very hard to defend. Unlike other cultural forms of art, fashion has always been transmitted as trend and copied style. The cult of the designer is very much a modern advertising gimmick. Copying popular fashions, especially aping the fashions of the elite classes, has always been a cultural trend.
And I say that as someone who thinks that fashion design is a genuine artform and a good designer is very much an artist. There will always be a market for expensive dresses designed for specific individuals by talented fashion designers. The ability to mass market that experience via artificial luxury goods is a condition of our copyright laws, and one that isn't standing up too well with cultural and economic exchange with China.
Of course, the Asian markets are also the top markets for most luxury goods now, so it's been a mixed bag (no pun intended). But my question is really if we want to enforce these claims. Personally, I support full enforcement, and would want any new IP regime to provide strong protections against counterfeits. But I know there may be some challenge in determining what is a counterfeit vs something inspired by designer goods, especially if the copy is not exact, such as a bag in the Burberry pattern but in a shape Burberry has never made. Even though Guess bags aping LV and Gucci are tacky, I don't think they should fall on the illegal side, since noone could actually think they were anything but uninspired takes on higher end designs.
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The other side of this is that the increased enforcement is making these kind of laws more visible. IP law is one of those areas where the only people who traditionally have cared are industry types, politicians and aficionados. This is only an ethical issue for a very narrow band of educated content consumers - i.e. nerds.
Outside of this world, there is no moral debate. Your buddy has a CD and you want it, so you ask them to make a copy. If you like a girl, make a mix tape/CD/MP3 mix. The vast majority of the public has absolutely no moral qualms about sharing their stuff with friends, and the only thing the Internet has done is widen the circle of "friends" to mass production scale. The vast majority of the population does not actually believe in or follow existing copyright laws.
Governments might be able to beat this back for awhile, but the tech has been steadily moving to a point where connectivity and bandwidth are becoming widely available. The moral dimensions of this are pretty much moot. Sometimes technology kills viable industries without leaving anything of comparable value to replace them.
The actual content creators in the entertainment industries have already been thrust into the position of finding new ways to make money in this new environment. That's why every industry is investing more in spectacle and live performance, whether its a band putting together more tours or the movie industry investing in state-of-the-art stadium theaters with 3D and surround sound.
I suspect that the most fucked creators are going to be writers. Without much of a performance aspect to their craft, limited avenues for sinecure and staff positions and the easiest work to transmit, they have the least opportunity to branch out. Even so, I'm seeing a lot of movement in the self-publishing field - especially in the e-book and app world where companies like Amazon and Apple are assisting content creation for their own devices - so all hope is not lost there.
The cost, though, is being shifted downward to cover not the cost of production, but to offset the hassle of finding it through less legal means. That's going to be the new metric - prices that reflect value added in terms of customer ease instead of value being determined by artificial scarcity of product. The price, for applications, music and film/TV, seems to be settling at $1 per "piece" of content.
The creator crash has already happened outside of the major acts and movie studios. No amount of legal enforcement is going to do more than delay the transition to new business models.
What matters is how things actually work in the real life, not theoretical law. In theory, we're not supposed to be able to charge people for piracy in other countries where it's not illegal for them to do those things, but we do. Real life matters, not your romantic notions of the legal system.
As the link you quoted shows, yeah that's exactly what happens. It did get taken down, it only got put back up because the person they were up against was an EFF attorney. MLB has money, you don't, they win.
Edit: Ex-EFF attorney and founder of ChillingEffects.com.
He's got a point, though. SLAPP suits - i.e. Strategic Lawsuits Against Public Participation - are a real issue. The idea that, even if something is not completely legal, the corporations have enough legal power to bankrupt you before a case even gets to the courts. You can win via a bad case if the other party cannot afford to fight.
That's especially true if the content creators can jurisdiction shop, finding courts that are less likely to penalize them for misusing the court system.
The key here is licensing. A wonderful little contract made between the IP owner and you, the consumer. It’s not part any law, it’s a contract. Like the article in my other post says: the law “gives copyright holders the exclusive right to authorize certain acts, it does not define authorization or the manner in which authorization is to be implemented. A statutory gap exists.” That’s what licenses are for.
You want to watch an MLB game. You’re granted a license to watch the game, a very specific license, which prevents you from giving descriptions of the game.
Don't assume bad intentions over neglect and misunderstanding.
Again, this is not just about the music industry. The music industry, as I mention in the post you quoted but seem to have ignored, is a particularly stupid industry.
Please realise IP does not just apply to music, nor does the 95/5 split.
And the majority of IP has little to do with this discussion. No one is worried about the enforceability of corporate intellectual property when it relates to the business sector. The chain of evidence that is required to prove that a design or piece of content derived from one entity and was used without permission by another is not changed by the existence of the internet in any way.
The issue exists at the level of consumer entertainment/educational products. IBM will always be able to sue Microsoft for lifting code.
I'm not sure what this has to do with the discussion we were having.
The main issue with the music industry seems to be they require you to pay back your advance while they pocket most of the profit.
The main issue with the music industry is that their product equals a file size of about 70-100 MB per album. That means that the technology to share it has easily has existed since the download days. So, they got hit first with the new realities. Data transmission rates are making movies easier to share, which is why the movie industries are hitting the legislators so hard for new IP protections.
The moral issues with the music industry business model have been around since the 1930s. The reason we weren't talking about them at any length before this is that the industry remained the only way of distributing music to the masses. That era's over, so we are debating how the laws should look in the new era.
It's been a problem ever since the Bleem case. Bleem won in court but Sony managed to bankrupt them, killing the software anyway. It's really been how most all IP law disputes have been settled since. Because the fact is unless you are a big company you do not have the money to fight a big company in court even if you're not breaking the law. I posted in the SOPA thread a bit of an example where Fox forced a documentary maker to censor part of his film because in the background someone was watching the Simpsons on TV.
Usually, the 95/5 split is how companies that make content branch out. Blockbusters pay for indie films. Bestsellers pay for small release books. Small numbers of artists and such support a huge framework of art creation.
Apparently this isn't true in music because of the retarded structure of the contracts or something.
It's also not true in motion pictures. The ability of films to make hundreds of millions of dollars and reap no profits for anyone but the studio are legendary. That's why the industry runs on huge upfront salaries - the backend accounting is so fucked that it's not worth it to fight. Smaller studio-produced films never make money for their creators. Instead, they serve as business cards to get the big projects and large upfront salaries.
Publishing is the same. The vast majority of writers working for major publishing houses do not see any profits from their work, even when they sell well. The advance is what you make for most work, with any backend profits being gravy.
Maybe things are less fucked in the software/gaming industry. If so, it's the only content producing industry that doesn't play accounting games when it comes to actually sharing profits with creators.
You're bad at this.
I know it's not about the music industry alone, hence my original post. I was merely pointing out how IP laws have been used to make gigantic corporations in the entertainment industry rich on the backs of people who are generating the content they usually don't actually own or have a right to.
It's called an example, and I'm sure if we broke down the movie industry we would see similar abuses.
Those same studios fund smaller projects.
Exactly. Your advance is essentially a gamble by the publisher that you will succeed.
The point is that, in most of these industries, the vast majority of the content creators do not make the profits. Since the original argument is that it protects "creators" but the reality is that it protects industries who may or may not use those profits to fund valuable work, we are back into the realm of amorality.
Which brings me back to my original point. The current system does not protect creators, it allows for the existence of a lottery that rewards a handful of superstars for their ability to serve as a brand. Technology is moving to the point where society is either going to have to let content industries reform under new business models - which is already happening - or create harsh, surveillance backed legal regimes to maintain the status quo.
In absence of a clear moral imperative, there is no upside into creating a new arm of the Homeland Security complex to police IP infractions. I'm in favor of getting the government to back off and let the chips fall where they may.
What you are missing is that it is a lottery. But it's a lottery for the industry that pays the creators. And the thing with a lottery is, there's a ton of tickets that get bought but don't win.
Without the industry to support them, those vast majority of content creators who don't make a profit or don't make a huge profit wouldn't be able to keep going. The industry, because it's continually gambling on finding the "Next Big Thing", funds a ton of these people.
The music industry less so since I'd say because, apparently, they usually demand their advance back if you don't make up the money. Alot of other industries, like publishing (which I'm most familiar with), don't.
And IP is what allows this process to work since it means the investors (ie - the companies/studios/labels/etc) are guaranteed a return on their investment if it pays off.
This is verifiably false across pretty much any medium. The vast majority of people who create content do not see any significant return for their time, and yet they keep doing it.
The point is, these industries are set up so that industry always makes exponentially more profit from the content than its creator, and that is problematic.
The music industry is also a great counterexample. What the crash of the major labels has meant is a massive reduction of A&R men developing small and midlevel acts. They've redefined themselves as the concert spectacle, ringtone producer and music licensing to businesses industry.
The end result of this has not been a devastating loss of musical culture. Instead, the number of working bands, available music and performing venues has exploded with the death of the music industry. The loss of that corporate funding structure has been a net positive for creators and fans.
The small/self publishing renaissance is also pointing that the publishing industry also might be much better off without the publishing industry. As with music, the diminishing number of officially backed "acts" has opened a door for independents to play on the same field. The amateur stigma is receding. If it follows music, the destruction of all the capital/business investment will be cheaper, better content for the audience.
The only industry where this argument falls apart is high-end scripted TV and film. There's still a high bar to reach to create that kind of content, and there's still an audience to see that material on large screens. For the smaller stuff, the bar to create has basically vanished. You could fund an indie film for the price of an average family car.
The major bars to quality output are acting and lighting. Acting would take care of itself if you started having more self-funded collectives. Lighting is also going to be revolutionized very soon by light-scanning technology in development. It won't be long before you'll be able to ape motion picture industry quality lighting via in-program filters and post-production on a home computer.
An interesting example of this is the documentary industry. While there are a handful of creators who have broken out - Michael Moore and Morgan Spurlock being the go-to examples - the average documentary maker is not in the industry to make money. They are there to make documentaries, show them at festivals and enjoy the public role of being a documentarian.
Some have larger social goals they want to bring awareness to through their films. Some have purely aesthetic motives. But no one in that industry is doing what they do to get rich. A lot of them don't even make money, but continue to make films because they like working in that world.
IP laws have also been used to help artists make sure that gigantic corporations cannot censor, alter, exploit, or profit off of works that they own. Off the top of my head I can think of examples where bands have been able to use IP law to reclaim the ownership of their works from labels that fail to pay royalties, and so on. Not to say that more often than not that IP law is used against artists rather than for them, but demonizing IP law as being purely for corporations to screw over artists doesn't match the reality of the modern recording industry.
It's also hilarious to me that anyone thinks that gigantic corporations won't find ways to profit at the expense of artists and other creative types if IP laws are changed or abolished.
Why? The industry makes more profit, yes - but it also assumes more risk as well.
They still would. The framework around business use of IP is well established and on firm ground. It's the ability of consumers to infringe creator content that is at issue.
I have no trouble with B2B IP enforcement. I just don't want a business issue to push enforcement against individuals.
The problem is that, as the evolution of the music industry has shown, the value they add is minimal at best. When the music industry declined, the music scene exploded.
A tradeoff is inherent in the length of the term and it's here that all legislative effort should be focused. Figuring out a period of time that gives an incentive without witholding the work from the public domain for too long. And figuring out these different periods based on the type of work being protected. And figuring out which works need to be protected.
Unfortunately congress seems basically incapable of tackling this problem and sees copyright as way to give the most amount of money possible to content creators. They are simply blind to the public good aspect and focus on the expiration of copyrights as the event to focus on. They think of how person X created work Y sometime in the past, so that means that they own work Y and it would simply be a tragedy if they could no longer make money on it. Hence the two huge retroactive extensions of copyright in the United States. They should be focusing on when copyrights are issued. What kind of deal are they presenting to content creators? Does a protection of X years give them good enough prospects for an adequate living without being ridiculously long?
If I had my way they'd roll back all of the retroactive extensions and overhaul the entire system based on thorough evidence-based examination of the tradeoffs in different industries.
A $10,000 advance isn't really a risk for a multi-billion dollar corporation.
Quitting your day job and devoting yourself to a career as an artist, despite knowing that the odds are stacked against you? That's taking a risk.
It is a risk, since those investments are spread out over a large scale. The issue is whether that risk actually represents added value.
The publishing industry is notoriously slow. It used to take years and multiple editors/agents/designers/marketers/distributors/retailers to bring a book to market. Now, a dude with a laptop can write and edit his book, design a cover and have it up on Amazon in a week.
The standard industry retort would be that they serve as a quality filter, since the stigma of the self-published author is that they are talentless or kooks. The trouble is, the Internet provides its own quality filtering functions, a lot of companies are providing products to make polishing e-books simpler and the current publishing houses long ago weighted their output toward schlock anyway.
Except that the "explosion" of the music scene predated the decline of the music industry (or at least the decline of CD sales). Technological advances radically expanded the access most people had to music, and that shift led to a decline in physical sales of CDs, not the other way around.
Also, the music industry (and are we lumping indie labels and distributors in here, or just major labels) can still provide substantial value for artists. Perhaps not as much for consumers as they did in the pre-Internet era.
First and foremost, the term "copyright" is way more appropriate than "intellectual property." The latter is politically crafted for a certain perspective. It isn't property. It's a legally protected right to copy something. But misguided moral righteousness is leading many to pursue it as if it were property in the most ideal sense.
Creative works will exist no matter what we come up with. Try to imagine the worst possible absurd IP system you can think of... maybe it's no IP at all, or maybe it's draconian death-sentence for even looking at copyrighted material, or maybe it's surreal, like you can only distribute a work if you can make a chicken poop purple. Under any of these systems, creativity and innovation and art and business will exist.
What we want to do, though, is to encourage beneficial creativitity and innovation. We want to prevent market forces from decimating the incentive and drive to create new technologies or new music or new whatever. I think "no IP at all" is probably one of the better systems we could possibly create for this... but I don't think it's the best one, not by a long shot. I think we could do quite well with a minimal system of protections, which are temporary, limited in scope and power, tailored rationally to the medium, and above all, a system that imparts significant responsibility upon the holder if s/he wants to retain his/her rights.
Most IP was originally intended this way, I believe. Here are some specifics of what I'm suggesting:
1) Beef up the patent review process. No more patenting vague ideas of how something might function. No more taking an existing technology, adding "swipe to..." or "click to..." to the front of it, and getting a new patent based on that.
2) Tone down the severity of enforcement. No more "cease and desist until we figure out if you violated a patent." Treat them more like criminality - there needs to be at least some reasonable evidence that a patent was actually stolen, and a hard review of the patent to make sure it makes sense, all at the expense of the government, before the accused should be held to suffer business harm or legal fees.
3) Treat more IP like trademarks - if you want to keep your rights, you need to act like you want to keep them. If you aren't offering someone an option to download your movie for money, then don't cry too hard about them downloading it without paying. And you can't sit on a patent for 10 years waiting for someone else to come up with the idea and patent it and make a business out of it, and then sue them because your patent was first. This is a serious flaw with patents. Creating a billion dollar industry is way more work, and deserving of reward, than hiring a lawyer is. Let's not forget that. Same goes for other media. We should consider how much money a musician could make by playing live on tour, before we start accusing CD copying as theft. If you can be a millionaire on concerts alone, or even if a small-time musician can make several thousand selling t-shirts, then why exactly does the government need to protect your right to make a few more million on CDs, and a nearly-useless recording industry to make billions off that?
4) Serious hardcore regulation of the secondary market. I'm growing more and more convinced that all secondary markets need to be regulated, and I'm a fairly free-market kind of guy. If you don't know what I mean here - IP can be bought and sold. I don't think we can completely erase that fact. And I don't think it's always bad. But something tells me that a recording company shouldn't have the same kind of rights when it comes to the music created by an artist who died 50 years ago. Something tells me patents were never meant to be a never-ending corporate legal battlefield over technology in which there doesn't even appear to be hint of evidence that anyone actually stole any ideas from anyone else. And so on. We need to do a better job of recognizing whether we're really securing incentive to create, or just allowing secondary IP holders to abuse the law.
5) Fix perception (lol, easy, right?) Stop talking about "$50 million in damage from lost revenue." Not only is that number completely bogus as to any actual revenue that might have occurred, but you probably wrote it off as losses on your taxes. Meaning the amount you saved on taxes could very well be more than that amount of actual revenue you might have gotten from those pirates. Stop calling it theft. It isn't really theft. Stop calling it property, it isn't really property. Also, recognize that pirates are typically your best customers, too. That's just demographic fact.
6) Learn to monetize piracy. I saw a whole presentation on it. It was incredible. Some movie production houses track piracy and use the data to tailor marketing efforts and release schedules and stuff. They accept piracy as a source of data, and make money off of it.
7) Accept more responsibility for securing your own rights. You're the one who digitized it and marketed it and distributed it. You need a plan for how you will make people pay you for it. And I don't mean legalese. Don't just rely on the government. If you can create workable functioning DRM that doesn't tick off your paying customers, then we don't have a problem here. Again with the musician - there are plenty of arenas where you can play your music and people can't get close enough to hear without paying money at the door. That system works fine. Go do that. If you can make even more money selling CDs, great, but unless someone else is out-selling you on your own music, don't cry about being robbed.
I could go on but that's way too much already.
Ownership is a key concept in our society, instantly understandable, with attribution and distribution of rewards built-in. I'm utterly aghast at the notion that, in the wake of decades of regulatory capture in the form of Mickey Mouse legislation and most recently the abomination that is SOPA/PIPA, posters are seriously suggesting that the best way to pay artists is to have the government do it. How long before Disney or Viacom or Newscorp has massaged that solution to benefit themselves without regard for the common good? It's practically untenable and even morally objectionable to have the ownership of ideas defined by artificial denial of access to them, but I think a realistic solution ought to maintain the right of a creator to be acknowledged even if they are not granted the right to exclude people from using their creation.
Even if attribution is secured by law, the problem with just throwing IP out the window and hoping that creators will be supported by donations is that people aren't selfless and aren't rational. Exclusive ownership solves half of this; the market "objectivizes" (lolAynRand) the distribution of rewards to creators. This fails the same way capitalism usually does when consumers make irrational purchases, but this failure has been defended as the best bad system we have available. But as some have already noted, the patronage model, in addition to introducing the problem of selflessness, actually magnifies the distortion that marketing can bring to bear on consumers' (or donors') decisions, resulting in less rational rewards for creators rather than more.
What I would propose as a solution would try to address the selflessness problem but frankly my ideas just tread water on the rationality one. So it's really an attempt to mitigate the damage of the end of exclusive IP rather than elevate us to a new plane of excellence in the propagation of useful ideas. Essentially, we all set aside a fraction of our income for the promotion of useful arts and sciences. We have a cultural tithe and a technical one, and though the sum is non-negotiable, individuals can choose just how much of a damn they give (possibly within limits?) about art vs. science. Using the technical tithe effectively is a much more challenging problem, so in the tradition of cowards everywhere I am going to leave that for someone else and conclude this post with my notion of the use of an art tithe.
We've seen an explosion of the use of social networking recently, and I think that a good way to address the selflessness problem would be to give donors (and remember everyone is a donor, if we enforce a tithe) something for their money: a public, electronic verification of their support. Just as people have shown off their CD or DVD collections for years, they would post the proportions of their tithes and the artists or organizations that they have chosen to support with them. The entertainment we consume is already as much a symbol of belonging to groups as anything, and this would leverage that to give people the feeling that they aren't just having their pocketbooks raided without reason, but rather "buying" the proof that they support something they value.
I'm talking about the world in the aftermath of Napster. The "death" of the music industry has led to the explosion of working bands, an expansion of clubs and the growth of entire industries based around low-level merchandising of t-shirts.
That's a direct result. Clubs and scenes existed before, but the industry became much healthier when the bands trying to play the major label lottery were replaced by dozens of small businesses in the form of musical acts.
On a website forum founded on a culture/fandom built up around media that is available for free largely due to advertisements from media producers. And whose largest professional group other than unemployed/student is probably something involved in the generation of IP. Granted the latter is a guess, but programmers/designers/musicians/artists/writers/engineers/scientists have to make up a rather large chunk of the population here.
QEDMF xbl: PantsB G+
The individual artists though- not so much. Most of them can't earn nearly enough to live on, and have to spend most of their time working day jobs just to make enough money to eat. Then a few superstars make millions, often with ideas more or less copied from someone else anyway. This is a terrible system.
Uh, what? All of those things were bountiful before, during, and after Napster.
Also, you're claiming that the explosion of working bands, music venues, and indie merchandise companies is due to the "death" of the music industry when in reality it's due to the invention of the Internet and how that allowed music fans much easier access to music, merchandise, and tour info.
The "death" of pre-packaged music sales and increased consumer awareness of indie bands and venues are both effects of the Internet. One did not cause the other.
Uh, yeah. That's kind of the point. The internet is the how and why.
As for the rest, that's direct observation of the industry surrounding live music. It's a lot healthier now than it was in the eighties and early nineties. This is in no small part due to a massive culture change. The Internet age has created a strong class of small-scale entrerpreneurs who have made "being a band" into a job, and this has had positive effects on the music business as a whole.
The strongest subtle change has been the loss of status of the A&R man. It used to be that entire clubs would make their reps based on the fact that these guys hung out there. Now, most acts are more about building their Youtube hits and directly marketing their music to licensing agencies. Acts frequently turn down record contracts these days, because the acts are made up of businessmen with developed commercial models who have the freedom to walk away from bad deals.
Nobody, which was my point: crowd-funding venues require you to build a presentation in order to market your project (in Kickstarter's case, they recommend making a video).
This is much different from just going to a publisher, where the end product itself will be your presentation. You don't need to spend time making a separate project just for marketing.
EDIT: Of course, going to a publisher has it's own problems (authors refer to publishing houses as 'the publishing racket' for good reason), but it's far and away a superior route to Kickstarter. I mean, would you rather go to (say) Random House with a manuscript and receive a check-in-hand advance, or would you rather write the manuscript, then produce a video for Kickstarter and apply for crowd-funding that has a very slim chance of actually getting any money into your pocket at all?
...do you actually have any first-hand experience with any level of the music industry? You seem to think there was no music before the mid-nineties or something. I don't get why you think "being in a band" wasn't a job before then.
Except all of those benefits and changes are, at best, tangental to IP law. If anything, the Internet has made IP law more important to musicians and other artists because they can now assume more direct control over more aspects of how their music and merchandise is created and distributed.
Also, there were plenty of people who made "being a band" into a job in the '80s and '90s.
Yes and yes. The point is that technology has made that setup far more normal and feasible to do at a profitable level. There are far less barriers to people turning a band into a small business than there were pre-Internet, so you've had an explosion of people doing it.
That's why I am saying that the live music scene is healthier. There are more working bands, doing more touring, to more clubs than there were a decade ago. Instead of dying up and withering away with the record stores, the live music scenes have actually thrived. It's healthier than it was in the 80s or 90s.
The Internet also allows small acts to build national followings with greater ease. That allows them to string together more profitable tours, as they can network with fans and have a better chance of getting out the word outside of club promotion - which is highly variable. It's also lowered barriers with researching, identifying and working with suppliers of merchandising.
That's all because of the Internet. More pertinent to the immediate discussion, this has been done during a period where the theoretical traditional source of income for a band - the recorded song - has largely been turned into a free promotional device.
"Fashion" as IP is very hard to defend. Unlike other cultural forms of art, fashion has always been transmitted as trend and copied style. The cult of the designer is very much a modern advertising gimmick. Copying popular fashions, especially aping the fashions of the elite classes, has always been a cultural trend.
And I say that as someone who thinks that fashion design is a genuine artform and a good designer is very much an artist. There will always be a market for expensive dresses designed for specific individuals by talented fashion designers. The ability to mass market that experience via artificial luxury goods is a condition of our copyright laws, and one that isn't standing up too well with cultural and economic exchange with China.
Of course, the Asian markets are also the top markets for most luxury goods now, so it's been a mixed bag (no pun intended). But my question is really if we want to enforce these claims. Personally, I support full enforcement, and would want any new IP regime to provide strong protections against counterfeits. But I know there may be some challenge in determining what is a counterfeit vs something inspired by designer goods, especially if the copy is not exact, such as a bag in the Burberry pattern but in a shape Burberry has never made. Even though Guess bags aping LV and Gucci are tacky, I don't think they should fall on the illegal side, since noone could actually think they were anything but uninspired takes on higher end designs.