SOPA/PIPA revisited

Well, the breaking news is that the US Senate has postponed the voting on PIPA. This should give everybody a good reason involved to think twice on this whole issue.

I was replying to Prokofy Neva’s pro-SOPA article but unfortunately his setup tends to eat up my long-winded comments (it’s not his fault — I blame it on the technology). His argumentation is based on a few reasonable assumptions. Second Life creators, exposed to piracy (via CopyBot and similar technologies), should be actually happy with legislation that protects their work even further. This is quite a legitimate assumption, but of course one should question the methods (what Prokofy doesn’t say is that one single disgruntled creator, being unhappy with piracy in SL, could, via SOPA, shut down the whole grid and take Second Life off the Internet by simply filing a claim. This is like killing a fly with an atom bomb!).

The second, and perhaps strongest argument, was that nobody actually cared to read the whole bill and is just copying arguments from left-wing, free-for-all-piracy advocates, and forgetting that the entertainment industry in the USA (worth US$1.4 trillion in 2011) employs 2.2 million workers who suffer most under the current trend of content piracy — or so the SOPA/PIPA proponents claim (one can only wonder how exactly an industry worth about 10% of the US’ GDP but employing merely 1% of its workforce is actually “suffering”, but, again, that’s another story).

Well, I read the bill. And my own conclusions is that it’s actually worse than those alleged left-wing, free-for-all-piracy advocates are saying — pretty much the opposite of Prokofy’s own conclusions.

On the other hand, I’m naturally for defending and protecting an artist’s right to get paid for his or her job. Unlike the more extremist views that believe that artists should work at MacDonalds and do their art for free in the evenings, I defend a different position, and propose a completely different solution than SOPA/PIPA (or OpenACT, which might come in as a handy replacement since SOPA/PIPA were postponed sine die, and that one is nasty as well, even though not so nasty).

Please keep in mind that I’m no jurist and no lawyer. Even if I were, I would not be familiar with the intricate details of US law. But I’m merely an old computer geek and amateur philosopher. On the other hand, Prokofy Neva is merely a journalist and a trained Russian translator with experience in diplomacy — he’s no legal expert either. In a clash of opinions, both our opinions matter little: they just reflect how the common person in the street perceives the bill.

For instance, Prokofy likes to point out that SOPA would only target sites where over US$1,000 of pirated content was made available. His words:

You would have to prove that Linden Lab knowingly profited in large amounts (over $1000) for a period over more than 3 months […] So even if someone somehow manages to show that the SLM pirated items sold taken as a whole on the SLM were knowingly and deliberately kept by LL there to make a profit from commissions or subscriptions or tier fees somehow, you’d have to show IP holders for $1000 worth of content and all the rest of it. It’s not going to happen.

This is based on one entry of the SOPA bill, which amends Section 506(a) of title 17 of the United States Code, and which states:

Any person who willfully infringes a copyright shall be punished […] (B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works […] when the total retail value of the copies or phonorecords, or of the public performances, is more than $1,000;

Prokofy claims that it would be pretty impossible to make that claim against LL, and no one in the comments (at the last time I read it) pointed out his misinterpretation.

First of all, there is a difference between acting upon copyrighted content and punishment. Punishment, in this case, is applied to anyone who is commiting a crime — in this case, the crime of copyright piracy — and 506(a) is dealing with establishing what constitutes a crime. So, yes, it would be very hard to prove that Linden Lab was committing a crime, and even if the target is a resident selling content on the SL Marketplace, being filed under SOPA by another resident, it would be hard to prove that they had original content worth more than US$1,000 in the first place. Some residents (Striker Serpentine comes to mind) do actually make more than US$1,000 per item sold, but these are rare.

So let’s sweep the “crime and punishment” issue under the carpet. That’s not the point. The point is that merely having a site able to host copyrighted content would be liable to be taken down under SOPA. Note that OpenACT doesn’t have the Attorney General shutting down sites, but a “Commission”, but the principle is similar. So what Prokofy is missing here is that Disney (just to take one example, as I did on my last post), which can prove, beyond any doubt, that “Mickey Mouse” or the Disney logo are worth well over US$1,000, could very easily file a claim under SOPA to shut down LL’s SL Marketplace — or indeed, the whole of Second Life, if they understood that the Marketplace is a means to distribute copies of Disney-branded pirated material inside the whole grid. Disney doesn’t need to “prove” anything, and this is what Prokofy (and some honest, but misguided, SOPA-supporters) have missed. The burden of proof is not required, beyond a few snapshots showing what the site is doing and a proof that Disney is the valid copyright owner of the Mickey Mouse design.

We all were pretty well informed on how this can cascade upwards: if LL refuses to remove the offending content (shifting the blame to the resident), Disney could force LL’s data centre colocation providers to shut LL down. If they refused — they could claim that it was economically unfeasible (the bill allows them to claim that) — Disney could try to shut down the colocation facility next. If they refused, they could go for the weakest link — ask UltraDNS (where LL has their domain name registered) to remove the domain name. Since a domain name costs perhaps US$10 annually or so, UltraDNS would have no valid claim to say that it’s either technically unfeasible or economically ruinous for them. So they would have to remove the domain name, effectively pulling LL out of the Internet. This is what we all learned in the past months since the bill started to be publicly discussed.

But there’s a catch which even the most active anti-SOPA-supporters have missed (or perhaps I have missed the ones who explained this). SOPA did not require operators (content providers, hosting companies, colocation facilities, carriers) to actively monitor their content (probably to avoid going against the First Amendment). However, it allowed them to do voluntarily, and, more to the point, granted them immunity against any lawsuits (and possibly even criminal charges, if one interprets the text that way) if they somehow “harmed” anyone in their overzealous process of shutting sites down (Title I, Section 104).

Even if the company shutting down their users’ sites later found out that the users were innocent, they still could go “oops, sorry, I acted in good faith, I hope you’ll understand” and get a friendly pat on the back by the Attorney General for being a good American. In the mean time, whole business could be ruined, and whole websites dedicated to, say, protest against government could be shut down indefinitely — without fear from reprisal. This effectively was one of the more dreadful consequences of SOPA: the ability to pre-emptively shut down pretty much anything in sight that would remotely look like a copyright infringement, with complete immunity from lawsuits and/or financial compensation. And operators would very likely be more than happy to do that, before they themselves were at risk of being shut down due to the cascading effect of the law.

Prokofy shrugs this off by saying:

SOPA’s language specifically addresses the false claim that providers have to become “copyright police”. They don’t. The law says they do not have to become prior monitors. Read it! As one congressman put it acidly: they have to obey the TOS they already have.

That’s true, operators cannot become “copyright police”. But he seems to have missed this bit:


No cause of action shall lie in any Federal or State court or administrative agency against, no person may rely in any claim or cause of action against, and no liability for damages to any person shall be granted against, a service provider, payment network provider,  Internet advertising service, advertiser, Internet search engine, domain name registry, or domain name registrar for taking any action described in section 102(c)(2), section 103(d)(2), or section 103(b) with respect to an Internet site, or otherwise voluntarily blocking access to or ending financial affiliation with an Internet site, in the reasonable belief that—
(1) the Internet site is a foreign infringing site or is an Internet site dedicated to theft of U.S. property; and
(2) the action is consistent with the entity’s terms of service or other contractual rights.

So Prokofy got it right that operators have to enforce their own ToS; what he missed is that they can write up very loose ToS that allows them, “in the reasonable belief that some US copyright is violated”, to do whatever they please and get immunity in court from it.

This really was very, very messy.

Reading the bill is also an education in sneakiness. The bill starts addressing clearly the problem: shutting down “foreign” sites which feed pirated US content back to US residents, and forbidding US companies to sell ads to them (this targets mostly people like Google, who run ads pretty much everywhere — even on Russia-based servers where pirated content is routinely archived and distributed — as well as PayPal and other payment processors, who pay back money from ads and/or services giving access to “speed download” of pirated content). But as the bill goes on, the shift goes away from “foreign sites” to “Internet sites dedicated to theft of U.S. property”. So while at the beginning one might read the bill assuming that GoDaddy would be forced to drop a domain name like  ONLINEPIRACY.NET if it was actually pointing to a server in Russia, and one would agree that this would be a relatively effective way of restricting access to “foreign” pirated content. But as the bill goes on, if that very same site is hosted in the US, it’s also “an Internet site dedicated to theft of U.S. property” ands thus liable to be shut down under SOPA as well. But at some point it’s not so clear that the site needs to have “content theft” at all. Section 104, for example, allows sites to be shut down at will without compensation or the right to sue back.

So let’s see this scenario. I’m quoting Prokofy Neva on this article. Because he will not like what I’m writing, he claims that I’ve “stolen his copyrighted words” and files a SOPA claim against me, because I’m a dangerous “foreigner” feeding copyrighted material back into the US. DreamHost gets the SOPA claim and shuts my site down; if they refuse to do so, Prokofy can now try to file a SOPA claim against DreamHost for uncompliance with SOPA, and shut the whole of their servers down.

Now I’m unable to “fight back” — first, because I cannot afford a lawsuit; and secondly, because under SOPA, DreamHost (or their ISP) are granted immunity. If DreamHost is completely shut down, they might be ruined in a few weeks, and not even allowed to file a suit either against me (because of an “alleged” copyright violation) or against Prokofy (because he chose to misinterpret “fair use” of other’s quotations in my exercise of freedom of speech). They cannot file a lawsuit against their own ISP for the whole mess, either, since SOPA forbids it.

But more devious than that is that operators might not even have to wait for a SOPA claim. Let’s assume that Prokofy calls DreamHost on the phone and tells them, “Look, I have proof  that the evil Bolshevik Gwyneth Llewelyn, that you left-wing Californian hippies are hosting in that pathetic excuse for service you’ve got there, is pirating my content. Take her down immediately, or I’ll SOPA you!” What would DreamHost do? Obviously, shut my site down — even without a SOPA claim. That’s just because it’s far safer to shut a client down — their ToS allows it and SOPA will grant them immunity even if I protest — than to face a real SOPA claim which might shut them down instead. That was the real threat of all this messy bill.

Anyway. The coast is clear for now (but watch for OpenACT — as said, it’s almost as insidious as SOPA, but has a “lighter” language and might pass), and this was not really an article to “attack” Prokofy in any way, just some ramblings to show that he’s not 100% right in his interpretation of the law, and probably 100% wrong in its consequences. Because the whole point is that the system proposed by SOPA/PIPA wouldn’t work.

Still, is it worth protecting artists’ rights or not?

I fully believe that to be the case. And here I have to go on a philosophical route.

Civilisations, so far, became important as soon as they managed to be wealthy enough to have spare cash for art. You cannot have advanced art without civilisation; and the reverse is also true. Imagine a world without music, TV, books, computer games — because all those people didn’t have enough money to survive and had to starve. We’re so used to be surrounded by cultural products that have come from all sorts of creative artists that we forget that most of what we actually consider “civilisation” is, indeed, art. Even non-art-y things like, say, democratic institutions, a judiciary, a workplace and so forth, don’t exist in a vacuum. They are inside buildings — an art form. They use furniture — design is also a side-product of art. In fact, art and civilisation are so mixed up that it’s often hard to see when one stops and the other starts.

Now, so far, we have just figured out three ways of sponsoring art. The first was State-sponsored art — this was how most of Egypt and Ancient Rome got their architecture, for instance. A civilisation wealthy enough produces a surplus, and that surplus can be channeled towards supporting artists and creators, at the expense of taxpayers, to make the world a more beautiful place.

Starting in the Renaissance (14th-17th century) but actually going well into the 18th century, we came up with a different model: patrons. Now there was so much wealth that it was not only the state — usually the monarchy from its own coffers — that were able to sponsor artists, but wealthy merchants could do the same, too. In Europe, the Church — even individual bishops — could afford to employ artists as well. As a consequence, art bloomed in this period, and it had a further advantage: not only “State-approved” art was able to flourish, but even dissident art, appealing to just a few, could be sponsored by a patron with peculiar tastes.

Still, this model didn’t get a “critical mass” of artists. This required the Industrial Revolution to accomplish. Now art could be produced cheap (books became really affordable in the 19th century, compared to previous centuries, where they were luxury items) and distributed basically everywhere. Books and woodcuts printed in London could be bought everywhere throughout the “global village” which was the British Empire. This model allowed uncountable millions of content creators to finally be able to produce a wealth of new, cheap art which was available everywhere, and not just for a few. The reverse side of the coin is that the copyright model had to be invented, to prevent competing publishers to simply print their own copies of an original without paying the author anything (Dickens, for instance, was constantly struggling against piracy — and was one of the forefathers of the copyright laws that we have today).

This model worked well while printing and distribution costs were comparatively high (compared to the artists’ wages, at least). But the Internet changed all this. Distribution costs are virtually nil, and duplication requires zero effort. Thus the problem today is not how to “stop piracy” — this is completely the wrong approach. The problem is how to ensure that artists get a fair retribution from their work (which is guaranteed to them — as to everybody else on a democratic country — by the Universal Declaration of Human Rights, which is embodied in constitutions and bills of rights all over the democratic world.

Left-wing libertarians propose that artists “get a job” and give away their work for free. But this is an extremely egoistic viewpoint. Our whole civilisation is based on the assumption that artists are professionals that only do content creation, and that works because we live in wealthy societies that can afford them. The whole mess of intermediaries dealing with publishing, marketeering, and distribution are a relatively recent phenomena (born in the 19th century), and a “necessary evil” to continue to be able to afford top pay professional artists.

The discussion between professionals (people who have a full-time job employing their highly specialised skills) and amateurs (people with a similar set of skills that are able to work for a living and create things in their spare time) is a long one. I always feel that when I separate between professionals and amateurs people think that I’m talking about quality. I’m not. Professionals can have low quality; amateurs can have very high quality. What determines quality is more related to the talent and the ability to please critics than anything else. Still, as a rule of thumb, the more time a person can dedicate to their job, the more likely it is that they produce with quality. We have at the very least some 2500-3000 years of historical records showing that.

So the solution of forcing artists to “get a job” and work on their art in the evenings is, well, at the very least humiliating, and just a question of egoism — basically stating that content creators are “not worthy” of being paid for their work and should equally share the results of that work with all the world, which is eager to consume their products but unwilling to pay for it.

The left-wing libertarians are fond of pointing out that there exist hundreds or even thousands of solutions that would allow artists to make a living out of their work, if they just only tried. But again this is extremely unfair. For example, a popular music band like Nine Inch Nails is able to give away for free two of their CDs (you can download them from their official site). But, well, they are the NiN. They already had an established career and millions on their bank accounts (from concerts and, yes, CD sales). So the wealthy artists can afford to give away bits of their work once they’re established artists.

Others cannot. They certainly can start their own sites, offer their work for free there, and hope that they get hired now and then. In fact, thousands have embarked this route. A few are even successful. And here is the catch: just because some edge cases are actually able to succeed in this model, this doesn’t mean that the vast majority can. It’s rather the opposite: the vast majority cannot survive under any of the current (proposed) models.

One might argue against this view saying that the very few artists who have keen business skills and discover a model of surviving are, well, worth listening to (or reading, or whatever content they produce), so this is like social Darwinism at play: letting the fittest artists — those that can get a job cleaning stairs or pressing shirts, while they open their websites overnight, sell Google Ads, and create Silicon Valley-style start-ups from their tiny flats — survive in the highly competitive artistic world, and forget about all the rest who have been unlucky not to have keen business skills (after all, that’s why they became artists and not business managers). Well, this simply is not going to work. If that’s the only option given to artists, most of them will just give up and continue to get a living cleaning stairs. Even if they might actually create something as a hobby during the night, they will feel no compulsion to give it away for free to people that don’t even respect their right to make a fair living out of their work. The consequence is that our world will slowly become an art-free work, as more and more potential artists will give up their careers and become lawyers instead…

There are, however, other solutions which do not require SOPA, allow free distribution of content, and manage to provide artists with a fair income. An example is to invite Internet users to pay a small “content fee” every month. In return, they’re allowed to see whatever copyrighted content they wish and share with their friends (assuming the friends have paid the fee as well). Some European countries are toying with this kind of model (the question being mostly where to apply that fee; legislation in Portugal, for example, suggested to add an extra tax to any device able to duplicate copyrighted content, e.g. printers, hard disks and pen drives, computer memory, and the like).

This fee gets pooled together, and all registered artists are paid out of it. Now what is a “registered artist”? In most of Europe, there are relatively large associations that represent artists of all sorts (remember, computer programming is also labeled as “art”, because computer software is under copyright law). What they do is to collect royalties on behalf of their customers (pretty much like the RIAA and the MPAA in the US). But there was a problem in reaching out to everywhere. Imagine a popular club which invites DJs all the time. Often they would “forget” to submit the lists of musics they had played, and thus “forget” to pay royalties for that. Countries had the option to shut the club down, of course, for failing to comply with the law — but it was hard to prove what was actually played on a particular night, so those lawsuits would drag in court endlessly, and soon become unworthy (clubs would shut down, claiminh bankruptcy, thus avoiding to pay royalties, and the owner would open up a new club next door).

The ingenious idea was to charge them a small monthly fee instead, and distribute that fee among the artists. You might ask how they would know which artists would get paid. Well, using statistical analysis. For example, looking at the Top Ten chart on MTV would give you a pretty good idea of what kind of artists were popular that week, and determine the likelihood of those very same artists being played on the clubs. Obviously some would benefit a bit on some occasions, and others would get less than what they deserved (for example, a club might have a “Lady Gaga” night, just playing her music for that night, and if Lady Gaga was just one of the many artists on the overall list, she would get slightly less than she deserved for that particular club). But on average all artists would get paid something. And this model works far better than any other alternative. It was even expanded to include things like pre-paid “collections” of music to be played in elevators, hotel lobbies, inside malls, and so forth. All those small contributions add up and eventually trickle down to artists all over the world. Registration is also a simple process, all you need to do is to have at least one work of art attributed to you and pay a small fee as well (in my country, you just pay it once in your lifetime).

If you look at it in the following way, it’s a bit like transferring the burden of payment to a more abstract level. There is little connection (in terms of royalty payments) between the music listener and the performing artist. The artist does his or her job; the listener globally contributes financially for a community of artists to survive.

In a sense, it’s not very different from paying taxes (and, in fact, some groups suggest the creation of an “artist’s tax”): you contribute abstractly with a slice of your income to be able to pay for a lot of infrastructure that you can benefit from. The issue here is that not everybody wants to get access to cultural items (while on the other hand everybody wants to have access to justice, protection, education, etc.). So it would be “unfair” to tax everybody to be able to afford to pay some artists, which not everybody would benefit from. A slightly more “fair” system would only “tax” those that are interested in acquiring cultural items.

So imagine the following scenario. In this world, we currently can get access to cultural items in two different ways. One is atom-based — a physical book, a physical CD, a sculpture, an oil painting, etc. Or we can go to a concert, an exhibit, a lecture, and so forth. These activities require either production of an atom-based item, or contracting services to provide a cultural happening (renting an opera hall and hiring musicians to perform, for example). In these cases, it’s easy to see how the cost has to be offset via a payment, and how the artist — for the benefit of granting you a physical item or a happening — can get compensated for his or her efforts directly. The other way to access cultural items is digitally via the Internet (i.e. the bit-based economy). Here it’s clear that there is no production/duplication cost, no distribution cost (or it’s negligible), no services to hire, etc. Nevertheless, the artist did, indeed, lose time to create the item in the first place — it’s just that putting that item in the hands of the consumer has, for all purposes, zero costs. So in this scenario, assuming you’re interested in getting access to that item, it makes sense to compensate the artist, but nobody else.

However, this model is impossible to track — duplication and distribution are far too easily done at zero cost in a perfectly anonymous manner — so the artist, in effect, gets nothing. Unless, of course, we turn the whole contribution system upside down. Instead of having artists (or their representatives and agents) tracking down who is consuming their cultural items, let consumers contribute abstractly towards a common pool, from which the artists get paid.

There are actually similar economic models using this principle. For instance, flat-fee Internet access assumes that everybody pays a monthly charge to be able to “transfer whatever content they want”. It’s irrelevant if you just play games, write blog posts, or answer your email: you just pay a monthly fee for the privilege of accessing whatever you wish on the Internet. Similarly, some phone operators charge you a flat fee per month and you can make as many phone calls as you wish. Throughout Europe (and most of Asia and Africa), when radios started to become a familiar item, governments had to find a way to fund a public radio station. Since radio was not yet widespread, it seemed unfair to force everybody to pay taxes to setup a public broadcasting system. Instead, if you wished to listen to radio for free, you’d pay a “radio license”. You could have as many radios as you wish, or even listen to radio with your family, and listen for as long as you wanted: there was just a single fee to be paid once per month. Later on, when more public radios came online, this “radio tax” was pooled together and distributed among the radio stations. And even later on, when TV became commonplace, the revenue from that tax would be distributed among public TV stations as well, or a separate TV license had to be paid for. The principle was always the same: you were entitled to listen to radio or watch TV as much as you wanted, with as many people you wanted, so long you paid the monthly fee for your home. In some countries, this license covers Internet usage as well (since you can use the Internet to watch live TV or listen to radio).

So I propose that, instead of “going after pirates” — a waste of time and money, since there will always be content pirates, and the more they’re fought, the more clever they’ll become — it makes much more sense simply to get a contribution from everybody who wants access to digital content “for free”. In fact, that very same digital content suddenly becomes paid digital content, but we won’t see it that way. Internet operators could thus offer, as part of their services, a “cultural pack”, where you get Internet access plus a small licensing fee to be able to view as much digital content as you wished, and share it with others who have paid the same fee (content operators can just focus on blocking access to those who refuse to pay a “digital content access fee” and still insist to access copyrighted content instead; this is far easier to manage by blackballing just a few, excluding them from the Internet, instead of considering everybody as being “guilty” and subjecting them to a climate of terror). This paradigm shift will all of a sudden solve the whole problem of “content piracy” by creating a new source of income for artists.

Under this model, Disney wouldn’t sell less DVDs. People who buy DVDs do it for several reasons — a collection item; an easy, portable way to use the same DVD on different places with friends — etc.); viewers of pirated Disney content wouldn’t buy more DVDs if Disney managed to shut down the Internet (because they would fail, of course). Instead, Disney would all of a sudden get some additional income via this “digital content access fee”. Not much, but some. If every American interested in viewing digital content in their homes without buying a DVD would pay something like US$10/month for the privilege of having access to copyrighted content, this would mean something like US$20-25 billions annually that would be shared by all copyright holders in the US — Disney would get a share from that, too. Of course, that might not mean actually much, for a megacorp which makes, on its own, US$40+ billions annually. I haven’t calculated the percentage of all digital content sold in the US, and how much of it belongs to Disney and its subsidiaries. Some sites claim that Disney has 8-10% overall market share; so this would mean (using a proportional system to allocate pooled fees) some extra US$2 billion per annum. Not bad, considering the alternative — lobbying at Congress and Senate for SOPA/PIPA or its successors, paying for expensive lawsuits trying to crush the “piracy networks” and so forth. This is pretty much sitting on their chairs and watch the money trickling in without effort — in fact, with the same effort as people download Mickey Mouse movies over the Internet today.

But we can go a step further. If the worldwide consortium of intelectual property agencies and representatives pooled their efforts together, and all signataries of the Berne Convention would agree to charge a “digital content access fee” to their citizens, and assuming a low value (probably adjusted from country to country), well, then Disney’s income due to this “digital content access fee”, pooled together from all the world, would grow five-fold. Now that starts to make a difference — that would mean that 25% of Disney’s annual revenue would come from doing virtually nothing, and just allowing people to share whatever Mickey Mouse (or rather, Pirates of the Caribbean) movies they wished. Contrast that to getting white hairs from even thinking that all those hundreds of millions of people are watching the very same movies for free, and would continue to do so even in spite of SOPA/PIPA.

Economically, this seems to be a far more interesting route to go.

Would Disney be happy with such a model? Well, consider how movies are licensed to network operators today: they’re based on an estimate of how many people actually watch a Disney movie on their TV. Most networks can only give Disney estimates. Of course those estimates are not too far off, but the truth is, in most cases Disney actually does not know how many people watch their movies streamed via a TV or cable network (as opposed to, say, how many DVDs are sold worldwide — and even so, they don’t know how many times the same DVD is viewed, and by how many people at home). Even on sophisticated set-top boxes which report back to the network what show is being watched, the TV might be on and nobody watching it, or a group of 30 friends might be sitting in front of the TV and watching the show together. So Disney has to license their movies based on estimates. This model of “digital content access fees” will also just give estimates. Assuming that Disney gets 10% of the whole pot, this would roughly correspond to selling, say, 2 million DVDs per month. Sure, it’s likely that some movies might be seen way more than that. But others might not be seen at all. Millions might not watch any Disney content for months and months, but Disney would still get a slice of their fees. So on average what this means is: instead of “outlawing piracy”, which, so far, has not only shown to be pretty much impossible to do, but as a consequence, Disney gets less and less sales anyway — not because of pirated content, but simply because people have better ways to spend their time — the alternative is getting some money for copyrighted content without any effort whatsoever. Well, this is not strictly true: under my proposed model (based on how copyright registration agencies actually work today, even though they don’t charge universally, but just to places like clubs, radios, hotels, congress centres, etc.), the amount a company/artist actually would get as a slice of the collected fees would depend on their overall market share in the entertainment industry. So Disney would still have to invest to keep that market share up! That means still being able to release new titles all the time, and make sure the audience actually wants to watch their titles.

Of course I’m aware that this model has some flaws. For example, it relies too much on the notion of “market share”. Nowadays, because we have atom-based products (CDs, DVDs, etc.), and services (theatres charging for tickets, concerts, TV/radio broadcasting, etc.) it’s relatively easy to compile “Top Ten” charts where you get a feeling of what the public is currently watching. But if more and more people watch digital content online, the atom-based product industry will become less and less important, so it will be hard to calculate “market share” from there. On the other hand, the service aspect of entertainment seems to be on the rise: musicians rely more and more on concerts to get their income, and less and less on CDs. But this “service” aspect does not reach every artist type: sculptors as well as oil painters or even book authors require pushing atom-based products to their admirers in order to be able to make an income. A digital picture of a sculpture is not the same thing as a marble statue. So how would a sculptor work under this model? Book authors might have it a bit better: reported that they sold more eBooks than physical books last May, so it’s conceivable that an author’s overall market share could be determined that way, thus ensuring a slice of the collected fees to cover for duplicated eBooks shared with friends; on the other hand, on a model where everybody pays for access to duplicated eBooks without buying them from, how would the authors know how popular they are?

On the other hand, this model would hurt, iTunes,, and the many other providers of licensed digital content, which are sold unit-by-unit. They wouldn’t be able to survive under a system where basically anyone could become a provider of copyrighted digital content. They might have an edge for a while — by providing excellent service, and good download speeds, they might attract consumers that would prefer to pay a few dollars instead of relying on BitTorrent and waiting hours or days (or weeks!) for their content to download. But sites like RapidShare offer similar service for a flat fee, so it’s reasonable to consider that all pay-per-view models on the Internet would suffer.

And we shouldn’t forget that most artists want both money and fame. If there is no way to actually know which artists are more popular — because all their digital content gets copied — how can they make claims of being “popular” and “famous”? I suppose that the only way to do that is by constantly polling the audience and calculate their popularity statistically. After all, this is precisely what happens with most products and services, specially with those that are not very tangible. For instance, to know if people are watching more TV or playing videogames, you actually have to ask them what they’re doing. Just because they’re listed in a data warehouse as having “one TV and one PlayStation” doesn’t mean they’re using them — they might just be reading books instead. To calculate how much time is spent on each device, market analysts have no choice but to ask people, and elaborate polls and surveys, and hope to get good samples to give them plausible results.

I’m also aware that this model is easily “gamed”. Suppose that you have a weekly poll on popularity to determine the “Top Ten Audio Downloads of The Week”, which would be used to calculate the fair share of the fee allocated to the artists. Nothing would prevent an artist (or their agents) to launch a huge campaign — “vote on artist X and get a free, signed DVD” — hoping to influence the audience to reply in a certain way, to artificially raise “market share”. Of course this is simplistic — if “voting” is anonymous, you might just get the signed DVD and vote on a different artist 🙂 — but you get the idea. Nevertheless, statisticians can predict poll results for a democratic election (which is anonymous, too) with a reasonable degree of accuracy. There are always some surprises on “election day”, but more often than not, the predictions are not way too off. I can imagine that the same happens on other areas, as well.

The whole point here is actually being reasonable. It’s not reasonable to shut down the free Internet because some people are avid copyrighted content consumers and are unwilling to pay for it. It’s not reasonable to establish a climate of terror just because some entertainment industry giants are losing market share and are at the end of their wits to invent new models of revenue which are more aligned with the way content distribution happens in the 21st century. While a “digital content access fee” might not be a perfect solution, and has many flaws, it’s at least a reasonable solution. A lot of people will still find ways to avoid paying that fee, of course. But then it becomes far more easier to track down those few — specially in a future world where Internet operators will all include their “digital content access fee” as part of their overall service: because if they do that, it means that they can “prove” to the authorities that all their users are duly paying the required fees, so all of them are “legal” and in good standing, and the authorities can bother the competition. After a few years of this, due to competition and market pressure, I can imagine that all operators will include the fee, and thus, through that simple measure, all consumers will be “legal” consumers. Obviously a few will complain and notify their operators that they do not want to pay the fee — some of which will, in fact, restrict themselves to non-copyrighted content — but since their number will actually be very small, they will be easily checked. The same reasoning actually applies to those countries with TV licenses where households refuse to pay the TV/radio license: they’re few, and so they’re easily controlled to see that they’re not using a TV or a radio at their homes.

As a conclusion, I think that at this time there should be made an effort to seriously question — once more! — how to address this whole issue in a reasonable way. The current “clash of opinions” — artists have a right to be paid for their work; consumers are using all kinds of loopholes to avoid to pay for anything — is just due to trying to apply a 19th-century-model on top of a 21st-century-model, and this inevitably creates unnecessary friction, because the two models are based on such different assumptions. It’s unreasonable to admit that we can go back to even earlier models of sponsoring artists — e.g. finding enough patrons to sponsor all artists in existence, and pretty much letting their art remain private. Models where basically the State, as part of its budget, sponsors artists directly are seen as too left-wing by some, and thus become a ideological battle — even though it’s not different from what governments do when sponsoring science, for example. To be a “scientist” requires having a set of skills and an appropriate education, and being able to validate your career (by your peers), so that you can apply for grants. Most countries also have similar models to grant funds to cultural endeavours, although it’s harder to “qualify” art, and it’s even harder to get “tenure” for an artist (unlike what happens with some scientists) — so artists might get a grant for doing an exhibition or writing a book or something like that, but they will have a hard time getting a permanent grant that allows them to live until retirement.

My clever roomie Moon Adamant has a sinister, but very intelligent, model of dealing with the issue — one which is far more radical. I’ll share with you a small variant of her suggestion: when registering as an artist, that artist could either go for “glory” or “greed”, but not both. “Glory” is easier to understand: when registering under that model (and assuming that they met the proper qualifications — just like scientists have to do when starting their careers), the State would grant them a life-time stipend to live adequately. They wouldn’t dwell in luxury, but they wouldn’t starve or die from cold, either. In return, they would be required to publish all their content under a Creative Commons Attribution license, while they’re alive (and of course, failure to output a reasonable minimum of content would also cancel their monthly stipend — again, this is the equivalent of what happens with scientific researchers in universities). When they die, all their content would immediately become part of the public domain, and during all that time, the State would guarantee that their collective work would be universally accessible (e.g. through State-sponsored libraries and museums): for instance, their eBooks or MP3 would be available from State-sponsored websites. It makes sense: collectively, society is paying for their living, so their art is part of the collective heritage of their country. Again, this mirrors what happens in science today: published papers are part of the collective heritage and are freely duplicated and copied (and cited!), so long as there is attribution. Under the “greed” model, the artist would have freedom to pursue whatever commercial model they wanted to sign up with for publishing/distributing their content, but their rights to the content would expire after their deaths — no effort would be made by the State to “preserve” their artistic production. It would also expose them to the risks of piracy, of course. This is not unlike what happens with commercial research, where the results are trade secrets and remain unpublished, but inventors might earn a huge profit by secretely applying their knowledge to industry products (unfortunately in our world patents overprotect their inventions well beyond the 10-year-limit they were supposed to be protected, but that’s another story).

Of course that Moon Adamant is expecting the perversity and the greed of humankind to prevail to make this system a better one than the one we have today. For instance, public TV would obviously favour content from artists that have all their works available for free — because it would be so much cheaper. Publishing houses, since they could grab a “glory” author’s book from a public electronic library and freely publish copies of it without doing anything else but mentioning the author’s name, would obviously prefer to launch whole collections of “public” novels instead of signing contracts with the “greedy” types, and saving money that way. Music labels would prefer to do tours of “glory” authors — because they wouldn’t need to pay them any money for performing, and could even sell the tour videos to TV channels. Contrast that to the current model, where under the pretext of having to sign up artists under a contract, the publishing houses/recording labels actually end up paying peanuts to artists… who have no choice but to accept what they can get.

Once in a while, a “greedy” artist would be so good (in the commercial sense) that the entertainment industry would obviously hire them, but, as mentioned before, just because an artist has commercial success and is a professional, this doesn’t mean that they have any quality. If they have, they would be able to set up the rules under their own terms (and not under the terms we have today). Having the people choosing between artists — some of which would be free to duplicate and view, others which would be paid — would ensure a certain competition between both types: many “beginning” artists, but showing promise (as appraised by their peers), might opt for the “safer” route and go for the “glory” model and guarantee their living until retirement; others, more reckless, knowing fully well that in most areas of entertainment things quickly go out of fashion, would attempt to strike a few good contracts over a short period — say, a decade or so — and then go for a quick retirement. But because they will demand very expensive performing fees, they will have to be very good, or else the companies promoting them (or making movies with them) will not profit enough. This will translate in products with a much higher quality overall, while still ensuring that all artists would survive — and many of them (like their counterparts in the Renaissance) might become world-wide famous, even though they might not wallow in gold coins.

It’s worth thinking about 🙂

Update (2016/11/27): Amanda James pointed out that the link to the SOPA/PIPA bill wasn’t working any more, and offered an alternative link which seems to be still fine. Thanks a lot, Amanda! 🙂

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About Gwyneth Llewelyn

I’m just a virtual girl in a virtual world…

  • Miso Susanowa

     Very well researched and thought-out article. As both an artist & musician, I have done my homework on these and similar legislation. You can find MANY articles online debunking the figures the RIAA & MPAA keep tossing out as “losses” and “income revenue.”

    From having worked in the music/entertainment industry from bottom to top (retail through distribution, contracts and promotion), the biggest loss is not to artists, who are already scammed to the eyebrows with “Hollywood accounting” but to the middlemen, who have made it their business to be the arbiters of culture. That was a mistake. Instead of encouraging culture and aiding it (which would increase their profits) they have taken the road of “we know what you will like” which has proved fatal to them.

    There are also many articles online that will support (with facts & figures) the assertion that musicians and artists are making MORE money than ever… because they’ve cut out the middlemen-leeches. This is what The Industry is screaming about; they are using artists shamelessly to plug their own jobs (which they don’t do; the reason people quit buying product is that they are offering crappy product in their Drive To Monetize. I, for one (and I share this feeling with many, many musicians I know) will be glad to see these middlemen gone.

    One example: yes, the recording industry advances you a loan (“advance”). So what? If a band can get that kind of credit/advance from a record company, they probably qualify for a MUCH less usurious, straightforward LOAN that is 10-40% cheaper for them over the length of a loan than what the Industry “advances” them. They also get REAL accounting, from a bank, about where their money is going. This is something new musicians are coming to understand. It’s simple economics.

    Crappy product, shady “accounting,” outright lies, theft (look up the Canadian lawsuit against the RIAA for not paying royalties to artists for compilation/reissues) & the rest of the Hollywood Issues are the fault of the industry, not copyers (“pirates”). And as you point out so well, SOPA, PIPA and their like; the whole BS argument about “piratz iz ruining our biz!” is not only questionable but overkill, like killing a fly with an atomic bomb.

    And… why would I listen to Prokofy Neva’s arguments about copyright when Prok has admitted, time and again, on his own blog, to taking freebies, released by the artists for the benefit of the community, and selling them? He makes a big crow about it even! He can play any word-games he likes, but that I would consider “piracy” or “theft” and I can hadly credit anyone’s point of view who is so oblivious to their own shady practices.

  • Thanks for your comment, @c05f550879ef5216f573fe00999d1ec5:disqus! In all this “war”, the issue I usually have is that the people discussing the merit of any anti-theft measures are seldom the content producers, but either free-for-all-content advocates, or intermediaries (publishers, editors, agents). Consumers, of course, want everything for free, and most of the time don’t even see is at “wrong” — it always feels very awkward to me listening to lectures from my teachers on “not stealing” being full aware they have their computers running 24h/day downloading pirated movies and eBooks — the problem being that the common consumer doesn’t even understand what’s behind all this. For them, the ‘net is just an easy way to sidestep intermediaries to get access to content (some might even justify themselves with “I already pay for Internet access so I’m allowed to copy whatever I find on the ‘net”). Artists and content creators are kept at bay by intermediaries — “if you’re not with us, we will cancel your contract!” — and made to fear the Evil Internet and All Its Pirates.

    I wasn’t aware that publishers/editors sort of give out an advance on a loan under usury terms! That’s truly shocking — but I’m not surprised. I have only a single experience when publishing a book in my country: the editor first calculates the production costs, and tells me how many books have been sold, and how much my alleged royalties have paid for the publishing costs. The first year or two they were happy to send me a report on how much I “owed” to them — because the scattered few sales of that book would come nowhere near to pay for the publishing costs. This is an usual procedure around here, and amateur writers like me are aware that they will never see any money from royalties. I got lucky once, actually — a book co-authored by some 12 authors or so managed to sell 3,000 copies, so I got paid — about 100 Euros. Hooray 🙂 Obviously nobody can make a living out of writing in Portugal, and that’s why the only professional author — José Saramago — actually won a Nobel prize (!). Since he died, there are no professional authors any more, just amateurs, all with a day job, and just writing in their spare time…

    While my suggestions might not be overwhelmingly good, and middlemen will still get a huge part of the overall fee revenue, I think that a bit of those US$20 billion a year might trickle down even to the smallest content producers. As more and more become “known”  and popular, they will be able to increase their market share, and rely only on Internet distribution of their works. But the system is not perfect, because it can be “gamed”: intermediaries could naturally set up huge promotion strategies for their content creators, acquiring their copyrights, increase markt share, and thus getting bigger slices of the collected fees — which they may, or may not, pay to their artists. So it’s a skewed model and not a perfect one. But it might at least get rid of the notion of “piracy” and “theft” by requiring all consumers of digital content over the Internet to pay for what they download — automatically, every month, without exceptions. That was mostly my focus here…

  • Ann Otoole InSL

    First issue with this new gestapo style legislation that has become popular since insane retards crashed jets into buildings: Due Process being erased from our legal system. Eric Holder has to be removed and due process put back. If someone makes an accusation they can sue in civil court. If the judge and jury find in the plaintiff’s favor then the site operator has to safely shut down and then Holder can sic is german shepherds on them.

    Second issue is fucking up the internet and forcing tech companies to use all their profits to support eric holder’s 4th Reich crap.

    The short of the matter is we need legislation making it a death penalty offense for elected reps to accept bribes. Further we need legislation that denies the right of elected reps to work on or vote on anything they are not a 1st hand expert with. Which means the US congress could make no laws in respect to even use of a calculator since elected reps are generally retarded cluster B narcissists that only know how to commit organized crime.

    Yes the entire government has to be fully reformed and the oligarchy be removed and prevented from having any influence in anything. Oh and the tax code be set to flat tax rates with no exemptions and death penalties for moving money offshore.

    Why not switch to a full democracy while we are at it. Just wipe the entire failed experiment out.

  • Hear, hear! Governments have been able to slip in the notion that common citizens can be deemed to be guilty without a fair trial using all sorts of dirty tricks: first, 9/11; then the financial crisis; and whatever comes next… the problem is that when this kind of thing becomes acceptable, governments become bolder and bolder in eliminating basic rights, “for the sake of protection” or “for the sake of efficiency/speed in catching ‘criminals'”.

    I might not be so demanding that reps get shot for being ignorant 🙂 (although it would go a long, long way to solve a lot of problems… hehe) but it would be interesting to require from them at least some basic skills, like on any job. One might claim, “but this is undemocratic! We would have rules to exclude some people from being elected! How dare you propose something like that!”

    Not so. In most democracies, what we give is equality of opportunities. This would mean, under that proposed system, that anyone that wants to be elected has the opportunity to get educated, pass some sort of “admission exam” to politics, and be fully eligible. So nobody who would be willing to get educated would be excluded. But if you aren’t willing to get educated, well, tough luck — you’d be out of the process. This is not exactly “undemocratic”. Rather the contrary: it allows anyone to apply, and give them equal opportunities, so long as they’re willing to learn something. If they’re unwilling to learn… well, why should they be willing to serve, then?

    This would definitely make a nice new article 🙂

  • On the issue of “flat taxes“, this is pretty much what Russia is experimenting with. There are no exemptions, and all people and corporations are taxed in the same way. This simplifies a lot of things, although some people might complain that it doesn’t protect minorities — e.g. someone who is disabled in some way, and has a lot of difficulties to get any kind of job, would be taxed in the same percentage as someone with full abilities and no difficulties. It’s a philosophical issue really.

    A good friend of mine suggested once a more interesting alternative. As money gets more and more electronic and less based on paper and coins — at least, for substantial amounts of money transfers — the flat tax could be placed on electronic money transactions. I remember that he once did some math and came out with this interesting result: Portugal, at that time, had an income tax of 42% on average (it’s much higher these days), and by adopting a “electronic funds transfer tax”, this could go down to 6-8% to gather the same amount of taxes. The reasoning behind it is that nobody really withdraws large amounts of money from ATMs any more — so in the worst-case scenario, e.g. people actually withdrawing their money once a month, they would be taxed only twice (employer -> employee; ATM withdrawal), but not any longer. Since all companies are required by law to have a bank account, this would mean that they couldn’t put all the paper/coin money in a vault — they would have to make a deposit sooner or later, and this would then be taxed. Routinely, credit/debit card payments, electronic transfers to pay for utilities and regular services, would all be taxed this way — it would be simple to mandate that every public utility would be required to go through bank wiring (it’s pretty much close to be universally done so these days). So of course a few people would avoid all taxes, and try to keep as much paper money and coins around — easy if you don’t have a home, don’t need to pay mortgages or rent, don’t have power or water or Internet or TV at home, etc., but not so easy if you have any of those things. So the majority of citizens would be taxed in a way or other — only extremely poor and homeless people, or criminals, or eventually very clever tax-avoiding citizens would be exempt. But perhaps that’s not so bad. Also, the more people would use electronic fund transfer, the lower the tax could be.

    Death penalties for moving the money offshore is tough 🙂 Why not simply tax it? Remember, there is a legitimate need to move money outside a country: when you wish to make investments or import things from other countries. One might claim that the best way is to close down an economy to the outside world, but only Cuba and North Korea do that (and Cuba allows some investments…), and they’re certainly not examples worth to follow. No, I say, let them move their money out if they wish — the more they move, the more gets taxed… and every time they use a credit card from an offshore bank account, the more often they get taxed in the country where they use it, so that would become irrelevant anyway.

    Under this model, there wouldn’t be any tax on money that is sitting in a bank doing anything, so there would be little incentive to move it offshore anyway. Money earning interest, of course, would be taxed as soon as the interest is moved to a bank account. So there would be a small incentive to move that offshore first and avoid being taxed on the interest earned… but, as said, sooner or later you’d have to go to a supermarket to buy food, or withdraw some money to buy groceries, and this transaction would be taxed as well.

  • The end result can only that IP will be universally free-to-consume and reproduce … but that something, somehow (other than a government bureaucracy) determines what the worth of the produced IP is, levvies a common tax from everyone, and then pays the content creator of the work in a fair state pension. Or as I would have it, “a modest increase in the basic income of the recipient”. This way every single person will want to produce content of some sort, because the individual will be rewarded in tangible benefits, forever (as long as that person is alive). The heirs get nothing, clearly. 

    The downside would be “collaborative research”. If companies invest heavily in a process, and don’t want this process pirates, they’d have to keep it secret. That’s impractical in many cases, but the above system would be subject to incredible abuse – come up with a product lots of people use (a song everyone sings?), claim you invested a few million in its development, and claim restitution for that absurd investment. This is however exactly what now happens in pharmaceutical industries – largely because the consumers don’t have a frigging choice. In many cases hideously new medical products keep people alive, so they’ll pay whatever they need to to consume.  So fact is collective STATE insurance systems ARE already exploited by corporate gangs scamming tax payer bases – a pharma wins by investing more research. 

    For example, I find myself consuming a medical product a few years ago that comes in a plastic box at 6 tablets for 33 euro. Then a few years ago I found that it started damaging my organs, and just a year from its IP expiration it started giving me a load of side effects. And I clearly wasn’t the only person experiencing the same. So I HAD to switch to a product that now costs 57 euro per 6 tablets. And when I say – I have no choice, trust me I have absolutely no choice. Just compare – rizatriptan and eletriptan. And right now I consume several pills a week – in some weeks  close to 100 euro of these tablets a week. 

    This has basicly “corporate scam” written all over it, and after 2 decades of this I am now effectively a junky with a damaged liver and kidneys. 

    So I’d love a reliable under-the-counter 50 cents eletriptan tablet. If I were confident it worked, it had the dose right, it wasn’t toxic, I’d resort to pharma piracy. Or better, I’d love see a system that doesn’t reward corporations turning me in to a crowbar forcibly raping the collectivist medical services in my country. I am happy eletriptan exists. I am not so happy it costs close to 10 euro a pill. And I am not so happy with just the suspicion somehow the pharma industries might have conspired systemically to aggravate my medical condition as to make me need ever more expensive and toxic products.

    What we’d need would be a global alternative to corporatized production, and as far as I am concerned piracy is the market-based pressure release valve for excesses. Of course my heart bleeds for a stay-at-home mom who makes some money in Second Life creating nicely textured skins on the side, especially if she gets her stuff pirated in to worthlessness. That is just mean. But on the other hand, IP *is* a rather arbitrary convention, and it clearly is based on rather shaky moral premises.

    If one day a number of countries decided to unilaterally secede from the whole IP crap, and declare all intellectual properties null and void  (free to use by The People) then IP as a system would quickly either end, or end in wars. So think about it – we’d be using the technology to kill people over basicly data – ideas – and how to dictate other people how to use it.

    This is why I again state that the current model of corporate – judicial state enforcement of bloated IP’s isn’t going to last much longer. Not without turning the world in to a fascist autocracy where people are effectively indentured labour batteries who have little choice but to work to consume a range of scarce but essential products? 

    And my greatest fear would then be – isn’t that what they’d want anyway? 

  • Well, I’m actually not totally in favour of levying taxes on everyone to pay for property rights, but I suppose it’s the easiest way out. I’m usually more aligned with the principle of “paying consumer”. Nobody should be forced to consume copyrighted content — we should be given the choice to consume unlicensed content (there is plenty of that!) — and only those that want to get access to copyrighted content should pay for it. The example in Second Life is actually a good one: nobody is forced to buy clothes, you can get freebies instead. Sure, the quality might not be the same, but the choice is made by the consumer.

    On the other hand, if the easiest way out is to tax everyone, so be it. So long as the value is reasonable, I wouldn’t oppose such a measure.

    As for your far more serious issue… there has been a lot of foul play in the pharma industry for decades. We all remember how Greenspan manipulated the US laws to make sure his company was granted effective monopolies on some substances, by having the US government “outlaw” competing products. Ulcers, which make people buy billions of lozenges to feel slightly better, but never get cured, are now proven to be little else than a bacterial infection; a cheap antibiotic should be able to make them go away. I can imagine that there might be thousands of substances able to “cure” common illnesses like the ‘flu or the common cold, but since none of these diseases is lethal, “snake oil” equivalents sell by the cartload (or the container), filling the pharmaceutical industries’ coffers. Remember the Avian ‘Flu? It was supposed to be a global pandemic killing a substancial part of the world’s population. All the Western world started building up their pharma industry in order to meet with expected demand (for decades, Portugal had no pharma industry; it was kickstarted into existence again, thanks to Government contracts to provide “vaccines” for the Avian ‘Flu). Yet in the first year of the Avian ‘Flu, more people died with the common cold than with the Avian ‘Flu. Now isn’t that ironic? We usually don’t think of the common cold as being able to kill anyone. And it doesn’t, except in very extreme cases (i.e. old people, people already suffering from HIV infection or similar diseases affecting the immune system). Deaths due to the Avian ‘Flu were even less than that.

    So I’m not surprised at your own case — just shocked, but not surprised. Maybe we should take a good luck at what the BRIC countries are doing. Russia and China tend to drop acceptance of copyrights or patents when it’s not convenient for them. Brazil, some years ago, refused to accept the patent for AZT in their country, as AIDS was spreading like wildfire, and they needed a cheap medicine to keep it in check. So the Brazilian Government refused to honour the patent for AZT and started to mass-produce AZT for internal distribution at very, very low prices. There were a lot of complaints, of course. Brazil ignored them all: the health of their citizens was far more important than making some patent owner filthy rich twice over. This gave them a good sign that artificially manipulating prices of medicine in order to reap a huge profit when people are dying for lack of adequate treatment that they ought be allowed to afford will not be tolerated by Brazil. Was there any consequence? Not really, except that scattered countries in Africa did the same thing…

    It will take some years until this trend continues, but I suppose that eventually we’ll have no choice but to re-evaluate the way we think about intellectual property. Personally, I’m only concerned that artists and content creators get not only due credit for their creations, but can actually make a living out of it. We need them!

  • It’s true; the examples I have read about have to do with musicians. Google “Courtney Love Does the Math” and “Steve Albini The Problem with Music” for details. My favorite: back in the early days, lacquer and shellac disks would break, and contracts had a clause deducting a charge for breakage from musicians’ royalties. They don’t make lacquer or shellac disks any more… but the clause is still there.

  • All right! I like that idea! It should work well and is a great suggestion!

    Of course, it wouldn’t work over here in Portugal — nobody would make a “volutary contribution” to, gah, artists 😉 even with a huge tax rebate… Portuguese are extremely avaricious and almost impossible to part “voluntarily” with their money, unless it’s for a Cause. Artists and content creators are sadly still seen as the “scum of the earth” who don’t want to “do real work”, so it would be pretty much impossible to get anyone to contribute to them…

    But fortunately the rest of the world is not so avaricious, so this idea might actually work!

  • … although the comments on that article show that artists are not exactly droolling over the idea 😉

  • … on a different note, how did you manage to keep your page on Wikipedia?? I think you have one of the WIktators as a secret boyfriend lol

    Even my +user+ page, which is supposed to be something “personal”, was flagged for review. I had to delete it and start it from scratch and add gazillions of references. See also an old discussion on “popularity”:

    Oh, I’m just envious, that’s all; I’ve sort of given up on updating WikiPedia. I have nothing less than three accounts there, with completely different profiles and tastes (and lifestyles!), and all of them get routinely censored. After wasting weeks of hard work in writing those articles, only to get them dumped in the bin, I gave up — my time is better employed elsewhere!

  • elizabeth (16)

    as u say it will get horribly gamed. nor will it meet the expectations of many hibrow culturalists. who even now are mortified at the amount of time and money that is consumed by reality shows and mass entertainment spectacles of the titillating kind. thats what more ppl want than not tho, and the marketplace delivers that to them.
    changing the payment method for makers wont change this audience, and makers will continue to cater for them regardless of how they get paid. so long as they do get paid
    as for a consumer public broadcasting license for tv and radio, they were imposed in olden days to cover the cost of running the networks bc they were state owned. like u say a tax in another name. when private operators were granted licenses to operate their own broadcasts and were not given a share of the public broadcasting fees then the fees were pretty much phased out as being subsidisal and anti-competitive
    different countries tried different ways to keep collecting the broadcast license fees. including distributing it as payments for works beneficial to the public good. some schemes with no obligation on either public or private broadcasters to actual show them
    most of those systems fell over in the end bc of mandarinning. worthy citizens appointed to decide which artists and producers would get work and which would not. that still happens today where governments still fund public works out of general taxation. is often a source of great contention and virtual bloodletting between the mandarins and the artists and producers subject to their rule. mandarins can easily be as much of a bane on creative ppl as corporate middlemen
    what makes these schemes even more of a bane is that when an artist or producer cannot get a broadcaster to sign up to the project prior, then they at a severe disadvantage. bc the mandarins always reluctant to pay for something that has high potential that no one hardy ever will actually see. so the producer and artists end up with even more middlemen, in the form of broadcasters, controlling their productions and works. all paid for out of the public purse by way of taxation in these cases
    a interwebz public broadcasting fee will have to be mandarinned in some way. even if its a straight out popularity contest. the mandrins will determine what the rules of the contest are in that case, which will advantage some and not others. the bigger channels is who ends up on the top in those kinda contests. if an artist not on those channels then they at a severe disadvantage regardless of their own artistic merit
    if not a popularity contest then by making substantial payments to those the mandarins consider worthy and less or no payments to those they consider to be unworthy in terms of reach or appeal. example. we have a production in mind in conjunction with facebook or youtube. another person has a production that will channel thru their blog or nooneknowswheresourindie channel
    nothing really changes u see. the channel more important than the production to the mandarins and middlemen. the more channels there are, then the more important they become. is funny really bc stuff is thrown at holywood and traditional broadcast networks all the time for this reason. is quite blinkered that way of looking but oh well

     the dinosaurs never go away. ever. bc they not any old dinosaurs. they t-rex dinosaurs with the ability to change their appearance. like into facebook, youtube, secondlife, etc. diff owners same dinosaurs. just prettier and more shiny each time they change appearance
    first concert halls and galleries, then radio, then tv, then video, now interwebz. even without any kinda public interwebz fee either. t-rex nom nom nom

  • I think you’re right, @facf470d827a42b6f3a51e3c5d20ff79:disqus … but what should the alternative be?

    Clearly the current system is ripping at the seams; it cannot go on for much longer. The sales of CDs have dropped 50% in a decade, and DVDs will go the same rute (if they already didn’t). Books might hold on for a while, but’s reporting that they now sell more eBooks for Kindle than paper-based books (even though the amount of sales of paper-based books is increasing) just shows that books, as digital content, will be pirated as well: a few of my friends already send me regularly a lot of PDFs from scanned books (I don’t like to read on a computer, but that’s besides the point: digital piracy of books is definitely going to start soon to make an impact. and it’s pointless to talk about pictures — these get copied all the time from all the places, and I have no idea how the image databanks (like Getty Images) survive and still manage to pay their photographers…

    So if all that is wiped under the rug, and assuming you’re right that any other system will either get gamed, or manipulated by “those in power” to exclude promising artists, I wonder what’s the alternative?

    When I wrote the article I had in mind that the system that works for science ought to work for art as well. Science — specially pure science, which seems to be unrelated to technology — is also the product of a civilisation that can step back and afford to pay for it, even though its benefits are not tangible (just like art). While obviously there are “power games” among scientists as well — some areas cannot be researched without bias, e.g. cold fusion or the climate — it seems far less “manipulated”, in the sense that a young researcher, unknown anywhere, can indeed start to publish peer-reviewed articles, and slowly establish a reputation, and hopefully even a career. It helps that the academic world is truly international: so even if “powermongers” in your country somehow influence what you can research or not, and refuse to publish an article, or force you to publish an article under your supervisor’s name, young researchers can simply push their articles to journals and conferences all over the world. They can even publish under pseudonyms! Peer-reviewing is obviously not 100% perfect — there are “fake” journals out there which will pretty much accept anything — but there are also ways to validate “serious” publications and conferences, and these have a reputation of their own to maintain, or start losing their status on a publicly published list.

    In my mind, this could — to a degree — be applied to artists as well. State-sponsored science comes directly from a country’s budget, because, well, individuals at home will not really be interested in sponsoring “science”: it’s too vague, they don’t relate to it, and, most important, they do not consume the results of research. So it makes sense to have the State sponsor it instead (or, naturally, non-profit organisations, private research labs, etc.). Art — content — by contrast is consumed by pretty much everybody: just turn on the TV and you’re consuming artistic content 🙂 So it would make more sense to levy an extra tax directly on “content consumers”.

    I think that the only way to evade the “mandarins”, as you call them, is to get artists to emulate the model used in science. They could have their own international publications, which would be peer-reviewed by panels of critics all over the world — and anonymously, so that the critics don’t know who the artist is. With digital content this is far easier to do.  Having a wide range of options to “publish” facsimiles of their art, peer-reviewed by panels all around the world, the amount of “madarinning” would decrease: an artist would stand alone in their reputation and not depend on anyone (but themselves) to build up credibility. And based on that, they could get a stipend. Perhaps this model would be better than to rely upon a “popularity contest” — i.e. my own suggestion of having market analysts figuring out what kind of content is being viewed, which I agree that can be too easily manipulated.

    What do you think?

  • elizabeth (16)

    is two parts to ur question. first is piracy and how to stop it or at very least ameliorate it. second is how do we help our artists to get paid for their works

    they not the same thing i dont think. they not really even the same problem. sopa like bills try to make them the same tho

    so i try to say something about the first problem

    sopa, and other bills like it, are drafted in a way that not address the human condition very well. it start from the premise that we all a bunch of thiefs. like u, me and everyone else on the interwebz, and we all need to be punished for it

    this a terrible premise and is why ppl get really upset. not only ppl who arent thiefs in this way, but also for many ppl who think i am not a thief even if i do make copies sometimes of stuff that i know i shouldnt

    is quite a normal way of thinking about themselfs for lots of ppl. most of us actual. same when we borrow pens and paper from the stock room, make photocopies for our home garage sale on the school staff photocopier, use our workphones to make personal calls, checkout our facebook in worktime when we spose be finishing a report. stuff like that. is some pious ppl who say they never ever done anything like that ever never. but is maybe only like three ppl ever never ever. maybe

    so most of us arent like real thiefs who evil and go to jail. we just kinda well, not them kinds anyways. then sopa like comes along and says we are like them kinds and we going to be punished and locked up in jail

    we get way way way upset about that. punished and locked up for what!!! i am not a criminal !!! when this happens we measure what we are doing against what other ppl intend to do to us by way of punishment. quite often to the point where we begin to believe we have not done anything wrong at all. just to escape the punishment. that the self-protective part of the human condition kicking in


    so, first thing is to understand that in all the above situations most ppl actual stop doing it when they simply asked not to. just a simple please not do ok bc u know is wrong. this the human condition also. we not want others to think bad of us

    the human condition at work as well when ppl readily accept that it is uncool to do some things. example. using the school photocopier for ur personal stuff when u already been told that the school has a small budget and asked please not do this. is way uncool and ppl feel really guilty afterwards when they do, even when they not caught. when u are caught then other ppl not very forgiving and very disapproving about what u done. we dont like that at all when it happens to us

    ok. the solution to piracy is the human condition. there are two kinds of ppl. the ppl above, which is most us. and actual forreal thiefs who pinch anything and everything they can. if its not stuff off the interwebz, its stuff in shops, little old ladies lifesavings and all that kinds of things. they forreal actual fullon thiefs

    i need go into the “imagines if was me” to explain further. imagine if was me and i owned the interwebz. what would i do?

    i would make some formal interwebz and content tags and make them part of the offical markup language. allow all the various kinds of licenses to be tagged to content. public domain, creative commons, mit, zlib, lgpl, gpl, etc. all of them. make it so that ppl and orgs can create new license types if they want and register tags for them. linden starting to do this already on marketplace in an informal way. google/youtube starting to do as well with contentid. i would formalise this

    i would ask browser and reader makers to mod their tools so that ppl are advised of the license type when they go to copy or dl stuff, and paste link into blogs and emails, etc

    i not compel the browser and reader makers to block stuff. just to advise the user. something simple like right click image – save as – msg on save as dialog. “this content is licensed xxx. readmore button. ok saveas button, cancel button. same for right click copy and paste function

    just about all service providers would like this. facebook, youtube, myspace, linden, wordpress, live, adobe, etc. in time they would stop accepting uploads of content that not formally tagged


    is same thing as asking ppl not to do stuff after they been told. most ppl on the interwebz today when told in this way wont click saveas or copy or paste when they informed that the content is licensed in a way that is not free for them to copy, even if they can

    why not? bc of the human condition like i mention above

    yes ok but what about all the people who just ignore and copy anyways? well then u are a actual forreal thief who not give a chit. if u not a forreal thief then u going to get the guilts and stop clicking the button after a time all by urself

    if u are a forreal actual thief who not give chit then everyone going to respect ur choice and deal with u that way. u going to get busted, convicted, fined, donked off the interwebz by ur ISP, and even end up in a rl jail sometimes

    like in other areas of human interaction we inform before we even think about punish. and we give a clear choice before we do punish. interwebz makes this way easy to do. both to inform and to provide a clear choice. way more easy than pretty much in any other area


    the problem of artists being compensated for their works fairly then doesnt require any formalised solution

  • elizabeth (16)

    i not mean to dismiss ur suggestion in one line. just was late and i already wrote like a zillion words upto then

    so am really sorry i done that and i try complete here now


    i think ur idea has merit in that is many creatives who like the collective and pooling approach

    u right in that lots of academic and scientific papers use the collective model. where is sometimes a paywall, sometimes not, and ppl can consume as much or as little as they like. and others where is pay per view as well. they all good and work well for ppl in various ways


    i think that fundamentally the key to artisic payments is respect on a human level, and accessibility in all kinds of dif ways. so that ppl can easily respect other ppls stuff and their licenses, and also choose what ways works for them as both creators and consumers

    am pro choice me. more choices the better i think


    many artists creators use dif kinds of licenses for their dif works. some paid, some free, some free to view but not for public distribution. all kinds. if can formalise licensing so that it is an intrinsic part of the interwebz, then interwebz tools can be made that leverage off that

    like content general stores as i mention last time, and also companies, government depts, schools, ngos, etc. they can then auto filter stuff using the content tags before they accept onto their servers. which they will do if is some kinda formal codec. is no compulsion for them to do this, but they will do it bc they are good community citizens and they want to be seen to be that

    in time as well, makers of tools like blender, office, paintshop, flash, etc will provide content tagging facilities in their programs. defaults even, that the artist creator can choose and auto-generate licenses easily just by click the create new and/or save button. knowing that their license tags are going to be respected by most of the server owning ppl

    even by search engines as well. like today if u tag ur webpage, no-spider, then google and bing respect that and not provide links to the page already. is no reason why they would not respect content tags as well. so that in some cases the page link can be searched for, found and viewed, but is no direct links provided for some content on the page bc the content items have a restricted license tag. like images as an example

    am not any kind of expert on tags tho. will need lots of thought and discussion on how to do it and make like easy and simple to use and understand. is lots of good ppl tho who knows how to make this kinda thing

    once we have this then will be easier for everyone. will affect behaviour and thats what its all about really i  think. is not an instant fix tho. will take time. we have been using the interwebz now for like 20 something years. we have learned our current behaviours over all this time. so will take time as well to unlearn them for many of us


    one other thing, that sometimes early adopters miss. is an huge invasion of the interwebz going on. is a vast horde of ordinary ppl, over a billion already in just the last few years. and more billions coming. they all ordinary ppl, mostly law-abiding and well-mannered. they like order and tidyness and the semblance of civilised behaviour. just like they do in other areas of their lives. they sometimes scare some of the early adopters by their very ordinariness and orderlyness. but that another story. they would tho embrace content tagging just bc they would see the point of it, and would accept the licenses and use accordingly just bc of who they are

  • Bobo

    art is a by product of design… not the other way around…  from that point on, your arguments are weak.  and what SOPA is about is product ands commerce, not your idea of art.

  • I agree, you’re right. Instead of “art” I should have consistently used the expression “content creation”, because that’s what’s implied under copyright laws. Software development, for instance, is content creation and protected by copyright laws, but art critics would be very reluctant to classify it as “an art form”. Blogging is content creation, but it’s (rarely) art, either.

    I promise to be more careful in separating “art” and “artists” from “content creation” and “content creators” on further articles! It’s perhaps unfortunately that there is a single term — “intelectual property” — to describe both types, which are bundled together, and SOPA (and similar activities) applies to both.

  • Mona Eberhardt

    Excuse me Gwyn, but trying to have a reasonable and logical discussion with a borderline far-right troll like Mrs. Neva is as vain as trying to teach clams to weave baskets.

  • Aw Mona, i’m sorry you feel like that! Because it’s never “in vain”; Prokofy, like most of us, has his share of issues, and most definitely a strong personality, but, to be honest, I have seen Prokofy change his mind, or, at least, question himself on some assumptions.

    That doesn’t mean that he’s easily “persuaded” or “convinced”. It takes more than logic and argumentation to “switch him over”. But, then again, honestly, how many of us can truthfully claim otherwise?

    Let me take an example, which I hope you won’t feel offended by. You label Prokofy a “borderline far-right troll”. Let’s take this “far-right” approach. Is everything defended by the “far-right” so obnoxious? Here is a typical counter-example: the “far-left”, who usually loves to protect human rights and protect culture and the arts, nevertheless has no problem in scratching artists out of the list of humans who have (labour) rights and demand they submit all their work to the public at large without monetary compensation. While the “far-right” ascertains artists’ rights to get a monetary compensation for their work, allowing them to survive on an income.

    So I see here a big inconsistency on the “far left” — on one hand, they want more access to cultural products and artistic creations; on the other, they’re unwilling to acertain artists’ rights in getting paid for their work. The “far right”, by contrast, while unwilling to have taxpayers’ money to fund artists, are nevertheless quite happy to defend their right to get paid as they like, and to allow them to freely celebrate whatever contracts they wish in order to get a living.

    From an artists’ perspective — who tend, ideologically, to be “more left than right” — what is better for them? And, following that line of thought: happy artists create more and more, and that means more happy consumers. So who is “right” and “wrong”?

    If one takes a far-left extremist view, there is no rational argument possible, unless that person is willing to open their minds and view things from the standpoint of the artist: most, however, just want to view things from their perspective (and of their own ideology).

    Now this is just an example. When talking and arguing with Prokofy, it’s clear what ideology he follows (at least in most cases). But sometimes Prokofy is willing to side-step his own ideology and maybe, maybe, just consider to discuss something from “the other side’s viewpoint”. Granted, this happens rarely. But it’s also rare when it happens from “the other side”. When discussing ideologies, it’s hard to shake lose an ideology just, well, because “the other side” may have a point here and there.

    My own experience is that both sides stereotype the opponents and attack them with straw men arguments; but, while doing so, they aren’t realizing that they’re following a stereotype as well (and thus become liable to be attacked in the same way).

    When one steps out of the comfort zone of one’s own ideology, and starts seeing things from the other side’s perspective, something interesting happens. First, your own opinion seems to be much more flexible and changeable than before — and that is good, because it shows flexibility. Secondly, of course, you’re starting to get attacked by both sides simultaneously, which not only is fun, but shows how breaking lose from a stereotype confuses both sides 🙂 Thus, I have the dubious honour of being labeled as a communist/bolchevist by right-wing fanatics (like, say, Prokofy) while simultaneously being seen as a capitalistic libertarian by the left-wing fanatics — and often by saying exactly the same thing 🙂

    It might surprise you, but in some contexts, I did see Prokofy “switch sides” and defend positions which would be seen as red-wing under certain contexts. But because most people keep stereotyping Prokofy in the “borderline far-right troll” spectrum, nobody notices (perhaps not even Prokofy himself!).

    At the end of the day, the point is, no matter what ideology you subscribe to, does Prokofy has something valid to say, even if you disagree with him? In my experience, the answer is a big YES. Specially when Prokofy seems to be the only dissenting opinion in a topic where everybody has already reached the same decision (mostly through groupthinking and meme spreading…). It’s in those occasions where he shines, presenting the opposing argument. Sometimes, he is just plain wrong. Most of the times, however, he always has something valid to say and which — at least in my case — makes me think twice about my own opinion, and wonder if I’m not just nodding along with a sheep mentality, or if I really have given some serious thought to the issue and reached my own conclusions.

    For me, Prokofy is always worth to read. I tend to agree way more with him than he thinks 🙂

  • Mona Eberhardt

    I’ll put it this way: in the increasingly rare circumstances when Prok puts down his paranoia and his ideology that despises privacy, free speech, access to research that taxpayers have already paid for through the nose, his conclusions and remarks are no more insightful than those of a moderately intelligent college graduate. Therefore, the good products of his thought are, well, akin to bringing an owl to Athens, and they are sadly few. The rest is stuff that would have anyone of us sent to the booby-hatch in a matter of nanoseconds.