opinion

Opinion editorial.

Make Art, Not Law

(Editor's note: We're cross-posting this beautiful essay from ninapaley.com; see also Nina Paley's similarly-titled interview with Baixa Cultura from April.)


Below are the images and text of a Pecha Kucha talk I gave in Champaign, IL. The Pecha Kucha format is 20 slides x 20 seconds per slide. Hopefully the video will be online within a few months.

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You are an information portal. Information enters through your senses, like your ears and eyes, and exits through your expressions, like your voice, your drawing, your writing, and your movements.

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In order for culture to stay alive, we have to be open, or permeable. According to Wikipedia, Permeance is “the degree to which a material admits a flow of matter or energy.” We are the material through which information flows.

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It's through this flow that culture stays alive and we stay connected to each other. Ideas flow in, and they flow out, of each of us. Ideas change a little as they go along; this is known as evolution, progress, or innovation.

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But thanks to Copyright, we live in a world where some information goes in, but cannot legally come out.
Often I hear people engaged in creative pursuits ask, “Am I allowed to use this? I don't want to get in trouble.”

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In our Copyright regime, “trouble” may include lawsuits, huge fines, and even jail. ”Trouble” means violence. ”Trouble” has shut down many a creative enterprise. So the threat of “trouble” dictates our choices about what we express.

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Copyright activates our internal censors. Internal censorship is the enemy of creativity; it halts expression before it can begin. The question, “am I allowed to use this?” indicates the asker has surrendered internal authority to lawyers, legislators, and corporations.

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This phenomenon is called Permission Culture. Whenever we censor our expression, we close a little more and information flows a little less. The less information flows, the more it stagnates. This is known as chilling effects.

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I have asked myself: did I ever consent to letting “Permission Culture” into my brain? Why am I complying with censorship? How much choice do I really have about what information goes in and comes out of me?

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The answer is: I have some choice regarding what I expose myself to, and what I express, but not total control. I can choose whether to watch mainstream media, for example. And I can choose what information to pass along.

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But to be in the world, and to be open, means all kinds of things can and do get in that are beyond my control. I don’t get to choose what goes in based on its copyright status. In fact proprietary images and sounds are the most aggressively rammed into our heads. For example:

“Have a holly jolly Christmas, It’s the best time of the year
“I don’t know if there’ll be snow, but have a cup of cheer
“Have a holly jolly Christmas, And when you walk down the street
“Say hello to friends you know and everyone you meet!”

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I hate Christmas music. But because I live in the U.S., and need to leave the house even in the months of November and December, I can't NOT hear it. It goes right through my earholes and into my brain, where it plays over and over ad nauseum.

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Here are some of the corporations I could “get in trouble with” for sharing that song and clip in public. I wasn’t consulted by them before having their so-called “intellectual property” blasted into my head as a child, so I didn’t ask their permission to put it in my slide show.

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Copyright is automatic and there's no way to opt out. But you can add a license granting some of the permissions copyright automatically takes away. Creative Commons, the most widespread brand of license, allows its users to lift various restrictions of copyright one at a time.

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The problem with licenses is that they're based on copyright law. The same threat of violence behind copyright is behind alternative licenses too. Licenses actually reinforce the mechanism of copyright. Everyone still needs to seek permission – it’s just that they get it a little more often.

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Like copyright itself, licenses are often too complex for most people to understand. So licenses have the unfortunate effect of encouraging people to pay even MORE attention to copyright, which gives even more authority to that inner censor. And who let that censor into our heads in the first place?

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Although I use Free licenses and would appreciate meaningful copyright reform, licenses and laws aren't the solution. The solution is more and more people just ignoring copyright altogether. I want to be one of those people.

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A few years ago I declared sovereignty over my own head. Freedom of Speech begins at home. Censorship and “trouble” still exist outside my head, and that’s where they’ll stay – OUTSIDE my head. I’m not going to assist bad laws and media corporations by setting up an outpost for them in my own mind.

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I no longer favor or reject works based on their copyright status. Ideas aren't good or bad because of what licenses people slap on them. I just relate to the ideas themselves now, not the laws surrounding them. And I try to express myself the same way.

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Like millions of others who don't give a rat's ass about copyright, I hope you join me. Make Art, Not Law.

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Bob Ostertag On Trying Freedom.

Bob Ostertag at work.

This piece by Bob Ostertag was originally published at On The Commons. We're reprinting it here because it's a great description of exactly how distribution networks are still strongly weighted against free-as-in-freedom. The cost of maintaining the monopoly sidewalk is that freedom can grow only in the cracks — and the increasingly eager auto-detection bots keep "repairing" the cracks, because their masters only see the value of the sidewalk. Bob is an active performing and recording musician, and a long-time friend of QuestionCopyright.org (he was one of our founding Board members). His biography is at the end of this article.

We of course hope Bob makes plenty of money from A Book of Hours on CD Baby — there's no contradiction between freedom-friendly licensing and making money! And yes, we recognize the contradiction between his original Creative Commons Attribution-NonCommercial licensing and the freedom of other artists to pursue the same strategy Bob describes below while incorporating his music in their works. In the usual QCO so-transparent-it's-kind-of-edgy fashion, we'll discuss this with Bob and see if he's open to using truly free licensing while still selling his music on CDBaby and similar sites [Update 2013-08: He was, and we're now working with him to relicense his music under free licenses wherever possible.]. But the outcome of that conversation doesn't affect his message below, which is that right now freedom is much harder work than it needs to be, because the major distribution networks still regard it as a weed, and because the few distributors that prioritize a direct audience-artist financial connection are small and don't have the clout — yet — to change how the sidewalks are maintained.

Update from Bob Ostertag

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Seeing the Consequences of Copyright

[This is an editorial we submitted to the New York Times. They didn't print it, alas — don't worry, we'll keep trying with other pieces — but we still think its message is important, so we're publishing it here.]

In the last weeks of 2012, Dr. Oliver Sacks published a memorable essay in the New York Times Book Review, "Reading the Fine Print", about how fewer and fewer books are being made available in large-print editions, and how this matters more and more to him as his vision deteriorates.

Let's stop to ask: Why are they not available? Who or what, exactly, is behind this scarcity?

Sacks's essay does not contain the word "copyright". He looks everywhere else, attributing the decline of large-print editions to the rise of audiobooks (which he dislikes because they are a less engaging experience) and of digital reading devices like the Nook and the Kindle (which are difficult for him to use). After visiting the ravaged large-print section of the Strand bookstore in New York, he writes: "I came out frustrated, and furious: did publishers think the visually impaired were intellectually impaired too?"

This is the closest he comes to identifying the real cause of the problem, a cause entirely of our own making. If there is a ready demand for large-print books — and there is — then what can the explanation be, in a free market, for the steadily shrinking supply?

The answer, of course, is that we do not have a free market in books. We have a monopoly-controlled market: if the copyright holder decides not to offer a large-print edition, then those who need such an edition are out of luck. It does not matter that the readers would happily subsidize the print runs themselves, Kickstarter-style; it does not matter that many smaller and specialty publishers would gladly step into the gap to supply what the big players have decided isn't worth the effort; it does not matter that on-demand print services would eagerly make large-print texts available in an instant, bound and ready to ship, if only they were allowed to. The system we use now does not permit any of these bottom-up solutions to happen at sustainable scale, because in a world where we've just built a gigantic, globe-spanning, low-cost copying machine — the Internet — we have also elected to keep, and indeed tighten, a monopolistic distribution system originally designed to regulate printing presses in the late seventeenth century.

That word "monopoly" shouldn't be controversial. We're used to hearing it about things like liquor distributorships in pliant jurisdictions, or energy utilities that successfully legislate competition out of the way. But if the word applies to anything, it surely applies to copyright: a government-enforced right to be the sole supplier of a text, song, etc, including the right to dictate which formats and which distribution channels copies and variants may circulate in. You'd think we'd be fairly cautious in handing out such a power, but instead in recent decades the monopoly lobby (to be fair, the sound recording and movie industries took the lead, more than the book publishers) have gotten it extended far beyond its original scope, both in terms of its per-work duration and of its censoring powers.

Once you start to see it as a policy choice, rather than as a law of nature — the latter being how that lobby would prefer you to think of it — all sorts of phenomena begin to look different. It's not just about large-print editions. Do you have any idea how many translations are suppressed because rights cannot be negotiated? How many audio books are not recorded because the sole rights-holder couldn't be interested enough to do it themselves, yet is still willing to prevent anyone else from doing it? Did you know that neither the FDA nor private-sector patient protection organizations can review crucial software code in medical devices, because the manufacturers assert copyright and refuse to circulate the code?

For that matter, should George Lucas be the only person in the world who can make Star Wars movies, no matter how badly he botches them? The issue is not that Lucas shouldn't be free to make any movie he wants, it's that the pernicious nature of monopoly, and of the "get permission first" culture it creates, means there is not true competition in the market: no one else is free to try and do better.

The industry's response to this would be, as it has been for centuries, that it is the only way to pay authors. This is laughable. The system was not designed to pay authors and mostly does a lousy job of that. It was really designed to subsidize, and to a lesser degree regulate, distributors, which it accomplishes very well — otherwise they would not argue so regularly and noisily for its expansion.

There's no shortage of concrete recommendations to improve the situation. My organization is but one of many calling for us to step back from the brink and return to treating culture as something people don't need permission to participate in. For starters: bring back registration requirements and renewals; require a fee to maintain a monopoly license; distinguish attribution law from copying law (their current conflation is both the result and the servant of the monopolist's cause); do away with retroactive extensions, retroactively; shorten copyright terms; etc.

But what we need first is a fundamental change in how we think about copyright. It is not a natural law, nor is it even rooted in the common-law doctrine of property ownership. It is a monopoly created by statute, with only the purposes and powers given to it by statute. If it's not doing what most people want it to do, we can and should fix it, without sentimental and historically suspect notions that a three-century old industrial regulation is somehow the shield of the artist. Indeed, the current system hurts artists perhaps most of all.

There are signs that the dam is starting to break. Recently, a researcher with the Republican Study Committee circulated a position paper [1] that said nothing more shocking than what I've said above: that copyright is a monopoly-based policy, that it should ideally be shaped toward the public good with all assumptions on the table for inspection, that such reconsideration has not yet happened, and that a party that wants to be in tune with younger voters and with future trends would do well to start looking at the issue with fresh eyes. Such is the strength of the Hollywood lobby that those ideas would have been unthinkable for a major party researcher to produce even a few years ago. Apparently they are still pretty edgy, because the position paper was immediately disavowed by the RSC and the researcher, Derek Khanna, was fired shortly thereafter. But he was right, and I hope Oliver Sacks is reading a large-print version of his paper right now.



[1] We originally referred to Derek Khanna's paper for the Republican Study Committee as a "draft", but since then have learned that it was not merely a draft — it was a finalized position paper, later retracted. Techdirt has more about the incident, and Khanna's paper itself is here: Three Myths about Copyright Law and Where to Start to Fix It.

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