Selected Essays on Technology, Creativity, Copyright and the Future of the Future



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Of course, Sony still has a record-label -- for now. But sales are falling, and the company is reeling from the 2005 "rootkit" debacle, where in deliberately infected eight million music CDs with a hacker tool called a rootkit, compromising over 500,000 US computer networks, including military and government networks, all in a (failed) bid to stop copying of its CDs.

The public wasn't willing to wait for Sony and the rest to wake up and offer a service that was as compelling, exciting and versatile as Napster. Instead, they flocked to a new generation of services like Kazaa and the various Gnutella networks. Kazaa's business model was to set up offshore, on the tiny Polynesian island of Vanuatu, and bundle spyware with its software, making its profits off of fees from spyware crooks. Kazaa didn't want to pay billions for record industry licenses -- they used the international legal and finance system to hopelessly snarl the RIAA's members through half a decade of wild profitability. The company was eventually brought to ground, but the founders walked away and started Skype and then Joost.

Meantime, dozens of other services had sprung up to fill Kazaa's niche -- AllofMP3, the notorious Russian site, was eventually killed through intervention of the US Trade Representative and the WTO, and was reborn practically the next day under a new name.

It's been eight years since Sean Fanning created Napster in his college dorm-room. Eight years later, there isn't a single authorized music service that can compete with the original Napster. Record sales are down every year, and digital music sales aren't filling in the crater. The record industry has contracted to four companies, and it may soon be three if EMI can get regulatory permission to put itself on the block.

The sue-em-all-and-let-God-sort-em-out plan was a flop in the box office, a flop in home video, and a flop overseas. So why is Hollywood shooting a remake?

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YouTube, 2007, bears some passing similarity to Napster, 2001. Founded by a couple guys in a garage, rocketed to popular success, heavily capitalized by a deep-pocketed giant. Its business model? Turn popularity into dollars and offer a share to the rightsholders whose works they're using. This is an historically sound plan: cable operators got rich by retransmitting broadcasts without permission, and once they were commercial successes, they sat down to negotiate to pay for those copyrights (just as the record companies negotiated with composers after they'd gotten rich selling records bearing those compositions).

YouTube 07 has another similarity to Napster 01: it is being sued by entertainment companies.

Only this time, it's not (just) the record industry. Broadcasters, movie studios, anyone who makes video or audio is getting in on the act. I recently met an NBC employee who told me that he thought that a severe, punishing legal judgment would send a message to the tech industry not to field this kind of service anymore.

Let's hope he's wrong. Google -- YouTube's owners -- is a grown-up of a company, unusual in a tech industry populated by corporate adolescents. They have lots of money and a sober interest in keeping it. They want to sit down with A/V rightsholders and do a deal. Six years after the Napster verdict, that kind of willingness is in short supply.

Most of the tech "companies" with an interest in commercializing Internet AV have no interest in sitting down with the studios. They're either nebulous open source projects (like mythtv, a free hyper-TiVo that skips commercials, downloads and shares videos and is wide open to anyone who wants to modify and improve it), politically motivated anarchists (like ThePirateBay, a Swedish BitTorrent tracker site that has mirrors in three countries with non-interoperable legal systems, where they respond to legal notices by writing sarcastic and profane letters and putting them online), or out-and-out crooks like the bootleggers who use P2P to seed their DVD counterfeiting operations.

It's not just YouTube. TiVo, who pioneered the personal video recorder, is feeling the squeeze, being systematically locked out of the digital cable and satellite market. Their efforts to add a managed TiVoToGo service were attacked by the rightsholders who fought at the FCC to block them. Cable/satellite operators and the studios would much prefer the public to transition to "bundled" PVRs that come with your TV service.

These boxes are owned by the cable/satellite companies, who have absolute control over them. Time-Warner has been known to remotely delete stored episodes of shows just before the DVD ships, and many operators have started using "flags" that tell recorders not to allow fast-forwarding, or to prevent recording altogether.

The reason that YouTube and TiVo are more popular than ThePirateBay and mythtv is that they're the easiest way for the public to get what it wants -- the video we want, the way we want it. We use these services because they're like the original Napster: easy, well-designed, functional.

But if the entertainment industry squeezes these players out, ThePirateBay and mythtv are right there, waiting to welcome us in with open arms. ThePirateBay has already announced that it is launching a YouTube competitor with no-plugin, in-browser viewing. Plenty of entrepreneurs are looking at easing the pain and cast of setting up your own mythtv box. The only reason that the barriers to BitTorrent and mythtv exist is that it hasn't been worth anyone's while to capitalize projects to bring them down. But once the legit competitors of these services are killed, look out.

The thing is, the public doesn't want managed services with limited rights. We don't want to be stuck using approved devices in approved ways. We never have -- we are the spiritual descendants of the customers for "illegal" record albums and "illegal" cable TV. The demand signal won't go away.

There's no good excuse for going into production on a sequel to The Napster Wars. We saw that movie. We know how it turns out. Every Christmas, we get articles about how this was the worst Christmas ever for CDs. You know what? CD sales are never going to improve. CDs have been rendered obsolete by Internet distribution -- and the record industry has locked itself out of the only profitable, popular music distribution systems yet invented.

Companies like Google/YouTube and TiVo are rarities: tech companies that want to do deals. They need to be cherished by entertainment companies, not sued.

(Thanks to Bruce Nash and The-Numbers.com for research assistance with this article)

$$$$


You DO Like Reading Off a Computer Screen

(Originally published in Locus Magazine, March 2007)

"I don't like reading off a computer screen" -- it's a cliché of the e-book world. It means "I don't read novels off of computer screens" (or phones, or PDAs, or dedicated e-book readers), and often as not the person who says it is someone who, in fact, spends every hour that Cthulhu sends reading off a computer screen. It's like watching someone shovel Mars Bars into his gob while telling you how much he hates chocolate.

But I know what you mean. You don't like reading long-form works off of a computer screen. I understand perfectly -- in the ten minutes since I typed the first word in the paragraph above, I've checked my mail, deleted two spams, checked an image-sharing community I like, downloaded a YouTube clip of Stephen Colbert complaining about the iPhone (pausing my MP3 player first), cleared out my RSS reader, and then returned to write this paragraph.

This is not an ideal environment in which to concentrate on long-form narrative (sorry, one sec, gotta blog this guy who's made cardboard furniture) (wait, the Colbert clip's done, gotta start the music up) (19 more RSS items). But that's not to say that it's not an entertainment medium -- indeed, practically everything I do on the computer entertains the hell out of me. It's nearly all text-based, too. Basically, what I do on the computer is pleasure-reading. But it's a fundamentally more scattered, splintered kind of pleasure. Computers have their own cognitive style, and it's not much like the cognitive style invented with the first modern novel (one sec, let me google that and confirm it), Don Quixote, some 400 years ago.

The novel is an invention, one that was engendered by technological changes in information display, reproduction, and distribution. The cognitive style of the novel is different from the cognitive style of the legend. The cognitive style of the computer is different from the cognitive style of the novel.

Computers want you to do lots of things with them. Networked computers doubly so -- they (another RSS item) have a million ways of asking for your attention, and just as many ways of rewarding it.

There's a persistent fantasy/nightmare in the publishing world of the advent of very sharp, very portable computer screens. In the fantasy version, this creates an infinite new market for electronic books, and we all get to sell the rights to our work all over again. In the nightmare version, this leads to runaway piracy, and no one ever gets to sell a novel again.

I think they're both wrong. The infinitely divisible copyright ignores the "decision cost" borne by users who have to decide, over and over again, whether they want to spend a millionth of a cent on a millionth of a word -- no one buys newspapers by the paragraph, even though most of us only read a slim fraction of any given paper. A super-sharp, super-portable screen would be used to read all day long, but most of us won't spend most of our time reading anything recognizable as a book on them.

Take the record album. Everything about it is technologically pre-determined. The technology of the LP demanded artwork to differentiate one package from the next. The length was set by the groove density of the pressing plants and playback apparatus. The dynamic range likewise. These factors gave us the idea of the 40-to-60-minute package, split into two acts, with accompanying artwork. Musicians were encouraged to create works that would be enjoyed as a unitary whole for a protracted period -- think of Dark Side of the Moon, or Sgt. Pepper's.

No one thinks about albums today. Music is now divisible to the single, as represented by an individual MP3, and then subdivisible into snippets like ringtones and samples. When recording artists demand that their works be considered as a whole -- like when Radiohead insisted that the iTunes Music Store sell their whole album as a single, indivisible file that you would have to listen to all the way through -- they sound like cranky throwbacks.

The idea of a 60-minute album is as weird in the Internet era as the idea of sitting through 15 hours of Der Ring des Nibelungen was 20 years ago. There are some anachronisms who love their long-form opera, but the real action is in the more fluid stuff that can slither around on hot wax -- and now the superfluid droplets of MP3s and samples. Opera survives, but it is a tiny sliver of a much bigger, looser music market. The future composts the past: old operas get mounted for living anachronisms; Andrew Lloyd Webber picks up the rest of the business.

Or look at digital video. We're watching more digital video, sooner, than anyone imagined. But we're watching it in three-minute chunks from YouTube. The video's got a pause button so you can stop it when the phone rings and a scrubber to go back and forth when you miss something while answering an IM.

And attention spans don't increase when you move from the PC to a handheld device. These things have less capacity for multitasking than real PCs, and the network connections are slower and more expensive. But they are fundamentally multitasking devices -- you can always stop reading an e-book to play a hand of solitaire that is interrupted by a phone call -- and their social context is that they are used in public places, with a million distractions. It is socially acceptable to interrupt someone who is looking at a PDA screen. By contrast, the TV room -- a whole room for TV! -- is a shrine where none may speak until the commercial airs.

The problem, then, isn't that screens aren't sharp enough to read novels off of. The problem is that novels aren't screeny enough to warrant protracted, regular reading on screens.

Electronic books are a wonderful adjunct to print books. It's great to have a couple hundred novels in your pocket when the plane doesn't take off or the line is too long at the post office. It's cool to be able to search the text of a novel to find a beloved passage. It's excellent to use a novel socially, sending it to your friends, pasting it into your sig file.

But the numbers tell their own story -- people who read off of screens all day long buy lots of print books and read them primarily on paper. There are some who prefer an all-electronic existence (I'd like to be able to get rid of the objects after my first reading, but keep the e-books around for reference), but they're in a tiny minority.

There's a generation of web writers who produce "pleasure reading" on the web. Some are funny. Some are touching. Some are enraging. Most dwell in Sturgeon's 90th percentile and below. They're not writing novels. If they were, they wouldn't be web writers.

Mostly, we can read just enough of a free e-book to decide whether to buy it in hardcopy -- but not enough to substitute the e-book for the hardcopy. Like practically everything in marketing and promotion, the trick is to find the form of the work that serves as enticement, not replacement.

Sorry, got to go -- eight more e-mails.

$$$$

How Do You Protect Artists?



(Originally published in The Guardian as "Online censorship hurts us all," Tuesday, Oct 2, 2007)

Artists have lots of problems. We get plagiarized, ripped off by publishers, savaged by critics, counterfeited -- and we even get our works copied by "pirates" who give our stuff away for free online.

But no matter how bad these problems get, they're a distant second to the gravest, most terrifying problem an artist can face: censorship.

It's one thing to be denied your credit or compensation, but it's another thing entirely to have your work suppressed, burned or banned. You'd never know it, however, judging from the state of the law surrounding the creation and use of internet publishing tools.

Since 1995, every single legislative initiative on this subject in the UK's parliament, the European parliament and the US Congress has focused on making it easier to suppress "illegitimate" material online. From libel to copyright infringement, from child porn to anti-terror laws, our legislators have approached the internet with a single-minded focus on seeing to it that bad material is expeditiously removed.

And that's the rub. I'm certainly no fan of child porn or hate speech, but every time a law is passed that reduces the burden of proof on those who would remove material from the internet, artists' fortunes everywhere are endangered.

Take the US's 1998 Digital Millennium Copyright Act, which has equivalents in every European state that has implemented the 2001 European Union Copyright Directive. The DMCA allows anyone to have any document on the internet removed, simply by contacting its publisher and asserting that the work infringes his copyright.

The potential for abuse is obvious, and the abuse has been widespread: from the Church of Scientology to companies that don't like what reporters write about them, DMCA takedown notices have fast become the favorite weapon in the cowardly bully's arsenal.

But takedown notices are just the start. While they can help silence critics and suppress timely information, they're not actually very effective at stopping widespread copyright infringement. Viacom sent over 100,000 takedown notices to YouTube last February, but seconds after it was all removed, new users uploaded it again.

Even these takedown notices were sloppily constructed: they included videos of friends eating at barbecue restaurants and videos of independent bands performing their own work. As a Recording Industry Association of America spokesman quipped, "When you go trawling with a net, you catch a few dolphins."

Viacom and others want hosting companies and online service providers to preemptively evaluate all the material that their users put online, holding it to ensure that it doesn't infringe copyright before they release it.

This notion is impractical in the extreme, for at least two reasons. First, an exhaustive list of copyrighted works would be unimaginably huge, as every single creative work is copyrighted from the instant that it is created and "fixed in a tangible medium".

Second, even if such a list did exist, it would be trivial to defeat, simply by introducing small changes to the infringing copies, as spammers do with the text of their messages in order to evade spam filters.

In fact, the spam wars have some important lessons to teach us here. Like copyrighted works, spams are infinitely varied and more are being created every second. Any company that could identify spam messages -- including permutations and variations on existing spams -- could write its own ticket to untold billions.

Some of the smartest, most dedicated engineers on the planet devote every waking hour to figuring out how to spot spam before it gets delivered. If your inbox is anything like mine, you'll agree that the war is far from won.

If the YouTubes of the world are going to prevent infringement, they're going to have to accomplish this by hand-inspecting every one of the tens of billions of blog posts, videos, text-files, music files and software uploads made to every single server on the internet.

And not just cursory inspections, either -- these inspections will have to be undertaken by skilled, trained specialists (who'd better be talented linguists, too -- how many English speakers can spot an infringement in Urdu?).

Such experts don't come cheap, which means that you can anticipate a terrible denuding of the fertile jungle of internet hosting companies that are primary means by which tens of millions of creative people share the fruits of their labor with their fans and colleagues.

It would be a great Sovietisation of the world's digital printing presses, a contraction of a glorious anarchy of expression into a regimented world of expensive and narrow venues for art.

It would be a death knell for the kind of focused, non-commercial material whose authors couldn't fit the bill for a "managed" service's legion of lawyers, who would be replaced by more of the same -- the kind of lowest common denominator rubbish that fills the cable channels today.

And the worst of it is, we're marching toward this "solution" in the name of protecting artists. Gee, thanks.

$$$$


It's the Information Economy, Stupid

(Originally published in The Guardian as "Free data sharing is here to stay," September 18, 2007)

Since the 1970s, pundits have predicted a transition to an "information economy." The vision of an economy based on information seized the imaginations of the world's governments. For decades now, they have been creating policies to "protect" information -- stronger copyright laws, international treaties on patents and trademarks, treaties to protect anti-copying technology.

The thinking is simple: an information economy must be based on buying and selling information. Therefore, we need policies to make it harder to get access to information unless you've paid for it. That means that we have to make it harder for you to share information, even after you've paid for it. Without the ability to fence off your information property, you can't have an information market to fuel the information economy.

But this is a tragic case of misunderstanding a metaphor. Just as the industrial economy wasn't based on making it harder to get access to machines, the information economy won't be based on making it harder to get access to information. Indeed, the opposite seems to be true: the more IT we have, the easier it is to access any given piece of information -- for better or for worse.

It used to be that copy-prevention companies' strategies went like this: "We'll make it easier to buy a copy of this data than to make an unauthorized copy of it. That way, only the uber-nerds and the cash-poor/time-rich classes will bother to copy instead of buy." But every time a PC is connected to the Internet and its owner is taught to use search tools like Google (or The Pirate Bay), a third option appears: you can just download a copy from the Internet. Every techno-literate participant in the information economy can choose to access any data, without having to break the anti-copying technology, just by searching for the cracked copy on the public Internet. If there's one thing we can be sure of, it's that an information economy will increase the technological literacy of its participants.

As I write this, I am sitting in a hotel room in Shanghai, behind the Great Firewall of China. Theoretically, I can't access blogging services that carry negative accounts of Beijing's doings, like Wordpress, Blogspot and Livejournal, nor the image-sharing site Flickr, nor Wikipedia. The (theoretically) omnipotent bureaucrats of the local Minitrue have deployed their finest engineering talent to stop me. Well, these cats may be able to order political prisoners executed and their organs harvested for Party members, but they've totally failed to keep Chinese people (and big-nose tourists like me) off the world's Internet. The WTO is rattling its sabers at China today, demanding that they figure out how to stop Chinese people from looking at Bruce Willis movies without permission -- but the Chinese government can't even figure out how to stop Chinese people from looking at seditious revolutionary tracts online.

And, of course, as Paris Hilton, the Church of Scientology and the King of Thailand have discovered, taking a piece of information off the Internet is like getting food coloring out of a swimming pool. Good luck with that.

To see the evidence of the real information economy, look to all the economic activity that the Internet enables -- not the stuff that it impedes. All the commerce conducted by salarymen who can book their own flights with Expedia instead of playing blind-man's bluff with a travel agent ("Got any flights after 4PM to Frankfurt?"). All the garage crafters selling their goods on Etsy.com. All the publishers selling obscure books through Amazon that no physical bookstore was willing to carry. The salwar kameez tailors in India selling bespoke clothes to westerners via eBay, without intervention by a series of skimming intermediaries. The Internet-era musicians who use the net to pack venues all over the world by giving away their recordings on social services like MySpace. Hell, look at my last barber, in Los Angeles: the man doesn't use a PC, but I found him by googling for "barbers" with my postcode -- the information economy is driving his cost of customer acquisition to zero, and he doesn't even have to actively participate in it.

Better access to more information is the hallmark of the information economy. The more IT we have, the more skill we have, the faster our networks get and the better our search tools get, the more economic activity the information economy generates. Many of us sell information in the information economy -- I sell my printed books by giving away electronic books, lawyers and architects and consultants are in the information business and they drum up trade with Google ads, and Google is nothing but an info-broker -- but none of us rely on curtailing access to information. Like a bottled water company, we compete with free by supplying a superior service, not by eliminating the competition.

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