Friday, June 27, 2008

reason, despite differences of opinion

Thanks to one of the evil emissaries of American imperialism for calling my attention to this op-ed by Mike Warkentin in Winnipeg's Uptown magazine. Those emissaries... so helpful.

I'll call your attention first to this quote from Mark:

"I, too, hope Bill C-61 dies a quick death and is replaced by something less likely to be abused by corporations..."

because, obviously, here is where Mark and I part ways. I'm just not sure killing legislation is the path to better laws. I'm hoping for vibrant discussion and a healthy amendment process -- you know, governing. But I don't fault Mark at all for his opinion, which is intelligently and wittily expressed; I simply disagree with it.

Where Mark and I walk the same track is outlined in the rest of his article -- specifically in his dismay about the loud and emotional protest surrounding this bill. Like so:

"While I agree that Bill C-61 is a dud, I'm amazed that average Canadians are currently calling for changes in government with French Revolution language simply because someone might stop them from jogging to the new Madonna album.

Really? That's what we're worried about in Canada? That's our greatest challenge as a nation?

I'd suggest Canada has bigger problems that would benefit from a little activism and public outrage, but perhaps dead soldiers in Afghanistan aren't as important as that new JT track. Maybe concerns about greenhouse-gas emissions should take a seat behind the guy watching a ripped episode of Family Guy on a flight to Toronto. And maybe our Aboriginal issues just don't matter so long as we can use YouTube to watch scenes of Adam Beach on Law and Order: SVU.

Call me a cynic, but I think it's a sad sign of the times that some truly momentous legislation goes unchallenged while citizens threaten to revolt on Facebook over DVDs."


And yes, I'm just going to go ahead and take credit for the French Revolution meme that appears in the above quote. I took a lot of heat over my description of Dr. Geist as a red-sashed revolutionary leading his people to the barricades (He's calling our leader a pirate! Keelhaul him!). I'm glad to see, at least, that somebody got the reference.

39 comments:

Sir said...

I would like to point out that self interest is a major building block of a free market and it is important to speak out when something is not in your best interest.

I'm surprised your not offended by him suggesting copyright law is frivolous.

John said...

Sir,

I think you'll find the writer suggesting rampant consumerism is frivolous, not copyright law. In fact he mentions his own interest in copyright, being a writer and all.

But I do take your point about self-interest. In fact I agree about its place in capitalism -- yet we have all sorts of laws regulating the self-interest of capitalists. And laws regulating the self-interest of consumers, for that matter.

In this case, much has been made about the balance of interests under copyright, and in my opinion the protest movement against C-61 is mostly not interested in true balance because it does not recognize the investment of one of the key partners in all this, the artists.

Sir said...

I think you may find the reason why the protest movement is not crying for artist's interests is because bill C-61 is heavily skewed towards established industry instead of striking a balance with consumers. If the bill was more balanced to begin with I'm sure you would see more discussion of everyone's interests(including artists) and not just about consumer's interests.

I'm not saying bill C-61 has no good but the bill has not had enough consultation done to strike a balance specifically in the digital locks area. I think it needs to go back into the research oven for a few more months.

John said...

Sir,

You obviously have more faith in this particular protest movement than do I.

The public discussion on this has been going on for ten years at least by this point. Let me tell you, I wrote a blog posting on the THIS Magazine blog three or so years ago expressing my dismay at the anger and recrimination from the anti-copyright movement (and I know that shouldn't describe genuine concerns with C-61, but tell that to the majority of commenters over at the Fair Copyright group).

Since then, I have been involved in a non-stop very public conversation about copyright reform, and other than the occasional throw-away of course artists should be compensated for their work most of what comes back to me has zero to do with the reality of the struggle Canada's artists are in right now.

Instead I patiently (as patiently as possible) listen to long, often pretentious and unconscionably rude lectures about how wrong I am on every point. I hear every potential remedy tried by artists dismissed as either a protection racket, heavy-handed abuse of litigation, or acquiescence to greedy corporate middlemen -- let's not even get into the cartoonish anti-Americanism that still passes for comment from that side.

I watch as Lawrence Lessig's brilliant writings are selectively ignored in favour of a quasi-religious, intentionally simple-minded anti-corporatism.

And I am deeply disappointed to realize that for the most part today's vocal Canadian consumer would not even notice if Canada's cultural industries disappeared overnight.

At this point, really, all I ask is that the bigger idiots don't show up at culture's funeral and try to make a speech about how it committed suicide. "Besides, culture is like energy, it can't really disappear; rather it simply turns into something else, something better, and downloadable."

Please, just let us drink our whiskey and say goodbye.

Sir said...
This comment has been removed by the author.
Sir said...

"You obviously have more faith in this particular protest movement than do I."

I don't think it has to do with faith. If C-61 was more balanced then many of the people on the protest movement would quietly slip away leaving the radical side to show their colours. Right now it seems you are painting the entire protest movement as anti-artist which I do not see as fair (although I have no doubt in my mind those people are in there). I know me and my friends would rather be watching DVDs and relaxing instead of meeting MPs and discussing.

". I hear every potential remedy tried by artists dismissed as either a protection racket, heavy-handed abuse of litigation, or acquiescence to greedy corporate middlemen"

I never once heard those comments spoken about Nine Inch Nails, Girl Talk, and R.E.M as they try new business models.

The RIAA however..

I think it is still a bit early to pull out "culture is dead" speeches as well as "police state" speeches. Saves those till at least after second reading ;-)

Do you have a link to a particularly good read of Lawrence Lessig's?

John McFetridge said...

"I never once heard those comments spoken about Nine Inch Nails, Girl Talk, and R.E.M as they try new business models."

Well, I don't know about Girl Talk, but the other two were first well established by the old model before they tried the new.

As someone said about Radiohead's plan, it'll work, if first you become Radiohead...

I'm curious, what would you call "balance?"

There are clear beneficiaries of a completely non-copyrighted and downloadable internet besides consumers and I'm not sure they're as benign as everyone seems to think.

I'd just like to be a little more cautious before we hand all the content over to Google and Bell and Rogers and the rest of the ISPs (till Bell and Rogers merge and drive the rest out of business).

John said...

Sir,

Oh boy, then you should check out the fun criticism Trent Reznor went through when he expressed a bit of doubt and dismay at a failed new-model experiment. For some, artists are best when they simply entertain -- give, no take.

Lessig has a great site with lots of free content -- http://lessig.org

Right now Lessig is fielding some interesting criticism himself on his own blog for thought he has on Internet privacy, locks and traditional societal understanding of trespass.

Go, read, keep your mind wide open.

Sir said...

"Oh boy, then you should check out the fun criticism Trent Reznor went through when he expressed a bit of doubt and dismay at a failed new-model"

I remember that. I think it is harsh to call it failed though. I think it was just not as successful as he would have liked. Either way I do not believe the criticism included arguments about it "either [being] a protection racket, heavy-handed abuse of litigation, or acquiescence to greedy corporate middlemen". I believe my point remains.

If we are going to discuss business models on the web that have benefited artists I would like to point out how well online comics are going. XKCD is one of many examples.

"There are clear beneficiaries of a completely non-copyrighted and downloadable internet besides consumers and I'm not sure they're as benign as everyone seems to think.

I'd just like to be a little more cautious before we hand all the content over to Google and Bell and Rogers and the rest of the ISPs (till Bell and Rogers merge and drive the rest out of business)."

Ha! I see my point of avoiding painting people with a broad stroke as non-copyright anti-artists folk the second they disagree with bill C-61 has fallen upon at least some death ears.

I could as well return the favor by saying you want a bill that destroys public domain, allows absolute artist control, and force people to pay licensing fees for quoting 5 words out of a article. But that does not further discussion. Neither does trying to refame the discussion.

John McFetridge said...

"has fallen upon at least some death ears."

Not completely deaf (or death, whatever), no, I just said, "a little more caution." A little more, that's all.

And I don't think it's reframing (or refaming, whatever) the discussion. It's a key component with some big players that rarely gets mentioned - but has many of the same implications we all claim to be worried about.

I am glad you didn't come back with some wild extreme, thank you, but you still haven't mentioned what you consider "balance."

It would be great to further this discussion.

I'll tell you that I think artistic product and intellectual property needs to be copyright and protected for a limited amount of time, with reasonable fair use application protected. I'm okay with what we have now, but I think it would be quite acceptable to make the initial copyright term much shorter but very easy for the creator to renew.

This icopyright stuff is a start.

I also think the consequences of ignoring the copyright should be clearly laid out in advance.

What have you got?

Infringer said...

Hey you guys have been pretty busy here today. Gee, and no one invited me. oh well, thanks for leaving the door open John.

"I'll tell you that I think artistic product and intellectual property needs to be copyright and protected for a limited amount of time, with reasonable fair use application protected."

This is a motherhood statement that I doubt anyone on this site site would disagree with. What constitutes a fair limited time and fair use during that time is where all the disagreement lies.

"I'm okay with what we have now, but I think it would be quite acceptable to make the initial copyright term much shorter but very easy for the creator to renew."

Ow, you just might have lost your friendship with JohnD after a statement like that. I agree with you though, as I expect most of the other posters here do. But there are a lot of people who will fight that. And getting past Berne is a monumental task.

But as someone I read recently suggested, this is where the government should start with copyright. Figure out what should be fair use, and fair terms, and work backwards from there.

Give whatever rights to creators as seems reasonable but being sure not to infringe the previously established fair use, privacy rights, and private property rights.

Sir said...

"hand all the content over" Usually leads to suggesting that is what the consumer wants.. it isn't.

If I was creating a copyright law I would not even include a definition for TPM or circumvention in it. I think it is possible to determine what is fair and not by steering clear from mixing code from law.

What I see is this:
*Illegal to upload and download infringing material.
*Allowed to take and distribute short clips of music or video the same way you would clip a article from a newspaper.
*Derivative works and parody allowed.
*allowed to make a library of videos on a computer of DVDs you own and are in possession of.
*Allowed to record and keep TV programs recorded off cable TV.
*Reasonable and scaling statutory damages for downloading and uploading for personal use.
*Heavy statutory scaling fines for infringing for commercial reasons(AKA. selling pirated DVDs)

Thats all I have for now.

Infringer said...

Ahh, now we get into the delicious meat of it to see if there is such a beast as reasonable fair use.

"*Illegal to upload and download infringing material."

What about services such as what MP3.com originally offered, where if you could prove you owned it, they would give you access to their preripped library of the same content? That might be difficult to codify in law

"*Allowed to take and distribute short clips of music or video the same way you would clip a article from a newspaper.
*Derivative works and parody allowed."


You'll make a lot of enemies with the derived work part because that could include everything from a screen adaptation of a book, to a language translation, to use of open source software, to fan fiction . I generally agree with this statement, but you would have to make it significantly norrower by somehow eliminating works that may compete directly with the original. I.E. Lose the film adaptation and translations, and close sourcing OSS, but keep the fan fiction and most YouTube creations.

"*allowed to make a library of videos on a computer of DVDs you own and are in possession of.
*Allowed to record and keep TV programs recorded off cable TV."


What about Internet "broadcasts" ?

"*Reasonable and scaling statutory damages for downloading and uploading for personal use."

It would be very difficult to find concensus on this because the content producers what fines high enough that it will scare most people from even looking at p2p technology. But fines that high would probably get into persecution rather than prosecution territory.

"*Heavy statutory scaling fines for infringing for commercial reasons(AKA. selling pirated DVDs)"

Absolutely.


Still to resolve would be issues such as:

term of copyright- Bill C-61 tries to make the term of photographs into the same difficult-to-track realm of other works. We should be simplifying everything by making terms a fixed time from publication. Preferably very short with options to renew.

rental. Since the US FTA, software producers have had an exclusive right to the rental of their works. Bill C-61 extends this privilege to other creations as well.

public performances What about radios in dentists offices? Why are they so different than the magazines in the same offices? Singing happy birthday in a restaurant? Hardly a public performance as I'm sure most of the other patrons would rather you weren't singing.

I wont even say anything about the lending of digital copies by libraries, educational exemptions, or crown copyright.

John said...

Sir,

Yes, wouldn't it be nice if we could avoid mixing code with law? Unfortunately rogue coders have made that impossible at this stage. You can't really strip the motive from the code in some instances -- and I say that as someone who wishes we could.

But I'm unconvinced. Too much crap has happened, and the same crap is whitewashed by those who wish to deep six this bill. And sure, corporations could be seen as rogue coders as well, and when they are they should be punished.

But is consumer activism the real answer here, or is it a false front? I think McF is onto something when he says people have been duped.

How hard would it be to give you everything you've asked for -- everything -- and still let the artists and their necessary middlemen make a living, or maybe even let the artists make a slightly better living than they currently do? A few amendments?

But no, we should kill the bill.

If none of this makes sense, I will fully disclose that I spent most of today bouncing on Lake Simcoe in a rubber dinghy, and I'm now some whiskey into the evening. But really, in good faith, how hard is all this? The key element is good faith.

Sir said...

Good faith ran out when Jim Prentice dogged straight questions. Like it or not bill C-61 came out of murky waters.

30(1.4). I do not know if committee even has enough power to do a major over hall on that one paragraph alone for it to be fair. "How hard?" very.

I would prefer to see something like a royal commission out there. I think technology has changed radically enough in terms of copyright to deserve a full investigation instead of what seems to be a knee jerk reaction. I think you may even agree with me on a royal commission like investigation.

"Yes, wouldn't it be nice if we could avoid mixing code with law? Unfortunately rogue coders have made that impossible at this stage."

I think we are going to be at opposite ends in this issue. Code in my opinion should be mixed with law after much discussion and used sparingly. Bill C-61 did neither of these. I don't think the implementation was the right approach.

You are not going to like me but I do think consumer activism is important and the bill should be removed.

I just hope the next attempt is more open in it's drafting period. I grow tired of cloak and daggers.


******************
Allowing derived works is a bit of a tightrope act but I think we see eye to eye on this issue. You would allow the Harry Potter fan book guide right? I vaguely remembering J. K. Rowling threatening to sue about that.


"What about Internet "broadcasts" ?"
Are you speaking of steaming content?
Recording a short clip? Absolutely.
Otherwise I am going to follow social conventions and say no except for archiving in libraries and the likes.

"What about services such as what MP3.com originally offered, where if you could prove you owned it, they would give you access to their preripped library of the same content? That might be difficult to codify in law"
If they made deals with copyright holders then I'm all for it. Otherwise I think it would be to difficult to put in a bill.

Russell McOrmond said...

"I'm just not sure killing legislation is the path to better laws."

While it is obvious we don't share this, I thought it might be useful to repeat why.

I don't like the way Copyright has been done in the past, and how it is likely to be done this round. A massive bill is tabled and all the "stakeholders" (at least the ones the committee recognizes, which is usually an insignificant subset by today's standards) and then they have a big labour negotiation type yell-off and some alleged "compromise" position is arrived at.

I believe that there is no possibility of this process to produce good results for something like Copyright.

I believe we need to kill the bill (and this one is massively worse than C-60), and use a different process for modern Copyright revision.

a) Have the inquiry we have all spoken about. Come up with a document like the section 92 report that lists some priorities (of Canadians, not the government) that is based on sound judgement of an appropriate consultation process.

b) Then tackle the issues one-by-one, not in an omnibus bill. This allows the people who are most concerned (proponents and opponents) of a more defineable sub-issue to explain their reasoning on that specific issue.

This gets our heads out of the clouds with the "The sky is falling, something needs to be done, and this is something" type rhetoric. It also allows issues where there isn't as much controversy to focus on legislative language and not the big tribal wars.

What I heard at CopyCamp was that the new rights for neighbouring rights holders was important to many of the creator groups (even those who were not performers). I haven't looked at these in detail as I agree with the concept in principle and have other areas which I consider far more detrimental to creators than these additions could ever be positive (Assuming they are -- I haven't analysed them with my new-media-economic lens)

Note: I found Mike's article patronizing and entirely off the mark. He doesn't think the protests are warranted as he seemed unaware of the actual issues. The battle about personal ownership and control of the primary means of production and distribution in the new economy will be seen by historians in a possibly similar light as other revolutions and evolutions in human societies. We may win this battle and have an anti-creator Bill C-61 pass, but eventually those who recognize the benefits of this media will eventually win out.

It's just too bad that in their fear of infringements that far too many creators are willing to give up the right to personally control the tools of creativity. I believe that the fear that "the sky is falling" (Often based on questionable statistics, not personal experience) has lead them to not pay attention to more critical issues.

Sir said...

John McFetridge said "It would be great to further this discussion."

Seems like you ended the discussion after that post since you never responded to mine:-(

John McFetridge said...

Hi Sir,

I went camping with my sons. Lots of mosquitos and some rain, but overall a very good time.

And Darryl covered a lot of the ground pretty well.

I do want to mention the Harry Potter book because I think that kind of thing causes more confusion than it should. Many, many books like that one have been published but the amount of material in that book taken directly from the text of the Potter books looked like too much to the writer and the publisher, so tey asked a judge to decide.

Making all content a wide open free-for-all probably isn't a good idea, but because each use is unique it's very hard to set up strict guidelines. Every once in a while something falls into a grey area that needs an outside judgement. Doesn't happen very often, and, much like the George Harrison My Sweet Lord case, had a lot ofpersonal baggage behind the so-called "rights" issue.

Also, I have really come to realize that this issue will diappear for many people in the near future and then the remaining few actually interested in copyright - as opposed to access - can get down to business.

If DVDs and CDs haven't gone the way of the 8 Track in a few years, I'll be very surprised.

Think of all this content as server-based software. Here, Bell has started now:

http://www.theglobeandmail.com/servlet/story/RTGAM.20080521.wgtbellvideo0521/BNStory/Technology/

Russell McOrmond said...

"Think of all this content as server-based software."

Or not. Then again, that depends on what you mean by 'software' -- as a software author I have a different definition than you used it.

The scope and necessary limits of "copyright" becomes more complex when there is no tangible medium, not less. Nobody ever talked about specifying what brand of glasses you needed to use when reading a book, and nobody suggested that people should not be allowed to use those glasses to lawfully look at things not authorized by the manufacturer.

We have pretty strong and opposing opinions on what is and is not reasonable in this area, and it appears that it will take some time for society to work things out.

Fortunately, time is something that benefits those who think citizen participation through new technology is a good thing rather than thinking it is a threat. People younger than me are generally far more post-industrial/liberal on their views about copyright than I am, just as people older are generally more industrial-era/conservative.

John said...

I can't remember if I'm older or younger than Russell. It might be critically important to my understanding of copyright.

I'm not sure why everyone's movement along your post-industrial/liberal vs. industrial/conservative spectrum would satisfy you so much, unless this was primarily a political fight in your mind.

For me, as stated, it's about respect, which should really fall just about anywhere on your "where's your politics at" scale. Where humanity goes is important, and exciting. How it behaves as it gets there -- the same.

Russell McOrmond said...

John,

We all want respect.

What we consider to be respectful of each other is where there are differences, and those differences are simply politics.

So yes, this is all about politics for me.

Saying that you want "respect" as if this is some universally agreed upon thing, and that anyone who disagrees with you is simply "disrespectful", is itself disrespectful.

On balance, I find that the general public respects the interests and rights of authors far more than than the intermediaries and lobby groups who claim to represent those authors respect the public.

And I suspect you will disagree -- but that's just politics ;-)

John McFetridge said...

"Fortunately, time is something that benefits those who think citizen participation through new technology is a good thing rather than thinking it is a threat."

It's certainly a sign of my advancing age (or maybe of the sci fi I read in my long-ago youth) but I do tend to get caught up not so much with the wonderful opportunities of citizen participation through new technology, but with the vast majority of those it leaves behind.

If it looked like that gap were closing instead of increasing, it would be different. If money wasn't such an important part of access to technology and education, it would be different. If we hadn't, as a society, blundered ahead too quickly, doing such major damage to ourselves with new technology in the past, it would be different.

This is still about the control of the means of production (oh God, I can't believe it) and also of the distribution - so far I don't see it being handed over to empowered citizens, I just see it being put in the hands of different multinationals. Guys with the capital to think about long-term ramifications and invest accordingly.

We'll see how it goes for software authors in the future, but I have a feeling you better be sinking a lot of your current income into retirement plans and other investments - not because your industry will slow down and shrink in size (though it may, and it may be completely outsourced to the lowest bidder soon enough), but because as an hourly wage earner, your income will slow down as your ability to work those hours slows down. No equity build-up at all.

Maybe it'll go great, I hope it does.

That's not been the history of hourly-wage earners in other industries.

John McFetridge said...

"Nobody ever talked about specifying what brand of glasses you needed to use when reading a book, and nobody suggested that people should not be allowed to use those glasses to lawfully look at things not authorized by the manufacturer."

For how much longer do you think there will be different manufacturuers with different technologies that will require different "glasses" to look at things?

We used to have steam-powered cars at the same time we had gas-powered. There used to be many different gauge railroads - there are hundreds of examples of industries in their infancy with competing technologies but very few where the competition continued forever.

This issue of the "glasses" will be solved, but as history is our only guide, probably not in the way you would like. Unfortunately, we are at the mercy of the largest segment of the marketplace - capitalism doesn't serve the fringes very well, unless it is forced to. And we're doing even less forcing than we used to.

The way artists are being treated now should be more of a warning to people who think capitalism can work with "citizen participation" beyond those citizens being anything more than consumers.

But like I said, maybe I just read the wrong sci fi, and spent too much time in history and economics class and not enough time in the wonderful world of new technology.

We'll see.

Russell McOrmond said...

"This is still about the control of the means of production (oh God, I can't believe it) and also of the distribution - so far I don't see it being handed over to empowered citizens, I just see it being put in the hands of different multinationals."

The handover of this control to "different" multinationals is what people like myself are fighting against. Whether it is the anti-circumvention or net neutrality debate, it is effectively the same policy.


A key political problem is, those who are fighting for "stronger copyright" and "theft is theft, and this has to be stopped at all costs" end up (deliberately or inadvertently) fighting for handing control over to different multinationals, and taking control out of their own hands.


There are many ways in which a digital divide can grow.

One is that the technology is just too complex that it makes it harder for people used to doing things a different way to jump in. I could lay out why I believe why current computers are harder to use than they need to be, but you might only hear that I ultimately blame the method of production, distribution and finding model often called "proprietary software". When you make money based not on how useful software is, but by counting copies and getting sales based on how many "features" it has, then you will get overly-complex software where ease of use, security, and other such things that don't fit easily in a "feature list" are ignored.


Another way to make a digital divide worse is to create laws or create other other artificial barriers to the personal control over this technology so that it instead controls us.

The control never disappears -- either we control technology for our own purposes, or someone else controls the technology for their purposes. I don't believe it is possible to "block" technology though banning scientific knowledge and that knowledge doesn't go away. That knowledge just ends up in the hands of "elites" who are then better able to abuse that knowledge (Knowledge is power).


Don't worry -- I won't dive into commentary about the Protestant Reformation , although I think that our attitudes towards the control of knowledge as a society is more relevant than the narrow issue of a digital divide. Technology is simply how society chooses to apply our always growing scientific knowledge, and there is nothing magical about "digital" compared to other technology.


I'm also a science fiction fan. This general conversation came up last night at our weekly GOSLING Gaggle, and again Vernor Vinge came up. Have you read any of his books? I've heard about them so many times that I just need to dive in -- really wish they were available as Audio Books on eMusic as I enjoy fiction in that format. (I'm on a 'book a month' with eMusic, and just downloaded The Audacity of Hope.


P.S. Nearly all software authors are wage earners, and don't collect monopoly rents. The change to royalty-free business models only mean more of the one-time fees go to to authors rather than old-economy intermediaries who try to block us as competitors. The transition away from royalty-based software is a win-win for us. It will happen differently in each form of creativity, but I truly believe it is the intermediaries and not citizen infringers that are the greatest threat to the livelihoods of creators.

Russell McOrmond said...

"For how much longer do you think there will be different manufacturuers with different technologies that will require different "glasses" to look at things?"

For as long as there are laws, copyright holders and device manufactuters that believe that this tie should exist. Of this group, the only ones who really have a choice are copyright holders given polticians don't understand the issues (generalists, and not people who have thus far spent any thinking time on the implications), and device manufacturers stupidly believe they can "win" a game of Russian roulette.

(This type of politics always reminds me of the movie "War Games" and the punchline of "the only winning move is not to play".)


I agree that the only logical outcome of the tie between the creation/distribution/access of knowledge and specific brands of technology will be that one technology brand will win out in the "marketplace". That company will then be able to exert more control over society than any government, effectively replacing government (democratic or otherwise) for key aspects of our lives.

But this is not the fault of "technology" that this will happen, given technology is simply the application of science. It is entirely the fault of society that we (and by "we" I really mean "them" like those who are proponents of the current direction of copyright policy/etc) that we create these problems, and then are confused when we get hit by the outcomes.

There are some pretty bright humans, and some pretty dumb ones. Some pretty selfish ones and some pretty selfless ones. It is unfortunate when we make critical decisions based on the wrong combinations of humanity.

John McFetridge said...

Oh no, Russell, I pretty much agree with you completely on all this - we see the same problems, the same controls and the same dangers. And we want the same citizen control.

I Especially agree about the overcomplex proprietary software. Feature inflation was/is a terrible thing. I used to use a small browser called Opera which I thought was great, back when memory was an issue.

As a friend of mine says, when it comes to software, we're all driving Greyhound buses to pick up milk.

This will get worked out, though, and history leaves me more pessimistic than I'd like about the way it will get worked out. People, industries, often make what experts in each field consider to be poor choices. When people, or companies, buy software, they still buy more than the software itself, just like when people buy shoes they buy more than the shoes - we haven't made much progress in getting people past brand names and the idea of 'service contracts' as the real purchase. People buy assurances more than the products. It may be changing, but oh so slowly.

The thing is, "both sides" of this, "end up (deliberately or inadvertently) fighting for handing control over to different multinationals, and taking control out of their own hands."

Everytime I see lame articles like the one in the Globe where the only issues talked about are watching Alien on an iPod and time-shifting TV shows I know there are easy solutions to those problems that do nothing to deal with the real issues of control you're talking about.

That's why I fear that many people have been duped into seeing this as an issue of "access" to the content rather than ownership. It's not just online content, our whole society has bought into the idea of a leased life and the ramifications of that won't really be felt for another generation but I don't think it will bring more "power to the people." We'll see...

Intermediaries, in all industries, don't go away quietly, and I fear in this case they've simply done a better job of making their product look like the right one - it sure feels like free stuff to enough people for them to get on board.

The fact it isn't free at all has been lost in the discussion over "glasses" and "access" and royalty payments.

As long as people are willing (or forced through limited choices) to pay every month for something, someone will collect that money. It's rarely the creators now, it looks like it'll be even less so, but that money will still be collected.

That's why I say the treatment of artists is like a canary in this coal mine and we should be more concerned about the attitudes involved and the actions taken based on those attitudes.

This fight may very well be a stepping stone to what you want, but "winning" at this stage may empower some intermediaries too much and make that access even tougher, or more expensive, in the long run.

I know what we'll be losing, I'm just not convinced of what we may gain because too much of our history is too full of well-meaning movements co-opted by opportunistic factors and ending up much worse than the 'believers' ever imagined.

Technology won't do it on its own. You know what they say about Napoleon, one less course in military tactics and one more course in economics and we'd all be speaking French now....

John said...

McF, what do you have against the French?

Gawd, there's only two things I can't stand in this world: people who are intolerant of other nationalities; and the Dutch.

I think a lot of what you've just written gets to the heart of my disagreement with the now standard copyfighting stance, attitudes and tactics. "Canary in a coalmine" is exactly how I see artists in this fight.

I've actually kind of marveled at how conservative and anti-progressive and fogeyish I can sound in these debates, given my background as a once young, still progressive lefty (that was to help Russell place me on his political chart).

I am as intrigued by, attracted to and hopeful of the kind of near-Utopia of citizen participation and individual control as anyone here. I just think way too much is being discarded way too disrespectfully, and dangerously, in an unnecessary rush to get there.

Both Russell and Cory Doctorow point to a fantastic new life at the bottom of the cliff, if only we artists, like Butch and Sundance, had the nerve to jump from the cliff and live it. Okay, that's Doctorow's reference, but Russell can clear up whether he supports it or not.

It's such an attractive image, such a forceful invitation, except for two things:

a) it's a cliff, and we generally are not a society of cliff jumpers; and

2) Butch and Sundance die at the end of that movie. Badly, and without ever finding their own near-Utopia.

Slow, respectful legislative reform makes for such boring cowboy movies, I know, and yet gradual change is the real winner (I resist saying hero because I am still a romantic) of Butch Cassidy and the Sundance Kid (one of my all time favorite films).

I don't want to see law or practice hand the keys to the car over to one or two giant corporations any more than anyone else does. Which is why I wonder about copyfighter support for things like the Google books project. Isn't Google a giant corporation?

Anyway, I guess McF and I hope you never be presented with a cliff of your own, Russell, because it's an uncomfortable choice to have to make. Just ask Harry Alonzo Longabaugh.

Russell McOrmond said...

"That's why I say the treatment of artists is like a canary in this coal mine and we should be more concerned about the attitudes involved and the actions taken based on those attitudes."

I don't believe that artists are the canary in this coal mine, software authors are. We feel the brunt of this wrong policy direction first, and can understand the implications first. We are the people who author the instructions the inevitably decide what people can and can not do with software. We need to be hired by fellow citizens, not owned/regulated/etc by some Ministry of Truth. The more we are clamped down on and claimed to be "enablers of infringement" as far too many "artist" representatives claim we are, the worse things will get for all creators (functional works, art, education, etc).

I don't see how "winning" at this stage will make it easier for intermediaries (old or new) to gain/retain control. I know that some people believe that things have to get far worse before they can get better, but I don't subscribe to that philosophy. A lot more damage will happen to creators in a 'revolution' rather than an 'evolution'. I'm not a fan of the idea of abolishing copyright, which is what a revolution to take back culture from centralized control (private or public sector doesn't matter) would end up with.

I really believe those groups like the CCC who believe they are just trying to protect the rights of creators are actually walking us directly into a situation that could end up with the abolishing of copyright.


Curious -- have you heard the latest mashup (Made Worse in Canada (feat. Jim Prentice)) -- pretty cool, and the type of artistic expression we really need to work hard to protect!

Russell McOrmond said...

"Slow, respectful legislative reform makes for such boring cowboy movies"

Wow do we ever disagree about who is rushing, and who is pushing who off a cliff.

The NII draft policy, and from that Bill C-61, represents a radical departure from anything we have ever seen in Copyright law before. Copyright has always been about regulating activities done in respect to human creativity (that 'bundle of rights'), and never before about directly regulating tools regardless of what they are being used for.

This isn't anything resembling respectful legislative reform, but misinformed politicians jumping the entire country off of a cliff.

I am not being given a choice about this cliff at all -- it is people like various US government agencies (who decided to jump, and want us to party with them on the way down), fully supported by Canadian creator groups like the CCC, that are pushing me (and all other creators) off the cliff.

John McFetridge said...

JohnD says it - Google is a giant corporation. Already far too powerful for one entity to be. Will it get broken up by some anti-trust legislation in the future?

If software authors were really concerned about citizen participation there'd be dozens of search engines all equally as popular and internet access would be free. As long as we continue without addressing those two things, we're blowing smoke over the real issues.

As for the people, so far, in the history of the world, hourly wage earners have not fared well in the long run and there's never been a "win-win." Maybe this time things will be wildly different. I sure hope so.

It's really the treatment of the artists that I'm talking about, not the artists. And you're right, software authors are in the same boat - or possibly in a worse situation because functional creation isn't culturally dependent - software can be outsourced around the world, much cheaper writers of software can - and will, and already are - being found. I'm sure you know all this.

Will the demand for new software be as high as it is now forever? Will the over-supply of software authors drive the hourly wage and one time payments even lower? Maybe. Maybe not. We'll see.

But back to the treatment. What happened was we had a system that some people didn't like - they had to pay artists everytime they acquired their work. They set about changing this system and made some incredible leaps of logic and justifications for their actions.

Maybe, in some cases, they were deeply concerned about the greater good. Often they were just after what they wanted for themselves.

That same attitude, that same ability to justify anything (which we've seen over and over again in history), will be used in other situations, against other professions.

Tech people often show an arrogance that has been shown by every skilled worker in the past.

We'll see what happens.

John said...

Hey, I didn't invent the "artist at the edge of a cliff" scenario. That's straight from the geek king.

It's amazing how dated that link reads. I'm glad, at least, I don't have to hear about Walt Disney and Steamboat Bill anymore.

And yet every once in a while, I am still treated to lectures about how all creativity depends on the interaction of creator and audience.

Really? Who knew?

Hmm, my professors from twenty years ago knew. And, I believe their professors before them.

Russell, I think you'd be finding a lot more sympathy in your fight if fellows like Doctorow hadn't linked that very fight to professional artistic creation and then been so damnably flip about the future for artists. And if people like this Geof character from the link above would stop describing how dirt works to the farmers.

Russell McOrmond said...
This comment has been removed by the author.
Russell McOrmond said...

"Russell, I think you'd be finding a lot more sympathy in your fight"

I'm not the one saying "I have to get paid the way I always have, at any costs, and if you have to be put out of business and/or eventually even jailed because of it - what do I care".

I care about the ability of book authors to get paid at their craft. I am not often offered similar respect in return from the associations representing book authors who think that the whole technical measures issue is unimportant.

We may both talk about sympathy and respect, but are not even on the same page as to who is being the most disrespectful. We don't even agree on the severity of various threats to each of us.

I was in a Chapters yesterday. In my case I was buying yet another copy of Cory's Little Brother to give as a birthday gift to a youth that I know that I think would love it. The Chapters was full, and I see little sign that people are giving up reading. Production costs are getting lower all the time, and print-on-demand has meant that some people unable to get the support of a publisher can self-publish.

To be honest, I don't see the evidence that there is a problem for book authors. I see a lot of fear of the unknown, but not a lot of evidence.


On the other hand, my basic ability to author software which potential customers are legally allowed to install on their own computer is being threatened. Your problem isn't caused by or even supported by us, but our problem is supported by you.

Comparable?

I don't want sympathy, I want a little respect.

Russell McOrmond said...

By the way, in case there is anyone outside the "usual suspects" that believes Cory Doctorow is some sort of scary anti-author person, they may want to read some of his articles written for fellow authors.

I just read this one done for Locus Magazine: Cory Doctorow: Nature's Daredevils: Writing for Young Audiences.

Pretty scary stuff... Ohh...

John McFetridge said...

"I am not often offered similar respect in return from the associations representing book authors who think that the whole technical measures issue is unimportant."

"On the other hand, my basic ability to author software which potential customers are legally allowed to install on their own computer is being threatened."

For what it's worth, Russell, I think you're right. It's what I've been on about, people being duped. We've all been played a little here, set up as being on opposite sides of some issue (that shouldn't even be one issue) and pitted against each other while someone else will be the big beneficiary.

Yes, you're ability to write software for potential customers is being limited and your profession is being threatened a lot more than mine and JohnD's. Threatened more, I think, than you even realize. But not by copyrighted artwork.

Something that would help your situation wouldn't necessarily hurt ours and vice versa, but that's the way it's being presented.

Well, who's presenting it that way and are they being totally honest? I'm cynical and distrustful of any large company like Google or Bell or whoever is going to benefit from your freely available software - and someone is going to benefit.

Taking aim at copyright as the solution is kind of like the Conservatives looking to answer every problem with, "tax cuts."

Like most arguments and beliefs what I've seen the past few weeks are people (on both "sides") with faith in something - but like all faith-based beliefs they're unexamined - or not very deeply examined.

We have a long way to go, with a lot of very fundamental changes to the way we do business before any sort of public domain, open source, floss - whatever you call it - can really take root. Anytime something is described as "win-win" you have to take a much closer look at it.

You - and me and all of us - should be as suspicious of the people on our "side" as we are of each other. I've seen too many good plans be manipulated out of existence to think good will alone will do anything.

What really needs to happen is movies and music and even books - all artwork - need to be taken out of this issue. All that is a seperate issue with long, long traditions worked out over centuries. A completely different history than software authoring.

Artists have, for all their moaning and complaining, worked out an acceptable deal with their intermediaries and they like it. They don't want to do the intermediaries work in addition to their own and that shoud be their right. (they don't mind, of course, if other artists wish to do that work themselves - self-publish, give it away online, do whatever you want with your art - that's up to you.)

You're not getting enough respect because the loudest voices we hear are people screaming for free stuff - or the ability to share their stuff with people they've never even met regardless of the spirit of the transaction they used to acquired the stuff in the first place. Once they're gone (and their lame, self-serving justifications), you can get down to the real issues that affect you and your industry.

I do think your industry is being used by a lot of people to help them get what they want. Just not the people you think.

Russell McOrmond said...

JohnF,

I'm not left-wing or right-wing enough to blame "big bad corporations" or "big unions" for things.

For me I try to look at what an individual person and/or group believes, and focus on those beliefs.


The reason "technologists" and "artists" (To try to put a massive broad stroke on this) are pitted against each other is pretty simple. It comes down to a few key policy questions that were initiated in the early 1990's.


a) What is the shape of the knowledge economy? Will it be like the industrial economy, only with knowledge the output of the economy? Or will the roll of knowledge be like the machines which are the enablers of the rest of the economy (cheaper machines means better economy). Or will it be a combination of both, depending on the specific form of creativity?

b) Is citizen ownership and control of communications technology a benefit or a threat? Should people concerned with copyright infringement target infringers or "enablers".


Here is the fundamental problem for me with (b). While those who like to talk about enablers like to think that it is Google or some big bad corporation, the reality is that it is me. Independent software authors are the first on the chopping block of any blame-game which targets "enablers" rather than infringers.


I think you misunderstand the nature of Free/Libre software. It is not a matter of giving the software away, and there possibly being some free-riding on that by "big bad corporations". The more people who are using software which I am able to enhance (because it is FLOSS), the larger my customer base, and the more money I can make. Even when a license which is not "share and share alike" is used, there is benefit to my business from people using FLOSS software (mine or otherwise).

I know Google is seen as scary by those who think they have too much power. I hear it all the time from privacy advocates. All Google has done is make commercially available knowledge available to citizens. This should be seen as a critically important educational tool. It also may reflect my personal politics, which is to rather knowledge were available to everyone than only available to those who would abuse it. I don't see Google as an abuser, but an enabler. That isn't to say that there aren't things they are doing that I don't like (some of the proprietary restrictions they are putting on their book scanning as an example), just that on balance I'm happy with them.

And I am suspicious of them, but see both the good and the bad that they are contributing to society.

I can't say the same for Microsoft and Apple which I consider to be a net social negative -- as much as artists seem to love Apple.

You likely lump all big technology companies together, while I look at the individual activities and philosophies of each as groups and at some of the individuals within them.

"all artwork - need to be taken out of this issue"

Here is the problem: I don't know what distinct 'groupings' are possible.

You can't look at the medium to determine if it is artwork. Recordings (photography, sound recordings, video) can be art/entertainment or they can be a memory prostheses. We currently treat all of these things as art, even though a growing majority is actually memory and should be treated very differently.

In software there is very little in common between productivity software (operating systems, office suits, browsers, etc) and video games (better understood as interactive motion picture). And yet they are treated the same (Nasty word "harmonized") in Copyright.

"Artists have, for all their moaning and complaining, worked out an acceptable deal with their intermediaries and they like it."

That totally depends on how you have carved out artists. If you want to include music in there, then you are incorrect. The balance between the rights of composers, performers and "makers" has been historically skewed because the technology involved was historically expensive -- the "makers" (labels) were essentially specialized bankers necesary to deal with these huge capital costs. These costs no longer exist, and yet the labels want to keep the antiquated relationship -- and musicians who are actually paying attention to their own industry are fighting back.

Yes, music publishers like book publishers are generally considered allies by composers and authors. But music labels are an entirely different situation.

"loudest voices we hear are people screaming for free stuff"

I'm not sure if that is because they are the loudest voices, or the voices that make you cringe the most and thus remember the most. Memory is a funny thing -- and we all know that multiple witnesses to the same event won't remember the same thing.

I still think of how some of the folks at CopyCamp thought of Geist. They believe he is part of some anti-copyright crowd when this categorization is without merit. Anyone who disagrees with a very narrow interpretation of what copyright is (usually the anti-copyright belief it is a right to collect royalties) is labelled as anti-copyright and lumped in with that nearly insignificant minority who actually believe they should get everything for free.

There are *FAR* fewer of what we could call copyright abolitionist than you think there is -- especially since this "anti-Copyright" label is being thrown against people who are often more supportive of Copyright than those who are tossing that bogus label out there.

John McFetridge said...

"All Google has done is make commercially available knowledge available to citizens."

So far. The question is where are we headed. As you say, some of what they do is already worrying and it's very early in the game.

I don't lump all big technology companies together, but I do see that they are all driven by much the same mentality (perhaps not when they start) - and often the same shareholders (again, often not when they start-up). At the very least they are all part of the same economic-social system which over time tends to make all the decision making similar.

Apple's winning over artists is a perfect example of what I'm worried about. They have managed to put such a shiny face on what is essentially the exact same business model as Microsoft - or perhaps even worse and more proprietary.

It's what corporations do. Have you seen the movie, The Corporation?
http://www.tvo.org/thecorporation/teachers.html

It can be a little over the top, but is still worth seeing. Keeping that mentality out of new technology companies is maybe a much bigger challenge than you think.

So, the fact that all this information and technology will only be available through one connection is something we should be staying on top of as citizens. The corporate model at Google may have started out different than the corporate model at GM, but is it staying that way? Why will this publicly traded company be any different than any other? Is it just the people involved, because they won't be around forever.

All revolutions get co-opted, there's no reason to believe this information/technology one won't as well.

"You can't look at the medium to determine if it is artwork."

In the vast majority of cases, yes, you can. In the few instances when we bump up against conflicts they can be worked out. The problem is trying to determine things ahead of time and make a one-size-fits-all solution.

This is exactly why I say these issues need to be seperated. Once you take out the ones that can actually be taken out, it will clear things up immensely.

"But music labels are an entirely different situation."

Yes and no (as is often the situation with these issues ;).

When dealing with artists you always have to be careful about their natural tendencies towards complaining. Musicians and labels is a perfect example. The expensive technology was never really in the production of music, it was always in the marketing. Musicians have always had a choice over being involved in the marketing machine and some have always chosen to work outside that. The moaning that comes from so many who made conscious choices to be part of the system has to be taken with a huge grain of salt.

Some, like Prince and Madonna adapted very well. Prince started simply giving away his new CD with a purchased ticket to his concert and Madonna signed a new "record" deal with a tour company that had never before produced a record.

A lot of the moaning you hear is from people who can't do that. Well, again, the issue isn't copyright at all, the issue is marketing. Some people have been able to market themselves very well and others feel too much like whores - that's why they preferred to farm out the marketing to intermediaries in the past (often intermediaries offer more than just marketing and artists are often loathe to admit that, too, but certainly in self-published books we've seen what a lack of a good editor can do).

This is always the artists' dilemma, though, how big a whore to be. Each person has to work it our for themselves.

"I'm not sure if that is because they are the loudest voices, or the voices that make you cringe the most and thus remember the most."

Like I said, those voices dominated the Globe article with the U of O professor. Those voices are everywhere. Sure, they make me cringe - they should make everyone cringe, especially people who feel the real issues here are much more important than that. They take the discussion in the wrong direction and make it too easy to dismiss. You've complained about not being listened to enough by the government and those voices are a big reason why. I'm not the only one who hears them too loudly and telling us all, "You're not listening correctly," probably isn't the best way to get listened to.

You're right, Geist is having a very tough time getting his real message out, and again, I think that's partly because of loud bandwagon jumpers looking for free stuff - and sounding a lot like teenagers full of entitlement. He has to do a better job of presenting the issues and framing the discussions. I've seen him on TVO's Agenda show speaking for half an hour and he does not get the issues across well at all.

It's early yet, I guess, and maybe he'll get better. He is after all, a professor, used to lecturing an audience full of people who never question his authority publicly.

Russell McOrmond said...

"It's what corporations do. Have you seen the movie, The Corporation?"

Yes, but I'm more of the John Ralston Saul style of thinking about this that it is the group decision making dynamic (corporatism), not any for-profit nature, that makes the difference. I see what I consider to be similarly harmful decision making structures within governments, unions, and yes -- coalitions of creator groups.

For me the reason that I'm more worried about Business Software Alliance members (Microsoft and Apple just two examples), and far less Google, is that Google doesn't really have the dependencies that people think it does. JohnD has chosen to host this discussion for us on Google, but if he decides that Google isn't doing it for him he can move elsewhere and it wouldn't affect us much. Much of the benefits of it being Google (such as me using my Google login) is made unimportant by things such as OpenID which allows a distributed login system. (And yes, I need to install the OpenID module on my own BLOG to allow this type of conversation to happen there).


Yes, Google is massive, and if you want to influence Google decision making you will have a hard time -- but they really don't have that captive audience issue.

Even on the book scanning issue, there is the Open Content Alliance for people to work with if they don't like what Google is doing.

"In the vast majority of cases, yes, you can."

We have to agree to disagree on that. I'm having a hard time thinking of many examples beyond paintings and sculpture ("visual art"?) where it is true that by medium along you can tell if it is "art" or something different.

Non-fiction textbooks and fiction books are both books, but the spectrum of successful methods of production, distribution and funding are entirely different. This is one of the ongoing arguments I have had with Access Copyright and CMEC which are treating all book publishing as equivalent, where the processes behind "functional" writing such as educational, scientific and medical knowledge is entirely different.


"The expensive technology was never really in the production of music, it was always in the marketing."

Another area where we see things differently. Musicians have always employed a wide range of marketing mechanisms, sometimes involving "giving things away" in order to gain more money elsewhere. The technology for the production and distribution of recorded music was very expensive, and was a key factor in the need for the large capital investments which are largely no longer required.

Of the 3 copyright holding groups, the "makers" provide the least value add and yet demand the largest share of any revenue and marketplace control. This isn't musicians having a "natural tendencies towards complaining", it is a very serious problem that needs to be fixed. Bill C-61 has more to do with tilting more in favour of labels in that specific debate, and very little to do with anything that touches book authors.


Now, if we wanted to talk about fiction book authors, I am willing to believe that "their natural tendencies towards complaining" is an important factor. But not the real problems in the music industry.

John McFetridge said...

Russell said, "I know Google is seen as scary by those who think they have too much power. I hear it all the time from privacy advocates."

So, this is worth checking out:
http://www.googlizationofeverything.com/

Especially the part about Google's Board of Directors dominated by guys from Cisco and other 'old-style' companies and for the stuff about the fight for, "the biggest slice of the new wireless broadband spectrum being auctioned off by the Federal Communications Commission."

While we're worried about technoogy like DVD's that will be obsolete, these guys are getting ready.

You think the fight over C-61 is something, wait till you see what's coming.