WSJ Opinion Highlights The Problems Of 'Permission Culture'

from the that's-not-how-the-world-works dept

Mon, Jul 12th 2010 8:51am — Mike Masnick

A bunch of folks have been sending in this Wall Street Journal opinion piece by author Tony Woodlief, where he aptly demonstrates the problems with the "permission culture" we've built up around copyright today. Often we'll discuss some of these things in posts, and defenders of the existing copyright regime will say "well, it's no problem, because you can just ask for permission" (here's an example of that kind of thinking). Of course, the reality is that it's not so easy at all. Woodlief points out that publishers are taking a very short-sighted view and demanding ridiculous amounts of money for tiny snippets of use, such that it makes no sense to use those works at all, and often the original content creators and society is worse off for it:

The copyright thicket is a growing frustration among writers and editors. One editor of a popular literary anthology (who asked to remain anonymous for fear of reprisals from publishers) confirmed that many publishers pursue illusory short-term profit at the expense of both profit and art. By demanding fees that most people won't pay, they forsake free advertising for the artists they claim to protect....

Further, this editor noted that one reason literary anthologies and college-course syllabi have replaced classics with less edifying sources like newspaper articles and diaries is simply that major artists in the American literary canon are too expensive to procure en masse, if not totally off limits. The estates of William Faulkner and Ernest Hemingway have historically restricted which stories can be used in anthologies, which means that students often have a narrow exposure to two of our country's finest writers.

Woodlief talks about his own experiences trying to quote a single eight-word line by songwriter Joe Henry in his recent book, and the fees were simply ridiculous:

But in dollar terms, some decisions by copyright holders, rather than optimize the artist's revenue and distribution, insure the opposite. When I asked to use a single line by songwriter Joe Henry, for example, his record label's parent company demanded $150 for every 7,500 copies of my book. Assuming I sell enough books to earn back my modest advance, this amounts to roughly 1.5% of my earnings, all for quoting eight words from one of Mr. Henry's songs.

I love Joe Henry, but the price was too high. I replaced him with Shakespeare, whose work (depending on which edition you use) is in the public domain. Mr. Henry's record label may differ, but it's not clear that his interests --or theirs--are being served here. Were they concerned that readers might have their thirst for Mr. Henry's music sated by that single lyric? Isn't it more likely that his lyric would have enticed customers who otherwise wouldn't have heard of him?

Now, there are some problems with the article, some of which are aptly pointed out by Christopher Harbin. For example Woodlief suggests that copyright is about guaranteeing income to creators, when it's actually about creating incentives for creators to add to the public domain. He also takes issue with the lack of recognition of the overall benefit of the public -- and no mention at all of fair use. Specifically, Harbin points out that with Joe Henry this is a clear fair use situation:

One line from one song that doesn't hurt the market of Joe Henry's song is fair use, bud. You don't need to seek permission because you own it already. Joe Henry doesn't get to control every use of his work, only unfair ones.

While I agree with Harbin that this should be fair use, the unfortunate reality these days is that publishers won't touch such quotes without permission being granted. It's almost impossible to find a publisher these days that would sign off on even that snippet of eight words, claiming that they don't want the liability of a lawsuit. I've had this discussion a few times with authors and publishers, and they all say the same thing: due to the potential liability of a lawsuit, even if it clearly does appear to be fair use, it's just not worth using the quote. In fact, we discussed this point here last year, where we wrote about an author who had to drop an entire section of a book, because of a few short quotes. Clear fair use... but his publisher wouldn't touch it. So I'd say Harbin goes a little too far in suggesting this is a purposeful omission by someone who wants to deny fair use. It seems more likely that Woodlief is accurately describing the state of the industry today, where threats of lawsuits have made permission culture the norm, even in cases of obvious fair use.

And that's where this "permission culture" has brought us. It's eating away at fair use. It's eating away at creativity. It's eating away at education. It's eating away at culture. And very, very few people seem to recognize how far it's already gone.

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Filed Under: copyright, fair use, permission culture, quoting, tony woodlief

49 Comments

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Anonymous Coward, 12 Jul 2010 @ 9:22am

What do you expect?
There are states in the U.S. that claim copyright concerning their laws.
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- :Lobo Santo (profile), 12 Jul 2010 @ 9:34am
  
  Re: What do you expect?
  Which is perfectly acceptable as man-made laws are fiction.
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  - Mark B (profile), 12 Jul 2010 @ 10:42am
    
    Re: Re: What do you expect?
    It is not legal. The government cannot copyright anything since everything they do must be made available for public consumption (except where security is concerned).
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    - Anonymous Coward, 12 Jul 2010 @ 11:03am
      
      Re: Re: Re: What do you expect?
      Ah, but it's illegal to publish that it's illegal. You're a scoff-law.
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TtfnJohn (profile), 12 Jul 2010 @ 9:31am

Too true
I edit and publish, for my parish church, a small "newspaper" that appears at Christmas and then once later in the year.

The cost to reprint an article from a major US newspaper for this publication was $600 for a circulation of something like 200. Even with the normal three times multiplier newspapers used to use that meant at most 600 people saw an article they'd otherwise never have seen. Total cost is, then, one dollar per reader.

This may seem reasonable but once you get to the point of realizing that this is a small parish of about 120 members you start to see how silly this is.

And why, as Mike and others are saying, this is a net loss to everyone concerned even those charging so much cause no one will buy.

(Yeah, I know I shouldn't have but the article just fit so beautifully in the theme and, in the end, I bit my tongue and paid. Never again.)
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- Bob, 14 Jul 2010 @ 10:20pm
  
  Re: Too true
  And as a journalist, I have to say, I think the worst part is that the author may not have gotten a penny of that $600.
  
  I freelance and if a publication sells a reprint during the window in which they still own the rights, I get maybe $75.
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Chris Meadows (profile), 12 Jul 2010 @ 9:42am

No such thing as "obvious" fair use
It's worse than that. I'm not a lawyer, but as I understand it fair use is a defense, not a right, because each putative instance of it has to be considered separately—there's no "this will always be fair use" rule of thumb in legal terms, even if we laypeople like to claim this or that use is "obviously" fair. There's a four-factor test that has to be applied to judge each case. Thus, Woodlief could very well have been sued by Joe Henry's record label if he'd gone ahead, over just those eight words. A court might well have found for him in the end, but in the meantime he (and his publisher) would have have had to pay the legal fees and deal with the stress of the lawsuit—over eight little, easily replaceable words. So the fault in this case is not with overcautious publishers but with the system itself as it now stands.
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- Anonymous Coward, 12 Jul 2010 @ 10:36am
  
  Re: No such thing as "obvious" fair use
  >>but as I understand it fair use is a defense, not a right
  
  I think many of the problems of copyright would be resolved if this were turned around. To win a lawsuit, the plaintiff should be first required to demonstrate that it was NOT fair use, and bringing a lawsuit regarding a situation that really is obvious should result in the Plantiff paying the defendant's attorney fees.
  
  People could still protect themselves from actual harm or blatant profiteering efforts based on their work. But if it is a case that society and the defendant are winning and the holder is not being harmed, the use should be protected.
  
  I have a job where lots of people benefit from the "sweat of my brow" without paying me. There is a pricing mechanism that results in me getting payed in certain cases, but not for every single secondary use of my work. I also realize that sometimes the people getting to use my stuff for free become paying clients. That is nifty; I would be a lot worse off if I got paid for every secondary use but lost the potential for new customers. In some cases there is no realistic potential for me to make money off the secondary use, but in that situation it isn't actually costing me anything so I don't have any reason to object.
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  - Natanael L (profile), 22 Jul 2010 @ 8:33pm
    
    Re: Re: No such thing as "obvious" fair use
    "In some cases there is no realistic potential for me to make money off the secondary use, but in that situation it isn't actually costing me anything so I don't have any reason to object."
    
    This should be highlighted more. If it doesn't cost you anything, then there's no reason to object.
    Too few people think of it this way, they rather want to think of it as their right to be compensated for every single use and to have total control of everything, even if that means that EVERYBODY lose out on it,
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Anonymous Coward, 12 Jul 2010 @ 9:49am

"WSJ Opinion Highlights The Problems Of 'Permission Culture'"

So is the WSJ a CC licensed publication?
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- Hephaestus (profile), 12 Jul 2010 @ 10:38am
  
  Re:
  Actually Its a Rupert Murdoch corporation ...
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  - Anonymous Coward, 12 Jul 2010 @ 3:18pm
    
    Re: Re:
    Uhm... expect a retraction statement soon.
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Chucklebutte, 12 Jul 2010 @ 9:57am

Who cares?
I am so fed up with all this BS. Just do whatever the hell it is you want, copy and reuse without permission. The most that will happen is you get sued? Thats civil court, no jail time, hell you do not even have to pay and it will disappear in 7 years from your credit. Stand up and don't take this shit!

More of us than them, why are we being bullied like this?
The more they stifle our minds, the more obedient we become.
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Red Monkey (profile), 12 Jul 2010 @ 10:11am

co-opting a song for a cause you don't like
So what does a songwriter do if he writes a good song, and some political action group starts using it as its anthem? What if the songwriter finds the political action group repulsive? What should he do?
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- Anonymous Coward, 12 Jul 2010 @ 10:28am
  
  Re: co-opting a song for a cause you don't like
  Keep quiet. That's what he should do.
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  - Anonymous Coward, 12 Jul 2010 @ 10:29am
    
    Re: Re: co-opting a song for a cause you don't like
    Alternatively he can publicly proclaim his disagreement with the political action group. But don't bring our legal system into the situation, the political action group did nothing immoral by merely using the song and so its behavior shouldn't be illegal.
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- Steve R. (profile), 12 Jul 2010 @ 10:49am
  
  Re: co-opting a song for a cause you don't like
  Why should an artist be immune from the free-market? People lose their income sources (jobs) all the time.
  
  Of course there is the claim of infringement. For that you should be able to file your claim in a civil court.
  
  The problem is that copyright has been bastardized to the point that content producers feel entitled and in fact have received legal permission to infringe on the peoples rights to protect their revenue stream.
  
  So are you advocating that content producers should have extra special "rights" not available to the public to do whatever they feel is appropriate to protect their revenue stream?
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- Mike Masnick (profile), 12 Jul 2010 @ 11:03am
  
  Re: co-opting a song for a cause you don't like
  So what does a songwriter do if he writes a good song, and some political action group starts using it as its anthem? What if the songwriter finds the political action group repulsive? What should he do?
  
  That's a moral rights question. As you must know, in the US we have no moral rights.
  
  In fact, it's currently *perfectly legal* for such a political action group to play any song they want at a convention/event, so long as they or the venue have paid their ASCAP/BMI/SESAC licenses.
  
  Fact is, the creator has no moral rights over how someone hears their song. Along those lines, if a member of such a group gets inspiration from mishearing the lyrics to such a song, the musicians have no right to stop them.
  
  But, in the end, you don't need copyright or moral rights in such situation. As we saw in the political campaigns, if a campaign uses a song (legally) against the wishes of a musician, that musician can speak out against the politician (even without the moral or legal rights issue) and embarrass the politician for a news cycle. In other words, social mores can help deal with that situation.
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  - Red Monkey (profile), 12 Jul 2010 @ 12:58pm
    
    Re: Re: co-opting a song for a cause you don't like
    Yes, I raised the moral rights issue because it removes money from the equation.
    
    We don't have moral rights. But the Lanham Act provides a similar remedy (see the Monty Python case, when the network chopped off material to fit a commercial break and as a result, the joke fell flat.)
    
    Of course, it seems a bit unfair to draw the musician into a fray he may have preferred to avoid, especially if it distracts him from writing more music.
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    - Anonymous Coward, 12 Jul 2010 @ 3:20pm
      
      Re: Re: Re: co-opting a song for a cause you don't like
      If the musician is that sensitive then he should find another profession. Anything can potentially distract someone from writing more music, the potential of finding another job that pays more. So now should we prevent people from getting higher paid jobs too?
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      - Anonymous Coward, 12 Jul 2010 @ 3:23pm
        
        Re: Re: Re: Re: co-opting a song for a cause you don't like
        and heck, the potential of getting into a car accident could distract the musician from writing more music. Should we prohibit musicians from driving cars? Wait, wait, they could get hit by a car. Lets ban them from crossing the street. Heck, some non musician who would otherwise become a musician might get hit by a car. Lets ban cars too.
        
        Give me a break.
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- Richard (profile), 12 Jul 2010 @ 1:57pm
  
  Re: co-opting a song for a cause you don't like
  o what does a songwriter do if he writes a good song, and some political action group starts using it as its anthem? What if the songwriter finds the political action group repulsive? What should he do?
  
  This is one place where permission is not needed - it's a compulsory licence already.
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  - Red Monkey (profile), 12 Jul 2010 @ 3:44pm
    
    Re: Re: co-opting a song for a cause you don't like
    Great, another reason to avoid putting time into writing great music. It might just be adopted by a cause you happen to hate. Never mind the money. This is a whole new reason to suppress creativity and just get a job thinking of new financial instruments. It pays better, and you want find your work being used to support a war or something.
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    - Anonymous Coward, 12 Jul 2010 @ 3:45pm
      
      Re: Re: Re: co-opting a song for a cause you don't like
      Smoking might ruin the voice of an otherwise perfectly good singer. Lets ban cigarettes.
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    - Anonymous Coward, 12 Jul 2010 @ 4:41pm
      
      Re: Re: Re: co-opting a song for a cause you don't like
      Music is going to be made by robots in the future anyway.
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    - Anonymous Coward, 12 Jul 2010 @ 10:14pm
      
      Re: Re: Re: co-opting a song for a cause you don't like
      By this logic the creator of a speaker should be allowed to control the music and content that you play on that speaker because you may use that speaker to play music that s/he doesn't like or to advocate a position that s/he disagrees with. If s/he can't control what the speaker is used for it may deter him/her from creating speakers.
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out_of_the_blue, 12 Jul 2010 @ 10:32am

So what's wrong with originality?
The actual problem has nothing to do with copyright.

In the Woodlief piece, *mention* of Faulkner and Hemingway are completely gratuitous and would be better avoided. I've managed to avoid even reading either for decades after brief skims; they are *not* among the best writers any more than that gibbering Irish drunk Joyce is. -- Anyway, unless in the circularly redundant field of "literature appreciation", a *good* writer never *needs* to quote, and wouldn't do so. It's simply cheap "name dropping" to grab some of the supposed glory. I'd say anyone who does mention hoary old chestnuts is a product of "arty" institutions that better writers avoided. As proof, I doubt that you'll *ever* find Faulkner or Hemingway even mentioning another writer. (Nicely circular "proof" by way of the already deprecated authors, ain't it?)

Then, Woodlief makes another ghastly admission: that he needed *a* quote, probably as just a *style* point, and this whoever Henry or Shakespeare are interchangeable for his purpose. ... I doubt that he has anything new to say, since quotes are usually out of context and misleading. Such admissions flow without apparent awareness of how *revealing* they are.

And then the writer's own problems that should be kept behind the scenes are used as theme for *another* bit of hackery! No reader cares about your troubles at grave-robbing! -- If you find yourself digging for *quotes*, please, just QUIT WRITING.
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- Anonymous Coward, 12 Jul 2010 @ 10:54am
  
  Re: So what's wrong with originality?
  Perhaps because he wanted to quote someone else? He felt like he needed a quote there? There's major parts of English classes to properly quote another person and it is a widely accepted thing to do and taught? Why do you ask such an asinine question?
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- Hulser (profile), 12 Jul 2010 @ 10:58am
  
  Re: So what's wrong with originality?
  If you find yourself digging for *quotes*, please, just QUIT WRITING.
  
  Wow, you really don't like quotes, do you? Your opinion actually reminds me of a common theme on TechDirt, namely the "not invented here" attitude. Like many in the business world, you seem to have an inexplicable need to re-invent the wheel. If someone else did something or, in the case of quotes, said something that exactly matches your needs, what benefit is there, other than to your ego, to invent/write it again?
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- Jupiter (profile), 12 Jul 2010 @ 12:06pm
  
  Re: So what's wrong with originality?
  The idea that all art must be purely original is a load of bunk. I just read Mark Twain's "Guilded Age" and every chapter started with a quote. And Shakespeare's status as the world's greatest playwright is due in part to his being frequently quoted and his material being reused and remixed to make new, interesting, and sometimes great art. The truth is very little are is wholly original and much of what we consider great is often itself based on other works.
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  - Anonymous Coward, 12 Jul 2010 @ 4:42pm
    
    Re: Re: So what's wrong with originality?
    The raw material for new culture is, in fact, old culture.
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  - Anonymous Coward, 12 Jul 2010 @ 7:58pm
    
    Re: Re: So what's wrong with originality?
    That's very true. For example, George Lucas borrowed from several works of mythology to create the Star Wars saga. And the opening crawl at the beginning of each film? He borrowed that from the Flash Gordon serials.
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- Karl (profile), 12 Jul 2010 @ 6:11pm
  
  Re: So what's wrong with originality?
  As proof, I doubt that you'll *ever* find Faulkner or Hemingway even mentioning another writer.
  
  Well, except The Sun Also Rises, which was named after a quote from the Bible.
  
  Then again, you think Hemingway should have just QUIT WRITING. Right?
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Steve R. (profile), 12 Jul 2010 @ 10:33am

Misses the Bigger Question
Regretfully, Tony Woodlief's article is simply a recognition that the attempts of those favoring "strong" copyright to extort revenue are starting to meet economic resistance. Missing from Woodlief's article is any consideration of the fact that those advocate a "strong" copyright continue to push for a police state that protects their so-called intellectual property.

Woodlief could at least have thrown in some analysis showing how copyright has been bastardized, how it has expanded in time and scope, and that formerly civil infringement is now considered criminal behavior.
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Jupiter (profile), 12 Jul 2010 @ 10:37am

While the whole copyright system needs to change (good luck with that) how about in the meantime we all start calling publishers and asking permission to quote such and such work (choose your favorites)? When they give you some ridiculous quote, the them "That's bullshit!" and hang up. If they get enough of that and they might start second-guessing how much they charge and lower their prices. It's a start.

As long as they view 8-word quotes as a profit center instead of promotion, it'll never change, esp. when a few people actually pay up (most likely big media).

They all seem to be hedging their bets that someday something that quotes them will get enormously popular, and they want to make sure they can ride that bandwagon.
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Stephen, 12 Jul 2010 @ 11:15am

avoiding permissions
As a book editor, I constantly have to deal with securing--or making sure that my authors have secured, it being their job contractually--the rights to material in their books. I always tell them never to bother quoting poetry or lyrics in "decorative" way, say, as an epigraph; the rights are too expensive and would take forever to figure out how to secure. With illustrations, I tell them to get all rights, all territories for the life of the work and any future editions because, and here's the bigger issue than cost, re-securing the rights would be an even more expensive pain in the ass. I just don't want to be bothered with it, nor do I want to leave this in lap of some editor down the road whose backlist my book ends up on. I'd rather just not deal with the permission at all.
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- Anonymous Coward, 12 Jul 2010 @ 8:14pm
  
  Re: avoiding permissions
  What would you say to an author whose characters make such references, quotes, etc. in plot-relevant conversation?
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Anonymous Coward, 12 Jul 2010 @ 11:26am

all i can think of is that all of this encourages people to be more creative, not less. dont use anyone elses work, even as quotes, and instead do something of your own.

seems to be encouraging innovations, by discouraging replication.
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- ChrisB (profile), 12 Jul 2010 @ 12:06pm
  
  Re:
  > dont use anyone elses work, even as quotes, and instead
  > do something of your own.
  
  I dare you to have a conversation with someone and never ever repeat a word they say. Culture is a conversation. If you don't understand that, you have never created art or done science.
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  - Anonymous Coward, 12 Jul 2010 @ 4:16pm
    
    Re: Re:
    Exactly, just about all work is built from previous work in some way or another.
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- Anonymous Coward, 12 Jul 2010 @ 3:19pm
  
  Re:
  Thank you for repeating the same logical fallacy yet again, TAM.
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- Anonymous Coward, 12 Jul 2010 @ 4:15pm
  
  Re:
  Isn't the whole purpose of patents to encourage people to produce work so that we can use each others work and learn from it? So on the one hand you want us to learn from each other (ie: patents) by using each others work. On the other hand you want us not to use each others work.
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- Anonymous Coward, 12 Jul 2010 @ 4:43pm
  
  Re:
  You don't know a damn thing about being creative.
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Anonymous Coward, 12 Jul 2010 @ 12:12pm

the term 'permission culture' pretty much by itself is a slam against ip rights, and is pretty misleading.

what has happened over the last 20 or 30 years is that it is easier to find infringements and easier to see misuses (blame the internet and specifically google) which makes it much easier for a rights holder to discover misuses and take action. once publishers have been burned a few times on stupid acts by writers, they no longer want to get involved.

it isnt a question of a permission culture, rather a culture where information is more easily found, and rights holders are taking a stand against their content being used freely without consideration.
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- Steve R. (profile), 12 Jul 2010 @ 12:37pm
  
  Re:
  Anonymous wrote "rights holders are taking a stand against their content being used freely without consideration." The supposed rights holder are NOT taking a stand, they are actively aggrandizing their so-called rights. This is a "land-grab" by the content industry.
  
  Copyright used to be for a period of 14 years with a renewal option, now it is almost to the point of being a "perpetual" right rather than a limited privilege. Content producers have been working on obtaining legislation that would effectively allow the content industry to spy on consumers and force ISPs to act on the content industry's behalf. The content producers are not "taking a stand", they are actively depriving the consumer of the consumer's property rights to content that they have aquired.
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- Karl (profile), 12 Jul 2010 @ 6:02pm
  
  Re:
  I agree wholeheartedly. For example, the internet now has lots of videos where folks record themselves singing in the shower.
  
  Therefore, we rights holders must demand that everyone pay us when they sing in the shower.
  
  We must take a stand against our content being used freely!
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Nick Coghlan (profile), 12 Jul 2010 @ 2:39pm

"Life in a Day" guidelines
I submitted this to TD as a separate article suggestion, but the restrictions in the "Life in a Day" guidelines against filming trademarked words or logos or copyrighted material fall under a similar theme to this piece.

A project (http://www.youtube.com/user/lifeinaday) that is meant to provide a snapshot of our current culture is being distorted because it would be too difficult for the folks making the film to seek out additional permission to use trademarks and copyrights from all of the snippets they intend to use.
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teeduke (profile), 13 Jul 2010 @ 1:09pm

Lame argument
The justifications for permitting anyone to use just about anything, regardless of copyright protection, are a stretch. They are merely a cover for people who want to do whatever they want with other people's property. If we substituted a copyright owner's "car" (yes. the Porsche) for his "poem," it would be obvious to most that these arguments are total bs.

If the rights to use a copyrighted property are too costly, don't use it. Let the market determine the value.
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marfa (profile), 13 Jul 2010 @ 2:29pm

Google and the artist
I think we're forgetting something here. Most artists I know (and I am one) make a living through our art. That means we need to get PAID. That means that the people who buy our art need to get PAID.

Google has taken the position, and is even funding political candidates in Europe, who propose eliminating copyright entirely. Why? So Google (and others) can make money off of the legitimate work of others who would share in none of those revenues.

I'm sorry that poems and short stories published in literary magazines aren't getting excerpted. Perhaps those authors would think twice next time about selling (yes, selling) their material to these same publishers.
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