One of the common refrains in the comments from some of Techdirt's biggest critics is that I'm a "piracy supporter." I'm not sure what to make of such claims, because I don't actually support or endorse copyright infringement. I don't partake of it (willingly). I don't use any file sharing programs for downloading or sharing content. I don't download unauthorized music or movies. My position is solely from the point of view of the content creator and how they might be able to better engage their audiences and put in place smarter business models. Yet, for some reason, people keep trying to paint me, falsely, as a supporter of "piracy."

Of course, what I do support is the creation of new and engaging content. What troubles me, is when people try to imply wonderful creative works are somehow not creative because they build on the works of people before them. Of course, that's silly. All kinds of wonderful creative works you enjoy almost certainly come from near direct copies of things that came before. A lovely demonstration of this is seen in this short clip from the documentary RIP: A Remix Manifesto: But I still feel that one of the best examples of creative works building on the works of others comes from Kutiman, the Israeli artist who burst on the scene two years ago with his absolutely amazing album Thru You, in which he assembled random clips from around YouTube -- without permission -- into an entire album that sounds absolutely nothing like its component pieces. Kutiman is the modern conductor, putting together an amazing, involuntary orchestra of players who don't even know what's happening. While he's been somewhat quiet (though, apparently touring the world), Kutiman has just released a brand new track, once again combining various YouTube videos into quite the jazz song, entitled My Favorite Color: Seeing people's reactions when they first see the videos really is priceless. They're amazed as they realize what's happening. The one that seems to get the most attention (for plenty of good reasons) is the first track off the Thru You album, The Mother of All Funk Chords. However, when trying to show the power of remixing and building on creativity, I actually think the second song from Thru You can be more instructive. That's because if you break down a number of the component parts, you realize that some of them just aren't all that impressive by themselves. Take, for example, trombone part that's used in the song. When viewed by itself... it's really nothing special: Now, put it into the middle of a larger song, with the very accurate (for this discussion) title of This Is What It Became, and you get an incredibly powerful, haunting and moving trombone solo, which comes in at about 43 seconds: And, if you look at some of the other component videos, including a family vacation video, a simple demo of a bass synth, a fire engine siren and even crappy toy piano, and pull it all together to become the song above... it's really quite amazing.

And yet, to hear some people talk about these things, none of this is "creative." It's all just "copying." In some cases it's outright "piracy." After all, Kutiman is using the works of others, and doing so entirely without permission. And yet, I have trouble seeing how anyone can legitimately claim that these songs are "piracy" in any real sense of the word. Kutiman is clearly a musician. That he uses a note played by someone else on a YouTube video, and then "plays" it himself, strikes me as no different than playing a keyboard that plays a recorded sounded, or even strumming a guitar. A musician is putting different sounds together to create music. Does it really make a huge difference if that music involves someone making a note from an instrument directly themselves... or by taking the note originally played by someone else and doing something creative and amazing with it?

Is this really the kind of thing that our politicians and copyright defenders mean to outlaw?

I'm not a supporter of copyright infringement or "piracy." But if this is piracy, then I am a supporter of it. Because this is truly creative works, whether or not it's built on the works of others.

Last year, I was invited to attend the FCForum's event on creating sustainable models for creativity in the digital age in Barcelona. Unfortunately, due to timing and conflicts, I was unable to attend, though I heard from many who were able to make it and enjoyed it. Out of that event, the FCForum has released their version 1.0 document which is described as a "How to for Sustainable Creativity." I take a bit of an issue with the title, which implicitly seems to suggest that creativity isn't naturally sustainable, and needs some sort of outside help. However, the document itself is an interesting read. It digs into what the current state of the market is in music, filmmaking, writing & publishing, fashion and software, and then looks at various economic models that can be used to support all of those. The discussions on each industry could certainly be fleshed out a bit, but there are some interesting visual representations, such as this breakdown of money going to a certain major label band: When you look at images like that, you quickly realize the problem is not that the internet is eating away at money going to musicians, but that something isn't right in how musicians make money today. Thankfully, things are changing, and the ability to seek out competition, rather than remaining a major label act, means that artists have more control and aren't forced into ridiculous deals like the one above. The paper then goes on to look at some of those economic options.

Looking over the list, there isn't anything too surprising, but it's nice to see all these ideas in one place. I'm sure some will brush this off as being nothing special, but as a 1.0 document, it really does seem like a good start in highlighting the massive spectrum of possibility for creators to make money for being creative today. Of course, what I find interesting is that this is all being put together by the folks who the legacy industry likes to (falsely) declare "pirates" who "just want stuff for free." Yet, here they are, working hard to put together a rather helpful "how to" to help creative folks earn money. What has the industry done on that front other than complain to the government and sue their fans?

Separate, but related to this, Eric Goldman points us to a similarly interesting report on sustainable business models for university presses. It could almost be an appendix to the earlier report -- though this one is much more fleshed out. It's nice to see various university publishers thinking through these business model issues, and doing a pretty thorough job of it, rather than just complaining about how everything is failing.

I'm all for interesting experiments involving compelling ways to connect with fans and give them a reason to buy, and I love finding out about platforms that enable such things. However, I have to admit that I'm pretty skeptical about the basic concept behind Crowdbands, which not only lets you "fund" an artist, but also vote on the creative decisions they make. The platform does lots of similar (and useful things) that other platforms do: allowing you to support an artist via a "membership fee" of sorts, in exchange for which you get access to the musicians, the artist's music at no extra charge... and a chance to vote on the creative decisions the artist makes.

I understand why they did this, in terms of getting greater fan buy-in, and trying to differentiate from the competitors out there. However, as much as I like crowdfunding of things, that doesn't mean creative decisions should all be crowd decided. I can see it work in some cases, but making creative decision by committee is difficult enough. In this case, the creative decisions are being made based on the popular vote, with apparently little actual input from the artist.

Years ago, in discussing "crowdsourced" efforts, I noted that they were especially good at digging out factual information. When it comes to things that involve insight, analysis or opinion, crowdsourcing tends not to work that well. This isn't all that surprising. However, moving the fans directly into the decision making process seems like a disaster waiting to happen. I should be clear: I'm all for fans having ways to participate, and have their voices heard, but that doesn't mean that artists should have to follow their suggestions. It seems likely that the design-by-mass-internet-committee will serve mainly to make weaker, less inspired decisions.

The very point of fair use is that it's supposed to allow for creativity without permission. Even in a society dominated by copyright, at least our courts and regulators recognized the need for creativity built (in part) on what came before, without having to go through the tollbooths of requiring permission to create. However, some recent events have shown how the DMCA and other attempts to beef up copyright law are trying to erode the very notion of fair use without permission.

SinkDeep alerts us to the news that a bunch of DJs are upset after discovering that SoundCloud took down a bunch of the mixes they had hosted on the service. If you're not familiar with SoundCloud, in the last few years, it has become one of the most popular tools for musicians and DJs to host their music. It offers a really nice toolset for anyone looking to promote their music online (and for others to build apps on top of it). SoundCloud has also been a pretty big supporter of open culture, supporting things like Creative Commons along the way.

I contacted SoundCloud to find out what was going on, and the response was pretty much as I expected. Due to the nature of the copyright world we live in today, the company recently implemented a fingerprinting-type technology, similar to those used by YouTube (ContentID) and MySpace (Audible Magic), which lets copyright holders designate their own works, and which SoundCloud then automatically blocks. While the original link above "blames" SoundCloud for becoming a "walled garden," that's not really fair nor accurate. The real problem is the nature of our copyright laws today, that assume infringement over fair use. As we've discussed before, copyright law is effectively broken when it sets up fair use as a defense, rather than a proactive right. Fair use should be seen as the default until proven otherwise, if fair use is really (as is claimed) designed to be a pressure valve on copyright law to allow free speech.

Unfortunately, the industry has pushed back on this notion to a huge level. The very crux of the YouTube-Viacom legal fight is really over this issue. As many have noted, in the specifics of the lawsuit, Viacom basically notes that it has no problem with YouTube starting with the exact date that it implemented its ContentID program. In Viacom's (and much of the entertainment industry's) interpretation, the DMCA requires such filters. The likely reason that smaller companies like SoundCloud are now implementing filters as well is that they know there's a half decent chance that the eventual outcome of lawsuits like the Viacom/YouTube fight will mean that a company is required by law to have such things in place.

But, of course, the problem with all of this is that it goes back to creating permission culture, rather than a culture where people freely create. You won't be able to use these popular or useful tools to build on the works of others -- which, contrary to the claims of today's copyright defenders, is a key component in almost all creativity you see out there -- without first getting permission. The systems will try to block it, until you make your case that something is fair use -- though many will just not bother. This is unfortunate, and really shuts down a major opening for creativity these days. If you look at the history of music, nearly all popular music today is built on earlier works, without first getting permission. It would be a terrible situation if we end up shutting off that form of creativity by requiring permission for everyone first.

The issue isn't to blame the tools providers for implementing such features, but to look more deeply at the state of copyright law today, where we're increasingly suffocating the real purpose of fair use, which was to allow such creativity, without first requiring permission. These filters don't understand fair use, so they assume anything that matches is infringement, and because of that, we all suffer.

One of the key elements of things like copyright and patent laws, are that they are really attempts to eliminate certain forms of competition. That's always struck me as an odd idea, since it's competition that leads to greater innovation -- as has been shown over and over again in the economic research. So this following study shouldn't surprise anyone, but Glyn Moody points us to a new study that shows that groups who are put in greater and greater competitive situations, come up with more creative solutions to challenges they're given.

This should be common sense, of course. However, what strikes me is why people think it actually makes sense to limit competition in the creative industries, where you would think that greater competition, leading to greater creativity, would be a good thing? Already, we're seeing that smart creative types have realized that they need to "compete with free" and they do so in increasingly creative ways. Shouldn't we be encouraging that kind of creativity from the creative community?

When we point to examples of musicians or other content creators embracing new business models to make a living, one of the complaints sometimes is that the amount of money they're making is not huge. They're making a living, but they're not living the rockstar lifestyle. We sometimes get snide comments like "get back to us when so-and-so doesn't have to share an apartment any more." But, of course, the people who complaint these creators aren't making a huge amount of money are comparing the wrong things. They're comparing these independent creators to the massive success stories. What they should be comparing these artists to is where they'd be under the old system. That's because the old system had an extreme bimodal distribution. A tiny, tiny, tiny percentage became superstars, and everyone else went home and did something else. That is, the old system was akin to a lottery ticket. Most people end up with nothing, and a very very few end up with a ton.

However, what the changing marketplace and lowering barriers now allows is for people who almost certainly never would have won that lottery ticket in the past to make a decent living doing what they love: creating content. In the past, that would have been relegated to a hobby, rather than a career. Today, it has a much higher likelihood of being a career. No, this doesn't mean "anyone" can be a musician, but it does mean that those who want to be a professional creator have many more opportunities to make it happen today. Peter Friedman points this out in a post about how artists today learn to "cobble together successful careers," which is built off of a post by Laure Parsons at QuestionCopyright referring to "the cobbler" model for content creators.

In that post, Parsons calls the old model -- the one we described as the lottery ticket -- as the "gambler model," where you're basically rolling the dice on whether or not your career will be a success or will plummet. And notes that the "cobbler model," may not be as sexy, but you have a higher likelihood of success. The risk is lower, and the payoff is likely lower, but you can actually build a predictable career around it -- and for many content creators, that's certainly good enough. This isn't to suggest it's the only model. In fact, it's not. There's still room for rock stars and lottery tickets. But, when we're looking at some of these content creators who are making a good living as professional musicians, the proper comparison is not to Mick Jagger, but to what they'd be doing if they were living in the world a few decades ago: and the answer is they probably wouldn't be making music at all.

Glyn Moody points us to some research coming out of the University of Leicester which suggests that highly restrictive copyright laws and enforcement regimes actually serve to harm creative output and the creative industries. This is a point that we've discussed in the past, so it's nice to see more research being done in this area. Basically, what the research is finding is that these legislative efforts are serving to limit the technologies that are used to create new works today.

Of particular concern is that it will "stifle the creative opportunities for youngsters with tough regulation on digital media restricting young peoples’ ability to transform copyrighted material for their own personal and, more importantly, educational uses." Now, I can already hear the copyright system defenders claiming that transforming copyright materials for their own uses is not a "creative opportunity," but that's wrong. The way young people learn to create is initially through emulation. You learn to draw what you see. You learn to play the music that others wrote. And as you start to play around, you transform it in your own way. That's the very basis of young creative expression.

The issue is that new digital technologies allow for a modern version of that in things like digital mashups and remixes. People who don't recognize that these are the modern day equivalents to creating new artworks by attempting to copy what others have done will scoff, but they are mostly demonstrating the myopic view that modern technology used for creativity and creative learning simply "isn't like it used to be." Creativity comes in all forms, and what young people learn today through transforming the creative works of others is what will lead to the great artwork and creative output of tomorrow... if the legacy industries and our politicians don't stamp out such creative opportunities.

We recently wrote about Daniel Pink's new book Drive and how there are some situations where money is not just the wrong motivator for creativity, but it can actually harm creativity. While some in the comments falsely interpreted that to mean money is never a motivator or that it somehow means everyone should give up their money, others did have many thoughtful responses. That discussion got Ray Dowd, a copyright litigator in New York, thinking about a variety of topics related to motivation and copyright, noting that if the key point of copyright is to create incentives for creativity, the studies covered by Drive certainly should be an important part of the larger discussion.

From there, he goes through a variety of situations where copyright is clearly harming creativity, rather than helping it, including a discussion on the bizarre notion that satire cannot be fair use, but parody can be. However, where it gets most interesting, is when he discusses how copyright, and the more recent draconian enforcement of copyright law, is having a massively negative impact on jazz and jazz musicians:

When the Copyright Society had its convention in New Orleans a few years back, I was struck by the plight of Jazz musicians: they didn't have the right to a compulsory license. So a bunch of white kids doing an exact cover of a Led Zep tune can force Led Zep to license the song at a cheap rate.

But Jazz - which remixes, rearranges and is an art form that is derivative - can't get a compulsory license, and the changes and modifications to the original can't be protected without an additional license from the copyright owner - even though a sound recording in a cover song can.

According to the jazz musicians, the licensing practices of copyright owners have put them out of making a living and basically strangled their creativity. It was a heartbreaking presentation. Jazz and its successors which rely on sampling, borrowing, remixing - all activities emanating from African-American traditions - have been severely penalized, to the point of practical extinction.

That's a clear, concrete (and, as a jazz fan, depressing) example of an area in which copyright is clearly doing the exact opposite of its intended purpose. I'm really curious to hear from defenders of the copyright status quo (or who believe in even stronger copyright protections) to see how they defend this situation. I'm also reminded, yet again, of James Boyle's excellent chapter on how soul music owes its very existence to the fact that copyright laws weren't enforced that strongly a few decades back (and, the laws themselves weren't nearly as limiting).

In the face of increasing examples of such copyright policies doing exactly the opposite of what they intend, how is it that our elected officials continue to buy the claims from a few entrenched industries, that copyright needs to be made even more strict? How many more musicians have to have their art and creativity stifled?

Nina Paley alerts us to a neat writeup (with illustrations) that she did, discussing the concept of originality, and why it's so often misconstrued. First, things that many people think are "original" usually aren't very original at all. They tend to be derivative in some way or another -- a point that we've made here many times. And yet, many people seem to think that there's some sort of objective standard for originality, and that something that involves a direct copy of something else as part of the process can't count as original (though, they conveniently ignore it when "the greats" like Mozart or Shakespeare did a direct cut-and-paste type of copying in their own works).

Paley then goes on to make a second point: which is that the traditional gatekeepers of culture, for all their talk of the importance of originality (whenever they talk down any kind of copying) are actually more likely to stomp on anything truly original, because there is no "proven market" for it. A movie has to fit a certain formula. A hit pop song must meet a series of pre-programmed conditions. No originality allowed.

So where is originality really? It's not an intrinsic value in the work, but in the perception of how people view a work. I find things like Kutiman's music tremendously original and unique, but in the comments here, critics have decried his efforts as "cut and paste copying" of little value. So different people have different takes on originality. Why should we set in place laws that enforce some sort of official standard on what is, and what is not, original, when it's our own perception that really determines what is original?

Separately, Paley recently also put together this neat short film that does a nice job of demonstrating that all artwork is derivative:

Andrew Dubber does a nice job taking Digital Britain minister Stephen Timms to task for claiming that "If people can't be paid for their creativity, they're going to stop being creative."

On the face of it, that's an incredibly stupid thing to say, and is amazingly offensive to the vast majority of people in the world who are creative amateurs.

Note: I did not say "the vast amount of creative people in the world who are amateurs", though this would also be true. Most people in the world do creative things for no money. The vast majority of music in the world is made for cultural reasons that are not economic. To suggest that the only reason to be creative is with the expectation of payment is utterly offensive.

Beyond stupidity
But it's not just stupid and offensive -- it's corrupt. It's so manifestly and obviously false that it could not possibly be the considered belief of a rational human being.

The alternative (and indeed, the only plausible conclusion) is that it's a deliberate falsehood in order to support something that is utterly indefensible when examined with any intellectual honesty.

It's the direct result of corporate lobbying, it's entirely disingenuous, and it's a bald-faced lie echoed to support the interests of powerful and moneyed multinational organisations.

He goes on to suggest that a statement like that, so revealing in how Timms views the world, should get Timms fired, as he's basically admitting that he's only there to protect corporate interests, rather than actual creativity.