Live from the World Copyright Summit: Gridlock and Oprah
Tuesday, June 9th, 2009 by Patrick Ross
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WASHINGTON — Here at CISAC’s 2nd World Copyright Summit, YouTube Chief Counsel Zahavah Levine declared she had just learned of an illness from which she suffers — copyright gridlock. The term came from the previous speaker, Columbia Law School Professor Michael Heller, who argued that gridlock on intellectual property rights is stopping innovation and harming artists. Yes, these arguments continue to be made, and by academics no less. Not surprisingly, most speakers here have instead emphasized how creators and creative industries are in fact powered by rights. When asked by an audience member if he was advocating the ask-forgiveness-rather-than-ask-permission model, Heller didn’t deny it, and said that entrepreneurs should be free to act in the best interests of the “market” (a market without property rights of substance, kind of a Twilight-Zone market) and not let holders of rights stand in the way.
This is of course the model of YouTube. This is the third time I’ve heard Ms. Levine complain about how hard it is to pay rightsholders for performances on her site, even though nobody asked her to permit the airing of copyrighted works to begin with and it would be a significant stretch of the safe-harbor provision to say she has a “right” to air others’ works without permission, when in fact the law requires her to take them down whenever notified.
Heller kept comparing creative works to physical industries such as airports and runways and automobiles and highways. This is a peculiar perspective on the unique craft of creation, but so be it. I’ll go ahead and embrace this new post-gridlock world of Heller and Levine, the conflation of physical and intellectual property.
They advocate responding to consumer demand. Well, the last I heard Oprah Winfrey was very popular, so popular it’s rare to see her last name listed with her first. I saw once that she lives in a magnificent mansion. Her front yard is larger than most public parks. I would think that many of her legions of fans would like to visit her estate.
I intend to bring a construction crew onto her front lawn and build a nice visitors’ center and a parking lot. At that point, I’ll offer the public tours. I’ll charge $10 for a tour of the grounds, $20 for a tour of her home. Yes, she has property rights over her lawn and her home. But Heller has conflated intellectual property with real property, and he’s said that where there is consumer demand, the property-rights gridlock that blocks that demand from being met should be broken through. Levine’s YouTube has taught us how.
Now Ms. Winfrey may not be happy with my actions. But look. My operation will only take up a small fraction of her property. My tours will only run a few hours every day, most likely while she is at her studio or magazine office. I will pay fully for construction and for the tour guides. I’ll even handle my own utilities for the property. And I will gladly share a portion of the revenues I generate from the tours.
So what happens if Ms. Winfrey declines? Perhaps she wishes to keep that property to herself. Perhaps she only wants to open it up to friends, on her terms. Perhaps she recognizes the wisdom of providing tours — many Lords in the U.K. do it now for some pocket change — but wishes to manage the process herself or choose to whom to outsource the job. Perhaps she’d like to supervise construction of the visitors center and the parking lot.
Sorry, Ms. Winfrey. We need to break through this property rights gridlock. You need to accept public demand and agree to receive whatever money I decide to give you. Trust me, it will be better than what you’re getting from me now, which is nothing.
I’m waiting.
June 9th, 2009 at 8:34 pm
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June 11th, 2009 at 10:23 am
I believe this argument is flawed. While I didn’t attend the conference and can’t speak to Levine/Heller’s exact words, I think you are falsely conflating intellectual property and physical property yourself.
A matter of fact is that a thousand people can and do use expressions of ideas in ways ranging from .01% infringing (perfect fair use) to 100% (street seller hawking pirate Dark Knight DVDs wearing a New Line logo.) These don’t interfere with the copyright owner’s life as you would Oprah’s. They don’t stop anyone from selling product; they don’t intrude on him, harass him, or leave a mess on his porch.
They do something entirely different: they provide competition he can’t beat, lowering his profits (think copying Oprah’s plant arrangements on your own lawn.)
If the sanctity of Oprah’s copyrights are as important as her land, no more limiting on the freedoms of others than her right to a peaceful garden, why don’t they last forever? Why do we limit them, balance them, and then take them away?
If there is such a balance, why do you argue that Heller is wrong as a matter of course, as if he were intruding on some sacred ground by pointing out that it has become unsteady?
June 11th, 2009 at 3:53 pm
LOL! And so to the point. But I think I’ll just watch some home movie of the tour on YouTube…
June 11th, 2009 at 4:28 pm
I’m sure that there are many out there who are far more sophisticated than I am, but my understanding is that intellectual property, and the rights thereto are created through intellectual effort.
Intellectual effort can take many paths to a tangible form, all of which require monetary investment. The value in that investment and the intellectual property manifested in the effort results in durable goods. Durable goods can be as “hard” as a book or a CD or as “soft” as a down-loadable file.
To generate intellectual property that is worthy of consumption takes years of effort, education and practice. That’s a component of intellectual effort that is frequently overlooked. Many might listen to a “free” downloaded song and entirely disregard it. They discount the decades it can take to create the skill of an artist. That’s what creates the VALUE in the consumed item - the consumer didn’t have to practice scales or keep a journal for years and years in order to perfect their craft. The consumer merely enjoys the outcome of all that effort. Hence, he pays to enjoy the value in the durable good. That’s a value-for-value exchange.
No matter how durable goods are transported, there should be a cost involved to recoup the creator’s intellectual effort and monetary investment. That such durable goods should be considered “free” once they are released for the first time, subject to unlimited copying and distribution, turns the notion of property rights and just compensation upside down.
In my opinion, sooner or later a “free-use” paradigm will prove to be seen for what it is: stealing. Then the paradigm will break down.
I come down on the side of Mr. Ross. I wouldn’t presume to infringe on Ms. Winfrey’s property rights by stealing her house or her right to enjoy it in privacy. I wouldn’t steal a car, or a TV or anything that didn’t belong to me through property rights subsequent to a value-for-value exchange. Durable goods - even such an ephemeral thing as a downloaded song - are subject to the same treatment as Ms. Winfrey’s home. Those who cannot see the similarity between the two need to read their philosophy and their history.
June 11th, 2009 at 4:39 pm
Good article Patrick - you make a valid point.
Steve, a street seller selling bootleg DVDs *is* intruding on the copyright owner’s rights who doesn’t get a dime off the sale of the illegal DVDs. What you’re saying is that stealing a little bit is ok since there’s enough left for the labels / movie companies. That is BS with all due respect. The current US copyright law strikes a balance between protection of author’s rights (copyright for the life of the author plus 70 years) and the public domain, and has several exceptions for inter alia fair use.
YouTube’s position as paraphrased here is just convenience - it’s too much hassle to ask for permission so they just go ahead allow people to post until somebody complains. The better way however is to falitate the clearing and licensing process.
June 11th, 2009 at 5:10 pm
These people who think intellectual property is meant to be and should be free because it otherwise would stunt future innovation- should have their heads examined. If these so-called innovators have no solid business model that not only supports their innovation- but also pays just due to the owners of the very property they are freely using to promote their own cause- then they should not exist. I could care less about their innovation. We do not need it. In the case of a music based website- take your greatly needed innovations and put your money where your mouth is- by writing & producing your OWN music & videos. Put them all up there for everyone to see, hear and judge. Then the true judge will come out on whether or not anyone is truly interested in your innovation. PAY or take a friggin hike.
The French will look like heros when everyone see’s how successful they will be at the 3 strikes and you are out. This is the simplest of all solutions that is incredible to belive nobody in the American entertainment industry has yet to figure out. FORCE the ISP’s to warn 3 times and then shut down users if violations continue. It’s guaranteed that the majority of online property stealers will stop taken intellectual property if they know their internet will be shut down. The industry should have been suing the ISP’s all along as an enabler.
The only real thing that has to happen is- the innovators and the content owners have to come upon REASONABLE useage fee’s that are also tied to future growth of the site. It is not brain surgery to figure this stuff out. If the innovator(s) does not generate enough money to support paying for the product they are using in there store- then they should be out of business. Their should be NO upfront license fee’s. All fee’s should be tied to actual revenue occuring on the sites and paid out on a simple mathematical formula that is appropriately divided to content owners based on amount of streams/downloads.
In the case of YouTube- the problem is: WHY would YouTube have to pay for the use of copywritten music and other media to the big Industry corporations? Well if the big dogs are getting paid, then I also want to get paid for having Aunt Sally’s birthday party video up there. I should be entitled to money for every view just like a major record label is. If this were the true case, then YouTube would be a sight with NO copywritten material ever allowed. Maybe YouTube should institute a policy that will take a reasonable amount of revenue (70% of all revenue generated - like iTunes) and split it accordingly between ALL content uploaders based on the amount of views. In the case of someone using copywritten music or video- it would be a simple 50/50 split between the new content creator and the owner of the content that is used “in fair use.”
Another thing that should occur- there should be a fund created that all manufactures of any kind of storage media/device are required to put a % of revenue into because they also are enablers of stealing. The big tech companies should be forced by law to contribute to royalty fund- kind of like the Home Recording Act requires- or just expand the scope of the Home Recording Act.
June 11th, 2009 at 7:03 pm
Peter, Colleen - sorry, but I have to think that you didn’t read my post very carefully, or that you were only looking for what you wanted to see. Perhaps I worded it badly?
I have to say that I am at a loss for how anyone could read “intellectual property is valueless” out of it, or “there is no reason to protect it”; or even “it is not wrong to violate it”.
The point of the post is to illustrate that intellectual property is not the same as physical property because, though valuable, its definition has changed over the years for the good of society and will continue to change. I think that many of you believe its coverage should only ever grow - even if there are negative consequences to certain aspects of certain rules which have been put in place.
This leads you to read the words of someone who doesn’t believe exactly as you do to be a pirate and a thief. Can that be anything but fanaticism?
June 11th, 2009 at 7:04 pm
I feel like this is more of an economics issue more than a rights and compensation argument of definition. How much is the coffee worth and at what price will you pay?
June 11th, 2009 at 7:13 pm
Thanks for the dialogue, everyone.
My issue with the professor was improper conflating of real and intellectual property. I concede the two are different. Often, however, people unhappy with copyright raise this point as if that should undermine the argument for intellectual property. An apple is not an orange but both are fruits.
Intellectual property expires, real property usually does not although there are forfeiture laws. Intellectual property is limited by fair use, but real property has multiple limitations on use from city, county, state and federal regulators. Steve, you’ve hit here on Copyright Canard #8: http://blog.copyrightalliance.org/2008/12/critiquing-copyright-canards-part-four-of-five/
June 11th, 2009 at 7:39 pm
Patrick, I have in fact read your copyright canards. This is getting a bit further than I am capable of expressing myself - but I disagree heavily with #8; it disregards the very real differences between intellectual and physical property which do exist, and the differences between the nature of the restrictions on them both. There’s ample historical evidence for copyright being a form of social contract for the good of all in the same sense that property is something you own because it’s innately yours (though each form of possession has elements of the others’, esp. in modern Europe with the moral rights aspect of copyright).
I guess what I’m trying to say here is that based on what you’ve said, Heller and Levine are not arguing against copyright, or claiming that it’s totally outmoded - but rather that it would be better for society if it were tweaked. While they may well be very wrong in the specifics of what they called for, you didn’t provide enough information for us to know - it seemed like you were stereotyping them as “freetards” for addressing real and important concerns.
June 12th, 2009 at 1:19 am
Colleen, under the American (and most other) legal systems all content is copywrited (copywritten?) at the time of creation, including your video of Aunt Sally’s birthday party. Paying the big labels more than independent content creators would be morally blasphemous. In addition, “Fair Use” is something you don’t have to pay for and would not apply if Google was buying the proper licensing for the videos they hosted. Finally, the advantage of Youtube for most people is that Google is paying your tab to allow us to host videos and distributing the content we create. There’s a place for hosting content you wish to make lots of money off (and Google is trying to merge this paradigm with Youtube), but it’s entirely different from the “we’ll host your content for free and take whatever ad revenue comes in” model currently in vogue.
June 12th, 2009 at 8:56 am
I’m just a listener of music, not an artist or an expert in the argument who just wanted to share some things from a listener’s view. So don’t tear me apart for sharing, but I see an awful lot of major record companies who themselves post their artists’ videos on Youtube. If the major record company itself is putting their artists’ music videos on Youtube to sell music why or how should Youtube pay the artists’ royalties?
Youtube has become the #1 source for music consumers like myself, more than terrestrial radio and TV. Every person in the world is on the Youtube wanting to be a star and actively grabbing subscribers. This has taken a lot of attention from major artists.
Here is my little analogy. Let’s say the artists are all on stage performing for the audience and wants them to PAY ATTENTION. However, instead of paying attention, the audience is down there sharing music amongst themselves and paying little to no attention to the artists on stage. Now let’s say that the artists on stage are represented by major record companies trying to sell their music and let’s say that the audience is collectively “Youtube.”
Every guy and girl with a guitar or boombox is down there trying to be a Youtube star. There are a million unsigned artists down there trying to grab the market share of listeners’ attention and not paying much attention to the major artists. So I see the major artists jumping off stage and into the Youtube crowd trying to get back their attention.
Every time I turn around I see the new Beyonce videos put up by her record company for all of us to listen to and enjoy. Over a million people will watch and comment on her videos. Does that same record company who put the video up to grab the listener’s attention now want Youtube to pay Beyonce royalties when they are using Youtube as their medium of choice? Can someone explain how that all works out please?
Here is a downfall I see for artists on Youtube. Back in the day, when I heard a hot song on the radio that moved me and/or inspired me, I could not get enough of it by just waiting to hear it on the radio, so I went and purchased the song. However, now with every major record company posting their videos on Youtube I don’t have to buy it anymore. With the economic downturn, most people are at the computers more than any other place, especially young music consumers, so if I can hear my favorite song posted up by EMI, or Universal Music Group, over and over and over again until I get sick of it, why purchase it?? It’s my personal opinion that Youtube hurts sales for major artists.
So as a listener, I feel that Youtube is really the NEW “major record” company and that being able to have free access to the music any time of the day or night takes money from the artists pockets’ because it’s less incentive to buy it. Youtube is a “Goliath” to be reckoned with.
So can someone explain to me how the artists are benefitting when their record companies are putting their music up for free consumption on Youtube and then wanting Youtube to pay them royalties? Wouldn’t it be different if Youtube went to the major record companies and said “let us use your music to draw listeners to our site and we’ll pay the artists royalties in return for drawing viewers.” Instead, it seems like the major record companies are saying “We need to have access to all of your millions of viewers because that’s where we see them hanging out all day in large crowds.” It seems like whether its Youtube who has millions of viewers sitting in their lap waiting to enjoy music or the major record companies going broke and trying to sell music by any means, the artists who create the music are in the middle of the loop losing out! lol
June 12th, 2009 at 9:55 am
I will never understand why this issue has become so muddled and why extremely bright, well educated people seem to have such an entrenched view that advocates stripping people of their individual rights.
I for one DO agree that intellectual property is property. A copyright is exactly what it is called - the right to copy….the right to publish and make public and replicate.
When you “buy” a product (including a piece of recorded music) you are in effect paying a relatively small fee for an individual license to use the product. The technologies that have made available more ease of personal use & mobility are not a green light to become a mass replicator or publisher of the product.
If suddenly there was simple technology to replicate any other product, would there be the same passion for advocating the mass stealing of it?
You cannot go buy a coke and replicate their formula in your kitchen and bottle & sell it - or spread it around for free by the millions. The right to do this, as well as the formula, the packaging, the name, is owned by the people who have spent decades & billions to create, market & promote it - making it something millions of people want to have.
This is true of any product or idea one can think of!
I will never understand the support for stripping songwriters & artists of their rights and ownership in what they created. Nor will I ever see any logic in how this has been “for the greater good of society.” The funding of music is being destroyed by this thinking, with thousands of people losing their jobs, artists & songwriters not being paid, getting dropped or not getting signed.
You were never getting it for free or hearing it for free. You were either paying to buy it on vinyl, tape or CD and you were paying by hearing it on radio or TV where you tolerated listening to paid advertising.
The people advocating for free use should then equally be all good with taking their weekly paycheck, cashing it and laying the cash out on the sidewalk for others to freely use for the greater good of society.
June 12th, 2009 at 11:34 am
Patrick,
That’s not quite what I understood Prof. Heller to be saying. As I heard it, he was not comparing “creative works to physical industries such as airports and runways and automobiles and highways.” He was comparing the process of technology innovation to the process of building airports and runways etc. In each case, an excess of property rights claims–whether real or intellectual–produces a barrier to innovation and thus a net deficit of new wealth creation, even for those whose property rights claims created the barrier.
I don’t think Heller was taking a position on the relative similarities or differences between real and intellectual property. His is an argument about the impact of a legal system of exclusive rights on economic efficiency.