Another cause for professional content’s decline is one of business model. I know: blaming business models borders on banal, but in this case it may just be accurate. Newspapers and magazines have long operated off readership (among other factors) dictating the amount to charge advertisers for ad space. So while you’re paying a buck an issue for a top-notch magazine, it’s possible the magazine even took a loss on that copy, but makes its money instead on the idea that you’re more prone to buy something that you saw advertised within its pages.
This is somewhat directed advertising in terms of magazines, but is often slinging spaghetti at the wall when it comes to newspapers. Who reads the newspaper? The old, the young, the rich, the poor, the liberal and the conservative, the male and the female. The adverts are just as likely to have no appeal to a reader as they are to resonate.
And there are strong forces killing formerly reliable revenue streams for print media, such as lists of job openings moving online to sites such as Career Builder or Monster. The once-lucrative Classifieds are all but dead in print media because of Craigslist. Same for movie show times, community goings-on, and the like.
This has nothing to do with user-generated content (UGC), let alone with copyright, but with technology itself.
In terms of actual lost journalism jobs, while it’s arguable that user-generated film reviews have created a decrease in demand for newspaper-employed review writers, there is still a distinct difference between amateur film reviews and amateur investigative journalism. The former is a matter of experience, insight, and solid communication; the latter is also about access, dogged investigation, and established connections (things that it’s certain the lay writer has not developed like the career journalist).
Thus, it’s unlikely that professional investigative journalism about the war or about Darfur or Haiti has lost out to the rants of someone living comfortably in his mother’s basement so much as it has been negatively affected by the newspapers poor economics from the other listed factors.
Granted, what Slant writer Jack Shafer calls “social currency” - that is, knowledge of what’s happening in the world right now – is indeed a currency being doled out by users alongside professional journalists, but the question then becomes “so what?”
Is most social currency coming from a professional on, say, political events, community news, or entertainment news necessarily better than from an amateur? It is going to be written better and following guidelines that ensure integrity better than Facebook, but is that necessarily so? Does it need to be that way? Are readers better off finding out that an earthquake rocked India or that a madman gunned down 10 people in a McDonald’s from a journalist rather than from a 140 character Twitter feed?
Sure, the latter is more likely to indulge rumors, but even the most respected television stations and even newspapers got a slew of “facts” ridiculously wrong on September 11th, 2001. I remember reports of vans filled with explosives going off in front of federal buildings across the nation. Can we ridicule Facebook or Twitter for stoking rumors when mainstream media often shovels the same slop?
Indeed, magazines must bear some responsibility for poorer content as well. I heard a speech from a former editor-in-chief of Omni who talked about the “good ole days” where they paid a buck per word and took pieces up to 20,000 words. Such a payday hasn’t been seen since. But the issue was that advertisers disliked the Omni model, where readers actually – y’know – read the magazine. Advertisers and magazine publishers alike are far keener on the mag that gets only ten minutes face time, and a full 75% of that time is staring at ads, not content. This has birthed the 250 word “in depth” and the 100 word blurb. And all this was well underway long before the Internet was widespread.
I don’t believe that this decline has to do with copyright. I believe that – no matter the outcome of UGC and participatory culture – tighter copyright laws would simply not return the genii to the bottle. Regulations to control content on the Web might lessen the flow of some content some of the time. Might force a respect of some content at a hefty price (both in terms of pushback and actual logistical costs that no one entity wants to bear). But if a publication wants continually to pay writers less (spurred, I have little doubt, with fewer streams of income, not necessarily greed), then the quality will continue to decline.
In other words: a decline in quality and pay might be due to the willingness of a million amateurs to write whatever comes their way for pennies on the pro’s dollar, but what came first: the gigs or the willingness to fulfill them?
I’ve covered how I’m dubious about user-generated content (UGC) and amateur content’s role in harming the market for newspapers and magazines. However, amateur content has greatly impacted a photographer’s landscape, where anyone with a point-and-shoot is suddenly a “photographer” willing and able to shoot everything from a wedding to a birthday. However, here is where a more pragmatic attitude toward copyright can bolster business.
The older photogs who still insist that they retain all rights and only sell “packages” to their clients (with an assumed amount of business coming from clients returning for more photos to which only the photog has access) are going the way of the Dodo. Instead, forward-thinking photographers relinquish most or even all rights to their content the moment the transaction is complete – often by surrendering a disk of full-size or even lossless image files, and also with many “doctored” shots that the photographer cares little about thereafter.
While it’s understandable that this increases the upfront “sitting fee”, clients simply don’t want to be nickeled and dimed any longer; they want to own and be able to share their photos with the world, without the fear of stepping on any photographer’s toes.
And since a photographer’s own overhead has shrunk enormously with digital technology, gone are the days of costly packages anyway. Photoshop demands a fraction of the time light room development required, and there’s no question digital storage media are practically free compared with the erstwhile costs of film.
This doesn’t mean all photographers exist on a level playing field, however; there are still plenty high-end shutterbugs out there, and their work indeed stands above. Just as it’s unlikely that bootleg Louis Vuitton’s entice or take away customers who want the real deal, it’s equally unlikely that amateur point-and-click photographers are taking business away from these higher-end professionals.
Certainly, there are ways in which UGC has edged out other professional content, as well. For instance, I used to buy computer books on any program I was interested in learning or already knew but wanted to develop a mastery of. But where the book is static – having to teach assuming that each reader is going to have the same goal, the same problems, the same projects – I can go online to any of my favorite forums and tap into the wisdom of hundreds of people who work with that program daily. Who love to solve other people’s problems, and who custom-tailor their responses to my questions or problems.
I have received invaluable bits of code, shortcuts, tweaks to my workflow, and all for free. My contribution is that the solution remains online for anyone who has that same problem in the future (and the very sparse moments where I can contribute to the solution of someone else’s inquiry).
I had no problem paying for computer books and I might still buy one here and there if they are very visual and can be treated more for a quick reference (though responses on many message boards are equally quick), but it’s certain that my patronage of computer book publishers has waned almost to non-existence, and in this I am not alone.
Is this to be mourned? Is it any more impacting than the moribund nature of encyclopedias after Wikipedia? In the case of my computer issues, I don’t believe I am any worse off learning from other users than I am from a professional writer. And as much as I enjoyed a well-crafted encyclopedia, I think it’s naive to believe that there is so great a difference between Britannica and Wikipedia that the former is to be idolized as the pinnacle of human knowledge while the other is subject to perpetual ridicule for being “amateur”. Even a cursory glance at a popular Wiki’s edit history will reveal intense scrutiny and refinement. Is this so dissimilar to the sort of scrutiny entries for Britannica underwent? Dissimilar enough to disregard Wikipedia as worthless? Doubtful.
Check out Part Three, where I keep peeling the onion on what is happening to professional content creation, or go back and read Part One if you missed it.
Inspired by discussion on the sister Facebook page, I want to write a bit about this question, which is on the periphery of copyright law and digital piracy, but certainly germane.
Foremost, is there a decline? That depends on the media. For newspapers, certainly. The only real issue of debate is whether the decline is large or small each year, and not whether – over several years – circulation has indeed shrunk. There are a couple of papers that still enjoy a solid readership, but for most, each year entails laying off reporters and copy editors: both of which mean an eventual decline in professional content.
How about for magazines? Some titles are indeed suffering a steady decrease in print sales, though this offers plenty of time to migrate some facets to the Web and to figure out other ways of reclaiming their former glory. Other magazines, however, continue to thrive. However, content has moved from lengthy articles to tiny blurbs amid slews of adverts, so it’s safe to assume a hefty decrease in the market they present to professional writers.
I’ve heard it argued that the primary culprit hurting professional media is amateur and user-generated content, and – as a secondary but related cause – a cavalier attitude toward having to pay for any media since the advent of ubiquitous Internet.
But for journalism, I’m unconvinced that the rise of amateur and user-generated media is to blame. One big elephant in the room is that content creators now compete with many other media. Video games enjoyed only modest face time until a few years ago, around the time of widespread Internet usage (not implying that the Internet was gaming’s sine qua non, only that they are coeval technologies). Now, games cull ridiculous amounts of face time that once went to more traditional forms of media: television, books, magazines, newspapers, and films. Where once a game’s appeal was in replay (and annoyingly so) now the technology has allowed game developers to create worlds of depth, immersion, and non-linear game play that demand hundreds or even thousands of hours to defeat.
Too, the Internet itself is taking away face time formerly spent patronizing professional media. Just think about how much time people spend “catching up” on Facebook daily. But neither gaming nor “surfing” needs user-generated content (UGC). At least not content that bears any relation to what one might find in a newspaper or magazine. While there’s plenty of user-generated media akin to newspaper content on Facebook, it is not necessary to garner attention. In fact, I generate much more interest in a picture of my toddler or pithy comment about the new GI Joe movie than I do for any “notes” I’ve written or links to my blog posts. For good or ill, we simply don’t have the time to dedicate to newspapers or magazines that we used to, but that doesn’t imply we’re spending that time reading amateur content covering the same topics.
One has to consider that traditional media was as much about connecting to the outside world as it was building a working knowledge of events, and now games and Internet social media sites provide that connection, despite not being tied to the latest military coup or catastrophic mudslide.
So perhaps it’s just as much a case of decreased demand as it is rising supply – either of which will greatly impact what a journalist is paid for a story (among other things). That’s not to suggest that there is a lack of amateur journalism out there: it is ubiquitous. But blaming it for shrinking a professional’s market and/or paycheck could prove a leaky case.
Check out Part Two, where I keep peeling the onion on what is happening to professional content creation.
The Cyber Intelligence Sharing and Protection Act (CISPA) was voted on yesterday and passed the House 248 to 168. The main opposition to CISPA is concerned with privacy more than piracy (crazy how close those words look when written), but I think it’s worthwhile to consider what effect CISPA’s passage could have on the copyright climate, despite President Obama’s promise to veto it.
After all, part of the purpose of the bill is to stop the “theft or misappropriation of private or government information, intellectual property, or personally identifiable information,” and since SOPA verbiage considered privately held IP as “US property” this is sort of saying the same thing – that the act could be used to secure corporate-owned media. Nesting it in more threatening acts – theft of government secrets or personal data – is no mistake, but a very common rhetorical tactic. Collude something you want to seem egregious with things that actually are. Viola. Guilty by association.
Among the arguments of the opposition is the fear that CISPA will mean that the government can trace one’s movement and dealings on the Net and that Internet Service Providers (ISPs) will be forced to pony up customer data without preamble or having to prove any probably cause. Personally, while I would – at every turn – wish to limit the government’s ability to glean my personal data, since there is weighty evidence that profiling remains so rife with false positives as to be ineffective, I am also under no illusions that I am important enough to gather data on.
I don’t believe that – as one commenter notes – that CISPA will allow the military to have my phone number “to recruit me to their little robot army.” Hate to break it to anyone under such disillusions of grandeur, but your personal data is not worth as much as you think to, say, military recruiters, black-bag operatives, new world orders, or grey-skinned aliens.
However, this doesn’t excuse the violation of privacy that CISPA would enable. And what’s much more important than any fantasy of what the government would do with this data is what they could actually do with it. Notably, it could mean that ISPs will wash their hands of defending their customers’ data: to include contact info and (more importantly) Internet usage. It is entirely different for Cox to wax faithful to customers when refusing to surrender customer data to the MPAA than it is refusing it to the US government. CISPA, in this way, is a free pass for ISPs to quit caring about surrendering customer data.
Consider the organizations lobbying for CISPA to pass. Among the largest are companies who would financially benefit from the added hardware and software that CISPA would necessitate. Nothing surprising there. However, other contributors include Time-Warner and other communications firms. Why would they want CISPA to pass?
More importantly, would personal data flow from ISPs to the government to the MPAA to the courts? It’s hard to tell. I have no doubt that the government shows far more loyalty to corporations than to the people: this should be common knowledge by now. As well known and ingrained in our collective wisdom as the color of the sky or the smell of smoke. The people’s contribution – tax dollars – while substantial, are not opt-in. You cannot refuse to pay taxes and remain unscathed and unmolested. A corporation, however, can refuse to lobby. To donate. Can – in fact – threaten to move jobs and money and innovation overseas.
So could CISPA be used to create a case against domestic pirates? I don’t see why not. It’s clear that the government is more than willing to spend taxpayer dollars funding the War on Piracy. Why not offer support in the way of culling user data from ISPs to aid a case against them? All under the guise of the pirate representing a “threat to national security” of course.
It is this – all things considered a petty use of taxpayer resources, and at the expense of privacy – that has me much more concerned than someone in the NSA or FBI being able to read my emails or view my personal data. Again, to believe that I am a blip on anyone’s radar borders on solipsistic. While I’ve commonly heard arguments of the government’s “unsung heroes” who stop terrorist attacks or cybercrime but who never make the news, it would be much easier to swallow the necessity of CISPA or its equivalent if it could be shown quantitatively that the act would protect against actual threats to national security.
How NOT to do that? By trying to throw intellectual property into the mix. This only obfuscates an already dubious act, and certainly won’t win any hearts to the side of national defense.
Now DropBox has made sharing files easier than ever, with the ability to link to media outside of the Public folder, and without users having to download the linked-to material (which can now be viewed without downloading).
Notice I said “sharing files” not “file-sharing,” since the latter is loaded with Dark Side implications. No one wants to think about DropBox that way. And yet, Techdirt points out that this feature isn’t far removed from what got Megaupload into hot water to begin with. So what is the difference?
Well, it would be difficult to argue that people are using their DropBox accounts for file-sharing illegal material without persistently peaking in their folders, and who exactly should be applied to do this peeking? The government? Trade organizations? Rights-holders?
While I have no illusions that the contents of my DropBox folders is relevant or even interesting to anyone but me, I wouldn’t be too thrilled to find out that DropBox was allowing, say, the MPAA to sift through my folders in search of songs.
But as I’ve pointed out before, people share naturally, whether it’s their latest vacation pics, a copyrighted image from the web, or an article they just read. Even sharing programs occurs virally, but verification techniques such as blacklisting serials used more than once usually stymies this among unseasoned sharers.
So when sharing isn’t raising any conspicuous flags, will it occur without punishment? Probably. That doesn’t mean it won’t be blamed for projected revenue shortfalls by some creative accountants in the entertainment industry, but so long as DropBox isn’t waving the Jolly Roger, it may well become the smaller, more personal version of p2p or Direct Download (DDL) programs, which have not only been eradicated through legal means, but through a general distrust of their contents by all but seasoned file-sharers.
The most interesting consequence of this will be a lack of impact, however. That is, that without DropBox bearing an obvious target on its back the way that Megaupload and others have in the past, I would be surprised to see lobbyists and mainstream media point to it as having a deleterious effect on media sales.
Certainly, trade organizations will always have a bevy of bogeymen ready to scare legislators into passing tighter controls, but they would be hard-pressed to finger DropBox for the crime, all while file-sharing on DropBox is occurring just as much as it would elsewhere – for both files with and without rights-holder permissions.
The point is, however, that the supposed impact of file-sharing seems to mount when file-sharing platforms become more conspicuous for sharing copyrighted files, no matter whether this indicates actual lost sales. I would love to see a study attempting to find a correlation between lost sales (ceteris peribus – none of this ‘sales fell’ balderdash when there was clearly another reason) and the conspicuousness of a file-sharing platform’s use to share copyrighted content.
There has been some great discussion on Piracy Happens’ sister Facebook page Pirate Nation about the ways in which larger companies are involved in copyright infringement. More importantly, whether this is a boon to them, and even more importantly, whether it actually hurts content creators.
Every day the patent grab means robbing Peter to pay Paul. This company sues this one, who counter-sues, followed by appeals, followed by a lot of wealthy, happy patent lawyers. But I’m not terribly concerned about that in the scope of this post because I don’t believe that patent infringement has much in common with, say, generating ad or transaction revenue from copyright infringement. It is far more diaphanous than that, and – arguably – has much more to do with rights-holders than content creators.
For example, I’ll choose auction monolith eBay. There should be little doubt that – according to the letter of copyright law – eBay facilitates copyright violation every hour of every day. That is: they house auctions for items that violate copyright, whether it’s a bootleg film or tv series, unauthorized re-sale of royalty-free b-roll, or selling computer hardware with pre-loaded apps that are not legitimate versions. I’ll be borrowing from my book Pirate Nation a little here.
So foremost: does eBay profit from this? Despite slews of angry customers claiming that eBay is little more than a treasure trove of pirated warez – that they resist fighting infringement because they welcome any commission, there is – as usual – much more to it than that. After a case in which filmmaker Robert Hendrickson attempted to sue eBay for copyright violation for supposedly selling bootleg DVDs, it was decided in the courts that eBay fell under protection based on a facet of the Digital Millennium Copyright Act (DMCA). It basically goes like this: eBay isn’t responsible for what others try to sell so long as they remove the content and take action to prevent it recurring whenever the rights-holder (or someone else) files a complaint. But they went beyond this.
eBay created Verification Rights Owner (VeRO), a program to report infringement and for rights-holders to create ‘about me’ pages regarding permissions. eBay also employs hundreds of people who traverse thousands of auctions solely to stop sellers from hawking infringing material. eBay also relies on buyer and seller finger-pointing. A customer receives a bootleg copy of a film instead of the original, reports the seller, and eBay stops their auctions or even cancels their seller accounts.
So it’s incorrect to claim that eBay does nothing to stop infringement OR to claim that they make lots of money from violating content. While I have no balance statement handy, I somehow doubt that their return on commissions for pirated warez is greater than the salary of a few hundred employees. Bit of a stretch there.
And let me say: I DON”T CARE about eBay’s anti-piracy actions. I am not awed by them; I don’t claim they are headed in the right direction; they have their own sets of drawbacks. I merely mention them because they are a fitting example of a large corporate infringer-by-proxy.
Secondly, does it hurt the artists? This would be even harder to prove. First, you’d have to discount all sales using the first-sale doctrine: that is, all used material. If you sell a used copy of The Simpsons: Season 20 on eBay or Amazon or Craigslist or a yard sale, nothing goes back to the content creators. And this indeed comes far closer to constituting a “lost sale” because – unlike with pirates – it’s evident that the buyer is willing to pay something for the media, though not full price. And yet, media has long flourished despite the first-sale doctrine: in music, movies, publishing – you name it.
But are there bootleg media sales where the product is passing off as new, costs nearly as much, and thus might represent a loss to the rights-holder (and often the content creator)? I’m sure. But again, this is a very difficult number to tally. If the buyer were willing to pay full price for a retail copy, he would have walked his butt to Best Buy and laid it down.
Most importantly: is the loss large enough to dissuade content creation? Obviously not. I’m sure there are investors out there gun-shy about putting money into media creation because of perceived threats from everyone from Google to The Pirate Bay, but that does not diminish the zillion or so dollars still poured into media creation all the time. Is it less for some media? Sure, but we also have crap-tons more media to choose from now.
Check out part two for a look at what ad-revenue on sites infringing copyright means for content creators and rights-holders.
Patent troll company Worlds, Inc has filed a patent infringement lawsuit against World of Warcraft creators Activision Blizzard, Inc. The claim? That Blizzard violated a patent for a “System and Method for Enabling Users to Interact in a Virtual Space.”
This should sound familiar, since it’s the premise for pretty much every MMO game ever. As one commenter pointed out, the patent was actually filed three days AFTER the release of the first Everquest game back in 1999, which means that Worlds, Inc had absolutely NOTHING to do with innovating the digital environment currently used in WoW or any other MMO game.
This should come as no surprise. Companies are always suing each other – no different for smaller, do-nothing companies such as Worlds, Inc suing larger companies who are actually making things happen. Who have made it big. The difference here – and what drew my attention and ire – is that Worlds, Inc is operating on the platform that they contributed in some way to the huge success of MMO titles – a billion-dollar industry.
Worlds, Inc CEO Thom Kidrin said: “Technologies created by Worlds have helped the businesses of virtual worlds gaming and the sale of virtual goods to grow into a multi-billion dollar industry. While we are pleased to see that the gaming industry and its rapidly growing customer base have enthusiastically embraced our patented technologies, we deserve fair compensation for their use.”
There are several problems with this statement. First, that Worlds, Inc has helped anyone do anything. That Everquest was already in stores, and that WoW game designers had never even heard of Worlds, Inc completely invalidates this claim. They didn’t DO anything but walk their butts to the patent office to file a piece of paper that has about as much to do with innovation as lawyers have to do with justice (ie – nothing at all).
Second, that game companies have “enthusiastically embraced” their technologies. If the hundreds of thousands of software patents imply anything, it’s that no one has the capacity to predict or reference what “outcomes” have been patented. It’s not as if MMO game makers were spit-balling in an office and checking the US patent office Web site for ideas.
The idea of “Enabling Users to Interact in a Virtual Space” is completely ordinary, expected, and obvious. Patents are supposed to be for “non-obvious” products or processes, so I’m not sure how this one even got through, but I’m not surprised, either.
Lastly, that Worlds, Inc now deserves a slice of the billion-dollar MMO pie. Just because they were first to the patent office doesn’t mean they did or are entitled to anything. This “virtual space” they patented, has been around – as noted – at least for 13 years. Why wait to file suit now? It’s obvious: they were waiting for some MMO manufacturer to grow large enough to make their predatory practices worthwhile.
And realistically, they don’t want to WIN, they want to settle. Proof of this rests in their choice of counsel. Max L Tribble, no doubt a real stand-up guy, has a long history of extorting settlements for patent infringement. Representing patent trolls and taxing companies that are actually creating something.
This is all old news, but until our courts (and our citizenry) recognize this important and obvious flaw in the patent system, such suits will continue to proliferate, to no one’s benefit but a few leeches, sucking money from content creation while contributing nothing.
A post on Reddit.com that blew up in a single workday turned into a movie deal with Warner Bros. and Madhouse Studios. Pretty cool, you might say. I would certainly go for some of that, despite Warner Bros. horrid track record so far as copyright common sense is concerned (save for their pragmatic approach to Harry Potter fanfic).
This story was picked up in the last issue of Wired, which detailed how this whirlwind idea went from Reddit post to a screenplay worth beaucoup bucks in a short order. Sounds like an uplifting tale of small-time writer getting his comeuppance, and I truly hope that Rome Sweet Rome author James Erwin goes on to write full-time, as I’m sure is his goal.
However, what is ignored here is that something that was entertaining and – much more importantly – engaging many thousand Reddit users came to a blunt halt when it turned onto a path of mainstream entertainment and all the controls that come with it. When Erwin was contacted by Warner Bros. about securing his idea for a screenplay for Madhouse Productions, he was “asked” to stop posting the story on Reddit. That he stop Reddit altogether in fact, because – as Wired mentioned – “the more of the story he gave away for free, the less valuable it would be to a studio.”
This is a popular misconception, and one generally fostered by large rights-holders who cannot fathom media bearing no price tag. And yet, there are numerous examples of exposure (even *gasp* FREE exposure) summoning swaths of customers. Interest is interest. And interest pays. It doesn’t matter if the interest came from advertising or from free-to-browse posts on Reddit.
For one, the idea that a written story posted to completion would somehow lessen the popularity of a movie based on that story is completely false. Did Lionsgate ask Stephanie Meyer to stop writing the Twilight Saga once the first film was in the works? Did Warner Bros. ask J.K. Rowling to complete the Harry Potter series as a screenplay only, because the books might hurt ticket sales?
Of course not. So why this idiocy? Why would a studio pay LESS for Rome Sweet Rome (the transformative work – the screenplay) because Erwin completed the story on Reddit?
Of course, faced with a monster check, Erwin quickly acquiesced, admitted to his Reddit fans and Wired alike that he sold out. And let’s be honest: I would gladly sell out if offered enough money to publish this blog instead of post it for free; I claim no moral high-ground.
My issue is with the purblind nature of the copyright rich, who seemingly have no grasp on what fuels consumer demand. The mere idea that the story would be worth less (that is, have less of a chance of turning a profit) if completed and posted online must seem ridiculous. There is simply too much evidence to suggest otherwise.
I also admit some disappointment at Erwin trying to wax self-righteous with taking the money, saying that the reach would be much greater outside of Reddit and using this as an excuse to stop posting. If you sold out at least own up to it. Say that you’re not posting because you got a fat check from a company that knows only content restriction and not inclusion, don’t act as if the decision was in any way for the good of the story.
Because come on: we should all be rather dubious regarding Rome Sweet Rome now. Despite the engaging, entertaining posts that Erwin managed (during a workday no less), what we can expect from a mainstream film studio is…well, mainstream.
When’s the last time some mid-budget action flick inspired anything? Engaged anyone? Involved anyone? It’s just so much passive consumption; another 90 minutes of Hollywood drivel, filtered a hundred times over after being weighed and balanced to draw the most profit from the greatest number of people.
What does this have to do with creating a great story? Nothing, why do you ask?
A recent interview with Apple co-founder Steve “the Woz” Wozniak is making some headlines because Woz is communicating some criticism of the current patent system. As much of an innovator as he’s been, I would have to argue that none of his comments on the problem of patents come anywhere close to innovative, let alone as acerbic as they rightly should be.
Suggesting that software patents stymie innovation and tax content creation is like suggesting that bombing might lead to casualties or fast food to obesity. Why the safe stance? Who knows. But at least he’s saying something, and not merely relying on the same ‘ole song and dance: that patents are a great way to encourage innovation.
They’re a great way to float patent lawyers, just in case the world needed a few more lawyers (about as much as it needs more pollution or more disease, I’d say). But with all the patent-grabbing going on – between Facebook and AOL and AOL and Microsoft – it should be obvious that patents serve the IP rich and tax the IP poor.
Indeed, there have been several small trolls who’ve found a niche in patents: suing large companies for violating patents that stood in the path between idea and execution. But do – as Woz suggests – small companies really find any incentive in the patent system? Perhaps.
Likely, though, the motivation is in patenting a process in order to cash in on someone else’s use of that process, through forbidding them and then suing, not through licensing. The motivation is likely seldom close to the original purpose of the patent: to create some manner of monopoly over an innovative design.
It’s no coincidence that this battle has moved away from, say, patents on refrigerators or bicycles and into software. This is a recent phenomenon: that patents can cover the result or outcome of a piece of software, and not merely a physical aspect of mechanics. The problem here is obvious: while you may build a refrigerator many, many ways, what matters are the mechanics of the device, not the result (ie – cooling or freezing its contents).
You can build an application many ways as well – use any of multiple languages and write virtually limitless ways of having the program perform a task. But the outcome is limited and even predictable: a piece of software that, say, allows an action in one click instead of two. That points an arrow toward a destination. But these are the very outcomes that have been restricted by patents. Nothing about the code itself, but a clamping down of the outcome of that code.
The eventual end to all this, I imagine, is that larger companies holding fistfuls of patents will incentivize upstarts only so far as it serves them, gobbling them up and bringing their ideas and innovation into the fold, and not necessarily to see such ideas to fruition, but just as often to squash them before they can represent competition to the existing cash cow. While patent lawyers and patent law grow fatter and fatter until there are few reasons to create at all, save to serve patent holders and hope for acquisition dollars.
How does this serve innovation? It doesn’t, why do you ask?
In many ways, arguments for thick copyright are just more of the same polemic side-choosing that we see in most public politics. We’ve become convinced that doubt or criticism of any current policy is the sine qua non for two-party schisms, and that any uncertainty or two-sidedness is the mark of a hopeless, temporizing waffler. That any insecurity need be squashed, and that our policies should bear no scrutiny unless paraded as political spectacle.
Such it is with a recent speech for the American Association of Publishers given by US Register of Copyrights Maria Pallante. She seems determined to express her position with polemics, as if doubt, consideration, and scrutiny would be akin to a show of weakness. This is endemic of our 24/7 news culture, however, where one is free to assert a stalwart and contentious stance on an issue that – mere years later – turns out to be completely misconceived and erroneous.
Take the battle against the VRC, the mix-tape, and cable television as fine examples of this. Bought-and-paid-for politicians echoed industry lobbyists in asserting the evil of these devices, only to forget their complete lack of prospection when such technology produced more media, not less; more money, not poverty.
She begins with the popular mantra: “It goes without saying that where there is publishing, there is copyright,” which would come as a great surprise to Nigerians, who make 1,200 films a year (the US makes about 600) without any existing copyright to protect the content. Implying that publishing cannot exist without copyright (particular in its current, unprecedented form) is wholly bogus, and implies that the argument for whether copyright is needed at all is completely off the table (which it certainly is not).
She also says that rights-holders have “long served the public interests,” but this has to be a joke. Any “service” rights-holder have performed is – at best – an adventitious outcome to serving their own best interests. Let’s be clear: rights-holders do not care about common interests, about public benefit, or even about art. They care only for return on their investment. This is not – in and of itself – wrong or egregious, and certainly isn’t evil. It is, however, NOT to be confused with benevolence, concern, or public service.
Pallente also makes a rather circular argument regarding copyright “respect” by citizens, suggesting that if copyright in its current form is not adhered to, then congress will have no choice but to make the laws stricter. This one-way-valve approach is for more “dangerous” (a word she uses for a lack of respect for current copyright) than actually thinking critically about WHY people might not abide by current copyright laws.
This suggests that the only path toward compliance is to tighten the belt, restrict more content, enforce more laws, enact greater controls. This wholly ignores the possibility that applying heavy-handed, thick copyright to modern media is counter-productive to all but a select few (those already owning massive amounts of content) and highly detrimental to anyone creating content hereon or to those consuming it.
I understand that context indeed matters. She is speaking to a group of old white guys who own a lot of content, so of course she’s going to kiss their asses and suggest that they are nothing short of demi-gods of information and pillars of our age. She needs their support. But to suggest that copyleft agenda are laughable and “dangerous” ignores the slew of well-educated, forward-thinking, powerful minds showing daily that what she believes to be a bulletproof truth contains myriad flaws. Just as similar arguments from our past we now know and believe are ridiculous, such as copying sheet music bringing about the end of music creation.
So once again we come to a rather frustrating impasse: where corporate-funded politicians and state-appointed potentates such as Pallente have only one rabbit in their hats – absolute compliance. No criticism. No introspection. No wiggle room. But so long as the same economic cycle continues, the same policies will resurface. SOPA will be back. Three or six or however many strikes will again have its turn. The very ideals necessary for real change in the way we handle IP in the US will simply not come from our government, not so long as they remain perpetually beholden to corporate interests.
Oh, and what does this have to do with art and culture? Nothing. Why do you ask?