Inkwell: Authors and Artists

    
(jonl) makes an interesting point about the differences the Net
economy has brought to traditional entrepreneurialism....the
established media is deeply entrenched in the old way of providing
product, with layers of profit for themselves and their ancillary
companies...the Net allows anyone, more importantly the artists
themselves, to provide their own product(s) to their fan base at a
considerable cost difference and profit margin...this includes the real
profit makers, the t-shirts and band paraphernalia, so there is a
sense in which the industry is a dead horse, but only if the bands, and
movie makers seize the market opportunity afforded by the web -- and
they may choose not to...several have tried, DavidBowie.net, the
Stones, etc. without the kind of success you might have expected...

In any case, others, like Napster and iPod and many of the Darknet
sites will fill the void and begin providing quality downloadable files
for a monthly fee, or a per file charge...the Industry has to
recognize that the entire world is moving everything to their hard
drives and all they have to do is notice the sales of external
terrabyte and exabyte drives to see where things are going...one way or
another they are going to have to redefine their role, as either
providers to these new services or as just another horse and buggy
outfit lying on the side of the cyberspace highway. It really doesn't
matter whether they 'get it or not', the only thing that matters right
now is that they not get their way in Congress while they go thru their
death throes. 
  

    


heya jd.  I am only two chapters into "Darknet" so far, but it's already
helping me clarify my thinking on creativity, copyright and digital media.
Am sad to say that despite about ten years spent in some or other web
content endeavor, I haven't kept up on these issues as assiduously as I
might have.  So your book is a welcome opportunity to catch up -- and, it's
a great read.

I'm especially looking forward to your explorations of the middle ground,
away from the RIAA/Free Culture extremes.

Just as a disclaimer, I'm not an objective reader/observer -- I'm trying to
write for a living, and my brother and sister-in-law work in Hollywood.  But
I think we're all young enough to benefit if the media and entertainment
companies start to make intelligent choices about digital media, instead of
pursuing this impractical and short-sighted content lockdown.
  

    
(JD, thanks for the reply to my post at WorldChanging, btw.)

One of the common refrains from people who write for a living is that
"everybody thinks they can write" -- because the tools for writing are so
easily used, because casual writing is so commonplace, people (generally
speaking) tend not to consider writing to be as skill- or talent-based as
(say) painting.

To what degree do you expect the democratization of tools for other sorts of
media creation and distribution will, in turn, result in the devaluing of
such creativity in the public eye -- "oh, you make movies? I just made a
movie with my cell phone and it got a hundred downloads at Ourmedia!"
  

    

I looked at darknet.com but did not see anything about the effects of
being listed in itunes. One day I was exploring the radio links on itunes
and found http://www.magnatune.com. I could hardly believe it. A musical
web site that made sense: it allows me to listen, download in many formats
or order a CD. I love their motto "We are not evil"! They also have
some top rate artists.

Do you plan to look at such models on darknet.com including how well
such companies are working?
  

    
Time to catch up on these threads!

jon, in theory, yes, the Internet is the greatest disintermediation
device of all time. And I agree that more and more artists will see the
advantages of going straight to their fan base via the Internet (or
creating a fan base that way. Indeed, there was an AP story on that
very subject on Friday:

http://www.cnn.com/2005/SHOWBIZ/Music/08/11/diy.music.ap/index.html

Still, it's going to be a very long, drawn-out process before the
record companies recede into irrelevance and a new artistic discovery
and distribution system rises up in any meaningful way. Separating out
the good stuff from the dreck is one of the greatest challenges facing
those of us who are dabbling in the grassroots media space right now.
Collaborative filtering, ratings, community tagging, etc. all have
their place. Just don't bet the farm on big media fading away. As
someone recently wrote: Remember, dinosaurs ruled the world for
millions of years. Meantime, let's not worry too much about what the
record companies and movie studios are up to. Let's build our own
media.

nukem777, success is relative. The era of the big-name mega-stars
earning tens of millions of dollars for a new record release is quickly
fading. Instead of 1,000 recording artists earning a million dollars
(or whatever the true figure is), we'll soon see 100,000 artists
earning a respectable income (though nowhere near $1 million).

Emily, thanks for the good words -- this is why I wrote the book, to
bring context and plain-talkin' perspective (and hopefully a little
fun) to tens of thousands of people who haven't delved too deeply into
these issues but know that something important is happening here. I
agree that we're all young enough to benefit if the media and
entertainment companies start to make more intelligent choices about
how they make digital media more accessible. So far, it's a decidedly
mixed bag, with those trying to hold onto analog-era business practices
outnumbering the forward-looking execs, at least at the larger Big
Entertainment companies. That's why I think special attention should be
paid to the creative ferment happening at the grassroots level -- and
why it's important for public policymakers not to skew the playing
field in favor of the incumbent behemoths.

Jamais, I'm looking forward to exploring how we can effect meaningful
political and social change through grassroots media. And whether or
not it has social important, I think the personal media revolution is
indeed permanently changing the media landscape, including our
perceptions of the professional media. I doubt we'll start devaluing
the work of a Cassavetes or Coppola or Spielberg just because millions
of us will be creating our own mini-movies. Instead, I think we'll
start appreciating the fact that many of us can create stirring,
important, entertaining works on our own, without a big-budget
Hollywood apparatus behind us.

jmcarlin, I'm a big fan of Magnatune, and have mentioned the site (too
briefly) in my Darknet.com and Newmediamusings.com blogs. There's been
an explosion in these kinds of sites over the past 18 months
(Magnatune is clearly one of the leaders in this space), and I've been
trying to keep track of them not at Darknet but at the Ourmedia public
wiki:

http://www.socialtext.net/ourmedia/index.cgi?related_sites
 
  

    
You do say in the book that "personal media will complement, not
supplant, the old order of mass media and consumer culture. Most of us
will continue to to watch entertainment created by professionals
working at media companies. High-quality entertainment takes time,
talent, effort, and money to pull off." 

Even if we continue watching higher-end entertainments, won't
grassroots media pull significant mindshare away from the mainstream?
Isn't that already happening, to the detriment of media companies? 

This makes me think of Technorati stats that show mainstream media
still prominent, but several blogs gaining:
http://www.weblogsky.com/archives/000563.html  
  

    
There's a lot of talk about artist and their fans ditching the
middlemen, but one of the things nobody talks about is that consumers
may not need artists all that much if they're happy listening to the
music of yesteryear.  There are millions of people out there with
rapidly growing and increasingly eclectic song collections that aren't
going to wear out or become obsolete.  If they can always get great
music that's new to them from each other, how much is anyone going to
pay for new releases?  How much is "new" worth versus "new to me"?
  

    <scribbled by dfowlkes Tue 3 Jul 12 10:14>
  

    
That's a great point - the "long tail" legacy of recorded music...
which a record company would interpret as a reason to extend copyright
or make it permanent. 
  

    
I'd be interested to hear from someone who really knows the business of
music on that question.  Does the centuries-long back list of printed matter
depress the market for new writing?  Not that I'm aware of.

Aimee Mann's another who's started her own label and sells directly to fans
-- but I've read an article where she laments how much time running United
Musicians takes away from making her music.  That is one thing you lose with
the dissolution of the industry: the helpful things, like dealing with
supply chains and manufacturing agreements and marketing arrangements.  The
economies of scale.
  

    
Jon, I absolutely agree that mainstream media (a term Dan Gillmor
hates ... perhaps "mass media" is a more accurate term?) is in a fight
with emerging grassroots media and alternative media for user
mindshare. It has begun to happen with computers and videogames pulling
younger people away from the TV, and it will accelerate as more and
more people begin creating and sharing their own media -- and finding
that it's fun and fulfilling to do. 

Take another look at Dave Sifry's chart ...
http://www.weblogsky.com/archives/000563.html  -- those bars are not
measurements of audience reach, they're tallying in-bound links, that's
all. Even the largest blogs today (Instapundit, etc.) are dwarfed by
small cable networks when it comes to sheer audience size. But the Long
Tail is taking the mass out of media. What happens when 10,000 TV
shows come slamming through your living-room tv set? Traditional
business models will topple. But I think we'll see a lot of symbosis
and co-opting in the years ahead. Mass media advertisers will begin
flocking to targeted niche media (on Internet TV, in podcasts), some of
the better-done "personal broadcast networks" will cross over into
prime time, and so on. It's going to be a fascinating media mash-up.

Brian, that's a great point, and music labels are aleady reaping nice
profits by putting their back catalogs out there in digitized form.
Still, I think most of us do want to hear new music (both new to us and
actually new) and so new forms of recommendation technologies will
spring up that replace the music companies' traditional A&R role. The
public -- especially social networks of like-minded people -- will be
the ones discovering and recommending new sounds. But the record
companies aren't going away anytime soon (despite wishful thinking in
some quarters) because they still serve a function, offering economies
of scale, as Emily points out. 

I think there will be a new musical order -- one where megastars get
paid less and artists get paid much more than the 5 percent rate (if
they're lucky) on each sale of a CD. There's got to be a better way,
when (from the book) ...

> The New York Times reported that 99.99 percent of audits show record
companies to have underpaid their artists. Roger McGuinn sold half a
million copies of 1991’s Back to Rio and never got a penny in
royalties. In a music industry magazine in 2002, Steve Albini, who
produced Nirvana’s In Utero, outlined what a typical record deal looks
like: A new band might get a $250,000 advance. Its debut album sells
250,000 copies, earning $710,000 for the label. The band, after
repaying such expenses as recording fees, video, catering, wardrobe,
and tour bus costs, is left owing the label $14,000 in royalties. In an
essay in Salon, Courtney Love did the math for a band that sells 1
million records, nets $6.6 million for the record company, and its
members come away with zero—including its music, which the label owns.
(Congress passed a law sanctioning such indentured servitude. Book
authors, by contrast, own their books and license them to publishers.)
Love relates how Toni Braxton declared bankruptcy in 1998 after selling
$188 million worth of CDs after a record contract paid her less than
35 cents per album sold. The entire recording industry, Love concludes,
“is based on piracy.”


BTW, there's a move afoot in the European Union to extend copyright
protections backward -- just as Congress did in 1998 with the Sonny
Bono Act -- because many of the recordings from the early 1950s are
about to pass into the public domain, which will bring up all sorts of
interesting issues. Will U.S. listeners be able to tune in to an
Internet radio station based in Amsterdam to hear Elvis and Miles and
Ella and Frank, if their recordings are still under U.S. copyright but
the station refuses to pay ransom, I mean, royalties?
  

    
When you say "its members come away with zero—including its music,
which the label owns" - does that mean that labels won't work with
artists who insist on owning their own material?

One concept we should discuss before we say much more is that of
convergence. Can you explain what that term means in this context, and
what you mean when you say "meaningful convergence involves the user."?
  

    
The artist who owns her material is very rare indeed. It almost never
happens with the first contract. After you've hit it big, you can
negotiate for that, but it's still the exception. (This was pointed out
in the movie "Ray," where Ray Charles gained the clout in the early
'60s as one of the first artists to own the music he created.) That's
why some artists are sued by their labels, after they've left their
labels, for performing songs they've made famous.

Convergence is a word nobody likes -- it's been a concept that has
teased the tech and consumer electronics industries for more than a
decade -- but it's finally becoming real. It's important because it is
having a big impact on the kinds of devices we're bringing into our
homes.

Used to be, all consumer electronic devices were islands undo
themselves: your big TV, record player, telephone VHS player, etc. But
the computer revolution has reshaped that landscape, with tiny chips
embedded into our gadgets, letting them talk to each other and turning
them, essentially, into mini-computers. Your TiVo or DVR is more
computer than CE gizmo. What's transmitted across those networks and
into those devices are bits -- the computer 0's and 1's that let you
view photos on your TV, watch TV on your laptop, or listen to music on
your cell phone.

I wrote about what happens when the tech guys, CE guys and Hollywood
lawyers get together in the same room here:

http://www.darknet.com/2005/05/story_the_tech_.html

What I mean by "meaningful convergence involves the user" is this:
Hollywood and the CE and tech industries still look at us as consumers,
as demographics to be targeted, carved up and marketed to. So their
plan is to put a black box in our living room that controls our
entertainment experience: a converged device that is part hard drive,
part TV, but all controlled by Hollywood with the help of their tech/CE
enablers.

But there's no place for the user in such a vision -- no place for us
as creators, producers and designers of media. True convergence puts a
blasting cap to the one-way architecture of top-down media. Real
convergence suggests open media -- not closed, proprietary systems. It
occurs when people create personal media or capture mass media and
personalize it. It's about creative culture and remix culture. 

So, I say to the Hollywood lawyers, consumer electronics engineers and
tech coders: Take your plans back to the drawing board -- and create a
space for _us._
  

    
What is Hollywood doing to stifle remix culture? (Noting that
"Hollywood" here is not a reference to the place, but a label for
corporate proprietary media industries and the associated "permission
culture.")
  

    
Ugh! I posted a LONG answer here an hour ago, but WELL Engaged barfed
on it, so it's gone.

Remix culture comes in two flavors: We can freely remix our own
creations with the creations of others who give permission, chiefly
through Creative Commons licenses. See the ccmixter site for some great
examples of this:

www.ccmixter.org

But that accounts for less than 1% of the mediasphere, and people want
to be able to borrow from the culture around them. Young people
especially are heading full-throttle into the remix world, taking
snippets of the media culture to create something new. That could mean
borrowing images or clips from a TV show, a Hollywood movie, a musical
work, a videogame, and transforming it into something new.

That's legitimate, in my view.

Most of what we create can be done without borrowing from other
audiovisual works. But as any filmmaker knows, making use of a
well-known visual element or musical score can evoke an emotional
reaction. 

I believe there's a huge distinction we need to make between creating
such works for commercial purposes (where permission should be sought)
and creating such works for the purpose of artistic expression.

Most of mashup music is done for the sheer love of it. Check out all
the comments people posted to the Darknet blog about the Green
Day-Oasis mashup, "Boulevard of Broken Dreams":

http://www.darknet.com/2004/12/green_day_vs_oa.html

You can download the mp3 here:

http://www.volkomenkut.com/media/boulevardofbrokensongs.mp3

You'll notice that the server for this song is located in the
Netherlands. You won't find mashups -- one of the most interesting and
creative trends in music today -- on the radio, because the RIAA
lawyers will swoop down with their cease and desist orders.

On the film front, I wrote last month about approaching the seven
major Hollywood studios, asking for permission to use 15 to 30 seconds
of their films (ranging from a few years old to 60-year-old films) in a
home movie project I was making with my young son. Here's what
happened:

http://www.darknet.com/2005/07/when_the_studio.html

So, the studios demand that we ask for permission. Then they won't
give permission. What better way to stifle Remix culture?
  

    
Shouldn't sampling qualify as "fair use"?
  

    
In theory, and to reasonable minds, yes. That's certainly the way the
culture should work.

But it's not the way the law works, and not the way the courts have
ruled. Courts have held artists liable for using the _same three notes_
as a riff in a previously recorded song. It's reached the point of
absurdity, so much that most hip-hop artists will no longer sample, nor
ask for a license to sample from a previous work, because of the
exorbitant fees involved.

What issues do WELL folk want to see discussed here? Happy to dive
into anything brought up by Jon or other participants ...
  

    
The more I read the more I get the impression that the "Industry" is
trying to co-opt the individual's right to create and distribute almost
any kind of artistic expression or endeavor by right of fiat or some
kind of appeal to the past way of doing business and distribution.  

This is more than an argument over fees, this is an argument over free
expression and who owns or has the right to distribute content in any
format. Maybe I'm overstating it, or am I just late in getting it?

Your links are excellent (jd) and I appreciate the hook-ups. I gather
(cascio) and Worldchanging.com are onto this as well. Maybe this
conversation will result in a broader coalition of various interests
working to establish digital rights. Seems like a lot more court cases
are ahead and perhaps a few well-framed forays into digital expression
could serve the battle well. 

If that's the case, maybe we could talk a bit about what has proven
effective and what needs to be pursued in the area of Creative Commons
licensing. We've discussed collaboration and virtual  communities quite
a bit this year in this Conference, but we have not really made an
effort at 'joining forces'. I'm not sure the WELL is so much  inclined
toward Advocacy as it is in examining the issues, but you sure are
stirring up the pot.
  

    <scribbled by dfowlkes Tue 3 Jul 12 10:14>
  

    
Are there legislators who understand why we might want more
flexibility in interpreting the scope of intellectual property
interests?
  

    
Dan, that's interesting. Is the show online?

Jon, yes, a few congressmen certainly get it. Top of the list would be
Rep. Rick Boucher of West Va., who's the most Net-savvy member of the
House and has introduced legislation to reform the DMCA, to tamp back
its more  excessive abuses (the legislation's stalled). A few senators,
like Sen. Norm Coleman, R-Minn., have scolded RIAA reps who've
appeared before Congress by asserting a narrow view of fair use in the
digital age.

I'm not aware of any organizations that do a Digital Rights Report
Card, though. Does the EFF? Public Knowledge? That would seem to be a
natural idea.

nukem777, i think you're right, there's certainly an element of free
expression and creative rights that are being throttled by today's
lockdown environment. While the WELL certainly isn't in the advocacy
business, WELL members are certainly free to band together to push for
reforms and to help connect the disparate causes. 

Perhaps a digital rights summit would be in order?
  

    

There is an EFF conference on the Well. I've just put a pointer to the
last post there <eff.950.268>.  Hopefully someone can answer those
questions here.
  

    
This might be a good time to mention that anyone reading this
discussion outside the WELL can still post questions and comments by
emailing them to inkwell@well.com. Hosts of the conference will post
the emails here asap after they're received.

There was a digital rights summit in 2003: 
http://cyberlaw.stanford.edu/archives/Intel%20AEA%20Digital%20summit.pdf

Getting back to the book, could you explain what Larry Lessig meant
when he said "We're essentially burning libraries with encryption"?
  

    <scribbled by dfowlkes Tue 3 Jul 12 10:14>
  

    
Thanks, Dan, I'll check that out. I wonder how the heck they pay
licensing fees to the various parties whose songs are mashed up ...

Jon, what Larry Lessig meant by "burning libraries with encryption" is
that digital technologies can be a double-edged sword. While some
digital content is fluid and malleable and can move easily from one
format to another and one device to another, publishers often lock down
other digital content with digital rights management (DRM). (I was
shocked two years ago, at an O'Reilly conference, when someone
mentioned DRM and NY Times technology reporter David Pogue said he'd
never heard of it.)

DRM can have its advantages, but one distinct disadvantage is that
material that's locked down with DRM (whether on a CD, a DVD, an
encrypted ebook, etc.) can become inaccessible years afterward, for any
number of reasons. The decryption key may no longer work and the
company that issued it is no longer around. There may no longer be any
hardware device that can "read" the DRMd content.

This is a problem that keeps librarians awake at night. More and more
material is coming in these proprietary containers. In years past, the 
librarian might have been able to accommodate a patron by transferring
the journal article or book chapter or scientific paper into an open
reader.

But that kind of fair use was outlawed by the 1998 DMCA -- it's now a
felony for librarians to do so.

So that's what Lessig was referring to: an entire segment of our
culture that's made private, put under wraps, and that becomes
inaccessible at some point through the confluence of restrictive
technology and bad law.