Over the last week, a couple of twitterers I follow expressed the opinion that fans don’t have a right to the art they want. Alyssa Rosenberg said “You don’t have a right to HBO.” i.e., that you can’t just steal content because HBO won’t stream it on the internet. And Dan Kanemitsu, in reference to people creating unlicensed manga translations for the Kindle, said that “Having material available quickly & cheaply is not a right.”.
I understand where Alyssa and Dan are coming from, but I think the language of rights here is misleading. In this context, I think it’s worth remembering why we have copyright in the first place. According to the Constitution, copyright is established “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
In other words, the purpose of copyright is not to protect creators. It’s to encourage artistic creation.
One of the main ways it encourages artistic creation, of course, is by giving creators exclusive rights to their creations, so they are encouraged to create them. But it also gives society rights by limiting the extent of creator control. In other words, public domain and fair use and access to art are not just a gift; they’re central to how copyright is supposed to work.
Or let’s put this another way. Think about the Beastie Boys’ “Paul’s Boutique”. The Dust Brothers jacked a lot of samples for that album, most of which they didn’t clear. Did they have the right to do that? Weren’t they just being entitled jerks, thinking they could just walk off with other people’s beats?
Of course, you could argue that having access to HBO or manga isn’t like having access to beats. After all, who’s going to make art out of HBO or manga?
The answer is that lots of people might. A video artist might want to use HBO clips in her piece; a writer might want to read a manga translation to inspire fan fiction. For that matter, reviewers or academics might want to write critical pieces about them. If critical writing is creative (and it is) then how philosophically are such writings different from Paul’s Boutique?
The issue here isn’t that all people have the right to steal any art they want. Rather, the point is, again, that the language of “rights” is a poor way to think about society’s investment in the availability of art.
I think it might be more useful to think of copyright in terms of competing interests. Society has an interest in protecting individual creator monopolies in copyright. It also has an interest in allowing other people access to those creations.
We try to balance those interests in various ways. Currently, we do it by having really restrictive copyright laws foisted on us by our corporate overlords…and rampant and easy piracy made available by the internets. This is not an ideal system in any sense and for many reasons. But would it really be improved if consumers all at once and instantly accepted that they had no right to art, and ceased their infernal piracy? If by “would it be improved?” you mean “would it encourage more creativity?” — then, no, I don’t think that the end of piracy, mash-ups, fan fiction, and more restricted access to art would give us a better, or for that matter a more moral, creative landscape.
I want artists to get compensated for their work. But I wish we could find a way to do that which recognized that society has an interest in making art available to everybody — not least because that “everybody” includes creators.
I don’t think HBO and scanlations are equal in this argument either. People can get HBO (or buy DVDs of the show) if they want to spend the money. I can’t buy an English translation of any of the manga I’ve read in scanlated versions. Though, I guess that varies from scanlation to scanlation, the ones I read are not likely to picked up by anyone doing official English versions.
That makes sense. I think it does vary from case to case.
I don’t agree that sampling is really the equivalent of watching HBO programs for free. When someone uses these programs to make art, then the comparison will hold. The argument is more about the legality and morality of access to someone else’s creation. The way I’d approach it: Is there anything wrong with a group getting together to watch Game of Thrones on Sundays if they don’t all pay for the channel? Most would say no (but maybe not HBO). Is there anything wrong with renting the blu-rays? No. Is there anything wrong with my loaning out Game of Thrones to many of friends (which I’ve done)? Again, probably not. But I can’t make a copy and loan that out. I get that it’s illegal, but I don’t see it as morally different from the other examples. Thus, until I can just subscribe to HBO HD without paying $100/month to get there, why not watch Game of Thrones for free, and then buy the blu-rays as they come out? One might argue that the free distribution of their shows decreases the number of subscribers to HBO. Theoretically, that sounds plausible, but I’ve yet to meet anyone who watches the shows for free who either would be subscribers otherwise or quit being subscribers once they figured out alternative ways of watching what they wanted for free. Maybe my sampling size is incredibly biased, but I suspect that there are those who are cable junkies, who can’t live without having access to TV all the time. They are the bread and butter of cable companies, who constitute the largest amount of subscribers. Then, there are the minority TV watchers who really only watch about 3 shows or fewer at any given time (that would be me and a lot of people I know). We’ll watch if we don’t have to pay much or anything at all, otherwise we’re simply not going to watch TV at all. I pretty much only use my television for blu-rays and DVDs. HBO seems to still be doing fine, despite torrent sites, and I’d wager that it’s because illegal downloads are not really taking away from the people who have always been their subscribers and will be their future subscribers, only giving access to people who were mostly never going to subscribe in the first place. A company such as HBO can continue to fight this through the legal system, or they might try to figure out a plan that would bring in more of the limited viewing population with subscription plans that fit their viewing habits.
I’ll add that I know about the reasoning behind packaging cable channels: educational channels get the shaft, otherwise. But is there anyone who can reasonably see any “educational” channels left on cable? The History Channel is a joke, showing programs of ancient alien architecture and RPG-based analyses of the greatest warrior cultures. These channels actively work to make our country dumber. So give me a reasonable price for 3 shows, and let me download them in high res versions. Problem solved.
“When someone uses these programs to make art, then the comparison will hold.”
Um…how about this?
Or, closer to home; I know you review these things from time to time. Criticism as an aesthetic endeavor is of much longer (and much more illustrious) pedigree than is television drama.
Those are two good examples. I buy that they’re comparable to sampling as art. I’m just not seeing how the justification for “sampling” is applicable to watching stuff for free. You need a different argument for the latter. At the heart of copyright protection is the notion that if people can’t potentially make a living off of their creations, then they’re not going to do it as much. Paul’s Boutique or It Takes a Nation of Millions will never be a substitute for their source material, whereas there is the possibility of a perfect digital copy of a TV show being a substitute for the one acquired through legal distribution. And money is very much tied into all of this, and not always unreasonably so: Blues had a lot of borrowing and sharing involved in its development as a folk tradition, but when an old bluesman sees Led Zeppelin or whoever making tons of money off of one of his riffs, then I can’t blame the guy for no longer feeling like it’s just part of the tradition. So, is the guy who’s using the copy doing something that makes money off of what he got for free? That’s an important question, too. If I’m simply watching something for free, even if it’s a copy, is that immoral? That’s not the same as using part of what’s being copied to make money from my use. Different arguments need to be made.
Well, it was a pretty short post!
I wasn’t trying to say, “all of these things are identical and equivalent.” I was just trying to say that presenting the issue as one in which consumers don’t have rights to the material isn’t helpful.
Sorry, I wasn’t meaning for that to sound like a rebuttal, just adding some ideas to your considerations.
You realise that this is basically a utilitarian approach to intellectual “property”, right? Quelle horreur!
No worries, Charles! Your points are good ones.
Jones, when you’re talking about the mechanics of a capitalist system, utilitarianism is the discourse on offer, right?
Well, no, there are lots of capitalists who are libertarian or quasi-libertarian about property. And, anyway, I took it you were endorsing the view you presented here, not just reporting it as an artifact of the prevailing discourse.
I guess that’s kind of why libertarianism is so ridiculous. It’s the full-throated, ideological moral justification of handing society over to technocrats and bean counters.
Anyway, re this post — it is a pragmatic endorsement, I guess, which is utilitarian. That doesn’t change the fact that I have pretty serious problems with utilitarianism as a moral system. It’s a useful socket wrench for limited purposes though — which is of course also a utilitarian argument.
whatever the spirit of the concept of copyright, creators and companies are concerned with money. Unfortunately they choose the fantasy math of considering every illegal download equal to a lost sale; utter baseless nonsense.
That said, it seems to be undeniable that music sales were going down during the rise of pirate sites. I don’t know if there is cause and effect there, but it is suspicious, no?
In the most self-serving way, I wish a pirate would be judged on how much they spend on media. There is a spectrum. I had a coworker who the moment he discovered piracy, sold his entire music collection and opted for downloading free copies, he felt that anyone who paid for entertainment that was available on a pirate site was a sucker. At the other end of the spectrum, I spend a retarded fortune on media–books, music, movies/tv, comics. I download all the above abundantly too. I download more than anyone i know. I also spend more on such entertainments than anyone I know. Frequently enough, I end up buying a disc or book because i could try something out for free from a pirate site that i never would have spent money on blind.
It’s a very defensive, self-justifying argument, but if I am ever prosecuted for pirating, I will probably be bitter enough to not spend so much money on media, and the industries will have persecuted the kind of junkie who just shovels money into their pockets.
I would be curious if there has ever been any research (or whether it would be feasible) to quantify different kinds of illegal downloaders. Light downloaders versus heavy; what kind of relationships there are, if any, between the amount of downloading and money still spent.
one other thing is everyone from newspapers to video rental companies going digital/streaming has been bleeding their own businesses for years by adopting digital and the internet. Business models are not keeping pace with technology. There is a generation that now thinks of an awful lot of stuff as free. Case in point, I no longer buy magazines for the most part, I read most of my periodical fill on the internet, and i use adblocker, so I am not sure how much my clicking contributes to revenues.
There have definitely been efforts to follow downloading and spending patterns. My sense is that there’s an initial increase as people start buying things they find online…and then it drops as people figure out they don’t really have to pay for anything.
As a side note, there’s the sometimes blurry, sometimes not distinction between production, distribution, and consumption. When you remix you’re producing, when you watch (legally or not) you consume, when you copy something and bootleg sell or trade it you’re distributing, unless it’s bit-torrent, in which case you’re trading? And what if I film myself watching and commenting on something a-la Mystery Science Theater, or if I annotate a comic and reproduce it online… That’s a whole new can of ethical quandary.Production and consumption? What if I allow people to mute the annotations/commentary track? Then am I crossing a line?
The digital turn has blurred the lines between producers and consumers for sure. And I’d like to think tat if we have a right to something, it’s to make new from old (there’s fair use, but it hasn’t caught up).
All that said, Katherine Hayles wrote that one of the biggest shifts in the digital world was that property is no longer conceived in terms of ownership, but instead in terms of access. It seems like much of the questions that eat at us emerge from this shift, and the difficulty of adapting a legal language developed around metaphors of property to keep up with it.
Glib perhaps, but I really like replacing an “ownership” paradigm with an “access” paradigm. Scale and net worth could begin to not always count in your favor, just like all the mealy-mouthed touting of entrepreneurs and intellectual property would purport to advocate.