Entertainment Industry Lawyer Predicts The Demise Of Free Culture

from the logical-inconsistencies dept

Fri, Feb 13th 2009 7:58am — Mike Masnick

Music industry lawyer Chris Castle is at it again. You may recall him from his poorly thought out attack on evil free culture types that was easily debunked. Unfortunately, it looks like others are willing to let him spew nonsense. This time, it's Arts+Labs, yet another "anti-piracy" lobbying group that was formed last year. When it was formed, it was positioned as a more "reasonable" group, because rather than just being made up of entertainment industry reps, it also had a few "tech industry" folks -- though, those tech companies were ones looking to sell DRM or filtering technologies. So, as a supposedly more reasonable "balanced" approach, you would hope that perhaps Arts+Labs wouldn't publish a ridiculous rant from an entertainment industry lawyer, bashing all "free culturists" and predicting the imminent demise of free culture.

But, indeed, that appears to be what Castle is saying, predicting the demise of free culture based on some incredibly weak logic that doesn't pass the basic laugh test. I read the whole thing a few times and the logic was so twisted that I finally had to try to work backwards to figure out what he was claiming, and eventually realized that his position on copyright seems to coincide with Douglas Adam's old saying:

1) everything that's already in the world when you're born is just normal;

2) anything that gets invented between then and before you turn thirty is incredibly exciting and creative and with any luck you can make a career out of it;

3) anything that gets invented after you're thirty is against the natural order of things and the beginning of the end of civilisation as we know it until it's been around for about ten years when it gradually turns out to be alright really.

So how does this apply to Castle's logic? Well, as far as I can tell, Castle's logical thought train runs as follows:

Free culture is an economic fallacy, and is close to its demise.
Pop culture is important in winning over the "hearts and minds" of people who hate us
The only reason pop culture exists is because people earn money from it
Free culture fanatics don't get any of this and think that there's a battle going on between Silicon Valley (innovation) and Hollywood
These clueless free culture idiots are demanding government-mandated licenses and government-mandated prices
They claim this is needed because of market failure.
But there is no market if we don't respect "basic economic rights" (i.e., "copyright")
If we don't respect those "basic economic rights" then the internet gets polluted with junk
Then pop culture creators are lost forever, because they can't make money
So, the government must protect these "fundamental economic liberties" (i.e., "copyright"), but not do anything else, because then we might not win over the hearts and minds of our enemies.
Because of that, we're witnessing the end of people believing in this bogus idea of free culture.

You can read over the piece yourself, but I think I'm being quite fair to the reasoning. But, of course, this doesn't make any sense at all, unless you consider the Douglas Adams quote. Castle seems to think that "copyright" (a government-granted right) is somehow "natural" or a "basic economic right" or a "fundamental economic liberty." It's not and never has been. It's a government granted monopoly for the sole purpose of promoting the progress of the sciences and the useful arts. Thomas Jefferson's famous discussion of intellectual property "rights" makes it quite clear that there is nothing at all "natural" about copyright. But, since it's been around since he was born, to Castle, it's fundamental. And anything new is just downright evil.

And, of course, there are tons of other logical fallacies in this piece. Even if we grant that points 2 and 3 are true, he seems to be jumping back to that old lie that support of "free culture" means that artists don't earn money. It's a fallacy that runs throughout the piece, and of course is totally bogus. We've spent about a decade chronicling ways that content creators are embracing "free culture" and making more money because of that. It's getting ridiculous how many times it needs to be repeated but: giving away ONE THING for FREE, does NOT MEAN that you don't make money. Once you recognize that, Castle's entire argument falls apart (as does the entire reason that Arts+Labs exists... but that's another issue).

The other characterizations that Castle makes about "free culture" supporters are total strawmen. While there may have been some who set up a "battle" between Silicon Valley and Hollywood, I actually don't see that very much at all. I live in Silicon Valley and am pretty involved in talking about these issues with plenty of people, and it's rarely framed that way at all. Most folks are simply looking at ways to help enable the market to be more efficient, knowing that doing so benefits everyone. There's no "against" anyone -- other than those who want to somehow block this efficiency because they prefer to rest on their laurels and old gov't granted monopolies. The innovators in Silicon Valley aren't trying to stick it to Hollywood. They're trying to provide better tools to enable content creators of all kinds to create, share, promote, distribute and experience content.

Also, I'm curious which "free culture" academics "beat the drum for a government-mandated compulsory license and government-mandated pricing for all content." I've yet to see any. Yes, there are some who have suggested voluntary licensing, but I'm not aware of any who are pushing for government mandated pricing of all content. I, for one, am vehemently against such things.

Finally, after bashing these "free culturists" for not understanding "basic economics" and insisting that free culture has no economic basis, Castle flunks his economics final by stating: "Absent these rights there is no market, and therefore there can be no market failure." I may have to break out the red grading marker on this one to explain the F grade. Mr. Castle, I'm afraid you've incorrectly defined your market. It's a rookie mistake. "Free" doesn't mean there's no market. Down there in sunny Los Angeles, television has been quite a successful business... which gives its content away for free. And it works, because they put in place a business model that leverages the free content to make money. How hard is it for Castle to realize that there are other business models for the music industry as well? How many examples must we show before he realizes that free doesn't mean you don't get paid? And, finally, why is Arts+Labs allowing such ridiculously illogical thinking to appear on its website as commentary?

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Filed Under: business models, chris castle, copyright, culture, music

29 Comments

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Matt, 13 Feb 2009 @ 8:41am

root of the problem
Mike, I think the real issue was covered a few articles ago.

I doubt this guy believes the crap he is spewing, but I think he is obligated to do sue via being employed by em. There was an article (maybe it was techdirt?) about that previously, IIRC.
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orlin, 13 Feb 2009 @ 8:57am

Hmm, did Castle post his professional opinion for free?

If he did, according to his logic, isn't he killing paid journalism?
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Glurbie, 13 Feb 2009 @ 8:57am

I'm suspicious
I find it odd that the original article has a posted date of Feb 5th and as of now still has no comments posted with it. Either no one that cares is reading it, or their filtering comments. If they only allow posting of comments that agree with their position, then that would explain a lack of any.
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Osno, 13 Feb 2009 @ 9:04am

The good part of the article is that it's so obscurely written that you can't really see what he's pointing out (and so, you can't contradict it). I really like this: "it is of critical importance that American culture survive and be regenerated, not fail and be regurgitated". Sure, but with the "demise of free culture", american culture will survive and be regurgitated. The new generation (or regeneration) will be considered a "derivative work" and will have to pay to the owner of the american culture.
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Anonymous Coward, 13 Feb 2009 @ 9:24am

It is funny in a sad way to watch these old school guys fighting over the last slice of pie while totally ignoring the bigger feast going on around them. If they would just take a moment to look up from the remains of the carcass they'd realize there's much more opportunity from joining the new way than clinging to the old way.
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me@me.net, 13 Feb 2009 @ 9:27am

once again
DEATH to the music industry
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Anonymous Coward, 13 Feb 2009 @ 9:28am

fuck'em
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Zak, 13 Feb 2009 @ 9:42am

As long as there are people like this guy who are willing for (large) sums of money to make idiots of themselves and act like dicks in front of the public, spew lies and twist facts, this will not end...

Z.
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jim, 13 Feb 2009 @ 9:47am

death to music industry = death to artists
you are an idiot when you say "death to music industry."

music industry represents artists, idiot!

piracy is a huge problem and will be curbed sooner than people think.
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- scott, 13 Feb 2009 @ 10:11am
  
  Re: death to music industry = death to artists
  Except there are plenty of other people in the world who are just as talented as those artists. Many of these people find performing enjoyable, and will often do so for little to no money. Why pay someone large sums of money for something that has nearly no value, when someone else will do it for free?
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- Fushta, 13 Feb 2009 @ 10:15am
  
  Re: death to music industry = death to artists
  You're both wrong. The music industry is booming (perhaps you've heard of iTunes and others that sell digital songs).
  I think the original "DEATH to the music industry" meant death to the record labels that those that represent them.
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- PaulT (profile), 13 Feb 2009 @ 11:07am
  
  Re: death to music industry = death to artists
  "music industry represents artists, idiot!"
  
  No, it doesn't, and that's the problem. The music industry, in terms of the major labels, represents the ideas of big business. This is not good for either the artists nor the consumers (consider the Beatles being denied a record contracts by the majors, the refusal to play hip-hop on MTV or dance music on Radio 1, etc.).
  
  The RIAA represents the ideals of an accepted way to make a small group of people money vs. the art and the artists. If you think otherwise, you're a naive fool.
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bill, 13 Feb 2009 @ 10:44am

and the fact that pop culture is absolutely retarded didn't cross these people's minds for a picosecond?
you are right, their logic really doesnt pass the basic laugh test. Its kinda funny to read what they are saying. reminds me of the ramblings of a drunk, senile gorilla
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PaulT (profile), 13 Feb 2009 @ 11:27am

OK, let's revisit a few of these point for the clueless...

First of all "free culture" != "piracy". There is a huge amount of culture released in the public domain, under a CC licence or just simply given away by its creators that does not equal an act of piracy.

Then, we get to the idea that "pop culture" is necessary and required to "win over hearts and minds". For every person that loves hearing about, say, Paris Hilton, there is another who despises her (myself included). Was the fact that "The Hottie And The Nottie" a part of "pop culture" the reason for its ridiculous failure? I think so, at least its failure wasn't down to "piracy". People recognise art, and while they are give access to a wider range of art via, say, the internet, then they are more likely to choose higher quality items.

Then we get the piece de resistance... The article seems to assume that free content is equal to communism and therefore a political power. Whatever you believe, entertainment is simply that. It's not a necessity nor a right. In these times of financial and idealistic confusion, the right to get paid $15 for a DVD or a CD is very low on the priorities of most people. Anyone serious about their desire to explore ways to create art will be looking at other ways than the traditional - such as free content. Those who stick to outdated business methods will fail. This has not relationship to the quality of art - Van Gogh only sold 2 paintings in his lifetime, remember - but rather the outlook of the times.

I've said this many times myself. I avoid RIAA outlets and only buy through AmieStreet, eMusic, etc. for music. I refuse to "upgrade" to Blu-Ray because I don't have the necessary equipment nor any desire to buy it. I'm also openly refuse the chance to do so due to the fact than, for examples, no Netflix analog is available on my XBox nor an Amazon MP3 store that's willing to sell to me.

Such stupid regionalisation and restrictions are the reason behind failure. People do not want to pay for substandard product, and these companies are more often than not refusing to sell to anyone outside of North America. Take a wild guess as to why they're not successful...
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Anonymous Coward, 13 Feb 2009 @ 2:15pm

What's funny is these are the very same people who are ardently against any sort of "welfare" system whatsoever, but that is exactly what they are promoting. I'm 38, and I'd be more than happy to sit home on my butt and collect a paycheck for something I did when I was 18. I'm sure most of the people who read this site would like that as well. But you know what? We can't. We have to get up and go to work every day. So if they're looking for sympathy that the can't collect a paycheck for a sing or book they wrote 35 years ago they shouldn't get their hopes up too high. Go get a job at Walmart or McDonald's. I can assure you most people who work there don't really want to be their any more than you do.

On the other hand, what an artist, or an author, or a musician does isn't exactly the same as what I do. I provide a service or perform a task, that can generally be turned around and sold for an immediate profit. Creative endeavors aren't always so easy to come by. Hence why the idea of copyright was created in the first place, to offer those who create some for of financial incentive for a LIMITED period of time..... WHILE THEY CAME UP WITH SOMETHING NEW. And again, if you can't come up with anything new, go get a fricken job at Walmart like everyone else.
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bob, 13 Feb 2009 @ 3:22pm

I hereby predict the death of the entertainment industry lawyer culture. It's not sustainable.

We need to go back to the patronage system for music and art.
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Anonymous Coward, 13 Feb 2009 @ 10:09pm

There is a point here that seems to constantly be overlooked. Economic theory articulated by techdirt and others say reliance on copyright in the affected industry is a fool's bet and copyright holders are being foolish. Even assuming, arguendo, that the copyright holders are indeed being foolish, no one can seriously argue that it is wrong for them to act in this manner.

Until the industry decides to change its approach, it is its right to act in a manner that an economist may decry as shortsighted and foolish, as well as its right to enforce the rights secured to it by law.
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- PaulT (profile), 14 Feb 2009 @ 2:37am
  
  Re:
  If the industry wasn't trying to get the law changed to protect their failing business models, and using half-baked, inaccurate information to do this, then we might do that. Unfortunately, we can't simply sit back and laugh at their mistakes because the fallout from their decisions affects us all. It's the duty of anyone who sees the problems to point them out. Even if that doesn't change the minds of anyone in the industry, they can't turn around and claim that nobody could foresee the problems they will face, as they attempted to do when DRM blew up in their faces.
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Nick (profile), 14 Feb 2009 @ 10:25am

Almost all technological and social change (whether "authorized" or not) seems aimed at making things more efficient, and sometimes that means eliminating middlemen. People like Castle and the big labels that are not adapting are these middlemen. Their roles in the the art and content ecosystem are no longer necessary. It is true, they are stuck in a time and place when they were king, and now fighting for their existence. They will lose. Free Culture as social movement is bigger than it has ever been, and it's just too big of a tide to turn around. There is no regulation, DRM software, imagined right, or luddite that can stop it.
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Gene Cavanaugh, 14 Feb 2009 @ 1:20pm

Free Culture and Copyright
Much, if not most, really important literature and music (Shakespeare, Mozart, etc.) predates any sort of IP rights. The argument to the contrary, as Mike pointed out, is just wrong.
Even so, the "arts and sciences" can be encouraged and enhanced with sensible IP; which, as Mike has pointed out, doesn't exist today.
So, I will go with massive reform; but the arguments for the present system fail miserably.
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Anonymous Coward, 15 Feb 2009 @ 7:58am

As obscure as the linked article may be, I do not believe it is accurate to include Points 1 and 11 above as being a part of the author's arguments. You are conflating your economic arguments with the ongoing discussion among lawyers about what should be the balance struck by copyright law. It is a discussion based upon legal theory and no upon economic theory, because at the end of the day either legal theory would result in the continuation of copyright law as a part of our system of laws.
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- Mike (profile), 15 Feb 2009 @ 9:27pm
  
  Re:
  As obscure as the linked article may be, I do not believe it is accurate to include Points 1 and 11 above as being a part of the author's arguments.
  
  The article's subject is "the demise of free culture."
  
  Please explain how that is NOT a part of his argument?
  
  You are conflating your economic arguments with the ongoing discussion among lawyers about what should be the balance struck by copyright law. It is a discussion based upon legal theory and no upon economic theory, because at the end of the day either legal theory would result in the continuation of copyright law as a part of our system of laws.
  
  Any discussion of legal theory for a law concerning commercial interests that DOES NOT include economic theory is flat out idiotic and should not be get past the laugh test.
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  - Anonymous Coward, 16 Feb 2009 @ 10:18am
    
    Re: Re:
    Please explain how that is NOT a part of his argument?
    
    For much the same reason that many headlines are attention grabbers, and not a substantive part of the article.
    
    Any discussion of legal theory for a law concerning commercial interests that DOES NOT include economic theory is flat out idiotic and should not be get past the laugh test.
    
    This happens all the time in the halls of Congress. E.g., witness the stimulus bills.
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    - Mike (profile), 16 Feb 2009 @ 11:25am
      
      Re: Re: Re:
      For much the same reason that many headlines are attention grabbers, and not a substantive part of the article.
      
      Castle made it quite clear he was explaining why "free culture" was on the downswing.
      
      This happens all the time in the halls of Congress. E.g., witness the stimulus bills.
      
      I would think that supports my position, not yours.
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dajah, 12 Mar 2009 @ 7:35am

music lawyer
i cant find a good thing on music lawyers... i need help
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Medina, 9 Nov 2011 @ 4:29am

You can go to music sites or even youtube and filter that using your certain KW.
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Shine (profile), 2 Dec 2011 @ 5:08am

Music style changes with time but the music industry will always be here.
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Nicole, 20 Dec 2011 @ 6:27am

Pop
Pop culture will always thrive.
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Joy, 23 Dec 2011 @ 9:29pm

Making music shouldn't be about making money. Music is art.
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