What Now?

As I do interviews to promote my book, one of the questions I’m always asked is, “Where do we go from here?” Sometimes this is phrased more along the lines of, “OK, if you’re so smart, what can we do about this?”

Here’s the solution!

Well, maybe not. I think I have some interesting ideas about “how the culture business can fight back,” but I’m the first to admit that we’re just starting to make some serious decisions about how to balance the rights of various people in the online world. So far, the discussion has been pretty lame – entertainment conglomerates complain about “digital theft” while technology companies promote “free speech.” That’s not much of a conversation: I’d rather call copyright infringement by its proper name, and it’s important to realize that “the Framers intended copyright itself to be the engine of free expression,” in the words of a U.S. Supreme Court decision. On this level, what I really want to do is ask some important questions that have become lost in a lobbying struggle between creators and Big Search.

In a Salon interview that ran yesterday, I talk a bit about how we can balance the interests of various parties online. Many of the comments attack me for promoting the interests of big media companies, but I don’t see where I did that. I am defending the rights of creators to their work, which could favor companies or individuals, but that’s a very different thing. Besides, these days, the power has shifted to Silicon Valley. In 2010, Amazon spent more money to lobby Congress than the MPAA. The rallying cry of a free and open Internet has become a call to Leave No Venture Capitalist Behind. We deserve better.

In the last chapter of Free Ride – excerpted here in Billboard – I talk about how we might apply smart, light regulation to the Internet in a way that protects the rights of creators and consumers alike. We need to make sure the Internet will remain an open venue for free expression. At the same time, we need to impose some limits to protect the free speech rights of professional creators. As I say in the book, we should not dismantle the 300-year-old tradition of a market for creative work so the Internet can continue to work the way it did in 1995.



10 thoughts on “What Now?

  1. Robert,

    In the Salon article you claimed: “You have safe harbor from copyright liability if you follow this notice and takedown procedure. It turns 300 years of copyright law on its head by making it an opt-out system instead of an opt-in system. Dozens of sites will use this interview until you specifically tell them not to.”

    That’s not what the safe harbour provisions are about. They protect you from third-party liability, not direct liability. If I were to repost your article, I don’t enjoy any safe harbour provisions; I’d be guilty of copyright infringement no matter my excuse. If I post it on Facebook however, Facebook cannot be held responsible for my actions if they follow the notice-and-takedown procedure. That’s what these safe harbour provisions are about: placing the blame where it belongs: on the infringer.

    There’s no way that Facebook could prevent me infringing your copyright if I post it on there. Not unless they had to screen everything everyone posts on there, and then make a proper judgement call on whether it’s infringement, fair-use, etc. That’s not something a third-party should have to do. That’s not something a third-party is able to do. That’s not even something they should be allowed to do. Only a judge can determine copyright infringement, and the resulting penalties. Notice-and-takedown was introduced to prevent further infringement; the next step is to sue the actual infringer; not to blame the platform it occurred on.

    Posted by Pieter Hulshoff | November 2, 2011, 4:24 pm
  2. Technically, you’re correct. But at a certain point I’m not sure what the difference is between secondary responsibility and crowdsourcing infringement. Look at Grooveshark – it’s building a business based on making available works that it has no right to. That has turned copyright law on its head.

    Is the answer to apply absolute secondary liability? No. But I think the courts should impose some – enough that venture capitalists can’t build businesses on the backs of creators. Because that’s really what we’re talking about here.

    Posted by roblevine1 | November 2, 2011, 4:39 pm
    • I actually had to look up Grooveshark to find out what they’re doing. Their situation has nothing to do with the safe harbour provisions either. They’re just a search engine able to play music available on the internet; basically a limited Google with player features. If some of that music infringes on copyright (remember that many record companies are putting out music on the web these days), then any rights holder could use the same technology to find that material, and sue them for primary copyright infringement.

      Just as internet technology has made it very easy to infringe, it also has made it quite easy to detect that infringement. Sue the infringers! Penalties in the US can run as high as $150k per infringement! That’s $1.5M for a 10 song cd; compare that to $1k for stealing the thing from a store. Get the infringing songs off the web, and Grooveshark won’t be playing them either. Once again a matter of putting blame where it belongs: on the infringers.

      Posted by Pieter Hulshoff | November 2, 2011, 4:52 pm
      • You’re wrong about Grooveshark – it’s more than a search engine. Keep reading.

        And you’re wrong about the penalties. The $150K penalty is the upper limit, not the average, and it applies to UNAUTHORIZED DISTRIBUTION, not unauthorized downloading. It’s more like stealing a CD from the store and setting up a business to copy it for everyone you know.

        These companies have no right to do this. I don’t want to sue individuals. But I see nothing wrong with suing wealthy venture capitalists like the ones behind Grooveshark, who actively encourage infringement and set up a business to profit from it. I’d like to see much lighter penalties for individuals and much harsher penalties for them.

        Posted by roblevine1 | November 2, 2011, 5:25 pm
  3. As an musician I would like to say that Grooveshark is not a search engine. They are a pirate site operating under the safe harbor of the DMCA to build a business. I have had to send several “takedown” notices to them. Robert Fripp has detailed in his online journal his repeated takedowns, now the Eagles are having to do it http://www.digitalmusicnews.com/stories/103111eagles#YO5j58UC8V7LJ0C8mEgsgg
    The Guardian (featured in Robert’s new book) did an article about them in their “Behind the Music” blog http://www.guardian.co.uk/music/musicblog/2011/sep/09/behind-music-grooveshark (which also has a link to Fripps blog).

    Not only are they using the Safe Harbor provision of the DMCA but they have a page specifically for that http://www.grooveshark.com/dmca with very threatening language regarding takedowns: “…before proceeding please understand that should you knowingly materially misrepresent that a product or activity is infringing your copyrights, you may be held liable for damages. In a recent case, a company was held liable for over $100,000 for seeking removal of content that was protected by the fair use doctrine.” How many young Indie artists are going to understand that?

    In the meantime they are making money from ads. Ads from big companies like Avis, Mercedes Benz, the Auto Club, Disneyland, AARP, etc… So Grooveshark makes money, but doesn’t pay artists. A true “Free Ride”.

    What I don’t understand is why is it that no one, under the DMCA, is responsible for the posting unauthorized copies of music, films, TV shows and books? If not the “Groovesharks” of the internet, then why not the individual that post this content claiming they own them? This fraud after all.

    As an Indie musician I do not have the time or resources to be the “law” as mandated by the DMCA. Those online companies, like YouTube and Grooveshark, who are providing the space to post illegal content should be policing this. There is the filtering technology to do this. And that should be the responsibility of the companies that are running these businesses.

    Since when did their “Free Speech” trump the content creators? Why does their “right” to make money from the (unpaid) creations of others trump the creators right to make money?

    I agree with Robert. The DOJ should take Grooveshark down.

    Posted by TMD | November 3, 2011, 6:30 am
    • Generally, I agree. Just to be clear, tho, I’m not sure the DOJ would be the right solution in this particular case. For sites like this, I think the DMCA would work well – IF IT WERE APPLIED CORRECTLY. That gets complicated. But I do think Grooveshark should be liable – it’s profiting from infringement.

      Posted by roblevine1 | November 3, 2011, 9:09 am
      • Since Grooveshark doesn’t really honor the DMCA,
        or if they do, it (your song) is put back up the same day… What’s an artist to do?

        I believe the DMCA needs to be updated. There needs to be a ‘black list’, once you add your metadata to a takedown, the site is not allowed to keep putting the same material back up. Remember the old arcade/carnival game “wack-a-mole”? that’s the DMCA … basically a big tech joke.. and the robbers are laughing all the way to the bank, protected by law…

        Posted by James_J | November 3, 2011, 5:08 pm
  4. If the DMCA is being ignored, and evidence points to this, like the Eagles story, James J’s link and others show that Mr. Geller and his fellow sharks are not abiding by the DMCA. This is why I belive the DOJ should step in.

    And yes the DMCA is not working and needs to be updated/beefed up. Robert, your book illustrates better than almost anything out there. Those of us in the trenches have been aware of its failing for years.

    Posted by TMD | November 3, 2011, 9:32 pm
  5. Unauthorized distribution? I don’t recall Section 504 of US copyright law making that requirement for statutory damages. I know $150k is the maximum, but for larger infringers (e.g. 1000 songs) even 1% of that would be enough to bankrupt most of them.

    The big question when it comes to law is how to draw the boundaries between what is legal and what is not, especially when there’s (almost) no technological difference between two sites.

    Take isoHunt for instance. It works no different from Google, other than limiting itself to torrent files. How do you draw up a law that declares isoHunt illegal, but leaves Google free to crawl the web. For that matter: should Google be allowed to crawl the web? From a technological point of view, the answer would be: yes. It’s by far the most economic way of allowing search engines (which are quite important on the web) to exist, and it takes only a very small step to prevent Google from crawling your site.

    What about technologies that are incapable of detecting infringement? Bittorrent for example. It’s being used by many of the world’s MMORPGs to distribute new patches, by artists to promote their work, and by Linux vendors to distribute their works. It’s also abused a lot for the purpose of copyright infringement. Should it be abolished, and how do you draw the difference between this technology and other communication technologies, like Skype, MSN, Microsoft Network Neighbourhood, etc. Trust me: those technologies are used a LOT for copyright infringement.

    When it comes to law, especially laws like E-PARASITE, it’s usually an all or nothing kind of thing. Either technology remains legal, and you’ll have companies skirting around the boundaries of law (like almost all companies, including record companies and movie studios do) or you’ll basically outlaw all communication technology. As E-PARASITE is written at the moment, practically any site that allows unfiltered user input could be declared a rogue site, since any of them could (and may) be used for infringement. How do you monitor 48 hour/minute upload of videos on YouTube? If YouTube is incapable of preventing infringement, should it be shut down? You’ll have a lot of artists up in arms if you’d try that.

    Posted by Pieter | November 15, 2011, 9:49 am
  6. “What now?” is the key question, and I think I have a better answer.

    As stated in my blog, which reviews “Free Ride” and expands on this issue (http://www.fairpayzone.com/2011/12/war-over-free-ride-robert-levines-book.html):

    What we really need is something new, a twenty-first century synthesis, one that offers a win-win solution, not just variations on the old zero-sum battles. I suggest FairPay [my proposed solution] offers the kind of forward looking synthesis we need…

    From the perspective of FairPay, the fundamental problem with blanket licensing is that it is not grounded in the dynamics of market forces, but is clumsily pre-set by bureaucratic mandates that cannot adapt to varying real-world contexts.

    In contrast, FairPay applies the power of the networked digital marketplace to bring twenty-first century solutions to the very problems it creates. FairPay offers not a compromise within the old paradigm, but a radically new kind of synthesis — one that changes the fundamental nature of sales transaction and the play of market forces — to find a dynamic, adaptive, and nuanced solution to the problem of balancing creator and consumer rights. FairPay changes the rules to create more win-win marketplace, that expands the digital economy, and the opportunities for both creators and their consumers.

    FairPay provides an institutional framework for deep two-way connections between consumers and creators/businesses–in the form of individual dialogs about the value of offerings, as actually realized by each user in their specific contexts. This can be done with a structured balance of powers in which the consumer sets an individualized price they think fair, and the creator/business continues to permit such transactions as long as they agree that consumer is “fair” about the price, using the power of networked markets to make that assessment. That can improve margins and market efficiency for creators/sellers, and can empower relationships based on fair value exchange (a buyer-agreed-to form of price discrimination). Think of a privilege that is earned and maintained — a zone of pricing freedom, a “FairPay Zone.” The details of how FairPay does this are [elsewhere in this blog and the related Web site at teleshuttle.com/FairPay].

    FairPay is not the answer for all offerings in all markets, but I think it can pervade many segments–and that its more collaborative model for marketplace relationships will fundamentally change a large segment of our economy. I suggest, that just as mass marketing changed the fundamental nature of commerce a century ago– and disconnected sellers from buyers–relationship dialogs of the kind used in FairPay can remedy that and create a new and higher level of engagement. That dialog and engagement create and guide a new force for funding “The Culture Business” that Levine is rightly concerned about — a new paradigm for the invisible hand.

    More on FairPay is on the blog, and at teleshuttle.com/FairPay. I welcome comments (fairpay [at] teleshuttle [dot] com).

    Posted by Richard Reisman | December 28, 2011, 11:06 pm

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