Artist Rights

Sure, it's fine to talk about the artist's rights to get paid, to control copying, to have their work attributed to them and be fairly edited, but all that stuff is just the appetizer. There's one artist's right that's more important than all the rest combined: the right to free expression. No one gives out awards for writers who bring copyright suits — but we do give out awards to the brave writers who publish in the teeth of censorship and state oppression.

How lucky for us as artists, then, to live in the age of the Internet, the age of the history's greatest free-speech machine. The Internet was built on the "end-to-end" principle, first described in 1981's "End-to-end arguments in system design" by Jerome H. Saltzer, David P. Reed, and David D. Clark — three of the fathers of TCP, one of the Internet's most important protocols. In a nutshell, the end-to-end network is the one where anyone can communicate anything to anyone else without any third party intervention or permission. This end-to-endness is why Tim Berners-Lee didn't need to go around to a million phone companies and beg permission for the Web to exist — he just invented it and shipped it and we all use it, all without anyone at any ISP anywhere having to do anything special to provision the net for its use.

This principle has led to the creation of a series of ever-improving publishing tools. I remember when Blogger didn't even have headlines — every blog post was just a lump of text. Nowadays, specialized sites for publishing text, photos, videos, and every other kind of media exist, from needlepoint to interactive fiction. These sites compete by adding tempting features — friends lists, message boards, tags, automated feeds of new material, automated conversion of files to widely understood formats.... It's never been easier to make yourself heard.

We live in an age in which more people can express themselves in more ways to more audiences than ever before. The majority of this expression is intimate, personal maunderings — the half-spelled, quarter-grammatical newspeak adorning MySpace and Facebook pages. These are often intensely personal, with none of the self-conscious artifice that we've traditionally associated with "published work." By turning the personal into the public, an entirely new aesthetic is coming into being — and a huge proportion of the invisible social interaction of a generation is being recorded forever. As Charles Stross notes, we are living at the end of "pre-history" — the last days of a patchwork human history. Tomorrow's lives will be remembered by the historians of the day-after-tomorrow with astounding clarity and thoroughness, reconstructed through the midden of personal blips, twits, and chirps emitted by our social tools. By comparison, our own lives will be as opaque and unimaginable as the lives of the poor schmucks who inhabited the same cave for 200,000 years, generation after generation leaving no mark more permanent than a mouldering knucklebone lost in the soil.

Paradoxically, it is this very feature that leads many artists to view these sites with suspicion and derision. A common refrain goes like this: "These sites are filled with pirated material and they know it. They're making money off our work, and the only ‘redeeming' quality they have is that a bunch of idiots get to talk about their cats around the clock and around the world."

Could these sites be remade to prevent infringement, and if they could, what would that mean for free expression?

It's unlikely that an automated system could effectively prevent infringing materials from appearing in the first place. Copyright bots are in widespread use by the likes of the RIAA, and these programs routinely harass innocents like the poor university prof who shares his name with a pop-star named Usher uploads his lectures to university servers with filenames like "usher.mp3." At the same time, these bots necessarily miss the vast majority of infringing work, because determined infringers find it trivial to defeat them by adopting naming conventions or file-formats that the bots can't recognize. When the bots are reprogrammed, the infringers just change tactics again. Technology favors attackers, not defenders: to defend a city with earth-moving technology, you need to build a perfect wall. To attack a city with earth-moving technology, you have only to knock a single hole in it.

For a system to effectively prevent infringement by determined attackers, it would have to hold the majority of materials uploaded to it for human moderation. You could run a moderation system on the cheap, but you'd have to use badly trained people who would either let a bunch of naughty stuff through or (more likely) turn into nay-saying bureaucrats like the clerks at the Staples copy-counter who won't copy your novel manuscript or wedding photos because they "look professional."

The alternative is to use people who really understand copyright and can tell the difference between, for example, a fair-use parody and a knock-off — the kind of subtle scholars who help Mad Magazine stay on the right side of the law as they hilariously trample through the fields of trademark and copyright law. The kinds of people who understand enough about literary criticism to spot a legit quotation and an overlong one. These people don't come cheap. Hiring one out of your local IP law firm will run you in the ballpark of $400 an hour.

In 2006, Technorati tracked 57 million blogs, with 100,000 new blogs being created every day. Q3 2006 saw an average of more than 2,000,000 English blog-posts per hour. Even if Blogger, LiveJournal, Weblogs, Inc, and TypePad could afford to hire the lawyers necessary to review this material for infringement, the fact is that there aren't enough lawyer-hours between now and the heat-death of the universe to do so.

Frankly, the only way to police the net for infringement is to throttle it. And that's exactly what the proactive policing that many artists are calling for would do. If web-hosting platforms are legally required to prevent their users from infringing, the only way to accomplish this would be to severely limit who got to use the service, either by introducing high user-fees or simply telling the majority of us to piss off and go back to writing in our diaries at home.

Not only is this the height of arrogance — "Shut up about your life and everything important to you so that I can Make Art!" — it's also major bad news for artists.

We live at the mercy of publishing entities. From the RIAA to New York publishing, they're nearly the only game in town. Your local indie publisher may produce a nice-looking book, but if you want that book sold in actual bookstores, you need to deal with one of the bigs, a company with a sales force and the relations with the retail channels that make it make it possible to get your books on shelves.

This is one hell of a cat-bird seat for the publishers to sit in. It's no surprise that the word-rates stink, that the royalty reporting is complex to the point of suspicion, that we have to fight for crumbs of input into covers and jacket-copy.

But look at what's happening in the record industry: indie music isn't just for a guy with a guitar you've never heard of anymore. Now you've got industry leaders like Madonna and Radiohead walking out on their labels, striking out on their own, stepping neatly into a niche in the online ecosystem that was enabled by all this cheap publication, itself enabled by the absence of liability for web-hosting companies.

This is the leverage that artists need. Today, every recording artist negotiating a deal walks in with this implicit threat: "You know, there's another way. You're not the only game in town."

So yes, let's stand up for artist's rights — starting with the right to speak freely, without being filtered by a lawyer, and with the right to walk out of the traditional publishing channels and into a better deal in the new world.