A wise man once told me that creating a wholly new and original work of art is nigh impossible these days. We have been creating art, music and told stories since the dawn of time. Over the years we have mostly exhausted the pool of original ideas out there. Most people find this out the hard way. I would be a rich man if I had a penny for each time someone come up with a “revolutionary” awesome idea, and then googled it to find out it was already done, cloned, copied and subverted. Then it died, was revived in the 60’s, went out of style in the 80’s and now it’s coming back.
Not only that, but we also have this thing called simultaneous invention. I wrote about this phenomenon before so you can check out that post if you missed it. TLDR version is that scientists and technologists who never met or even heard about each other can often come up with very similar ideas around the same time. For example there seem to have been at least six different inventors of the thermometer and no less than nine claimants of the invention of the telescope. Yes, I’m not shitting you – go click on that link, and read Kevin Kelly’s post I’m referencing. This is just how science works. Or rather, this is how human mind works.
This idea of simultaneity applies to art, music and literature as well. Creative minds will often come up with similar stylistic approaches, styles and sensibilities independently.
So on one hand we can see that all artists are influenced by the things they have seen in the past, the works of their mentors and idols and the classical pieces they studied. Their minds are pre-loaded with existing templates upon which their draw. Every piece of creative work they produce somehow tainted by these experiences. On the other hand there is a tendency for independent artists to coverage onto similar ideas from different directions.
Everything we create as a species is by definition is redundant and derivative.
Creative process is less about originality, but about taking the existing building blocks and arranging them in interesting ways. Similarly, we judge art, music and literature not on how original it is but rather whether it conveys a poignant message, provokes a reaction or evokes an emotional response. No one really cares that the individual components are not original as long as the end product offers something more than merely the sum of it’s parts. Borrowing, referencing, adapting and outright emulation are all fair game. They have always been.
We currently live in a wonderful age of digital media where information can be copied, remixed and mashed up almost effortlessly by just about anyone. In the past, an artist who wanted to “borrow” from another work had to go through the process of re-creating that element. Today, he can simply copy and paste it. Now we have people who create original work that derivative – composed solely from bits and pieces “borrowed” elsewhere, edited and mashed up together. Let me show you an example – here is a video which was made by stitching together short clips from various movies and TV shows and arranging them to sync up with a background beat:
‘The Golden Age of Video’ by Ricardo Autobahn youtubed by spraynetdotcodotuk
You could argue whether or not something like this constitutes art. It is creative, entertaining and awesome though. I would also argue that it is good precisely because it steals and borrows content from elsewhere. It works, because each of the short clips used to create the video triggers a personal memory. It not only bombards us with nostalgia but also breathes a new life into these half forgotten, cherry picked moments of awesomeness. It is certainly more than merely the sum of it’s parts – and as such it is valuable, and worth seeing.
Sadly, under current copyright regime such remixes and mash-ups are un-poducts. Legally ambiguous at best, illegal at worst. It’s basically like this – these derivative works are relatively safe, because it would be too expensive for a copyright holder to sue it’s creator for using a 5 second clip somewhere in the video. Also, if they do sue they are not guaranteed to win. Depending on the context, the length of the clip used, and the intent the creator could sometimes successfully argue that his work is protected under the fair use clause. Maybe…
An obvious solution here would be to obtain the permission from the copyright holder. Have you ever tried to do it though? How do you get a permission to use a 5 second video or audio clip from a major motion picture or album? You don’t. You will be lucky if the copyright holders even acknowledge your existence by laughing in your face and showing you middle finger. They probably won’t even do that though – they will ignore you.
So while creating mashups is easy, legalizing them is not. What is worse, this type of creative expression is becoming more and more common as the music/video editing technology available to private consumers improves, and their internet bandwidth increases. On one hand we have masses who want to create and publish their own legally ambiguous mashups. On the other hand we have media industry lobbying the governments all over the world to tighten copyright law and crack down on the internet as a one big tool for piracy. These two movements are on a collision course and that worries me. How do we reconcile this?
I have said it before and I’ll say it again – our copyright law is obsolete and outdated. It is an archaic relic from an era that is long gone and will never return. It had an important role in the past, and parts of it still have use today. But right now it is more of a nuisance than anything else. Tomorrow it will become a hindrance instead – it will be our cultural ball and chain.
I tell you this – we are moving away from physical media. Our art, music, literature and cinema can now be accessed digitally. They are no longer tied to physical anchors that inhibit their distribution. Anything you digitize becomes a virtual commodity – an idea. It can be copied at the speed of thought. This will only become more ambiguous in the future when the line between man and the machine starts to fade, and when human consciousness will no longer become independent of the physical shell that contains it. Can virtual commodities consumed by virtual beings that exist in virtual worlds be controlled using laws that were written to control physical media? Can we police digital minds to make sure they are not using copyrighted thoughts?
Hear, hear! It couldn’t have been said better.
First of all, I am somewhat sympathetic to mash-ups. I also think copyright should allow for a certain degree of borrowing, provided that it’s not undercutting sales of the original product. For example, if someone uses a five second clip from a movie, I don’t believe anyone can claim that the movie-copyright holder was somehow damaged by that. If someone posts the entire movie online, then the movie-copyright holder can complain about that. If someone uses a thirty-second clip of music as background during a (non-commercial) YouTube clip, then I don’t think the music-copyright holder is harmed by that. In cases of shortened music clips, I think it even helps sales. Based on looking at iTunes (which contains 30 second clips of songs), you can conclude that having no music clip is worse than having a 30-second clip. And having a full-song is worse for sales than a full song (which is why they don’t allow you to get the full song). There is an ideal middle-ground.
Regarding the “Every piece of creative work they produce somehow tainted by these experiences.” Copyright should be about controlling the copying of the original work, not about a whole class of works (which would be more similar to a patent). If two people come up with songs that sound very similar, I don’t see a problem with that. If someone looks at a software program and writes their own version (using their own source code), I don’t see the problem with that, either. In copyright cases, it’s not about “are we influenced by”. This isn’t a binary “no there was zero influence” or “yes, there was influence”. Rather, it’s a question of how much did you copy from the original piece on a scale from 1 to 10. A “10” would be outright copying and filesharing.
“I have said it before and I’ll say it again – our copyright law is obsolete and outdated. It is an archaic relic from an era that is long gone and will never return.”
Laws that follow the spirit of copyright is necessary in modern society. Whether or not any particular details need to be changed is worth discussing.
“Anything you digitize becomes a virtual commodity – an idea. It can be copied at the speed of thought.”
Well, you could say the same thing about the printing press or copiers. Did we eliminate copyright because it was somehow the printing press and copy machine were incompatible with copyright law?
“But right now it is more of a nuisance than anything else. Tomorrow it will become a hindrance instead – it will be our cultural ball and chain.”
As a software developer, I think we’re headed towards the dark ages if we undercut people’s ability to earn a living from their digitally-based work. This seems to be what you’re implying. Since software can’t be easily cut-up or remixed, the only thing you can do with it is wholesale filesharing. And wholesale filesharing is exactly what will undercut people’s ability to earn a living from their work (and if you do that, they’ll go do something else). So, I don’t see how copyright is at all a hindrance in the case of software.
Well said. But was the post cut short? I miss the final couple of paragraphs that outlines a working suggestion on how to modernize current legislation in a way that everybody is happy with. ;)
Brit wrote:
Nope, other way around. We have copyright law right now because the invention and proliferation of printing press created a publishing business that could generate vast profits on books without kicking anything back to the author. Before printing press we had no real concept of copyright. Books had to be copied by hand – that was the only way to preserve them. It was a time consuming and expensive process though.
In other words Copyright law was put in place to prevent the man from screwing the little guy. It was supposed to empower the original creator. Of course the man found a way to circumvent it. Nowadays publishing houses and recoding studios make content creators sign away their rights in exchange for upfront investment and royalties. They become the copyright holders.
In the past there were really three variables in this equation:
1. The content creator
2. The publisher/distributor
3. The consumer
4. The library user who waits and eventually gets to content for free
Now the stage looks a bit different:
1. The content creator
2. The distributor (often a vestigial parasite entity now that self publishing is a viable option)
3. The first hand paying consumer
4. The second hand paying consumer
5. Mashup creator (who is inspired by content creator)
6. The cracker (who “liberates” content from DRM for personal glory)
7. The Pirate/Library guy (who will consume content if available for free, but will never pay for it).
8. The non paying fanboy promoter (who doesn’t buy content, but runs fan website about the creator, participates in mailing lists and evangelizes to the masses, uploads clips to youtube and tries to turn everyone into a fan)
9. The guy who rents rather than buys
10. etc…
There are many more players, many more markets and etc. Publishers and distributors are starting to matter less and less now that content creators can self publish and sell their content directly to their fans online. All I’m saying is that we need to reform this law to get it back to it’s roots – protect the interest of content creators. Both those who create original work, and those who remix and mash up, rather than have it work to protect distributors and publishers who may or may become obsolete in 5-10 years.
Brit wrote:
This is a common misconception. Have you noticed that we have a thriving open source community out there? We have people creating software for free. We have people building businesses around free software. We have people making money selling open source software.
Besides, copyright laws sort of work with software. Furthermore the world of software often doesn’t have the dying parasite of “publisher/distributor” who is exploiting the content creator. In a way it’s much healthier than the entertainment industry.
Then again, copyrighting code is a bit like copyrighting mathematical formulas. A silly thing to do. Again, we are applying an archaic set of laws designed for regulating publishing industry to a new science.
Computer science is sort of the magical branch of mathematics which takes the theory and coalesces it into practical existence. Procedural dreams made reality. And it should be treated as such – as practical implementations of abstract ideas. And it should be treated as such.
Tino wrote:
That part is left as an exercise for the reader. :)
“We have copyright law right now because the invention and proliferation of printing press created a publishing business that could generate vast profits on books without kicking anything back to the author.”
I believe that’s a myth – a myth which is is being helped by people in “free culture” movement. What’s funny is that when an author makes a lot of money, people say, “He makes too much money! Eliminate copyright!” If an author makes a moderate amount of money, people say, “The publisher is stealing all his money! Eliminate copyright!” If publishers really were stealing all the authors money then explain why authors support copyright. Explain how J.K Rowling, Stephen King, or all those musicians (Michael Jackson, MC Hammer, etc) have earned so much money. Even in past centuries, authors have complained about their books being published overseas without payment to the author; and if that author wasn’t getting paid by the publishers, then why would they care? I do not believe that this money is being stolen out from under the authors, and I think you’ve bought into a myth designed to erode support for copyright laws.
“In other words Copyright law was put in place to prevent the man from screwing the little guy. It was supposed to empower the original creator. Of course the man found a way to circumvent it.”
I make more money from sales of my software than my publisher does. Again, I think this is a myth.
“Nowadays publishing houses and recoding studios make content creators sign away their rights in exchange for upfront investment and royalties. They become the copyright holders.”
I still control my copyrights, not my publisher. I will admit that small-time bands probably do give-away too much to the publisher when they sign. At the same time, they’re in the same position as every small business that gets venture capital. If you have a small business, and the odds of success are low, then investors (or publishers) will want to offset that high-risk of failure by higher rewards (for themselves) if you are successful. It’s like this: you walk up to a roulette wheel in a casino, and there are 40 numbers on the wheel. If you place your money on a single number, you want big rewards to offset the fact that you will lose 39 out of 40 times. That’s what publishers are doing. I’m not arguing that they are being entirely fair to musicians, I’m just saying that you’re always going to see it as unfair if you aren’t aware of the risks. Musicians would be in a lot better position to negotiate with publishers if they already have lots of fans – because then the publisher isn’t taking risks. I think that the elimination of copyright is like burning down a whole village because you don’t like what one guy in the village is doing. For those of us also in the village, it seems extreme.
“Publishers and distributors are starting to matter less and less now that content creators can self publish and sell their content directly to their fans online.”
So, you’re saying that things are naturally turning around in favor of the creators, and you want to do away with copyright before the creators really get to benefit from the turnaround?
“This is a common misconception. Have you noticed that we have a thriving open source community out there?”
First, most open-source advocates are blind to the weaknesses of open-source. They think it can accomplish far more than it can, and this line of argument is essentially “burn-down copyright, we have faith that open-source will pickup the slack”. Open-source is alive today. If it supplants proprietary software, then that’s fine. But, open-source hasn’t replaced it, despite the huge advantage that it’s free. Have you played any good open-source games lately? How would you compare the quality and variety of open-source games to the quality and variety of closed-source games? I don’t think there’s any contest. Closed-source still rules the game-world, despite the fact that open-source is free. If people can afford to live off their work, then more work gets done.
“We have people creating software for free. We have people building businesses around free software.”
Only in a handful of cases. The most popular and successful open-source projects are being funded by large software companies. Firefox received enormous amounts of money from Google. Linux is getting enormous money from Microsoft’s competitors. What about software that isn’t in a position to be used as a weapon against other corporations? What about software that isn’t used as middleware by corporations in an effort to sell something bigger?
“We have people making money selling open source software.”
You mean by providing support (e.g. Red Hat)? That only works for them because their software (an operating system) is flexible, difficult to manage, and used by corporations. You can’t generalize that to the rest of the software industry. (Do you think Blizzard should have to give away Starcraft 2, and charge for support?) The problem is that the biggest, most expensive thing we do is create software. Telling people to make money on support is a little like telling a waiter that he will no longer get paid by the restaurant, and that he can no longer keep his tips, but he DOES get to keep the leftover food that customers leave on their plates. Yeah, it’s not nothing. It’s just that you’ve taken away most valuable parts, and left us with scraps.
“Then again, copyrighting code is a bit like copyrighting mathematical formulas. A silly thing to do.”
Nah. Software is far more complex than just a series of mathematical formulas. Saying that is a little like saying “War and Peace” is just a string of letters, or human beings are just a bunch of molecules – it’s technically true, but oversimplistic.
“I miss the final couple of paragraphs that outlines a working suggestion on how to modernize current legislation in a way that everybody is happy with.”
I think I pointed out a couple things already – copyright shouldn’t be used to block snippets of media. I actually think media companies need to be more laid-back about what they block, but I think it’s entirely reasonable for them to block wholesale copying of their work.
Just a sidenote: Of course, this gets tricky, because you don’t want someone taking snippets of media and turning it into a complete whole (which is essentially what BitTorrent does). To use an example, we could ask what plagarism is. Theoretically, I could use a single word from a book, and that’s not plagarism. But, what if one word isn’t plagarism, then what if I took two separate “unplagarized” words and stuck them together. If I add one more word over and over, I could reconstruct an entire book, which would be plagarism. At what point does N words + 1 word become plagarism? We all know that it becomes plagarism at some point, and the same could hold true of copyright. Little snippets could be considered “non-infringing”, but we can’t allow people to stick them together back-to-back without producing copyright infringement, just like plagarism.
By the way, to backup my statement about corporations paying for open-source, here’s an article about Google paying money towards Firefox:
“In return for setting Google as the default search engine on Firefox, Google pays Mozilla a substantial sum – in 2006 the total amounted to around $57 million, or 85% of the company’s total revenue.”
http://www.techcrunch.com/2008/08/28/mozilla-extends-lucrative-deal-wi th-google-for-3-years/
For obvious reasons, this isn’t a system that can work for most consumer software.
Brit wrote:
Not really a myth. Here is an excerpt from the wikipedia article on history of copyright:
Brit wrote:
Btw, I never said that publishers are stealing from the copyright creators. I said they are a vestigial organ, yes. But they do keep their VIP authors, stars and singers quite happy. Stephen King and JK Rowling get paid very well because they sell shitload of books. Michael Jackson got paid well, because anything he touched was literally turning into money. Because of their talent, fame and status these people can negotiate whatever contracts they want. They can retain their copyrights, they can get high royalties and etc.
New content creators who are trying to break into the business – not so much. First, they have to be discovered and make one of the publishers/distributors notice them. Their first contract will usually be very unfavorable since the publishers will want to protect their investment. If they succeed and make their publisher a lot of money, they may have a bargaining card to re-negotiate better condition. That first step is very difficult though – the competition is fierce and if you get a lucky break it usually comes at a price. Still, if you are good you can make money.
Today we have a second channel though – some people become famous without the middle man. They can build a fan base without signing away their soul. I believe this is a new trend, and that it will become a norm rather than exception. Distributors will become irrelevant because no one will need them. Not because they are evil – they are usually not ( They just want to make money like everyone else). Not because they steal (they don’t, they just want to make money… etc…). No – because they will cease to be relevant in a world where all communication is instantaneous, bandwidth is nearly unlimited and physical media is something you see in a museum. There will be no place for them in that brave new world. :)
Brit wrote:
Yep, that’s how its supposed to be. Again, Software industry is much healthier in that aspect. Musicians get shafted the most. But again, if you are good, you can get ahead. I’m not demonizing publishers and distributors. I’m just saying they will fade into oblivion eventually.
Brit wrote:
Ack. No – I didn’t say eliminate copyright. I said reform it. Change it to accommodate stuff like remix culture. Take a long hard look at how we distribute digital media. Consider how much impact piracy has on sales. Everyone assumes that that every pirated copy is a lost sale. That’s obviously not true. I would dare to say that piracy has little effect on sales in general. It probably has some, but not much. But that’s something that should be explored. I don’t have the data to back my claims up.
All I’m really proposing is to extend the Fair Use provisions to cover remixes and mash ups though. Rest can be argued for and against.
Brit wrote:
Nope, I’m saying that while the distributors and publishers matter less and less, they are getting more ferocious lobbying for stricter copyright. They are not doing this to protect the interests of their clients, but to protect themselves in case their clients get a crazy idea they don’t need them anymore.
Brit wrote:
Of course not. Video are entertainment products these days. They require cooperation between artists, voice actors, writers and coders. Open Source movement is mostly embraced by hackers. The creative types have the “creative commons” licenses but they are not as prominent. And without these folks on board, creating modern open source games is difficult. Open source engines on the other hand are a different story.
Open source is good at starting things – building frameworks, engines, low level systems. Creating polished up UI and tailoring it for best user experience is something that done well by closed source companies.
But yeah, let’s not burn copyright – let’s revise it. It seems strange to copyright software, but if it works let’s leave it as it is. For now. This rant was mainly about movies and music. I think we are getting side tracked with software now.
Brit wrote:
Wait… How is that an argument against Open Source software in general? The fact that corporations want to invest in it is a good thing in my book. And again, open source software movement was created in response to copyright laws being restrictive and favoring corporations over individuals. It is about giving the code back to the masses. An if it can benefit both the lowly hacker and the high power CEO the better.
Brit wrote:
No, that wouldn’t work. They could however make World of Warcraft open source – after all the main draw of the game is the community and the ability to play on their servers. And btw – there are semi-legal “free private” WoW servers out there. Blizzard is still making a killing on subscription though, because most people prefer to play on the official servers.
Brit wrote:
Wait… Waiting on tables is a service. This allegory does not work. We are talking about selling software as product vs selling software as service. Waiting tables is already a service.
Let me try to find a better example:
Proprietary food manufacturer will sell you food as a product. They will put it in a black box. You just bring it home, add water and heat it up. The sticker on the box says that unsealing the box means that you agree to an explicit license that says that you will not try to reverse-engineer their recipe or try to alter the formula in any way.
An open source restaurant will post detailed recipes on their website so that you can prepare a meal at home if you wish. But if you want to have it cooked by their expert chef and be waited at, you will have to pay for the meal (because it costs them time, effort and resources to prepare) and tip the waiter. That’s selling food as a service. This is why restaurants are usually reffed to as “the service industry”.
Of course both models work reasonably well. There is place for both out there just like there will always be place for both proprietary and open source software. I never said we should abolish proprietary software.
All I’m saying is that I feel filthy selling software. To me it feels like I’m ripping people off. I much rather offer a service rather than sell a product. But that’s me.
Brit wrote:
Agreed. I oversimplified.
Brit wrote:
I’m in complete agreement here. I’m just saying than rather than just hope companies will be laid back about this we add some legal support for stuff like mashups, remixes and etc.
Brit wrote:
I think this issue is currently handled by looking at the intent and context in which the word was used. I’m pretty sure the “I cut it into small pieces and posted them separately so this is not infringement” won’t fly in court because it can be proven that the intent was to commit copyright infringement.
When we add mashup and remix stuff to fair use clause we can hammer out legal language that will ensure people don’t use this as a loophole.
Knowledge is Open Source…
Life should be more like star trek, they do things for the betterment of mankind… not for personal gain. Now mind you… I am a very big fan of the capitolist system, and don’t care if people try to make money… or that there are rich people.. but when you develop something you should allow others to take what you developed and make it better. Singers should sing because they enjoy doing it, not to make millions of dollars… Look at the late Chris LeDux thats how he did it… he sang, he released a few CDs but he mainly enjoyed doing the rodeo circut and singing was something he did because he enjoyed it.
F Copyrights o/ Kopimi
How about writing your congressman? Pennsylvania congressman Mike Doyle has taken an interest in this. Check out this article: http://doyle.house.gov/newsrel/071029.htm. Perhaps if we all write our congressmen we can get a bill passed!