Copyright, the Commons, and the Music Industry: Lessons for Poetry from the Music Industry
Submitted December 29, 2008
BY WYN COOPER
American copyright emanates from the U.S. Constitution, which directs Congress to create laws that provide an incentive to create and distribute new works. Many scholars credit Samuel Clemens with the rise of copyright in the last 100 years. From 1898 until his death in 1910, Clemens used his persona of Mark Twain to get his points across to a skeptical American public, Congress, and even the House of Lords. Through his late writings, actions, testimony, and lobbying, he greatly influenced major changes in copyright law.
Clemens was concerned that his daughters might not have enough money after his death, and he played a major role in extending copyright protection to 28 years from the date of publication, renewable for another 28 years if there was still a market for the work. The Copyright Act of 1976 extended copyright to the life of the author plus 50 years. In 1998 Congress extended it to 70 years, which stands today.
If those seem like major changes in a relatively brief time, they pale in comparison to what has happened in the last 15 years. Intellectual property and copyright issues, especially as they apply to digital works, have been in chaos during that time. Under President Bill Clinton, the Digital Millennium Copyright Act (DMCA) of 1998 passed Congress, to the great dismay of those who believe in thin copyright. Instead, it's thick copyright, something that Twain would be proud of but that has caused a great ongoing debate about the commons, fair use, and the public domain.
The DMCA was widely ridiculed by those who favored liberalizing fair use and thus leaned toward thin copyright, also known as "copyleft." Authors like Jessica Litman, John Perry Barlow, and Siva Vaidhyanathan, among many others, argued in the late 1990s and into the early part of this century that the rise of intellectual property would stifle creativity by blocking free access to almost everything on the web, from books to music to films. Some, like Vaidhyanathan, argued that copyright "was designed to regulate only copying. It was not supposed to regulate one's rights to read or share." Now that there's little difference between accessing, reading, and copying, he says that we must either give up "control over copying or expand copyright to regulate access and use, despite the chilling effect this might have on creativity, community, and democracy." I should point out that this entire working paper was written without having my access blocked to anything, on the web or elsewhere.
Perhaps the most prominent author in this arena is Lawrence Lessig, chair of the Creative Commons project, Stanford law professor, founder of Stanford's Center for Internet and Society, and author of five books dealing with intellectual property in the Internet age. Lessig takes a slightly more centrist approach, arguing in his most recent book for a "hybrid economy," which combines a traditional author/content business model with a "sharing economy" such as can be found at Wikipedia and YouTube. The Creative Commons has gone so far as to create alternative licenses for authors, allowing their works to be distributed with "some rights reserved" rather than all. In his 2008 book, appropriately titled Remix: Making Art and Commerce Thrive in the Hybrid Economy, Lessig shows how artists who reserve some of their rights, but not all, enter into collaboration with artists who are free to borrow, copy, or alter-as long as credit is given to the original artist.
Both Lessig and Jessica Litman, in her book Digital Copyright, argue that it makes no sense to enforce laws that no one believes are valid, whether they relate to copying CDs, sharing files, or remixing copyrighted songs. Though content companies (record labels, publishers, and so on) have tried to educate the public about copyright (an effort that has included suing college students for file sharing), people who engage in content sharing still don't always realize that they're breaking the law-and Litman argues that such laws simply aren't valid if very few people are following them. She makes a case for changing the laws, while acknowledging that vested interests, from creators to record labels to movie studios to copyright lawyers, wouldn't stand for such changes.
The DMCA gave the music industry the protection it thought it needed in 1998. As long as their content was technologically protected, they could set restrictions on access and use. Circumvention was prohibited, as was the technology to allow it. But though the law had been years in the making, the music business had yet to come up with a piracy-resistant format. Meanwhile, the MP3 was growing in popularity, especially with unsigned bands. This new format provided a convenient, portable, compressed method for sharing digital music. It was similar to CDs in that it could be copied, but it could be copied faster because of its size. It was a new, improved model, ready-made for digital distribution, and the record labels were not happy.
The recording industry set out to stop the MP3 format in its tracks. Bands who posted MP3 files were ordered to take them off their websites or risk losing their contracts. Copyright attorneys came out of retirement to keep up with demand. Record labels, along with software companies and consumer electronics companies, formed a consortium to invent a secure digital music file format that could be sold on the Internet without the pesky problem of piracy. The Secure Digital Music Initiative (SDMI) held meetings for six months (a long stretch by Internet time) without coming up with a new model. And this is where the music industry ruined its chances of keeping its audience.
While the recording industry was attempting to stop MP3 file copying and sharing, the first portable MP3 player, the Rio, was introduced, giving users the chance to play their music somewhere besides their computers. The labels went after the manufacturer of the Rio, but the court ruled against them. The court held that copyright law entitled consumers to copy their CDs onto MP3s, and that an MP3 player was therefore a legal device for playing these legal copies. Rather than releasing their songs on MP3s, or using one of the other secure formats being tested at the time, the labels instead kept trying to stop MP3s, and we know where that led. It led to Shawn Fanning.
Fanning was a college freshman who liked trading and talking about music files. He created Napster, a peer-to-peer network file-sharing program that he distributed as freeware, which made it much easier to do both things. The record labels filed suit against Napster before it was even officially launched, but by the end of its first year it had 70 million subscribers. The band Metallica joined the Recording Industry Association of America (RIAA) in its lawsuit, going after universities that allowed file sharing as well as individuals who had downloaded Metallica songs. Napster blocked those accounts. Even the judges who eventually ruled against Napster admitted that Napster didn't share or copy files. What it did was distribute software that allowed for its users to share files.
In 2001, the Court of Appeals issued its decision in the Napster case. It stated that its operation was most likely infringing copyright, and dismissed the argument that individuals could legally exchange digital music files on the Internet. Napster's legal fees were so large that it was forced to declare bankruptcy in 2002. It sold its name and patent, and it now exists as a pay-per-song service, like iTunes, Amazon, cdbaby, and countless others. Many free peer-to-peer file distribution programs still exist, thanks to Fanning, and the recording industry continues to try to stop them.
As Tarleton Gillespie has pointed out in his book Wired Shut: Copyright and the Shape of Digital Culture, "Napster was not just an economic threat to the corporations that traffic in culture, it was an ideological challenge to the very legal and economic principles on which they depend, and it did make plain some of the limitations of that system." Napster was far more than a technological innovation; it was a new way of thinking that made far more sense to consumers than to corporations. It was the commons, in action. But it was also illegal.
Apple's iTunes now leads the way in the pay-per-song digital business, though it has many detractors. The amount of money paid to artists-and the record companies many of them are under contract to-is shockingly low. Apple's model is one that millions obviously believe in, now that they've accepted that they have to pay for the music they used to get for free. It's convenient, it's easy, and no laws are being broken, because the songs are copy-protected. Though many thousands of songs are still unavailable on the iTunes website, it's the best legal model we have.
Which brings us to ASCAP, the American Society of Composers, Authors, and Publishers. It's the leading performance rights organization in the world, founded in 1914. Clearly, music people knew even then how to protect their copyrighted work in a way that authors of books did not, though they had a hard time of it at first, as the American public was reluctant to pay for music they had been enjoying for free. Sound familiar? ASCAP has over 300,000 members in the United States, and a roughly equal number in other countries. (Disclaimer: I make my living primarily from ASCAP, because my poem "Fun," from my first book, was turned into Sheryl Crow's Grammy-winning song "All I Wanna Do.")
ASCAP is a not-for-profit organization that last year took 12.5 percent of the royalties it tracks in both broadcast media and live performances for operating expenses. The more often your song is played, especially in large urban markets, the more you are paid. Royalties go up and down depending on the economy, because radio stations make more money from advertising when the economy is doing well. ASCAP also distributes money collected from uses on the Internet. There are two other performing rights organizations in the United States, BMI and SESAC, which largely follow ASCAP's model.
ASCAP has its detractors, to be sure. Many first-time bar or restaurant owners are shocked to discover that they owe money to ASCAP because they play CDs recorded by ASCAP artists. If they try to take ASCAP to court, they almost always lose, because they're breaking the law. The fees they owe are based on how many people their establishment holds, how many hours they're open, and other factors. But no one can say the artists aren't being protected. Is the system unfair? To the tavern owner it seems so, while to the recording artist (or songwriter/music publisher) it seems reasonable. After all, their music is contributing to the establishment's ambiance, potentially causing customers to spend more. If you've ever had dinner in a silent restaurant, you begin to see their point.
The most impressive thing about ASCAP is its ability to track music performances for so little money. ASCAP has devised complex formulas that track songs accurately without having to know exactly how many times each song was played on each radio station in the world, each TV show or movie, each large concert. Radio stations submit playlists, but not every day, or even every week. That would be too time-consuming for both them and ASCAP. If stations submit playlists for one day, once a month, ASCAP's computers can extrapolate from that who and what is being played and how often.
The Google Book Search Project and Print Library Project
There are echoes of both the rise of music file sharing on the Internet and the way ASCAP keeps track of music in the project undertaken by Google to scan more than 18 million books and make them available on its website. Announced in 2004, Google's Book Search Project started scanning books from five large (and famous) libraries. As of late 2008, it had scanned over seven million books. This may sound like a lot of books, but compare it to what's already available on Google: over 100 billion web pages, with an average of ten links per page, adding up to a trillion connections between bits of information, images, maps, news, poems, and more. When the project is complete (Google says), you will be able to click on a poem you read online and have the entire book appear on your screen.
As Kevin Kelly said in "Scan this Book," his excellent piece for The New York Times Magazine about Google's new initiative, "While a few best-selling authors fear piracy, every author fears obscurity." Some 75 percent of all books are out of print, and this is a way for them to stay alive. Google pleased very few people with the way it approached its mission: scan now and deal with legal issues later. Google claimed that digitizing books was fair use, and authors and publishers were furious. I know that I was appalled to see onefourth of each of my last two books on the site, having never given permission for Google to make them available. Then I discovered that my publishers had given permission as a way to promote those books. When you sell as few books as I do, why be concerned if someone can read parts of them for free? I realized it was the principle, not the money, that had initially upset me.
And now Google is showing authors the money. In a landmark settlement announced in late 2008, Google reached an agreement with the Authors Guild (another disclaimer: I'm a member) and the Association of American Publishers. As part of the $125 million settlement, Google will pay at least $45 million to authors and publishers in the United States whose in-copyright books have been scanned without permission. Authors will receive somewhere between $60 and $300 each, depending on the number of books they've written, how many rights they hold, and the number of authors who file claims.
The best part of the settlement, however, deals with the future. Google will pay $34.5 million to start the Book Rights Registry, an independent entity controlled by a board of authors and publishers. Much like ASCAP, the registry will collect and distribute revenues from Google and maintain a database on rights-holders. Authors will be able to contact the registry and let it know which, if any, of their titles they want available online. This decision is not set in stone; authors can change their mind at any time. Google also passes on usage data, which determines how the registry distributes revenues. This data flow, along with security protocols, is open for audit by the Authors Guild (and presumably by other interested parties, including publishers).
The music industry's view of copyright, despite the rise of file sharing, is unlikely to change drastically given how little it's changed so far and how much money is at stake. Book publishers and the Authors Guild have reached a deal with Google that shows a much firmer grasp of the intersection of copyright and technology and creates at least one new model for the new millennium. I think we can learn from the successes and failures of both models, but we need to take into account not only poetry's relatively small audience at present but also the larger audience it may have in the future. The small amounts of money usually involved in poetry should also be kept in mind. Overall, poets should be made aware of how current copyright laws help them financially and legally, but they should also understand how these laws can prevent their work from reaching a larger audience.
I have left this conclusion brief because I believe it's best for all of us to read all three reports before deciding in which directions our working group should be heading. I sought to inform rather than convince; I sought to start a conversation rather than finish it.
Poetry on the Web and Elsewhere: A Short List, with Comments
- Poetry.com is where anyone can post poems, good or bad. It is the largest poetry website in the world, or so Poetry.com says.
- PoemHunter.com is also huge, and anyone can post there. At last count it had 311,000 poems by 25,000 poets.
- Poetryinternational.org is truly international, with 20 editors in 20 countries. It's published by the Poetry International Foundation in Rotterdam. It put poems by Robert Burns on Twitter for his birthday and made the poems available for reading on computers and mobile phones.
- Poets.org is the website of the Academy of American Poets. With a million visitors a month, it's the most popular site about poetry on the web. It contains thousands of poems by over 500 poets, as well as biographies, essays, audio, video, an RSS feed, a National Poetry Calendar organized by state, a section dedicated to educators, and much more. In March 2008 the academy became the first arts organization to offer mobile content. Some 2,500 poems, specially formatted for the small screen, are available for the iPhone and other advanced mobile devices.
- Poetryfoundation.org is similar to poets.org, but with a wider variety of content, including blogs, poetry news updated daily, podcasts, audio, video, and more.
- Poetry Daily (poems.com) has been around for 10 years, offering poems you can sign up to receive either daily or weekly, as well as reviews, poetry news, essays, interviews, and more. The poems are selected from a wide variety of new books as well as current issues of literary magazines. The site also features an RSS feed.
- YouTube lists 9,470 poetry readings. If someone posts a reading a poet doesn't approve of, the poet can ask for it to be taken down.
- Wikipedia has many entries related to poetry and poets, including me (I don't know who put my entry there). I tried to change errors in it but wasn't allowed to. This site harkens back to the idea of the commons: a place to share information. It also shows the disadvantages of a system run entirely by volunteers, namely inaccuracy. I have heard poets disparage it fiercely as a result of what others had posted there about them. See the entry for Jorie Graham, for example, and it's clear why she may not be thrilled by it. Anyone can add links, which also creates problems.
- Ubu.com is an interesting site with some concrete and visual poetry. It describes itself as "dedicated to all strains of the avant-garde, ethnopoetics, and outsider art." It goes on to say this: "Essentially a gift economy, poetry is the perfect space to practice utopian politics." Ubu.com freely admits to posting without permission.
- Kindle, which costs $359, is so popular that there's a waiting list for it on Amazon.com. You can read over 200,000 books on this device, for an average price of $9.99, as well as many newspapers and magazines. It also offers more than a thousand blogs, updated all the time. Kindle uses the same network as an advanced mobile device such as the BlackBerry. The user looks up a book, orders it, and two minutes later it's downloaded and ready to be read. Though I haven't tried it, I am told that reading via Kindle is very easy on the eyes and can be done even in bright sunlight, unlike a laptop or cell phone. It weighs 10.3 ounces.
- Blogs seem like excellent ways to avoid writing poems. On the other hand, they are good ways to discuss books and poems and to create dialogue on the web about poetry. They are another example of the commons.
Barlow, John Perry. "The Economy of Ideas: Everything You Know about Intellectual Property Is Wrong." Wired, March 1994.
Boyle, James. The Public Domain: Enclosing the Commons of the Mind. New Haven: Yale University Press, 2008. (Also available online for free at www.thepublicdomain.org.)
Gillespie, Tarleton. Wired Shut: Copyright and the Shape of Digital Culture. Cambridge: MIT Press, 2007.
Hyde, Lewis. The Gift: Creativity and the Artist in the Modern World. New York: Vintage, 2007.
Kelly, Kevin. "Scan this Book!" The New York Times Magazine, May 14, 2006.
Lessig, Lawrence. Remix: Making Art and Commerce Thrive in the Hybrid Economy. New York: Penguin Press, 2008.
Litman, Jessica. Digital Copyright. Amherst, NY: Prometheus Books, 2006.
Smith, Daniel B. "What Is Art For?" The New York Times Magazine, November 16, 2008.
Sobel, Ron, and Dick Weissman. Music Publishing: The Roadmap to Royalties. New York: Routledge, 2008.
Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: NYU Press, 2003.
The Poetry in New Media project’s working document reports and meeting summaries reflect a process to collect information, consider ideas and develop recommendations in preparation of a final report. Because the new media environment is ever-changing, some of the assumptions discussed early on became outdated or were seen as no longer relevant as process progressed and new information was considered. Thus, the materials presented here must be considered working, in-process documents which are provided only so that those interested in understanding the approach and interim discussions of the working groups can have a look inside those deliberations. As you read them, please consider them to represent an evolution of a free-flowing conversation about a timely topic and not as substitutes for the final report and the recommendations it contains.
The various views presented herein are not necessarily the views of the Harriet Monroe Poetry Institute or the Poetry Foundation. We look forward to sharing the working group’s final report in early 2010.