Why Debates Over Copyright Get Bogged Down: Conflating Use With Payment

from the separate-them-out dept

A few weeks back, we covered the "debate" that composer Jason Robert Brown had with a young fan of his, concerning the reasonableness of sharing digital copies of his sheet music online. For some reason, Brown keeps appearing in the press over this issue, which is a bit unfortunate, as there are plenty of folks who understand the issues at a deeper, more nuanced level than he does, and could do a better job presenting his case. However, the latest appearance of the story was at NPR. There's really not much new there, as it rehashes the basics that you're probably already familiar with.

However, what I did find interesting, was that the NPR piece mentioned an email that Alex Feerst, from Stanford Law School, sent Brown, suggesting that Brown was mistaken about some of his arguments. Brown got permission to publish the email a few weeks ago (though I just found out about it via the NPR story), and it's well worth reading. Much of it will sound familiar to regular Techdirt readers, as it covers much of the same ground, such as pointing out that copyright is designed to promote the progress, not to protect an artist's moral rights. It also does a nice job pointing out how copyright is regularly abused by industries trying to hold onto an obsolete business model, and that we shouldn't confuse promoting the progress with propping up obsolete business models or middlemen. As I said, the whole thing is well worth reading.

One part, early in the email, stood out to me, because it helped crystallize why so many of these discussions about copyright break down, which is that defenders of today's copyright system often conflate two very separate issues, which makes it difficult to move the debate forward: that is, they inherently link together the "this is how I get paid" part with the idea that "this is my right." As Feerst eloquently explains:

In your email, you shift from this idea, the zero-sumness of a physical object, to the broader point that you deserve to be paid for your work (right around where you say "The way I support myself and my family. . ."). But these are two separate points, one correct and one not, that you have run together -- (1) songs are like objects, when they are taken by one person, another person is deprived of their use. This is not accurate -- you may have been deprived of money, but not use. You can keep playing your song. (2) You deserve to get paid for your work. I agree with this completely. But your story conflates using the song and paying you for your work. They are not the same thing. It's not hard to imagine a world in which these are separate -- e.g., you get a generous monthly stipend that you are happy with from a patron on the condition that anyone can play your music, trade your sheet music, etc.

These two issues -- payment and ownership/control of copies should be conceptually separated. They are connected under our current system, but they are not naturally or necessarily connected. We can unfasten them and toggle them separately to see what happens. If we could imagine other ways for you to get paid for your work (maybe we can't, but assume for argument's sake we can) as an artist, then whether or not people "take" your song is beside the point. You only want to stop people from taking things because you need to get paid. If you got an acceptable income from your work, you would probably not care about who plays or doesn't play your song. This is because, unlike a screwdriver, it is not bound by physical world zero-sumness. In fact, you'd probably prefer such a system because you'd get paid and at the same time a greater number of people would hear your song. I think your teen correspondent mentioned a similar point.

This sort of thing comes up, quite frequently, in statements from people along the lines of "this is how I make my living," or "I have a right to be paid," both of which implicitly make this conflation error. Copyright grants you a right to exclude, not a right to get paid -- and there is no guarantee that "how you make your living" must always stay the same. At one point, most people made their living farming. Now they don't. The world changes, and people change how they make their living. So I think it really is important, when people make these arguments, to point out how conflating those two issues is a major flaw.

Further on this point, reading the comments on Brown's post, a lot of people take offense at one of the comments Feerst states, specifically:

So, although it may sound odd, it is not necessarily your right to get every possible penny from your work. Rather, our system is designed that you get enough to create, which promotes progress. But money that does not go toward promoting progress is not an entitlement.

I think that many people are misunderstanding what Feerst is actually stating here. It is not that artists should only get "just enough" money and then everything else must be free. Instead, he is arguing (quite correctly, from a Constitutional standpoint) that copyright is only supposed to help you get to that point. That is the very basis of copyright. But, creators are free to make use of other business models to make more money beyond that. The problem here comes in where too many seem to think that the only way to make money is to rely on copyright.

As such, it often feels like copyright has become a crutch. Because content creators use it to earn some part of their living, they start relying on it for all of their earnings, and fail to flex their "creative business models" muscle and let those atrophy, as they increasingly rely on the gov't granted monopoly privilege of copyright to act as a de facto business model.

Unfortunately, Brown's responses to Feerst's carefully argued points suggest he does not actually understand these points. He goes back to "but this is how I feed my family" multiple times, even in defending copyright lasting well past death. What he ignores, is that if he were working a 9-to-5 job as a banker or a construction worker, if he died, his family does not get to keep collecting his salary. Now, it is entirely possible to make an argument that content creators deserve special treatment that keeps their estates making their money after they die (a belief I do not agree with). However, Brown doesn't even try to make that argument. He just says:

"I've got bills to pay and I don't pay them by working at a hedge fund. If I were to die tomorrow, the lifestyle that I have built up for my family would be severely endangered, but at least the continuing royalties from the performances of my shows might pay for my childrens' college educations."

Yes, but if you did work at a hedge fund, well, then your family wouldn't continue to get your salary. That's the point that Feerst is making, and Brown totally ignores it with an incredible sense of entitlement that for some reason, because this is how he feeds his family, it has to continue.

Brown also brushes off Feerst's point about how Brown's own musical talent and creations are built off of "raw materials" that he "received" from others for which he does not pay royalties. Brown explains this away by pretending that those "raw materials" are "abandoned in the street," so it was okay for him to take them without paying. Yet, later on, he complains about the idea that anyone could ever use his raw materials for their own works without paying. It's quite a double standard.

Either way, Feerst's contribution here is definitely a good one, in highlighting that conflation of "getting paid," vs. "use" -- and pointing out that the two may be connected, but often are not, and certainly do not need to be connected.

Filed Under: alex feerst, business models, copyright, file sharing, jason robert brown, morality, music, sheet music

Composer Jason Robert Brown Still Standing By His Position That Kids Sharing His Music Are Immoral

from the well-that's-how-it-goes dept

Composer Jason Robert Brown got some attention in recent weeks for his blog post debating with a teenager over the morality of trading digital copies of his sheet music online. That story continued with a David Pogue blog post at the NY Times which quoted an accomplished musician and professor who defended the teen. And while Brown had said that he was done talking about this subject, it appears he can't resist. He's taken to the (digital) pages of the NY Times himself to restart his argument and to complain about the way people have treated him in this debate.

As we noted in our original post on the subject, I thought it was good that there was a civil discussion on the topic, and I know that these discussions can get rowdy and angry at times. But I do find it a bit silly when anyone suggests that it's all one side who are obnoxious in their treatment of those on the other side. It's the internet. People are going to make short and angry responses no matter what you say. People are quite frequently obnoxious or threatening to me, but I hardly leap to the conclusion that the majority of people who disagree with me are somehow hostile or even make a big deal of it. It's the internet. Get used to it and move on.

For example, I find that Brown's dismissal of certain arguments to be every bit as "hostile and haughty" as what he accuses those from "the Slashdot World" of making:

In the Slashdot world, the idea that creators are losing something in the free and unauthorized exchange of their creative capital is somehow controversial. People who like to quote Stewart Brand's mantra "Information wants to be free" insist that the minute I express a creative idea in any fixed form, it becomes the property of the world.

First of all, it seems like the only people who still use the (mis)-quote "information wants to be free" any more are people knocking down a strawman. The quote is meaningless. If people use it, they're using it as shorthand for a much more nuanced argument, but rather than respond to that argument, it seems that copyright system defenders use it to mock those who have more serious arguments by brushing them off as the "information wants to be free" crowd. And the argument is not that once you express a creative idea in any form it becomes "the property of the world," but that you physically cannot limit what happens to it. That's just how it is. That doesn't mean it becomes property of the world. After all, ideas are not property. But it does mean that because people can copy it at no cost, they will do so.

The question is, what are you going to do about it? Are you going to argue and whine and stomp your feet as the tide comes in... or are you going to adapt and adjust your business model?

The blueprints for your house should be free. Movies should be free. The DSM-IV should be free, regardless of the expense required to create these things.

This is really frustrating because people accuse me of making this kind of statement all the time. It's not should, it's will. "Should" is a moral argument. "Will" is a predictive economic explanation. People aren't saying the information "should" be anything. They're saying it will be -- or, more likely -- already is. Again, the question is what do you do about it? Falsely claiming people are giving it moral value by saying "should" twists an economic/business model debate into a moral one.

I don't think I'm guilty of simplifying their side of the argument; they insist on simplicity -- the preachers of the "new ethics" imply that anything short of a tangible good or service should have a value of precisely zero, for the simple reason that the Internet makes it cheap and easy to disseminate intellectual property, regardless of the laws of copyright or traditional moral custom.

You are guilty of simplifying the other side, and many of us do not insist on simplicity at all. We insist on accuracy -- and it is inaccurate to claim many of us are saying "should" when we are not. That an accurate explanation of basic economic (not moral) forces may seem simple does not mean we wish to simplify the argument.

Following on that logic, if it were as simple to reproduce a chicken online as it is to reproduce a copy of my song, everyone could just get free chicken whenever they wanted, provided they had enough ink in their chicken printer or whatever.

Yes, that logic sounds perfectly sound. Is he really suggesting that an invention that could solve world hunger is a bad thing?

These same people insist that I should be happy to give my music away because it's free advertising, and that word of mouth will spur more performances of my work.

The people saying that are pointing out that there are more factors at work here than just what Jason Robert Brown has said originally. They're not just saying that it will spur more performances. They're saying that the issue is more complex than you're making it out to be, and there are other business model options and that, perhaps, it would help to explore them, rather than to mock them.

I don't doubt, however, that if these people could figure out how to get to my performances for free, they would do that too.

Indeed. If such things were available infinitely, than that would be the case. What Jason Robert Brown is ignoring is that as one thing becomes infinitely available, it always creates additional scarcities that he can charge for.

We can all rationalize stealing in any number of ways, but taking something that doesn't belong to you is theft, and I no longer have any patience with those who want to justify (or worse, ennoble) the taking of what is rightfully mine.

Infringement is totally different than stealing. It is making a copy of something. You have not lost anything. This point has been made so many times it's silly that it needs to keep being made. And if he no longer has the patience to "justify" his (wrong) argument, why does he keep writing about it?

It seems reasonable to me that if you want that information, I should be able to charge you for it.

Fair enough. It seems reasonable to me that if you want to read this page, you should have to pay me $100,000 to do so. What, you don't want to do that? Then my business model fails. But that's my problem, not those who chose to find alternative markets for my content.

The fact that you can get that information for free, thanks to some naive teenager or Crusading Copyright Killer, does not diminish my entitlement (both legal and moral) to be paid for providing it.

Actually it does. And that is the point. Markets adapt based on supply and demand. When a product becomes infinitely available, supply goes way up, and the price goes down. Your sense of entitlement to a business model that no longer fits the market is what people are complaining about. They're not upset that you want to get paid. They just are letting you know that you've chosen a bad way to get paid, and they're going to get your works from alternative market places.

It's very easy for me to make that material available if I wanted people to have it, but it is enormously frustrating to have that control wrested from me by the simple act of someone scanning a copy of sheet music and sending it freely out into the world.

The crux of the problem: Jason Robert Brown wants control. But copyright was never about "control." Markets change. Old providers lose control. Don't blame everyone else. Learn to adapt.

I write for the theater. It's not a particularly reliable or consistent way to make a living, but I have found my way to a comfortable middle-class lifestyle by offering my work for sale in ways ancillary to public performances. It no longer makes sense to produce and sell CDs of my work -- the expense of producing those recordings far exceeds the income earned in the current climate. Now sheet music is equally endangered.

So you've adapted before, and you can adapt again. Welcome to a dynamic world.

It seems legitimate to wonder if there isn't some way to take back those income streams, if not through legal enforcement measures, than at least through changing the terms of the debate from "Why people should be allowed to steal all the content they want" to "Why creators are entitled to payment for the work they do."

It's legitimate to wonder, but it's still asking the wrong question. You don't "take back" income streams that no longer make sense in a market. You adjust and adapt -- just like many other artists are doing -- and move forward. Instead, Jason Robert Brown is looking backward wistfully at a world that no longer exists.

And, again, no one is saying that creators shouldn't get paid or shouldn't make a living. They're just saying that it's your responsibility to find the right business model, and to adapt when the market changes. That's not "amazing." It's basic economics.

Filed Under: copyright, file sharing, jason robert brown, morality, music, sheet music

Musician/Media Professor Explains Why Teenager Was Right In Debate With Composer

from the look-to-the-future dept

We recently discussed the email debate held between a teenager and composer Jason Robert Brown, where the teen tried to convince Brown that he was overreacting to people trading copies of his sheet music online. The debate was pretty interesting, and we (not surprisingly) sided with the teen. The NY Times' David Pogue has now written about that story as well, at first saying that he sided with Brown, claiming that the teen's claim that she has no way to buy his sheet music because her parents won't pay for it and she has no credit card is unpersuasive because "I don't see why it's Mr. Brown's obligation to sacrifice on her behalf." To that, I have to ask, what sacrifice? What has Brown "lost" in allowing Eleanor to download a copy of his sheet music? She not only wouldn't pay for it, she couldn't. There's no doubt that there is no loss at all here, and thus, no sacrifice.

But where the Pogue blog post gets really interesting is that he spoke to Michael Hawley, an award winning musician and former MIT Media Lab guy, who totally sides with the teen, and says that downloading sheetmusic without paying for it isn't just okay, but it's necessary. Here's some of what he wrote, though you should read the whole thing in Pogue's post:

I play the piano. Over the years, I have collected 15,000 piano scores in PDF form, covering about 400 years of classical keyboard works.

It's like lint in the drier of the Internet. Much of it is not available anywhere for purchase, or even findable in libraries for circulation. Max Reger's arrangement for two pianos of Wagner's overture, for instance? Well, the Max Reger Institute in Karlsruhe, Germany has a copy....

....

Fortunately, over the last ten or fifteen years, amateur pianists have been scanning the contents of their grandmother's piano benches, and... voila. A million monkeys typing don't get you Shakespeare, but a million monkeys scanning -- that makes a dent. I began collecting this stuff as a hobby. One day, I looked at my pile of music score bits. In those days, 15 gigabytes was most of my hard drive. But it was all there. All of Bach. All of Scriabin. All of Rachmaninoff.

At the Van Cliburn piano competition, a couple years ago, I gave tiny thumb drives to some of the winners and said, "Enjoy." Each thumb drive was smaller than my pinky but contained was the whole 15 GB trove. It blew their minds. Basically, every significant piano piece is in the pile.

What happened is, the classical piano sheet music publishing world plotzed a long time ago. But thanks to the monkeys, a lot of DNA has been preserved and is more available now than ever before. The monkeys aren't as well organized as the Wikipedia minions, but someday they will be.

The point is pretty clear -- and it's one we've made many times in the past. What these people are doing is not just sharing culture, but it's preserving and bolstering culture. Those who focus on the copyright issue only miss out on the fact that when you put a toll booth on cultural references, many of those references lose their value. In the end, Hawley notes "Generally, I side with the teenagers." It's really a question of whether you're looking at what the law says or what the technology allows. Those who stick by the law are missing out on why the law is outdated, and purposely shutting yourself off from the wonderful things technology can do makes very little sense.

Filed Under: classical music, copyright, jason robert brown, sheet music

Teenager And Composer Argue Over File Sharing

from the fight-it-out dept

Early last week, reader dcm sent over an interesting blog post by Jason Robert Brown, a somewhat well known theatrical composer where he posted a debate he had with a teenager concerning file sharing. Since then, it appears the story also appeared on Reddit and some other sites, and now everyone is submitting it to me (that'll teach me not to leave interesting stories to write up over the long weekend...). Anyway, the basics of the story aren't too surprising: Brown is upset that the girl isn't paying him, the girl tries to explain that she wouldn't buy his work otherwise (she doesn't have the means), but is trying to promote his work because she likes it and thinks more should know about it. And, from those two very different viewpoints, nothing approaching agreement is ever reached.

It's definitely an interesting discussion, in that both sides mostly remain friendly throughout the debate. Brown starts off with a simple request to various users of some file sharing system to please stop sharing his works because it's "totally not cool" with him. Thankfully, he doesn't threaten anyone or break out any legalistic cease-and-desist type language. There is some back and forth at the beginning where the girl doesn't believe that "THE" Jason Robert Brown is really emailing her, but then the conversation gets a bit more interesting. She starts out by asking him a simple question about why he's spending so much time asking everyone to take down his scores:

I'd like to ask you a question. Why are you doing this? I just searched you on this site and all of the stuff that people have of yours up there say that it's "Not for Trade Per Composer's Request." Did you think about the aspiring actors and actresses who really need some good sheet music? If you're really who you claim to be, then I assume you know that Parade, Last Five Years, 13 The Musical, etc. are all genius pieces of work and that a lot of people who would love to have that sheet music can't afford it. Thus the term "starving artist." Performers really need quick and easy ways to attain good sheet music and you're stopping a lot of people from getting what they need. It matters a great deal to them that they can get it for free. Why does it matter so much to you that they don't?

Brown takes a while to actually get around to responding to the questions (there are some emails in between), but he finally says:

I should think the answer is obvious: I think it's annoying and obnoxious that people think they're entitled to get the sheet music to my songs for free, and I'd like to make those people (you, for example) conscious of the immorality, illegality, and unfairness of their behavior.

The teenager, Eleanor (sometimes referred to as Brenna, but that's not worth discussing), points out that many artists have no real means of obtaining his works, but by being able to download the scores for free and use them, they're making many more people aware of his works. She presents a hypothetical that describes the value of word of mouth marketing for those who might not be aware of his works, even highlighting how many of those people will likely end up making transactions that help his bottom line. He, not surprisingly, is not buying it:

That same scenario could take place exactly the same way if you paid for the music. And that's how that scenario is SUPPOSED to take place. You assume that because a good thing comes from an illegal act, it's therefore mitigated. That's nonsense. I'm glad people want to sing my songs, and I'm glad that when other people hear them, they enjoy them -- that doesn't mean I surrender my right to get paid for providing the sheet music.

This is a point that is raised quite often, but misses the point, which Eleanor is quick to point out: that the scenario won't happen, because many up-and-coming artists will simply shift to music from composers who do allow it to be traded for free:

You think the same scenario could have taken place exactly the same way? Funny. Most of the teenagers I have met who are into theatre would do the free song before they would do the one for $3.99 unless they had a really good reason. It could theoretically take place the same way. The question is would it? And the answer is probably not. I never said that it was an amazing thing happening and I never said that it doesn't start with what I'm sure seems to you as a bad thing. I "assume that because a good thing comes from an illegal act, it's therefore mitigated"? .... Yes. I assume that because something that good comes from something so insignificantly negative, it's therefore mitigated.

Brown comes back with a few comments about how it's not worth arguing with a teenager who thinks anyone who tries to correct her is "the enemy," but then comes up with three "stories" of his own about why file sharing is wrong -- even though none of them actually show that. Instead, there are two that are about borrowing a physical item, and one about fair use. What's most amusing here, however, is that Brown seems to have no problem with the kind of fair use where you rip a CD, but doesn't seem to think that Eleanor's use of his music could possibly be fair use. Then he concludes with four paragraphs where he tries to convince her she's wrong and tells her she should take his works out of the library instead:

Now you're frustrated because even if you wanted to do the right thing, the ethical and legal thing, you still need a credit card to buy the sheet music and that isn't going to happen. Listen, Eleanor, I'm frustrated on your behalf. It really sucks to be a teenager. I'm not being sarcastic or ironic, I really get it. I wrote a whole show about it. But being able to steal something doesn't mean you should. If your parents really won't pony up the four bucks to buy a copy of the sheet music, then you can ask them to take you to the library and you can take out all the music you want, free, and pick the song you want to use for an audition or a talent show, and you can keep borrowing the book from the library until you're done with it or until the library demands it back. My song may not be in your library -- you could ask them to get it from another library, through an interlibrary loan (this is common, standard library practice), but if you're in a time crunch, that's not practical -- so you may have to just pick another song. It may not be the perfect song, but if you're a talented girl, it won't matter all that much. As long as it shows off what you can do and who you are, it will suffice because you are a teenager and the people who you are auditioning for will cut you slack on that account.

That's the end of my jeremiad, and I'd be surprised if it persuaded you in any real way, but it is the truth and it is your responsibility as a citizen, as a member of the theatrical community, and as a considerate human being to pay attention to the laws, ethics and customs that make it possible for you to do the thing you love. I'm very much impressed by how passionately you've stood your ground, and how articulate you've been in doing so, and I can't tell you how excited I am that you didn't misspell anything, not once in this entire exchange. (Well, you wrote "you're" when you meant "your" once, but I'll let it go.) But being able to argue a point doesn't make it right -- lots of lawyers lose cases all the time.

I'm sorry if you still think I'm a jerk, but what I'm talking about here is not "insignificant." The entire record business is in free-fall because people no longer feel the moral responsibility to buy music; they just download it for free from the Internet, from YouTube, from their friends. When I make a cast album or a CD of my own, I do it knowing that it will never earn its money back, that I'm essentially throwing that money away so that I can put those songs out in the world. That shouldn't be the case, and I suspect in your heart you believe that too. All of us who write music for the theater are very much concerned that the sheet music business will eventually go the same way as the record business. I'm doing my little part to keep that from happening.

If you want me to talk to your parents and ask them to buy you the sheet music, just have them write me an email. You know how to find me.

Not surprisingly, I side more with Eleanor than with Brown in this debate, but I do think it's a good thing that the two sides engaged in a civil discussion on this topic, and think it's a bit unfortunate, as Brown notes in his "update" that he's hearing from "hostile" men who are trying to "educate" him on this subject. I would bet, of course, that many of the people trying to educate Brown are not, actually, hostile at all, but I'm sure some of them certainly are. And it's unfortunate, then, that he automatically lumps all such responses into the "hostile" camp.

The simple fact of the matter is that Brown is, in fact, wrong on many of his key points, though it's not surprising that he is. For example, his claims that "the entire record business is in free-fall because people no longer feel the moral responsibility to buy music," is quite an incorrect statement. First of all, since when has there ever been a "moral responsibility to buy music?" There hasn't been. And, of course, while certain major record labels may see their business in free-fall, the actual music business is doing incredibly well -- in fact, it's having quite a renaissance in terms of the number of albums released, and the amount of overall money that people are spending on it. It's just that they're not spending it on recordings (or sheet music) directly.

That said, Brown has made his living this way for a while, so you can see why he'd be upset that the old way of making money has been disappearing, but I doubt that a significant portion of his earnings came from teenage girls buying his sheet music in order to perform it at talent shows. In fact, since most of his work is for the theater, there are numerous business models available to him that have little, if nothing, to do with direct recordings, and for which file sharing -- like the kind Eleanor cites -- could help attract more revenue if he'd learn to adapt, rather than demand that the rest of the world adapt to him.

In the end, though, Brown did not go legalistic (even if he did go moralistic) and seemed at least willing to engage with Eleanor. I doubt he's going to change his mind any time soon, but we've seen a lot worse and a lot more obnoxious from folks who were a lot less informed. Brown strikes me as the kind of guy who, if actually given more evidence on this subject might actually come around to recognizing that, perhaps, it was he who made the wrong assumptions, rather than Eleanor, even if it might take quite some time before he realizes this.

Filed Under: copyright, file sharing, jason robert brown, morality, music, sheet music