Sharing stifles creativity? Why this guy is just flat-out wrong

So I read this article today with this guy whining about piracy, file sharing and the music business and I’m compelled to make a few points. No sense in beating around the bush, let’s get started at the beginning, with the headline.

“How a generation’s freeloading has starved creativity”

Starved creativity? The last I checked, there is more music being produced today from a wider range of artists with a more diverse sound than ever before, and that’s expanding. There’s more books being written and available by a wider range of authors with more diverse styles than ever before, and that’s expanding. Creativity hasn’t been stifled at all. It’s been unleashed in a major way. The studio system (and the traditional publishing industry among others) is what stifled creativity. If you want to argue that the changes have stifled these old school media conglomerates’ ability to dominate their respective industries, I can get behind that. But it has in no way stifled creativity. Just the opposite, in fact. It’s generally a bad sign when the headline of your piece kicks off with unsubstantiated bullshit. You’re basing your argument on a false assumption right off the bat, and an easily refuted one at that.

“Things changed for me when I got a job in a Brooklyn café in the late 2000s. Many of the most respected and critically-praised bands of the day were customers there, but my excitement at getting to know them was dimmed when I realized that rather than enjoying the fruits of their success, they were, well, just as broke as I was.”

And if you’d gotten that job in the pre – Internet ’90s, they’d still be just as broke as you were. Same goes for the ’80s, ’70s, ’60s etc, etc. Conflating that with the coincidental emergence of file sharing is a mistake. He goes on:

“Apologists for digital piracy advanced one fantastic new rationalization after another—that artists would actually be helped by their rights getting trampled; that old-timey models like touring and merchandise would magically become a cash cow; that you could solve the whole problem by just letting fans “pay what they want.”

If you retain control of your rights, you have the choice to allow sharing of your music or not. Unless you’re signed on with a big label, in which case you have no choice in how you’re music is distributed or shared. That’s evidenced by this guy, the musician Kaskade, who is directly opposed to his label suing for copyright infringement but he has no legal right to stop them or to determine what he considers an acceptable use of his own music. In that sense, you’re correct that artists’ rights are being trampled, by their own labels.

Touring and merchandise are old timey? How much do you know about the music industry? Touring and merchandise were where artists made their money in the past. The labels made their money from album sales (whatever format) with contracts structured so that even some of the most successful bands ended up owing money to the label when all was said and done. If touring and merchandising aren’t cash cows, then why are record company contracts increasingly demanding large cuts of any revenue bands earn from both of those areas? Bands are broke because of the labels and their exploitative advance structure, their accounting practices and increasingly grabbing revenue from touring and merchandise that bands themselves generally controlled in the past. These aren’t problems the internet or file sharing created, this is the result of the standard operating procedure of the labels.

The book industry isn’t quite as exploitative as music, but they’re not far behind. They, too, use an advance system and accounting practices that virtually guarantee the majority of books never get to the point of earning royalties above the advance (and not because advances are high or because the books themselves aren’t largely profitable). They, too, try to lock up other rights so authors can’t generate any other income streams on the material, even when they have no intention of exploiting them.

Did you see the recent UK report that showed writers’ incomes shrinking? Most of those writers were longtime traditional writers. Publishers have been establishing a low rate for ebook royalties that pay them more but authors less than on a regular print edition. They focus their sales efforts on ebooks and high discount print books, both of which cut authors’ compensation per book dramatically. The internet isn’t causing these authors’ incomes to shrink, their own publishers’ actions are. And not coincidentally, the publishers are reaping sometimes record profits.

And fans have always paid what they want. If they want it new, they’ll buy it. If they don’t, they’ll get a copy from someone or they’ll buy a used cd for a few dollars. Today, they may download it. They used to record it from the radio or television. But if you only offer one full price option, and somehow magically eliminate any possibility of obtaining any other copy, you won’t see more sales. You’ll see significantly fewer. Not to mention a whole lot of pissed off people with money in their pocket that might have decided to spend it with you now and in the future.

“The people who fought against copyright in this battle would have to confront the fact that they were never carrying the flag for freedom or “openness”, but for aggression, entitlement and selfishness.”

Like it or not, we live in an increasingly on demand world. You can call it entitled and selfish all you want. It’s not going to change it. The people you’re trying to sell to want what they want when they want it. The technology exists to give them exactly that. And everybody knows damn well digital distribution is far cheaper than physical, so prices must reflect that. There’s a huge stream of people looking for music and books 24 hours a day, 7 days a week. Not providing what they’re looking for in the price range they’re looking for, that they can access in the way they want to is their failing, not the internet.

Even then, people will still seek out free alternatives. I downloaded my first song in 1998 on AOL dialup. I had been a huge music collector for a full decade prior to that. At no point in those 10 years pre-internet, was I ever not able to get a copy of any damn thing I wanted for free. The internet didn’t invent this behavior, it’s been with us for a long, long time. What happened to the music industry as technology proliferated to allow people to make and acquire copies of music on their own? It grew exponentially. When did it shrink? At the precise time they chose a strategy that openly attacked the sharing of music. That’s not a coincidence.

“Don’t make the mistake of thinking the torrent-indexing websites that popped up in my search results are just rambunctious, boundary-challenging adolescents swapping files with their friends, as Napster disingenuously spun themselves.”

That’s precisely what most of the people using Napster (and later Limewire) were. The music and film industry stomped on them, leading to the development of torrents that let little pieces of files be downloaded to and from multiple sources so no one except the few souls who seed ever actually made a full file available for download. It drove them from their own communities into the arms of the profiteers like Megaupload. The persecution of which, by the way, regardless of what you think of them, is a disgusting abuse of law and power. Read up on it.

It’s a bit like the gateway drug problem, I think. These sites make millions precisely because the actions of industry drove sharing amongst individuals underground. Without those acts, people would be openly sharing within their own communities now instead of enriching parasites. If there’s any gateway effect to marijuana ( and I don’t think there is) it’s caused by the prohibition. The only place you can get pot is from that sketchy guy on the corner who’s also got meth, heroin and some blow. Take out the prohibition and exposure to genuine bad elements drops dramatically if not altogether.

Black markets come about when there’s a gap between what a sizable portion of the public wants and what’s available to them. Drive off the safe alternatives and you’re left creating many more problems than you solve. I don’t get down with media companies decrying the black market when their own actions created the problem and made it exponentially worse.

“The big question is: how would things look if the illegal free option weren’t as convenient? Would Hollywood not be quite as dependent upon comic book blockbusters and take a few more chances on new stories? With stable promotional budgets for record labels and studios, a few more daring artistic voices might find an audience, and charge their way onto the pop culture radar, and even change the way some of us think about the world.”

Hahaha! No. I’ll tell you what it will look like, exactly like it looked in the late ’80s, stagnant and repetitive. The only time new voices got through was after an independent movement somewhere built the momentum for it. And then, the labels would descend, sign up every band that remotely sounded like the new in-thing, saturate the world and squeeze every last dollar out of it before moving on to the next hot movement (see: Seattle in the ’90s).

On top of that, with increasing digital sales yet no free option, discoverability, which largely happens word of mouth from sharing, would take a huge hit. Sales of all but the biggest names would plummet and we’d be left with far fewer risks being taken and far less unique voices ever getting a chance. You know, precisely what was happening before the internet came along.

“Forging an internet that takes individual rights (including privacy), cultural diversity and sustainable progress seriously also requires that consumers get on board.”

Ah, yes. Please pay considerably higher prices so we don’t actually have to adapt or alter our ridiculously outdated and inefficient corporate structure, or even pay lip service to giving you what you actually want for those higher prices. Get on board, already!

“We are all entitled to fair compensation for our work.”

I see, customers are entitled in a bad way for wanting what they want for their money (or not) but labels and artists are entitled in a good way for wanting what they want for your money. Nobody is entitled to make one red cent. You have to convince people to want to pay you willingly. That means convenience, price, format, restrictions on use; everything must be done to appeal to the guy holding a credit card and deciding if he wants to use it. “Hey you! You’re gonna pay more and we’re gonna tell you what you’re allowed to do with it and you’re gonna thank us for it” is a bad strategy.

I do agree in one way with being entitled to fair compensation. But that argument isn’t directed at the internet or consumers. It goes to the media companies. Stop ripping off your artists! You think artists aren’t being paid fairly? Changing conditions so media companies make more money isn’t going to change that. It’s just another version of trickle down nonsense. The labels make more money and those musicians in your coffee shop, they’ll still be just as broke. The copyright argument with file sharing has nothing to do with rewarding artists, it’s all about further enriching large media conglomerates.

“Just as US Supreme Court Justice Oliver Wendell Holmes Jr said of taxes, consider it ‘the price we pay for civilization.'”

The price consumers pay, you mean, in high prices that have no bearing on production costs or market value? Or the price artists pay in exploitative contracts and shriveling compensation from their corporate “partners”? The media conglomerates here don’t pay any price, for civilization or otherwise. They simply reap the rewards of squeezing the only two irreplaceable cogs in the industry machine, consumers and creators.

Why should we as artists have to accept pittance payouts? Why should consumers have to pay more for less? Why shouldn’t these corporations have to alter their business models, ones that developed in a different time and a different set of conditions, to meet the new realities? Why should we have to severely restrict the conduct of people that has far pre-dated the internet and file sharing?

You are conflating the business difficulties of large, once dominant corporations that are becoming increasingly obsolete with a decline in the industry and creativity itself. That’s a mistake. We don’t need record labels. We don’t need publishers. Before much longer, we won’t need film studios either. What we need are artists willing and able to create and customers willing and able to buy. Restrictions and higher price points to support corporate bottom lines achieve neither of those ends.

Piracy and file sharing isn’t the problem. The old industry titans who choose to stand in the way of what artists want, what consumers want and what civilization in general wants; they’re the problem. Advocating for a system that enriches them by taking money out of the pockets of both artists and consumers achieves nothing.

As a final point, there seems to be a thread to the piece that assumes people getting music for free is not good for commerce. Well, take a look at The Live Music Archive. There are over 6,000 bands and 130,000 separate concerts available for download or streaming absolutely free and totally legal. Concerts range from 40 years or more ago right up to yesterday. Many of the artists in here are very well known, many are unheard of independents. But they all allow fans to bring equipment, record their live shows and freely distribute them however they choose. In fact, the one thing they are prohibited from doing is selling them. And the community itself polices that kind of conduct very nicely. There’s a huge sub-industry in music totally outside of the major label system that not only encourages the free sharing of their music, but thrives on it. The most famous band to take this track is the Grateful Dead, who pioneered much of this and parlayed the touring and merchandising you dismiss into being one the highest grossing bands of all time, almost totally outside the label system. Their big label studio albums were almost an afterthought to their career accomplishments.

And as for bit torrent, which you sited as a particularly egregious tool for piracy, look at this. Etree.org has a huge, ever changing list of torrent files for concerts totally free and legally available for download. Bit torrent is far from simply an elicit tool for piracy. It’s used here to great effect to freely distribute music from bands who aren’t cowering in fear of consumers or sharing, bands that are building careers one fan at a time, without so much as a dime of support from the label system. I’ll guarantee you’ll find a wider array of music styles and talent here than any label-driven alternative. Giant media companies, as more of us are learning every day, aren’t the only way to pursue a career in the arts. They’re likely not even the best way.

There are problems with the internet, legitimate problems with piracy, too. But what you advocate benefits a portion of the industry, who also happen to be the richest, most entrenched, afraid to adapt element of it and does nothing to further anyone’s ends but theirs. Take a wider view of things. Track the problems you site deeper than simply, “Oh, Napster caused this” and you may find issues like artist compensation and stifled creativity far predate the internet itself. And who was running the show back then? These same giant media conglomerates. Huh.

Dan Meadows is a writer living on the banks of the Chesapeake Bay. Follow him on Twitter @watershedchron

Stop Stealing From Your Customers! Eroding non-creator copyright protections hurts us all

The past week, I’ve been caught up in philosophical meanderings related to the digital goods business and the notion of copyright law. I’ve read quite a bit here and there around the web on the subject and I see more than a few disturbing things.

1. Most people, including creators, don’t really understand copyright

I am continually bothered by the number of writers, musicians, etc who seem to believe copyright gives them some sort of all powerful right to totally control what happens with their work, even after it’s been sold and is out in the world. Copyright doesn’t do that. It grants you a limited monopoly right to use your work commercially, nothing more. One of the primary reasons there is so much consternation about copyright is that those limitations are slowly being eroded away. Life plus 70 years is a flat-out joke that totally spits in the face of what copyright is all about. Think about this for a second and tell me that copyright’s ends of protecting the public interest even still exist: Not one single American creative work entered the public domain statutorially this year. None. Nada. Zero.

Things like the upcoming Kirtsaeng decision in the Supreme Court, depending on how they rule, and the intricate licensing schemes pioneered by the software industry and dove into whole hog by the media industry purposely erode first sale rights, giving creators control of secondary markets (or the ability to prevent them altogether). That also undermines the idea of limited protections. The newspaper industry fighting against Google News and aggregation is an all-out assault on fair use, yet another attempt to wipe away or severely lessen copyright law’s limitations.

I can’t totally blame creators who behave as though they have some kind of all encompassing powers under copyright, media companies have been working very hard behind the scenes to make it that way for their own benefit. But those limitations exist for a reason. Take them away, and the entire purpose of copyright gets perverted away from a protection that gives creators a fair chance at exclusivity for a while to try and make a buck and allows the public to benefit from these works in a way that promotes future progress. Without those limits, the very progress copyright law is supposed to promote gets stunted.

Copyright law grants you the opportunity to make money, it doesn’t guarantee it, and the value to society on the whole is supposed to be balanced against creator’s interests, protected from the very exploitation the erosion of those limits is actively causing.

2. Very few on the creator side seem to give a damn about consumer rights

This, to me, is the most disturbing trend I see emerging, especially when it comes from Indie authors. You can’t talk out of one side of your mouth about appealing better to readers, then ignore or argue against the idea that readers also possess protections under copyright law that we’re actively taking away through the licensing scheme ebooks are sold under. The digital goods market is built upon a foundation of taking away consumer rights. What’s worse, is that we also have creators out there throwing around loaded terms like piracy and stealing that aren’t accurate. Many times, they’re used to demonize people bahaving in ways they always have with regards to sharing material. Every man, woman and child in this country commits an infringing act on par with downloading a torrent file every single day. Probably several. We just don’t see it and most probably don’t even realize we’re doing it. The internet has brought part of that behavior out into the light of day. That doesn’t mean it wasn’t happening on a major scale before the internet. It absolutely was. It didn’t destroy these industries, in fact, I believe it made them considerably stronger. File sharing won’t destroy these industries today, either. What will, however, is if we continue on a path that makes copyright effectively infinite, steals rights from consumers at every opportunity, and tries to force unprecedented controls onto people for works they’ve already bought. It also doesn’t help if creators act like entitled assholes, throwing accusations of theft around while totally ignoring the fact that their entire business model is based on gutting consumer rights. Take a deep breath, go read up on the history of copyright and try to grow a little perspective.

And remember, the perversions of copyright are being driven by giant media conglomerates for their own ends. They don’t care about your rights as a creator any more than they do the rights of consumers. Don’t confuse your interests with theirs. When they’re done wiping out consumer rights, they’re very likely to turn to undermining yours, if they haven’t already. And don’t expect what fans you have left to sympathize when that happens.

3. Everyone seems to believe digital goods are infinite despite the obvious reality that they’re not

I still don’t understand how otherwise intelligent people buy into this heaping load of bullshit. A big part of the argument justifying swiping consumer rights is that digital goods are infinitely perfect. Come on! Do you really believe that we’ll be reading these same epub or mobi files on these same devices five years from now? Or ten? Technological progress is just going to come to a grinding halt, is it? We’re not going to have better, more capable devices in the future with improved or even radically different formats for these works?

If consumers don’t have any ownership rights in these products, what’s to stop an entire generation of culture from being essentially erased on the whim of corporate interests the next time a shift in standards or new technology comes along? One of the key arguments I’ve seen against second hand goods is the idea that no one will ever buy new if the used versions are identical. To begin with, nothing gets sold second hand without it being bought first hand. And don’t give me the line about people wholesale copying the same file and selling it over and over again. That’s a tech problem no one has bothered to solve because the entire industry was built upon the notion that readers were never going to have these rights. More importantly, when we do have a media shift of sorts, these current files will no longer be identical or the best thing going. If we have resale rights, I could be buying today’s epub files cheaply used or choose to buy the newest holographic version that hits the market in 2025. The long tail may be somewhat infinite, but that doesn’t mean the specific containers we’re using today are. I’m not a big fan of the notion that corporate interests can remove a giant swath of our creative culture just by switching standards or technology. Show me where in copyright law that kind of thing is allowed. It runs directly counter to its stated intent of benefitting the culture.

My perusings through this issue, mostly because Amazon filed a patent they may never even use, have been pretty eye-opening. As much as I love ebooks, and the new digital frontier, there’s always been this nagging little voice in the back of my head and I finally figured out what it’s saying: “Hypocrite!” Despite the fact that I frequently argued against increasingly controlling software licenses during my years in the industry, I never really connected the fact that, when I sell an ebook to a reader, I’m engaging in the same activity that I felt was so exploitative from the other side. I’m starting to get a picture of the weaknesses in selling digital goods, and most all of them stem from the erosion of limits in copyright law. Economic karma, perhaps. It may seem odd that I, as a writer who earns money because of copyright, would argue against more power granted to me as a creator, but I take the long view. It’s simply bad business to rip off the people paying us, and that’s what we’ve been doing from day one. By advocating for or even turning a blind eye to the giant theft of customers’ rights we’ve all taken part in, we’ve created a system that is already doing damage to our culture. Copyright doesn’t just protect creators, it protects consumers and society on the whole in a fine balancing act. What it shouldn’t be doing is warping that balance in support of business models that wouldn’t function without the self serving perversions.

Say what you like about copyright, but its value is much more than simply protecting my rights as a creator. Our system has lurched away from any semblance of balance, and it’s getting more slanted every day.

Over the past few years, I’ve read many articles from creators containing a plea for people to “stop stealing” from artists through downloading. I’d like to end this by throwing that plea back at creators.

Stop stealing from your customers!

Here are the links to the other copyright related pieces I’ve written lately, for you reading pleasure.

The Benefits of Globalization Don’t Apply to the Little People

Second Hand Blues: First Sale Rights and Used eBooks

Amazon and the Mystery of the Great Used eBooks

Second Hand Blues: First Sale Rights and Used eBooks

That sound you just heard was the collective heads of everyone in the traditional mass media industry exploding as news of Amazon filing a patent for a process to resell digital goods spread. Many of them are having enough trouble keeping their heads above water in the current digital marketplace as it is. Now, suddenly, they might have to deal with competition from an area they thought was locked down, resale rights of customers. Oh shit.

Personally, I’m all for this development, although I would much rather someone other than Amazon be the one to push this possibly emerging market. However, the fact that they’re taking steps to be prepared for it again shows why they have essentially made fools of the traditional industry. They think ahead, they pay attention, they prepare and, most of all, their business model adds value for their customers instead of taking it away.

I’ve long been a proponent of an aftermarket for digital goods. I believe it’s lack is the one key flaw in the ebook market. In fact, I’ve started to develop a little theory about this. Far from being just simply a loss of value for consumers, I’m starting to get behind the notion that the lack of an aftermarket is a primary cause of three of the most troublesome issues with ebooks and other digital media; piracy, discoverability and the downward pressure on prices.

1. Piracy

I usually take issue with even defining the activity of file sharing, even obviously infringing file sharing, as piracy. I just don’t think it is. I also think it clouds the issue by broadening the scope of conduct corporations would like to monetize into a individual crime, which hurts efforts to combat actual, destructive commercial-scale piracy. But for the sake of brevity, I’m just going to use the term piracy here. It’s easier to type than “possibly infringing and much maligned but potentially fair use protected file sharing,” which would be a far more accurate description of the conduct to which the industry objects.

The biggest joke of all from the anti-piracy brigade is the assumption that every download is a full price lost sale, complete with lost royalties for the creator. That’s obviously a skyscraper-high pile of horseshit I’m not going to waste time refuting. But let’s say, for the sake of argument, that it’s somewhat true, who’s to say that lost sale would have even been one that affected the industry or artists at all? It’s easy to suggest that someone downloading an ebook wasn’t going to buy it anyway. But what if they were going to buy it, only a cheaper second hand version? Even if it was a lost sale, it wasn’t one that would have earned the industry a dime anyway. Or any royalties for the artists. Amazon routinely lists used alternatives to new versions right on the product page, always significantly cheaper. Is it really a stretch to think that people who choose downloading for free over buying full price wouldn’t also choose to buy cheaper used than new? Even if every download were a lost sale, if those sales were going to be of the cheaper, used variety, the industry and artists lose nothing. And it’s perfectly legal under the first sale part of copyright.

Ebooks circumvent first sale by being sold as a license for use. When that happens, customers lose the ability to resell those goods (among other things). It’s why I can’t just sell the ebook I bought last week from Amazon to somebody else on eBay. But the book publishing industry has long existed side by side with its used counterpart. There has always been a place to buy books at a significantly discounted price. When eBooks took off, however, there was a vacuum left where that discounted market used to be. Isn’t it possible that piracy grew to fill this very gap that the loss of first sale left in the digitized side of the market? We went from a system where you could get books full price new, heavily discounted used, or free from libraries to a system where it was full price new, extremely limited and inconvenient from libraries or free through piracy. The industry, through the means it chose to sell ebooks, removed the discounted option completely, hamstrung the legal free option and then loudly wondered why people pirated.

I think a lot about rights, I am a writer, after all, and I spend a fair amount of time complaining about rights grabs from publishers. But it just dawned on me that I’ve essentially missed the biggest rights grab of all. The way ebooks are sold protects publishers under copyright law, protects authors under copyright law (although I would argue in too ancillary of a way through publishers but that’s for another day) and takes away almost all the rights of consumers under copyright law. It is pretty egregious when you look at it. The first theft was committed when publishers agreed to the licensing scheme and took away customer rights. Then they turned right around, started pointing fingers and yelling, “Thief!”

Removing first sale rights created a vacuum in the ebook market and piracy was what grew in its place. Nature does, indeed, abhor a vacuum.

2. Discoverability

Here’s another thought that’s been kicking around in my head: what if, instead of causing the drop in sales, piracy actually prevented that drop from being significantly worse? Think about it. When digital music hit the scene, that industry panicked, fought the rudimentary early age file sharing spots like Napster and Limewire tooth and nail, right down to suing their own damn customers. At that point, broadband was slower, not nearly as widespread, and most people didn’t know how or have the capacity to download sometimes large music files. As first sale rights fell away, the secondary markets thinned, discovery was hampered and sales dropped precipitously. When ebooks hit publishing, there were well-established file sharing networks in place, broadband was much faster and more ubiquitous. The discovery hit from loss of first sale was mitigated somewhat by piracy and the drop in sales was much lower. Book publishing, quite possibly, was somewhat protected from itself by the very pirates it so loves to demonize.

Look at it this way, when I buy a print book, I can go sell it to someone else. They in turn, can sell it again, the next owner can sell it, then that owner could donate it to the library where it can be checked out over and over again. That one book could pass through numerous hands, all legal and all based on one sale, the first sale, from which publishers and creators reap their proceeds. The rest of that book’s lifespan constitutes exposure, or discovery, if you prefer. Now, if I buy an ebook, other than a limited ability to share with a few people under specific conditions, the life span of that ebook essentially dies immediately after the first sale. All of that exposure and discovery that was present with print books sold with first sale rights is washed away. And again, the industry is perplexed about why people aren’t finding new books as easily as in the past. That kind of thing happens when you destroy the primary mechanisms of discovery by swiping rights from customers.

I’ve seen numerous polls that suggest bookstores are the number one place for discovery of new works but I’ve never seen one differentiate between what kind of bookstores they’re talking about. Is it more likely you’ll try out new authors in Barnes & Noble where you’re paying $10-25 or so on average per book, or in a used bookstore where hardcovers are $2 and paperbacks can be had for 50 cents? I suspect discovery has been done far more at bookstores selling heavily discounted used books (and libraries, where it’s free) than at stores selling only higher priced new books.

Everybody seems to be wondering why online book discovery is struggling so much. Could it be because publishers have hamstrung libraries and blocked the development of discounted used ebook stores by eliminating consumer rights to resale, places where discovery is far more likely to happen than full price, brand new alternatives? Nah, couldn’t be that, must be the pirates, you know, the only place actually emulating the primary means where book discovery was done in the past.

3. Downward Price Pressure

Taking away first sale rights from consumers does one other key thing, it takes away the customer’s ownership stake in the product. If you can resell something, that has value, and when you buy a print book, it retains that value because of first sale rights. But with ebooks, the monetary value drops to zero immediately after you pay for it. Don’t think for a second people don’t understand this basic fact. The loss of an ownership stake, and the instant elimination of any monetary value necessarily degrades a product in the customer’s eyes. By swiping first sale rights, publishers have devalued their own products. It’s the reason why so many people complain so loudly about ebooks priced anywhere near what print versions cost. We’re not stupid out here, we know damn well you’re selling us a product that doesn’t have anywhere near the tangible value of a print book, and that has nothing at all to do with the quality of the book. I can’t sell it and its uses are limited. I possess significantly fewer rights with ebooks. Consequently, it makes no sense to pay print prices for way-less-than-print value.

Then, there’s this. With the aftermarket for ebooks nonexistent, wiping out a highly discounted layer of sales, it created a huge gap between the prices of trad pubbed ebooks and indie books. That, in turn, created a situation where indie books could be priced much cheaper and attract significant sales through super-low prices alone. That, then, set off a race to the bottom fight for those sales, culminating in 99 cent novels, and generally increasing the downward pressure put on all ebook prices. But consider, if there were a used layer there where trad pubbed ebooks could have been picked up for $2-3 or so, the massive gap in prices between indie and trad books never would have happened, the severe price advantage wouldn’t have sparked the uptick in sales that set off the race to the bottom. Indie authors would have been forced to compete on factors beyond simply super-low prices, and the downward pressure they’re experiencing now declines appreciably. Also, if those same customers now bitching about $15 ebooks knew that could get a few bucks back on them through resale, they wouldn’t be so likely to complain about price. They’d retain their ownership stake, and very likely, not balk at paying a few dollars more. There’s two key elements right there driving prices down that go away if customers hadn’t had their first sale rights taken from them.

First sale rights are hugely important. I’m of the mind that swiping them from consumers as ebooks have is responsible for most of the biggest problems in a growing industry segment. An aftermarket isn’t something to be afraid of, it aids discovery, maintains value in the product chain and gives your customers not just a right to resell, but an actual ownership stake in the product, albeit a small one, relatively. It now becomes in their best interest to maintain the value of ebooks because they have some skin in the game. Take them away, and it seriously damages discoverability, drives prices down as the reality of lost value sinks in, and it drives possible customers to alternatives like piracy.

Whatever the technical difficulties in creating a digital goods aftermarket, or giving consumers back the first sale rights that have been swiped by the ebook licensing scheme, the consequences will be far less severe than continuing to treat customers as naive dullards who don’t mind being gouged by higher prices for a lesser product. There’s a good reason first sale exists as part of copyright law, free markets don’t work when one party has too much control over economic activity. If we don’t change course soon, the ebook market will find out exactly how dysfunctional things can get when the playing field gets unfairly slanted. Customers have rights, too, and it’s high time publishing remembers that.

Steal Your Face! The Grateful Dead disproves the notion that sharing is destructive

Get a load of this. Sometimes, I actually enjoy these little screeds that turn up now and again about copyright and the great internet menace. I especially like the parts where the writers pretend like anybody on the industry side really gives a shit about artists. Does anyone really believe the RIAA, MPAA or publishers’ interest in stamping out what they call piracy has even the slightest thing to do with protecting artists? That line is the media conglomerate equivalent of the great political deflection “won’t somebody please think about the children?” These are, after all, entities that have done some amazing work creating innovative accounting tricks specifically to screw over the various artists they claim to want to protect. In reality, their position can be far more accurately described as, “How dare you steal from the people we’ve been stealing from!”

But that’s neither here nor there. Those folks are the real crooks in this debate and just about everyone who doesn’t have a direct financial interest in allowing the continuation of their money grabs from actual content creators knows it. What I’d like to discuss is the principle reason I simply don’t believe that sharing is piracy, and further, why I don’t believe it’s harmful but in fact can be beneficial. All I have to do is look at the wall of shelves filled with cassette tapes in my house, and I see right through the corporate bullshit that has defined sharing as a steeply punishable crime, and re-christened the activity with the much more ominous and deceptive term “piracy.”

Admittedly, cassette tapes are very much a technology of the past, but this is the past I’m talking about here, how casual sharing has always existed ever since there was a widely available means of reproduction accessible to regular people. Far from destroying legitimate markets for creative goods, sharing has been very likely the principle means of discovery for consumers, and I believe it has done more to create demand for artistic works, as well as putting money into the pockets of both artists and media companies, than all the marketing dollars in the world.

To begin, there is absolutely nothing illegal about any of the two thousand or so tapes in my home. Every one is a copy of a live concert recording of bands that explicitly allowed that activity. Every one was either given or acquired by me in a straight trade of other concert recordings with no money changing hands, a behavior also sanctioned by the bands in question. It’s a large and varied selection of some of the best musicians we’ve ever produced, and all indisputably the result of legal, sanctioned sharing. I say this to head off anyone throwing accusations of piracy at me for this collection. But sanctioned or not, I still don’t believe it’s piracy, and I know that it’s far from destructive to the artists.

By the time I graduated from high school, I had been turned on to the Grateful Dead by a good friend when he gave me a few copies of some bootleg tapes of their concerts. This set off a life-long interest in music for me that has directly led to my spending tens of thousands of dollars on CDs, concert tickets, books, tee shirts, even digital music, thus far. I’ve been so appreciative of that act that I’ve returned the favor many times over by giving copies of some of this music to many different people over the years, turning numerous people into fans (and paying customers) for a wide variety of bands.

A few years ago, I turned a friend of mine on to a bluegrass jam band called Yonder Mountain String Band by giving him a copy of a concert recording I had acquired. Yonder also allows taping and the free sharing of such recordings. Since then, he’s bought their CDs, bought tee shirts, hats and seen them perform live at least three dozen times at venues up and down the East Coast, tripling the amount of times I’ve seen them myself. And that’s just one instance with one person and one band. I’ve turned hundreds of people onto hundreds of bands over the years. None of it would have happened if not for that first person handing me that first Grateful Dead tape twenty years ago. I can’t even begin to estimate what the total dollar figure that resulted from my sharing of this material would be, but my best guess is well into six figures, possibly more. Without that first tape, without that sharing, none of that spending exists.

Let’s discuss the Grateful Dead for a moment because, above all else, they are a fascinating case for how open sharing can generate buzz and a paying fanbase, turning a band that the mainstream music industry had little use for into one of the most widely recognized, influential and highest grossing music acts to ever grace a stage anywhere.

The Dead released 22 total studio and contemporary live albums during their 30 years. By contemporary, I mean live albums released as they went along in their various incarnations at the time. They’ve since released over a hundred live recordings from their archives, but the 22 albums I’ve sited are the only ones fitting the standard music industry album release pattern. Of those, only one ever reached the top ten on the charts, that being the 1987 album In The Dark, which peaked at number seven. Only three others even hit the top twenty. As for singles, the Dead had a grand total of one Top 40 hit, Touch of Grey, from In the Dark, which peaked at number nine. Not exactly the kind of success you’d expect to see from a band that ended its run as one of the highest earning bands ever. And unlike the current top grossing bands who charge absurdly high ticket prices, the Dead’s concert tickets were always affordable. I still have my stub from the very last show they ever played at Soldier Field in Chicago in 1995. I had field seats, row 30 from the stage that day, generally pretty fantastic seats. The price printed on the ticket was $33.50. Today, those kind of seats for a major rock band would easily be ten times that, maybe even more.

So if mainstream commercial success was virtually non-existent, how were the Dead able to build the empire they did? They built a large, enthusiastic community of followers unmatched in music history. Name one other band that had a following of tens of thousands of fans who would tour the country with them. Every show. Every tour. Every year. A Grateful Dead show produced a literal village at every venue they stopped at. Bands like the Dead-inspired Phish from Vermont, managed to replicate some semblance of that, but no one has ever fully embraced the notion of community like Jerry Garcia and the boys. It was those bootleg tapes I referred to earlier that were instrumental in building that community. They ended up with a large group of fans who were virtual archivists. I, myself, have over 500 Dead concerts on tape spanning the late ’60s right up to their final show. Honestly, that collection is one of my prized possessions. I’ve since digitized many of them, and I very rarely listen directly to the tapes themselves anymore, but I still can’t bring myself to part with them, and I’m pretty sure I never will. At least not willingly.

Dead fans were a unique group, most possessing an almost encyclopedic knowledge of the band and its music. All of that stemmed from the enormous community they cultivated. And that community, in turn, grew out of the free and open sharing of their material. The Dead became immortalized not by selling records, not by an association with a giant record company, and not by any massive marketing effort. They did it by cultivating a community of fans based very much on the concept of sharing.

While it’s very true that times were different then, and that there are some very real issues with downloading that need to be addressed, I’ve always believed that their approach held many lessons that directly apply to today’s artists, musicians and writers. For instance, the Dead would allow the free distribution of concert bootlegs under one condition–no one tried to make money from them. I saw nearly twenty Dead shows in my time. Only twice did I ever see anyone trying to sell tapes in the parking lot. In both instances, the seller was essentially shamed into shutting down by the fans themselves. The band built such a strong community that they didn’t even have to police the distribution of those tapes, the community did it for them. How many of today’s artists have that kind of mutually beneficial relationship with their fans? I can’t think of one.

Sharing isn’t piracy, and it doesn’t have to be destructive. The Grateful Dead have proved that. Completely outside of the recording industry machine, they built a stunningly successful commercial entity. They did it by building a community with their fans, encouraging the free and open non-commercial sharing of their work, keeping the prices for their material affordable and by retaining all the rights to their recording masters and publishing rights. Seems to me like there’s a lesson or two in there that might apply these days, don’t you think?

Three Reasons Why SOPA Must Be Stopped (and why something like it is probably inevitable)

Tomorrow is the day that a sizable portion of the internet is going black in protest of the egregiously bad, supposedly anti-piracy legislation SOPA. I thought I’d throw my thinking on the subject out there to kick off the much-needed protests.

There are three main reasons why I believe it’s imperative that SOPA, and its Senate equivalent PIPA, be stopped dead in its tracks. Just to be clear, my reasons have nothing to do with so-called piracy. For one thing, as I’ve repeatedly asserted, what’s being defined as piracy by the various media industries is anything but and, secondly, this legislation does absolutely nothing to prevent the real thing. Unless, of course, you consider making the whole of the web totally useless to the vast majority of people a means of fighting piracy. In that case, it’s certain to be wonderfully effective.

Reason 1- SOPA epitomizes the reality that Americans are no longer represented by our government

There is absolutely nothing in SOPA that benefits your average American at all. It is a bill who’s entire purpose is to shelter the media industry at the expense of the whole of the nation. It will cost jobs, it will stifle free speech, it will wipe out competition to legacy monopolies and directly lead to higher costs for just about everything. About the only thing it won’t do is stop piracy. No one outside of disrupted media companies thinks this is a good idea. If this bill were put up for a general referendum vote, it would lose by a landslide of epic proportions. On top of all that, the entirety of the tech industry is virtually unanimous that SOPA will threaten the very fundamental foundations of how the internet functions.

So, with so much destructive possibility and so much united opposition, how is this bill even still alive? One word–graft. Our legislative process is horribly compromised. The one and only reason SOPA exists is because media companies and similar entities have dumped millions upon millions of dollars on representatives’ doorsteps through lobbying and campaign contributions. The will of the people has become almost totally meaningless in the face of this kind of obvious purchasing of government favors. This detatchment between the interests of the people and the legalized bribery of the U.S. Congress is, alone, reason enough to stomp it out.

Reason 2- SOPA provides a framework for media companies to reconstitute their monopolies and eliminate wide swaths of independent competition

One of the worst aspects of SOPA is that is puts the onus for monitoring potentially infringing content on the host sites. This means that sites that use significant user-generated content will have to either pre-scan virtually everything posted there or face severe consequences if so much as a bad link slips through. The cost of this requirement will be prohibitive. But then, I suspect that’s the point. There’s even been several venture capital firms who have come out and said, in no uncertain terms, that if a bill like SOPA becomes law, they will no longer put so much as a dime toward any internet startups. That’s sure to do wonders for our struggling economy.

This imperative will make it significantly more difficult and expensive to operate social networking sites or any sites with independent content from users. It could, conceivably, kill popular services like Google, Facebook, Twitter and Wikipedia, blogging hosts like WordPress, even self-publishing options at sites like Amazon and Barnes and Noble would be at risk. Eliminate or significantly increase the barriers for entry for independent content on the web and guess who benefits? The very media companies lobbying so hard for this bill.

The consequences of being linked to infringing content could be expensive and severe. Worse yet, there’s almost no due process in the proposed system at all, and the entire burden falls on the host to prove innocence after the penalties have already been handed down. Given that some media companies barely admit fair use even exists (at one point, the Associated Press said that quoting as little as four words from one of their articles required a license fee) this is a system that seems almost designed for abuse.

Nothing threatens the future of media companies more than the new-found capacity of independent content creators to market and distribute their work. Eliminate or severely hamper the sites or services they use, and traditional media companies effectively wipe out that threat. SOPA has nothing to do with piracy and everything to do with stifling or outright eliminating competition.

Reason 3- SOPA provides a legal framework and process for goverment to stifle opposition and dissent

The past year has seen several remarkable developments in the capacity of citizens to organize in opposition of their governments. The Arab Spring, protests in Europe and the Occupy movement here are all clear examples. It is significantly more difficult for propoganda to go unchallenged than at anytime in history. If you don’t believe these developments are of the utmost concern to governments around the world, including our own, you’re kidding yourself.

The same provisions of SOPA that benefit media companies by squashing independent content also benefit any government looking to deceive or control its people. This bill would provide effective legal cover for our government to stifle dissent and make it much more difficult for citizens to exercise our Constitutionally guaranteed rights of free speech and assembly.

And consider, when the legacy media once again controls the message, how we are informed, or even if we are, comes into question. If you need any proof of the dangers of allowing legacy media to control the conversation solely once again, look no further than their performance on SOPA itself and the equally questionable NDAA act recently signed into law. These are enormously important issues that threaten the fundamental nature of liberty and our nation yet they have both been largely ignored by the mainstream press. And once the media is given that control back thanks to this government regulation, what are the chances that they’ll significantly challenge anything it does in the future? Their very existence would depend on government stifling legitimate competition. Not only would the media industries be corrupting government by buying this legislation, they’d be compromising themselves by becoming dependent for survival on government regulation.

I can’t imagine a worse turn of events. Freedom of speech, of the press, of assembly all hindered dramatically and further cementing in place a system representative of the highest bidder over the best interest of the people.

Any one of these three reasons would be ample justification to kill SOPA and anything like it. Taken together, there can be absolutely no doubt that this effort needs to die a quick and dirty death.

Unfortunately, these very same reasons are why I’m almost certain a version of this will reach the President’s desk at some point, my guess being after the November election. The media companies will continue to throw massive amounts of money at representatives. Their only alternative is to adapt and compete in the current atmosphere, which many of them have already proven unwilling or unable. Their very survival may depend on changing the nature of the game, consequences to the rest of us be damned.

Government will continue to have a double motive. They will suck up all the money they can in lobbying and contributions. And as people get louder and louder in their discontent with the status quo, as is sure to happen, their motivation to stifle organization and dissent will only increase.

No, it will take a massive sea change in our government to prevent something like SOPA from becoming law eventually. Of course, this kind of far-reaching, self-serving and imminently destructive legislation may be the final impetus that spurs that much-needed change. We can only hope.