The Great Big Beautiful Tomorrow (15 page)

Part two, the second point here, which I sometimes grandiosely call Doctorow’s Second Law, is that “it’s hard to monetize fame but it’s impossible to monetize obscurity.” As Tim O’Reilly very famously said, “The problem for most artists isn’t piracy, its obscurity.” It’s a great sound bite as things go, but merely being well-known doesn’t guarantee that you earn a living. The fact is, most artists have never earned a living. Never have and never will. There’s never been an economy that rewards every artist who wants to make art with enough money to go on and make it. This has never been a feature of any civilization. I’m not celebrating this. It’s just the fact. Yet people continue to make art anyway.

I think about science fiction when I think about this. Science fiction had its heyday as short stories in the 1930s and 1940s—the pulp days, when the magazines were paying one to two cents a word. If you sent a manuscript off on Monday, you might get it accepted on Wednesday. (This was when the American Post Office worked incredibly fast, almost at the speed of e-mail today.) The check you got on Friday that would pay your rent for the month. Today science fiction magazines pay two to six cents a word; in 1930-adjusted pennies, that’s a fraction of a fraction of a cent per word.

The last time I asked an editor of one of the major New York magazines how many stories she was getting a month, she said about a thousand. And she buys about two. So it’s clear that this is not a rational economic industry like, say, shoemaking. If your grandfather was a shoemaker and every time he fixed a pair of shoes he got enough money to pay the rent, and there was only one other shoemaker on his road, he was able to support his family. Flash forward two generations and you’re still in the family business, except there’s 999 other shoemakers on your road and every time you fix a pair of shoes you get enough money to buy a stick of gum. You’d probably find another job.

But the artist or the writer doesn’t. Approximately speaking, anyone who can write and sell a short story to Asimov’s magazine could be writing ad copy for a salary with benefits and a retirement plan. So if the reason you’re in the arts is for money, you’re really in the wrong business. And the dismal rate for short fiction and poetry and novels (and handmade jewelry and oil paintings done by street vendors) has almost nothing to do with copyright.

I heard a poet speak at a European Union copyright event a couple years ago bemoaning the terrible state of poets’ lives, talking about how hard it was to make a living writing poetry. I completely sympathized until she concluded: “That’s why we need to defend copyright!” And that’s where I broke with her, because even if she had her own special copyright cutlass that allowed her to disembowel people who used her poetry without paying for it, it wouldn’t make her an extra penny.

If you really want to make life better for artists, improve their leverage with their publishers. I speak of publishers in the broadest sense here, including record labels and film distributors. Publishing is the job of making the work public: that is to say, identifying a work, identifying an audience for that work, and taking whatever steps necessary to introduce the audience to the work. Sometimes money changes hands and sometimes it doesn’t. But that’s really what publishing comes down to.

Now some of that artists can do for themselves. But there’s an enormous amount of it that’s beyond the grasp of an artist, that requires an institution. Even if you’re the most organized person in the world (and not all artists are), you don’t have a sales force, you can’t coordinate printers, you can’t do all kinds of stuff that publishers can do. Plus, if you’re on tour with your book, you’re not at home writing another, and you’re also not at the Frankfurt Book Fair selling your book to foreign editors. All that is stuff publishers perform for us. So this is why it’s a good partnership when it works.

But there’s another version of combining knowledge with special abilities that has a reverse effect; it actually reduces the author’s bottom line. For example, your publisher might sew up all the distribution so that if you want to get a book into a bookstore you have to do a deal with him. That’s happened periodically in the history of bookselling. And that’s happened regularly in the history of music and film distribution. And when all commerce is controlled by a small cartel, people who produce into that supply chain end up suffering.

The music industry is a textbook example of what happens when all the copyrights accrue to a small number of companies, which as a result end up with control over the whole distribution and retail chain.

Say you are signed to a label (and you have to be signed to a label if you want to do things like sampling and not get sued into a wet spot on the pavement) that sells through the iTunes store, and that looks like a good deal for the artist.

For the consumer, not so good. When iTunes, Apple, sells you something as a listener, they actually don’t sell it to you—they license it to you. That’s what that twenty-six thousand words of boilerplate you have to click through is all about. It’s not like lawyers write twenty-six thousand-word license agreements to let you know you have more rights than you thought you had. It’s to let you know that they have the right to come over to your house and eat all your food and punch your grandmother and make long distance calls.

The upshot is that it’s a license. You as the listener haven’t bought it the way you bought a CD or a record. You can’t sell it, you can’t loan it, you can’t give it away, and you sure as hell can’t copy it.

This is the business model for digital music: nobody gets to own anything ever again. For the artist, it looks great, because the standard record deal states that if it’s a license you get 50 percent of the take, and if its a sale you get a 7 percent royalty. But in reality you end up getting 7 percent because the record company classes this transaction as a “sale” on your royalty statement. The buyer gets treated as a licensor, but for you, the musician, it’s a sale, and thus the label pays about six-sevenths less than you’re owed. All four of the majors have the same accounting peccadillo, so if you don’t like it you can go pound sand. Because who else are you going to license your catalog to? And to add insult to injury, a line item on the standard royalties sheet deducts a certain percentage for “breakage,” which apparently accounts for all the bits that are broken on the way to the iTunes store.

This kind of thing gets repeated throughout the other industries where you have strong copyright and a lot of strong copyright lawyers. So, for example, anyone who wants to make a movie that’s distributed through the studio system has to go to the insurers that the movie industry has grown up in tandem with, and they insure you against lawsuits for copyright infringement. Before they insure your film, they go through it to make sure you haven’t done anything that
might
arise in a lawsuit (not anything that
would
arise in a lawsuit) that they would lose just anything they might get sued for at all. Practically speaking, what that means is if there’s someone wearing a t-shirt with a logo on it hanging around in the background of your film, you have to get a license for it.

When I taught at the University of California, I had a student whose summer job was to open checks for the Men in Black franchise. Anyone who shot a movie with a Men in Black comic lying around had to send them a check, not because copyright law said so but because the insurers who work for the studios said so. So when you create obstacles, you create people whose job it is to keep the obstacles in place so they can create problems only they know how to solve. When you use copyright to turn creativity into an obstacle course, you end up giving power to institutions whose job it is to remove obstacles.

It is really only by using policy to remove obstacles to creativity that you end up giving power to creators. This is where we get back to the idea that it’s hard to monetize fame but impossible to monetize obscurity. Creative Commons licenses and other tools make it possible for artists to build audiences. YouTube, Twitter, Facebook, etc., allow artists to forge contract with readers or listeners that runs person to person, not person to corporation. (It can be quite exhausting, very asymmetrical: you’ve got a million readers and there’s only one of you, and they all want to send you a tweet, and you have to figure out how to reply to them all! But it sure beats the alternative, which is that you’ve got no readers and no one gives a tweet.)

This amounts to a social contract, and it’s different from an economic contract, in which you only get what you pay for and you only deliver what you gat paid for. The consumer gets the commodity, say, the CD that you get to bring home, and the producer gets the money that you spent on it. You have no responsibility to the producer and the producer has no responsibility to you; you’ve engaged in an act of commerce, like buying a candy bar, not entering into a relationship.

The artistic business has always had this element of social contract; it’s never been merely an economic contract. The artist asks the audience to integrate her art into their lives, to listen to her arguments, to adopt her aesthetic, to hum her tunes to their children, to ruminate on her stories and tell them to themselves—to make her art part of their lives. In return, audiences don’t just acquire art, they purchase a part in an artist’s career. They feel a stake in it; they promote the art that they love; they do things that run contrary to their theoretical economic interest but that are in favor of their social interest and the interest of the artist that they love. They buy premium items, they buy spare copies, they buy copies just to keep on their shelves; they come out to see authors at festivals. They treat the artist’s material as though it were infused with the artist herself or himself.

This isn’t the kind of contract that corporations are very good at, which isn’t to say don’t try. That’s why any sentence that contains the word “brand” is almost certainly bullshit. Because “brand” as it’s used in corporate board rooms is a way of fooling the customer into feeling as if she’s entered into a social contract, while carefully ensuring that there is no reciprocal contract on the part of the corporation. The customer is meant to tirelessly promote and support the brand, but the brand has no duties to the customer; it can even sue the customer for promoting the brand in a way that runs contrary to the brand identity endorsed by the brand’s owner.

A world of open networks and social systems is one in which artists get more leverage; in which they can take on some of those very difficult tasks of publishing and building an audience, face fewer bottlenecks, pay less to do more, and get better deals from their publishers. This isn’t any guarantee that an artist will earn a living—I’ll say it again: most artists will never earn a living—but rather this is a way that ensures when art is bought and sold more of the money that results from those transactions goes to the artist.

And now we’re on to the final piece of the puzzle, which is that information doesn’t want to be free, people do. In 1985 at the first Hackers’ Conference in Silicon Valley, Stewart Brand uttered his famous aphorism, “Information wants to be free; information [also] wants to be expensive.” And this was a lovely Zen summation of what was about to happen in the next fifteen years, when information technology would make it easier to copy stuff, but also raised the value of the stuff that was getting easier to copy. And these two trends were to rub up against each other in very interesting and at times catastrophic ways.

This was a very prescient thing for him to have said, but not a moral statement about whether copying is good or bad, and certainly not the ideological basis for people who support copyright reform it has become. “Information wants to be free” has about the same relationship to the copyright fight that “Kill Whitey” has to the civil rights movement or bra burning has to feminism—which is to say that it’s a kind of intellectually dishonest cartoon that allow you to duck the real questions and just address the straw man.

And “information wants to be expensive” means that artists and creators often end up taking the stance that either government or corporations have a duty to figure out how to make computers
worse
at copying. This is a fool’s errand that will have no measurable effect on “piracy,” because copying is as hard now as it is ever going to get, which is not very hard. It’s not like next year hard drives are going to become more expensive, or fewer folks will know how to sit down at a computer and type in “Batman Returns bittorrent.” From here on in, copying just gets easier.

It’s also a fool’s errand because it has very negative external effects on society as a whole. In addition to increasing the power of intermediaries over artists (as we see with DRM), it also rewrites the operating system of the information age to build in censorship, surveillance, and control. So, for example, we are creating these national firewalls—as here in Australia, with the aim of ending child pornography, even though the people who make the firewalls say that they won’t work for that!

You all know Chekhov’s first law of narrative, which is that if you put a gun onstage in act one, someone is going to use it by act three. So once you build a national firewall, everyone who knows of something on the Internet they’d prefer their fellow citizens not see, starts showing up in the halls of government saying we should add this and that to the firewall. In the UK there is a proposal to add trademark and copyright infringement to the national firewall. The same proposal has been floated in the United States and in Ireland and Scandinavia as well.

The problem is, the sites that contain “infringing” material also contain an astounding amount of noninfringing material placed there by artists as part of their legitimate distribution schemes. Take a site like YouTube, with something like a billion files (and about 5 percent of them infringe copyright), which assembles and makes public a body of creative work that is larger than ever dreamt of before. Shut it down? It’s as if we’ve discovered a town that houses the largest library ever built, surrounded by a shantytown of pirated DVDs, and so we propose to bulldoze the whole city.