Interview: SIGGRAPH 2011 keynote speaker Cory Doctorow on copyright reform

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Cory Doctorow is an author, activist, journalist, and blogger. As a vocal advocate of copyright reform, he’s got clear ideas about how copyright could work to the benefit of creators and publishers.

Doctorow, a Canadian living in London, will deliver the keynote address at the SIGGRAPH 2011 conference on Monday (August 8) at 11 a.m. at the Vancouver Convention Centre.

He spoke with the Georgia Straight about copyright reform and his Twitter argument with Canadian Heritage Minister James Moore, the Conservative MP for Port Moody-Westwood-Port Coquitlam.

Blaine Kyllo: What’s your keynote going to be about?

Cory Doctorow: I won’t be talking about video games very much. I’m going to be talking about how the larger picture, when we talk about copyright enforcement and business models and so on, on the Internet, is actually a really serious and thorny question about free speech, surveillance, and control in that in the name of trying to prop up our creative business models, we are actually laying the ground not to keep ourselves afloat.

Ironically, the one thing that none of these proposals that we’re working on will do is pay artists. But what we are setting up is a situation is one in which universal surveillance and control become part of the fabric of the Internet and of the devices that we use, and how bad that’s going to be not just for us as artists but as citizens and as parents and as people in the world.

BK: The cautionary tone that you’ve been warning us about for years.

CD: Obviously I’m not going to turn up and talk about something other than what I’m interested in. But what I’m going to try to do is connect it with the artistic concerns that a creator might have. And to get into some of the questions about how you would design copyright policies and systems that actually pay artists instead of ones that just put snitch chips in all our devices.

For example, in the early days of American copyright, the way that it worked was that copyright lasted for a short term, and then it was renewable, but it was only renewable by the person who made the work, not by the company that he or she sold it to. You can imagine that say you write a book, and you go out to your publisher’s door and you say, “I’ve got this book and it’s pretty good,” and they say, “Well, we’ll give you a raisin for it and we’ll deign to publish it.” So they publish it and it sells millions of copies and a few years later the copyright is due to expire and they turn up and they go, “We really, really need you to renew this copyright,” at which point you say, “Okay, but only if I can have your firstborn and your kidney.” So there’s a copyright policy that actually ensures that you get a balance between the negotiating strength of people who control the distribution channel and people who fill it, people who make stuff. And that you deliver that new nexus of control at the moment that it’s most needed.

One of the things we’ve heard a lot about when we hear about copyright is how good copyright can be for creators when they’re negotiating with their publishers. But it’s actually not very good to have lots more copyright while you’re negotiating the first time around.

Imagine a musician who shows up at their publishers door, or imagine a musician who’s in his garage when he’s making music and he’s sampling lots of stuff and he’s putting together an album and he says, “Okay, I’m going to put this album out all on my own.” Now because copyright has expanded and expanded, and because the record industry has controlled a really narrow channel, all the music that he samples almost certainly is a) still in copyright and b) owned by one of four record labels. So those four record labels can basically demand anything they want up to and including “Go away” in exchange for licensing their samples. Now in practice, record labels are actually a lot better about doing this for each other and for themselves. If you’re signed to a label and you go to clear a sample that’s also on that label, it’s a lot simpler.

BK: It’s in their best interests to do that.

CD: Sure, of course. So what that means is that the moment that you turn up at the record label saying, “I want to go it on my own terms, I don’t want to have to give you 93 percent of the money from the sale of my CD, I’m going to market my music myself through the iTunes Store or through the Amazon store, and go it on my own and do it myself like a 21st century artist,” that’s the moment where they say, “You can’t release any of your songs without signing a record deal, and that record deal involves you giving us 93 percent of the total deal.”

This is not what we think of when we think of copyright that enriches artists. In fact, if you gave recording artists more copyright, that would just be more copyright that the record labels could take away from them when they came to them, hat in hand, to license samples or get access to some other narrow piece of the industry that the labels control.

Now there’s lots of other ways to imagine a copyright law which is, after all, just a technical policy for managing how an industry regulates itself. So there’s lots of other copyright policies we can imagine that would make things better for artists. Like you could say, “Well, we’re going to set a fee for sampling. It’ll be a certain percentage of the song. You take the number of seconds of the song comprised of samples, you divide that up by the number of samples used in the song.”

So if you’ve got 20 samples layered over each other for one second and the song is 100 seconds long, you say, “One percent of the money from this song goes to all the people I sampled, because it’s 20 one-second samples all layered on top of each other, and they each get a twentieth of a percent.” So that would be imperfect; it wouldn’t give as much money to, say, you might get if you were James Brown’s estate and someone showed up and said, “We’ve got this one-second sample of James Brown going ”˜Heh’,” and they go, “Okay, that’s $100,000,” which is what the James Brown estate does. On the other hand, it would ensure that, by and large, the people who got paid for sampling were musicians and not studio lawyers, and it would ensure that any musician who wanted to make sample-oriented music could do so without being forced to sign a record label deal.

I’m all for musicians going, “I think the record labels add a lot of value, I want to go sign a deal with them.” But I think most of us would agree that record labels treat their artists better when their artists have a choice about not signing with a record label.

So this is the kind of stuff I’m going to talk about. About how we have been kind of duped into pushing for a more expansive vision of copyright, and that more expansive vision of copyright actually doesn’t do much good for creators and actually in many cases it doesn’t do much for what you might call the intermediaries, the publishers, the people who are the money people in the deal. It’s the labels, the studios, the print publishers, the broadcast channel and so on.

One of your friendly neighbours there, James Moore, pushed for a copyright bill in the last Parliament that would have said that if someone put DRM—“digital locks” we call it in Canada—on a work, that even if removing that DRM didn’t break any copyright laws otherwise, so even if you’re removing it for a legitimate purpose, you wanted to do something that was lawful under copyright, it would be illegal to remove the lock.

BK: It invalidates all the permissions that they wanted to grant in the revised bill.

CD: But it’s much worse than that. That’s the consumer rights stuff. I’m talking about the publisher stuff.

So here I am, I’m an author. I have books and I’ve got audiobooks, my audiobooks are published by Random House, they’re a division of Bertelsmann, it’s the largest publisher in the world. So Bertelsmann went to the company that controls 90 percent of the audiobook market, that’s a division of Amazon called Audible, and they said, “Mr. Doctorow and we would prefer that his books be made available without DRM.” They can do that, they have they infrastructure to make books available without DRM, they do it with college lectures. And they said, “No. We will only carry his book in the channel that is responsible for 90 percent of audiobook sales if we can put our lock on it.”

So what that means is that if Random House, later on, says, “We’re not getting a great deal from Audible, we’d like to start to give preference to one of its competitors,” Audible could kind of thumb their nose at Random House and say, “By all means you go and do that, but your customers have, on aggregate, have spent millions of dollars on stuff that we control the digital locks for, and we’re not going to let them unlock it and move it to some device that plays our competitor’s stuff. From now on, you’re only going to get those customers who want your stuff so bad that they’re willing to abandon all the audiobooks they’ve ever bought, or maintain a totally separate parallel infrastructure for organizing their audiobooks depending on which intermediary they bought it from.”

So you’ve got a publisher that is totally over a barrel from someone who’s only contribution to the copyright is to write software. Or to process a credit card. That company is not really a creative contributor to the work who is who we think of as being the beneficiary of copyright. They didn’t invest in the work, they didn’t write the work, they didn’t read the work, they didn’t creatively control the work. They sold the work. They have the relationship to my audiobook that Chapters Indigo has to my novels.

Now Chapters Indigo are perfectly nice people and I’m glad they sell my books, but if Chapters Indigo showed up and they said, “We’ve done this deal with the Brick, and from now on you can only shelve a Chapters Indigo book on a Brick bookcase, and James Moore will spend whatever it takes of the taxpayers’ dollar to make sure that your readers don’t put their books on anyone’s bookcase unless they come from the Brick,” I wouldn’t think that that was a very good deal for me or my publisher.

BK: That analogy actually works when you walk through it?

CD: It does. I think it does. I argue with James Moore about it on Twitter and his only rebuttal was, “I trust the markets.” And I said, “Well, if you trust the markets then why are you intervening in them by creating a monopoly right over converting files, over moving stuff from one place to the other.”

BK: That’s always been the refrain, hasn’t it? That the markets are going to take care of things. But they tend to be governed and controlled by those with money, which are the corporations which have a vested interest in maintaining status quo, right?

CD: And also that they are...markets, especially markets where the market is built around something that is a regulatory fiat.

This isn’t like a market in potatoes where the potato exists whether or not the government creates a potato right. This is a market in goods that have no tangible existence. This isn’t the market for books; this is the market for the words on the books. And that market only exists to the extent that the government comes in and says, “This part of the word is property and this part of the word isn’t owned by anyone.”

So for example, you can register a copyright in the tune of a song, but not in the rhythm of a song. Now if copyrights had been developed in the Afro-Caribbean tradition, where the tunes tend to be improvised and the complex polyrhythms tend to be static and are thought of as the works of authorship, we would have a totally different view of what was a song and what was incidental to the song, what was just the stuff that musicians did while they were performing the song. Right now we think of the words and the music as being the song, we don’t think of the drumming as being the song.

So we’re not just talking about a market. Even if you’re an “A is A”, Ayn Rand fundamentalist, we’re not talking about markets in the way that we think about markets, as a market for cars or real estate or something, we’re talking about a market in a good whose contours are defined by a bunch of regulators who sit down in a board room with some industrialists who say, “We would make more money if you would make this part of this ephemeral, imaginary thing into a property right.” And they listen to all the different people who have opinions on which part of your imagination should be property, and they go, “Well, this part makes sense to be property,” and then they go off and trade it.

Actually, I don’t think that that’s totally bent or crazy, I just think that it’s rife with potential for abuse, and that we should look at the arguments of people who are present-day beneficiaries of that system, who say that what we need is more of it, and what we need is more of it not because we would no longer have any works if we didn’t have more of this kind of right that we benefit from, but they’d be the wrong kind of works.

So for example when you say to a movie executive, “What do you mean that we’ve got to shut down YouTube to keep the Hollywood film industry alive?” Hollywood gives us, like, 40, 100 hours of movies a year? We get 49 hours of video every minute on YouTube. And they go, “Well, that’s not good video. It’s the wrong kind of video.”

I think that when you have an industrialist who says, “This policy that is supposed to create video is creating the wrong kind of video, it should create my video, of which there would be a lot less of it, but I’d make more money from it.” I think that we should at least look that argument up and down pretty thoroughly before we go, “Oh, yeah, makes sense.”

BK: Let’s connect this to video games. Because it does have an impact on video games and I think it tends to be the part of the video-game industry that tends not to be talked about because it’s dominated by such big players.

CD: Actually, it’s pretty cyclic. In the early days of consumer packaged goods software, when software used to be sold in baggies and boxes hanging from pegboards in stores, games were really dominated by individuals. And then there was this period where they got really big in consumer packaged goods and then they totally collapsed and mostly, to be honest, copyright infringement was the major force that led to their collapse, and consolidation in the platform.

And then they were reborn as an indie phenomenon that grew up into the multiplayer online worlds which, again, were super concentrated, we’ve only got three or four really giant ones: Lineage and World of Warcraft and so on. And while they were off sucking all the oxygen out of that market, up came a million indie games partly fueled by mobile devices and partly just crazy out of left field things like Minecraft. So it’s a little bit of both.

I’ll stipulate that there’s a lot of giant companies in the games industry, particularly if you’re on the West Coast and living in the shadow of EA, it could certainly feel like the video game industry is built entirely around giant firms, but it’s a little of both.

BK: One of the things that’s unique about Vancouver’s game-development industry is the pattern of entrepreneurship. People form new companies here. But the companies that are being formed now are not console development companies like they used to be, they are indie developers for iOS, mobile, and social.

CD: One of the things that’s really interesting about video games is that it’s a really good look at what a copyright industry looks like when it doesn’t have any regulatory muscle. There’s this great Canadian copyright and communications policy scholar named Tim Wu who is now working for the Federal Trade Commission in the U.S., and he has this thing where he talks about how historically, the industries that have been around the longest tend to play the lobbying game the best, because they’ve had the most time to consolidate into just a few firms, bury the hatchet between them, to have traded enough executives over the years that everyone knows everyone, and instead of being at each others throats all the time mostly what they do is all get together and go to Parliament Hill and take out politicians for lunch and try and make stuff happen.

Generally, copyright is one of those industries. The record industry has been regulated since 1909 when the first compulsory licence was laid down on recording. It was actually born out of regulation. The composers, the people who wrote songs, didn’t want those songs appearing on records, and Congress intervened and said, “No, we’re going to force you to allow songs to be put on records on payment of two cents per record that’s pressed. They’ve been around for a long time. They lobby really well. But video games, totally not. Video games are really diffused, and moreover, are really controversial.

A video-game industry representative who shows up in the halls of Parliament or Congress or Whitehall and says, “I demand that you save my industry,” is just as likely to be met by someone from Parliament saying, “I can’t wait for you to die. You are perverters of children! The sooner the better!” Instead what you get is an industry that is forced to try to figure out what to do when it can’t just get laws passed to allow it to continue what it’s been doing before.

So multiplayer games are a great example of that. You started off with consumer packaged goods software, and it becomes untenable, and so they come up with the first real software-as-a-service model where Warcraft with just the CD on your own is no fun. World of Warcraft is only fun if you pay a monthly subscription. And while it’s true they sell the CD and people probably pirate the CD, the important thing isn’t the $40 or $60 or $10 on discount that they get for the CD, it’s the $15 every month for the rest of your life that they get from you playing WoW. And now the first 20 levels are free. Although it’s a bit of a fudge because you don’t get the same privileges as someone who’s paying. If there’s a busy instance you can’t get in it until someone else gets in there first.

What’s interesting is that’s almost certainly a response to all the companies that went free to play because they couldn’t compete with Warcraft and so they went free to play and they started selling objects in game, they are microtransaction-funded games. I was at GDC a couple of years ago, this was all anyone was talking about.

So what you have is a competitive marketplace, everyone’s got ideas, most of those ideas are bad, most of the people with bad ideas get shot down in flames, the people with good ideas grow and then they get their lunch eaten from the edges by people who’ve got ideas that the first group couldn’t even conceive of because it would be eating into their core profits.

Basically, the history of most industries is a dominant player who makes their money giving away one thing and selling something else being devoured by a new entrant who figures out how to give away the thing that the first player is selling and making their money on. That just keeps on happening. Instead of paying to access a game server, the way you do with Warcraft, you’ve got these free-to-play guys who are figuring out how to make money in different ways. Most of them will probably fail, because most of the people who built MMOs failed, and the ones who succeed will probably grow to be as big as Warcraft and they’ll probably be big and evil the way Warcraft became and then they’re going to get their lunches eaten by new upstarts.

That’s not a terrible thing. The thing that I worry about, to drag it all the way back to James Moore, you’ve got these iOS developers who are saying, “Okay, I’m going to develop iOS games.” And that’s cool, Apple’s got a store and if Apple likes your thing they’ll put it in their store. I’m totally all over that, I used to be a bookseller in Toronto, if I liked your book I’d put it in my store. The difference is that James Moore’s law says that only Apple can operate a store that can put games onto your iPad. So if you want to buy games for your iPad from someone else, or if you’re a game developer and Apple doesn’t like you and won’t approve your game, or you don’t want to give Apple 30 percent in order to sell your game, you have no choice. James Moore will spend Canadian tax dollars making sure that customers and vendors can’t decide which store they use to connect and complete their transaction to make their wares available.

So it’s a kind of replay of that capture model where you have DRM vendors who can capture audiobook companies, DRM vendors who can capture e-book companies, and DRM vendors who can capture game companies. You see this in the console world, too, where at least a modicum of competition keeps a little bit of health up in the terms offered to game publishers between the different console platforms. But even so, if there’s some guy in Vancouver who is starting the next EA who wants to sell his game on the iPad or even on the 3DS, the little Nintendo box, without permission from that parent company, and there’s a customer who wants to buy it, why should government intervene to stop that? How does that benefit either customers or vendors?

And the 3DS is a great example of what happens when you create a law that allows device vendors unlimited authority to do crazy crap with their device and have it backed up by government so that customers aren’t allowed to undo the crazy crap. Because the 3DS has a couple of really weird anti-features. It tries to connect to networks even if you tell it not to, and when it finds a network and connects to it, it tries to download new firmware even if you tell it not to. When that new firmware is downloaded, it checks to see whether your old firmware has been modded. In other words, if you’ve jail broken your device. And if you have, it bricks your device. It renders it unusable. So this is crazy, right? This is what happens when the state says, “Don’t worry about a market appearing for things to undo your mishigas. We’ll take care of it. We’ll make sure, using taxpayers dollars, we’ll make sure that nobody ever offers a product that makes your product better, that undoes your weirdness that you’ve put at the locus of your business model. You can be as wild and woolly as you want with your devices.” So for both players and game publishers, this device represents a kind of trap.

Getting back to this idea about what a good set of policies for regulating creativity in the Internet should be. Starting with the idea that at the minimum, people involved in creative expression shouldn’t advocate policies that are anti-free expression, that involve censorship, surveillance, and control. From there, building into a set of industrial rules and policies that ensure that the public gets access to the widest range of works, that creators aren’t held over a barrel by publishers, and that publishers aren’t held over a barrel by vendors or intermediaries. And proceeding from that, and making sure that we never break these kinds of golden rules in how we regulate and how we approach the industry and what we demand from our governments and from the companies we supply things to. I think if we can agree on what sound to me like pretty common sense ideas, then we can end up in a world where computers go on doing all the amazing things they do.

People who come to SIGGRAPH understand that computers are amazing, life-changing things. They are not just fancy boxes for making polygons do amazing and intricate dances. Computers are astounding pieces of equipment that transform your life, that make it possible to stay in touch with wide social groups to be more informed about the news and about politics, to engage with the civics of your region, to be an advocate for yourself, for your kids to do their schoolwork, and all those other things. And if we’re going to continue to realize the benefits that we got out of computers and networks, we need to start regulating them not merely as a conduit for culture or for entertainment, and not merely as a means for telcos to get rich, but as this transformational infrastructure of the information age. Where getting it right means entering an era in which we become stronger and freer and happier as a society, and getting it wrong means that artists go broke and society becomes more controlled and less free.

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