The attacks on generative AI started out claiming that it was all about protecting the creators whose works were being “stolen” in some mysterious way by virtue of software analyzing them. In some cases, that high-minded stance has already degenerated into yet another scheme to pay collecting societies even more for doing next to nothing. But beyond all this unseemly squabbling, there is a much deeper and more interesting question. It concerns not what goes into generative AI systems, but what comes out.
Generative AI finds subtle patterns in the works it analyzes, which it then uses to create new material, guided by the prompts that are provided by users. Some want to call that “theft”, but it’s a key element of all human creativity too. A fine post by Mike Loukides on the O’Reilly site acknowledges this, and goes on to make an important point:
It’s naive to say that creativity isn’t partly based on the work of predecessors. You wouldn’t get Beethoven without the works of Haydn and Mozart. At the same time, you don’t get Beethoven out of the works of Haydn and Mozart. An AI trained on the works on Haydn and Mozart wouldn’t give you Beethoven; it would give you some (probably rather dull) amalgam, lacking the creativity of either Haydn or Mozart. Nor can you derive the Beatles by mixing together Chuck Berry and Little Richard, though (again) there are obvious relationships.
Loukides explains how this kind of creative borrowing occurs in all the arts:
While borrowing in literature is usually more covert than overt, T. S. Eliot famously said, “Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different. The good poet welds his theft into a whole of feeling which is unique, utterly different from that from which it was torn.”
And:
As in literature, copying in painting is usually covert rather than overt. Pablo Picasso also may have said “good artists copy, great artists steal,” joining Eliot, Wilde, and others. Copying paintings by great artists is still an exercise for aspiring artists – although most of us recognize that more paintings in the style of Vermeer aren’t interesting as works of art.
The examples mentioned by Loukides all underline the point that simply analyzing artistic works does not guarantee that the output will be art. In fact, there is already evidence that generative AI is struggling:
Creativity sets a high bar, and I don’t think AI meets it yet. At least one artist thinks that tools like Midjourney are being trained to favor photorealism, rather than originality. In “The Curse of Recursion,” a research group shows that generative AI that is trained on the output of generative AI will produce less surprising, original output. Its output will become pedestrian, expected, and mediocre, and that might be fine for many applications.
Rather than reflexively demanding a cut of what is likely to be very little revenue from the “pedestrian” and derivative material generated using AI, artists should see it instead as a superb advertisement for their unique creative skills that software algorithms simply can’t match.
It’s that time… Get ready for the Gaming Like It’s 1928! public domain game jam! The game jam, like all our public domain game jams, runs from January 1st through January 31st, and we’re eager to see what kinds of games, both digital and analog, you’ll make by building on newly public domain works. As always we’ll have awards in six different categories: best analog game, best digital game, best adaptation, best visuals, best remix, and best deep cut.
In January 2019, work in the US from 1923 entered the public domain. It was the first time in decades that works in the US had entered the public domain, as certain copyright interests, led by the Walt Disney Company, had continually pushed out the term of copyright again and again and again.
A while back Tom Bell coined the term the “Mickey Mouse Curve” to describe how copyright extensions seemed to keep happening just before Mickey Mouse would be entering the public domain.
However, in part because of widespread activism and the calling out of this curve, the legacy copyright industries admitted in the late teens that they were pretty much done with copyright term extension and that, finally, Mickey Mouse might enter the public domain. 2019 was the first year in decades (thanks to the Sonny Bono Copyright Term Extension Act two decades earlier) that anything went into the public domain: works from 1923.
At the time, we launched our very first public domain game jam, Gaming Like It’s 1923. We’ve done one every year since then. Here are the 1924, 1925, 1926, and 1927 versions. But this year is the big one.
The very first Mickey Mouse short, Steamboat Willie, was released in 1928. Leaving aside that Steamboat Willie itself was a clear play on the film Steamboat Bill that also came out in 1928 and used the song Steamboat Bill from 1911, it’s pretty incredible that this one short from 1928 was the basis on which so much culture and content was locked up.
Until… just a few weeks from now. And, so we’re certainly expecting a few Mickey-themed games for the game jam this year, and we welcome them all.
Our friends over at Duke Center for the Study of the Public Domain have put together a nice guide to what it means for the 1928 Mickey to be in the public domain, which includes explanations of what you can and cannot do with Mickey. It includes a lovely graphical representation that you might like:
There are, of course, lots of other works entering the public domain on January 1st, and we’re always excited to see what interesting and unique works people find and remix for use in the submitted games. Copyright Lately has a good starter list for some of the many other works entering the public domain. It includes things like the Peter Pan play (which has a tricky copyright history as it was performed long before 1928, but not officially published until then).
We know that John Oliver got a bit of a head start on using Mickey Mouse a bit early, and as far as I know, Disney’s lawyers (for once!) actually sat on their hands and did nothing about it. But, on January 1st all of you will be able to use Mickey and lots of other newly public domain works, and we hope that you’ll try to come up with some games for our jam.
If you’re looking for inspiration, please check some of the earlier game jams, each of which have the various winners listed, and check out our spotlight posts for last year’s winners. And we look forward to what you’ll be creating this time, whether or not it includes some variation of Mickey. Head on over to the game jam page on Itch.io to sign up and see all the rules and details.
* As explained above, Mickey is only partially free, as new works must be based on the original Mickey, not later updates, and you have to make sure there are no trademark issues, such that anyone would think that your use was an official Disney offering.
Thank you for joining us for your latest lesson in how you don’t actually own the things you buy when you buy them digitally. Over a year ago, we discussed a story out of Germany and Austria where a deal expired between Sony and movie distributor StudioCanal, which resulted in 100s of movies being delisted and deleted, both from the PlayStation Store and from the PlayStations of those who bought them. Yup! People bought a thing, got a thing, and then had that thing clawed back from them once the licensing agreement wasn’t renewed. You can guess for yourself whether members of the public who “bought” these movies had any idea that them disappearing long after purchase was even a possibility, but don’t overthink it, you know the answer.
But maybe you thought, “Sucks for Germany, but that wouldn’t happen here in America.” Well, turns out it sucks for some of us, too, as the exact same thing happened here, only with shows and content produced by Discovery and purchased through the PlayStation Store.
The latest pothole in the road to an all-digital future was discovered via a warning Sony recently sent out to PlayStation users who purchased TV shows made by Discovery, the reality TV network that recently merged with Warner Bros. in one of the most brutal and idioticcorporate maneuvers of our time. “Due to our content licensing arrangements with content providers, you will no longer be able to watch any of your previously purchased Discovery content and the content will be removed from your video library,” read a copy of the email that was shared with Kotaku.
It linked to a page on the PlayStation website listing all of the shows impacted. As you might imagine, given Discovery’s penchant for pumping out seasons of relatively cheap to produce but popular reality TV and documentary-based shows, there are a lot of them. They include, but are not limited to, hits such as: Say Yes to the Dress, Shark Week, Cake Boss, Long Island Medium, Deadly Women, and many, many more.
And MythBusters, too, which feels like that show missed an opportunity to bust the myth that you own what you bought when you purchase something digitally. The reality is that there is no good way to actually retain these shows in cases like this. Some that “bought” Discovery content are freaking out, understandably.
“Is there a way I can save this content?” asked one panicked PlayStation user on Reddit. “I use PS4…But I have bought many seasons of shows such as Dual Survival that I do not wish to lose. I was actually under the impression since I owned it, I wouldn’t ever lose it…”
Whatever else is true, it’s obvious that platforms aren’t doing nearly enough to actually inform customers of what they’re buying, leasing, renting, whatever. It would be one thing if this content was ripped away and everyone on all sides realized that was a possibility. That just isn’t the case.
And just as in the Germany instance, there’s no chance that any of this comes with any refunds or givebacks. Well-meaning customers who paid money for this content simply don’t have it anymore. And it just isn’t like having a Netflix account or something like that, where the product catalogue is constantly in flux. It’s people who are buying a show, or the season of a show. But they’re really not. They’re renting it until some combination of Sony and the licensee decides they’re not.
If you’ve never watched it, Kirby Ferguson’s “Everything is a Remix” series (which was recently updated from the original version that came out years ago) is an excellent look at how stupid our copyright laws are, and how they have really warped our view of creativity. As the series makes clear, creativity is all about remixing: taking inspiration and bits and pieces from other parts of culture and remixing them into something entirely new. All creativity involves this in some manner or another. There is no truly unique creativity.
And yet, copyright law assumes the opposite is true. It assumes that most creativity is entirely unique, and when remix and inspiration get too close, the powerful hand of the law has to slap people down. As such, copyright is often anti-creative. It is designed to slap down those whose creativity reveals just a little too openly how the sausage is made.
Most often, the slapping down of creativity targets marginalized creators who don’t have the power to stand up and speak out. This is why the recording industry only seemed to really get worried about copyright law locking down entire styles of music once popular white artists started getting sued.
Of course, back in the 80s and 90s, when it was mostly black hip hop artists getting sued for sampling, there was much less concern outside of specific music communities, and we’d get ridiculous court rulings that refused to consider things like fair use at all.
It would have been nice if society had taken this issue seriously back then, recognized that “everything is a remix,” and that encouraging remixing and reusing the works of others to create something new and transformative was not just a good thing, but one that should be supported. If so, we might not be in the utter shitshow that is the debate over generative art from AI these days, in which many creators are rushing to AI to save them, even though that’s not what copyright was designed to do, nor is it a particularly useful tool in that context.
However, as we’ve explained, the legacy gatekeeper middlemen (whom copyright was designed to benefit over the actual creatives) have spent so many decades pushing propaganda and nonsense about how copyright was the only tool by which creatives could protect themselves (all while using that strengthened copyright to enrich the gatekeepers, while exploiting the creatives) that many people don’t quite realize how they’re playing into the hands of the biggest companies by demanding copyright come to the rescue.
I was thinking about all of this in reading a recent piece by musicologist Toni Aittoniemi, highlighting how AI art is also a form of remix, while similarly noting that if we had properly established that remixing to create art is not only legitimate, but basically a necessary piece of how culture works, that these debates wouldn’t be so fraught.
The moral panic is largely an epistemological crisis: We don’t have a socially acceptable status for the legibility of the remix as art-in-it’s-own-right. Instead of properly appreciating the remix and the art of the DJ, the remix, or the meme cultures, we have shoehorned all the cultural properties associated onto an 1800’s sheet music publishing -based model of artistic credibility. The fit was never really good, but no-one really cared because the scenes were small, underground and their breaking the rules was largely out-of-sight. In the case of Hip-Hop music, the issues of licensing beats were pushed into the background, while the rapper took the mantelpiece of ”the original artist”. Controversies with sampling were discussed as anomalies, from which culture largely rubber-banded back into the old model.
As Aittoniemi notes, perhaps this is a chance for us to correct the wrongs of what happened with copyright in the past few decades:
I concur that the AI art tools are simply resurfacing an old problem we left behind unresolved during the 1980’s to early 2000’s. Now it’s time for us to blow the dust off these old books and apply what was learned to the situation we have at our hands now.
We should not forget the modern electronic dance music industry has already developed models that promote new artists via remixes of their work from more established artists. These real-world examples combined with the theoretical frameworks above should help us to explore a refreshed model of artistic credibility, where value is assigned to both the original artists and the authors of remixers, who use their originals to tell a new story, fitting the particular life-story of the particular viewer. Like a deejay spins just the tracks you needed to hear at that particular night of your life at that particularly important moment, the value of the experience encapsulates both the original artform and it’s application to the particular context.
To fully appreciate and integrate AI art in our culture, we cannot rely only on our established models of artistry and credibility. From what was once only a fringe endeavor of collague or plunderphonics artists, mass production tools have forged a mainstream phenomenon. This is however, not our first contact with art like this, and we do have the theoretical frameworks available to form a new class of art, if we reach just a little further into the long corridors of university libraries and humanities departments for them.
From there, the suggestion is that rather that the focus should be on the transformation and how it adds value:
Art, especially popular forms of it, has always been a lot about transformation: Taking what exists and creating something that works in this particular context. In forms of art emphasizing the distinctiveness of the original less, transformation becomes the focus of the artform instead. In electronic dance music, the songs do sound good by themself but the complete artform only becomes visible when hundreds to thousands of people assemble together in a remote location and set up a festival. In the context of the festival’s (or a techno club’s for that matter) transformation function all the artforms meet and become more than the sum of their parts. And should we then assign the transformation function artistic value itself, we can also see that the festival itself is an artform that keeps repeating and transforming previous festivals to best fit to the current particular situation, and that the repetition of this process is the lifeblood of all the artforms that make it up in return.
The process above is healthy when the transformation function adds value.
There are a lot of questions about how that would actually work in practice, but I do think this is a useful framework for thinking about some of these questions, challenging some existing assumptions, and trying to rethink the system into one that is actually helping creators and helping to enable more art to be created, rather than trying to leverage a system originally developed to provide monopolies to gatekeepers into one that is actually beneficial to the public who want to experience art, and creators who wish to make art.
On Friday, the Internet Archive put up a blog post noting that its digital book lending program was likely to change as it continues to fight the book publishers’ efforts to kill the Internet Archive. As you’ll recall, all the big book publishers teamed up to sue the Internet Archive over its Open Library project, which was created based on a detailed approach, backed by librarians and copyright lawyers, to recreate an online digital library that matches a physical library. Unfortunately, back in March, the judge decided (just days after oral arguments) that everything about the Open Library infringes on copyrights. There were many, many problems with this ruling, and the Archive is appealing.
However, in the meantime, the judge in the district court needed to sort out the details of the injunction in terms of what activities the Archive would change during the appeal. The Internet Archive and the publishers negotiated over the terms of such an injunction and asked the court to weigh in on whether or not it also covers books for which there are no ebooks available at all. The Archive said it should only cover books where the publishers make an ebook available, while the publishers said it should cover all books, because of course they did. Given Judge Koeltl’s original ruling, I expected him to side with the publishers, and effectively shut down the Open Library. However, this morning he surprised me and sided with the Internet Archive, saying only books that are already available in electronic form need to be removed. That’s still a lot, but at least it means people can still access those other works electronically. The judge rightly noted that the injunction should be narrowly targeted towards the issues at play in the case, and thus it made sense to only block works available as ebooks.
But, also on Friday, the RIAA decided to step in and to try to kick the Internet Archive while it’s down. For years now, the Archive has offered up its Great 78 Project, in which the Archive, in coordination with some other library/archival projects (including the Archive of Contemporary Music and George Blood LP), has been digitizing whatever 78rpm records they could find.
78rpm records were some of the earliest musical recordings, and were produced from 1898 through the 1950s when they were replaced by 33 1/3rpm and 45rpm vinyl records. I remember that when I was growing up my grandparents had a record player that could still play 78s, and there were a few of those old 78s in a cabinet. Most of the 78s were not on vinyl, but shellac, and were fairly brittle, meaning that many old 78s are gone forever. As such there is tremendous value in preserving and protecting old 78s, which is also why many libraries have collections of them. It’s also why those various archival libraries decided to digitize and preserve them. Without such an effort, many of those 78s would disappear.
If you’ve ever gone through the Great78 project, you know quite well that it is, in no way, a substitute for music streaming services like Spotify or Apple Music. You get a static page in which you (1) see a photograph of the original 78 label, (2) get some information on that recording, and (3) are able to listen to and download just that song. Here’s a random example I pulled:
Also, when you listen to it, you can clearly hear that this was digitized straight off of the 78 itself, including all the crackle and hissing of the record. It is nothing like the carefully remastered versions you hear on music streaming services.
Indeed, I’ve used the Great78 Project to discover old songs I’d never heard before, leading me to search out those artists on Spotify to add to my playlists, meaning that for me, personally, the Great78 Project has almost certainly resulted in the big record labels making more money, as it added more artists for me to listen to through licensed systems.
It’s no secret that the recording industry had it out for the Great78 Project. Three years ago, we wrote about how Senator Thom Tillis (who has spent his tenure in the Senate pushing for whatever the legacy copyright industries want) seemed absolutely apoplectic when the Internet Archive bought a famous old record store in order to get access to the 78s to digitize, and Tillis thought that this attempt to preserve culture was shameful.
The lawsuit, joined by all of the big RIAA record labels, was filed by one of the RIAA’s favorite lawyers for destroying anything good that expands access to music: Matt Oppenheim. Matt was at the RIAA and helped destroy both Napster and Grokster. He was also the lawyer who helped create some terrible precedents holding ISPs liable for subscribers who download music, enabling even greater copyright trolling. Basically, if you’ve seen anything cool and innovative in the world of music over the last two decades, Oppenheim has been there to kill it.
And now he’s trying to kill the world’s greatest library.
Much of the actual lawsuit revolves around the Music Modernization Act, which was passed in 2018 and had some good parts in it, in particular in moving some pre-1972 sound recordings into the public domain. As you might also recall, prior to February of 1972, sound recordings did not get federal copyright protection (though they might get some form of state copyright). Indeed, in most of the first half of the 20th century, many copyright experts believed that federal copyright could not apply to sound recordings and that it could only apply to the composition. After February of 1972, sound recordings were granted federal copyright, but that left pre-1972 works in a weird state, in which they were often protected by an amalgamation of obsolete state laws, meaning that some works might not reach the public domain for well over a century. This was leading to real concerns that some of our earliest recordings would disappear forever.
The Music Modernization Act sought to deal with some of that, creating a process by which pre-1972 sound recordings would be shifted under federal copyright, and a clear process began to move some of the oldest ones into the public domain. It also created a process for dealing with old orphaned works, where the copyright holder could not be found. The Internet Archive celebrated all of this, and noted that it would be useful for some of its archival efforts.
The lawsuit accuses the Archive (and Brewster Kahle directly) of then ignoring the limitations and procedures in the Music Modernization Act to just continue digitizing and releasing all of the 78s it could find, including those by some well known artists whose works are available on streaming platforms and elsewhere. It also whines that the Archive often posts links to newly digitized Great78 records on ex-Twitter.
When the Music Modernization Act’s enactment made clear that unauthorized copying, streaming, and distributing pre-1972 sound recordings is infringing, Internet Archive made no changes to its activities. Internet Archive did not obtain authorization to use the recordings on the Great 78 Project website. It did not remove any recordings from public access. It did not slow the pace at which it made new recordings publicly available. It did not change its policies regarding which recordings it would make publicly available.
Internet Archive has not filed any notices of non-commercial use with the Copyright Office. Accordingly, the safe harbor set forth in the Music Modernization Act is not applicable to Internet Archive’s activities.
Internet Archive knew full well that the Music Modernization Act had made its activities illegal under Federal law. When the Music Modernization Act went into effect, Internet Archive posted about it on its blog. Jeff Kaplan, The Music Modernization Act is now law which means some pre-1972 music goes public, INTERNET ARCHIVE (Oct. 15, 2018), https://blog.archive.org/2018/10/15/the-music-modernization-act-is-now-law-which-means-some-music-goes-public/. The blog post stated that “the MMA means that libraries can make some of these older recordings freely available to the public as long as we do a reasonable search to determine that they are not commercially available.” Id. (emphasis added). The blog post further noted that the MMA “expands an obscure provision of the library exception to US Copyright Law, Section 108(h), to apply to all pre-72 recordings. Unfortunately 108(h) is notoriously hard to implement.” Id. (emphasis added). Brewster Kahle tweeted a link to the blog post. Brewster Kahle (@brewster_kahle), TWITTER (Oct. 15, 2018 11:26 AM), https://twitter.com/brewster_kahle/status/1051856787312271361.
Kahle delivered a presentation at the Association for Recorded Sound Collection’s 2019 annual conference titled, “Music Modernization Act 2018. How it did not go wrong, and even went pretty right.” In the presentation, Kahle stated that, “We Get pre-1972 out-of-print to be ‘Library Public Domain’!”. The presentation shows that Kahle, and, by extension, Internet Archive and the Foundation, understood how the Music Modernization Act had changed federal law and was aware the Music Modernization Act had made it unlawful under federal law to reproduce, distribute, and publicly perform pre-1972 sound recordings.
Despite knowing that the Music Modernization Act made its conduct infringing under federal law, Internet Archive ignored the new law and plowed forward as if the Music Modernization Act had never been enacted.
There’s a lot in the complaint that you can read. It attacks Brewster Kahle personally, falsely claiming that Kahle “advocated against the copyright laws for years,” rather than the more accurate statement that Kahle has advocated against problematic copyright laws that lock down, hide, and destroy culture. The lawsuit even uses Kahle’s important, though unfortunately failed, Kahle v. Gonzalez lawsuit, which argued (compellingly, though unfortunately not to the 9th Circuit) that when Congress changed copyright law from opt-in copyright (in which you had to register anything to get a copyright) to “everything is automatically covered by copyright,” it changed the very nature of copyright law, and took it beyond the limits required under the Constitution. That was not an “anti-copyright” lawsuit. It was an “anti-massive expansion of copyright in a manner that harms culture” lawsuit.
It is entirely possible (perhaps even likely) that the RIAA will win this lawsuit. As Oppenheim knows well, the courts are often quite smitten with the idea that the giant record labels and publishers and movie studios “own” culture and can limit how the public experiences it.
But all this really does is demonstrate exactly how broken modern copyright law is. There is no sensible or rationale world in which an effort to preserve culture and make it available to people should be deemed a violation of the law. Especially when that culture is mostly works that the record labels themselves ignored for decades, allowing them to decay and disappear in many instances. To come back now, decades later, and try to kill off library preservation and archival efforts is just an insult to the way culture works.
It’s doubly stupid given that the RIAA, and Oppenheim in particular, spent years trying to block music from ever being available on the internet. It’s only now that the very internet they fought developed systems that have re-invigorated the bank accounts of the labels through streaming that the RIAA gets to pretend that of course it cares about music from the first half of the 20th century — music that it was happy to let decay and die off until just recently.
Whether or not the case is legally sound is one thing. Chances are the labels may win. But, on a moral level, everything about this is despicable. The Great78 project isn’t taking a dime away from artists or the labels. No one is listening to the those recordings as a replacement for licensed efforts. Again, if anything, it’s helping to rejuvenate interest in those old recordings for free.
And if this lawsuit succeeds, it could very well put the nail in the coffin of the Internet Archive, which is already in trouble due to the publishers’ lawsuit.
Over the last few years, the RIAA had sort of taken a step back from being the internet’s villain, but its instincts to kill off and spit on culture never went away.
Here we go again. It was only a month ago that Karl Bode wrote about Disney’s absolutely and totally cool process of removing a bunch of content from its Disney Plus streaming platform not because the content sucks and nobody liked it, but because it gets to play accounting tricks as to its assets in order to receive giant tax breaks. To some extent, a big media company prioritizing quarterly profit reports over providing customers value in its streaming platform is very much “Dog Bites Man” territory. However, it appears Disney isn’t particularly shy about taking this practice to absurd levels.
Crater is a Disney film that was released on Disney Plus in the ancient times of this past May, nearly two months ago. Despite that short lifespan, and what are apparently not terrible viewership numbers and reviews, Disney has already removed the movie from the platform and stuck it in the vaunted Disney vault.
The plan—and Disney hasn’t confirmed Crater was wiped for this, but why else would it be—works like this: media companies have learned that by removing TV shows and movies from their streaming platforms they can write down the value of their “content assets”, which in turn reduces their overall tax bill. It also reduces the licensing fees these companies are paying.
Until last week, the shows and movies being culled—at Disney and other studios—had included those released somewhat recently, but for whatever had underperformed vs expectations, like 2022’s Willow and Y: The Last Man (which I liked!). That was bad, but Disney’s decision to wipe Crater—released just seven weeks ago—is taking the piss.
Seven weeks. And it’s important to keep in mind that streaming services were supposed to be what put a major damper on film and show piracy. Here’s the thing though: streaming services don’t tamp down on piracy when providers refuse to stream things. Shocking, I know. Disney is as anti-piracy as it gets, of course, but it appears it has prioritized playing shell games with its books over providing the public with the content it wants in its own streaming service.
But now it’s just gone. There’s no way to legally view this film. It’s as though it never existed. One of the key selling points for streaming services was that they were going to eliminate piracy. Now here we are, just a few years later, and piracy is going to be the only way a ton of TV shows and movies are ever going to be saved.
This again points out how content providers aren’t keeping up with their end of the copyright bargain in far too many cases. Granting Disney copyright on this film only to have them refuse to make it available so shortly after release is as anathema to the point of copyright law as it gets.
A little over a year ago, we discussed Nintendo’s shutdown of the eShop for its 3DS and Wii U consoles. That shutdown ended up being delayed due to a metric ton of outcry from the gaming public, but that was only a stay of execution. In a matter of days, those shops will be discontinued, preventing anyone from purchasing any titles in those stores. Many of the titles that are original to those consoles are not available anywhere else. Nintendo has made some vague noises about them becoming available on modern consoles, but all of those plans live at the pleasure of Nintendo executives. Coupled with its extremely litigious nature on matters of intellectual property, that’s how you get to my nicknaming Nintendo as “the Disney of the video game industry.”
Preventing the gaming public from continuing to buy games that rely on a company-operated backend infrastructure is one thing. After all, Nintendo can do what it wants when it comes to putting its products into commerce. But what really annoyed a ton of people, myself included, was how this would impact archivists and historians, or anyone else interested in preserving video game history and culture. With the impending shutdown, some of those entities are once again expressing concern.
“While it’s unfortunate that people won’t be able to purchase digital 3DS or Wii U games anymore, we understand the business reality that went into this decision,” the Video Game History Foundation (VGHF) tweeted when the eShop shutdowns were announced a year ago. “What we don’t understand is what path Nintendo expects its fans to take, should they wish to play these games in the future.”
Yeah, if you’re concerned about preserving culture for the public, this is a big fucking deal. And you really do have to keep in mind that the entire bargain that is copyright law is designed around offering a limited amount of monopoly protection to content creators specifically so that the public gets access to more content. Because Nintendo is litigious, utilizes DRM, and the DMCA exists, all of that combines to make it wildly unsafe for museums and archivists to actually retain copies of these games that will shortly no longer be found anywhere else. And, no, the exemptions built into the DMCA for content such as movies and literature simply don’t exist for the video game space.
The US Copyright Office has issued exemptions to those rules to allow libraries and research institutions to make digital copies for archival purposes. Those organizations can even distribute archived digital copies of items like ebooks, DVDs, and even generic computer software to researchers through online access systems.
But those remote-access exemptions explicitly leave out video games. That means researchers who want to access archived game collections have to travel to the physical location where that archive resides—even if the archived games themselves were never distributed on physical media.
All of this was lobbied for by an industry that apparently has some kind of fear of these organizations creating online sites where anyone can go and play any archived game at any time, leading to the decimation, nay, destruction of the video game industry. Industry lobbyists have pointed to the Internet Archive’s emulated games collection, which — checks notes — , well, I guess that didn’t destroy the industry at all, so I’m not sure what point they’re trying to make.
In an effort to address this—or at least address it in a single place on as few consoles as possible—YouTuber The Completionist decided to sit down and spend almost a year of his life (328 days in total) buying his way through both libraries.
He’s now done, and the statistics are staggering. The dude bought 866 Wii U games and 1547 3DS titles, numbers that include DSiWare, Virtual Console releases and downloadable content. That adds up to 1.2TB of data for the Wii U, and 267GB for the 3DS. Or, for the 3DS purists reading, 2,136,689 blocks.
As part of this effort, The Completionist has said he plans to donate all of this digital media to the VGHF. What they can do with all of that content still remains to be seen. All of the same copyright and DMCA rules still apply, so what access it can grant to researchers, never mind the public, is in question.
But at least the content resides somewhere where it can be preserved for now. It just sure would be nice if the deal struck for copyright didn’t somehow leave one hobbyist having to spend tens of thousands of dollars to do the work that Nintendo should be doing alongside museums itself, if it had any actual interest in preserving the culture it helped create.
Walled Culture is a big fan of the public domain. The amazing artistic uses that people are able to make of material only once it enters the public domain are an indication that copyright can act as an obstacle to wider creativity, rather than something that automatically promotes it. But there’s a problem: because the public domain is about making artistic productions available to everyone for no cost and without restrictions, there are no well-funded lobbyists who stand up and defend it. Instead, all we hear is whining from the copyright world that the public domain exists, and calls for it to be diminished or even abolished by extending copyright wherever possible.
Sometimes those attacks can come from surprising quarters. For example, in October last year Walled Culture wrote about Italy’s Uffizi Galleries suing the French fashion house Jean Paul Gaultier for the allegedly unauthorized use of images of Botticelli’s Renaissance masterpiece The Birth of Venus on its clothing products.
Sadly, this is not a one-off case. The Communia blog has another example of something that is unequivocally in the public domain and yet cannot be used for any purpose, in this case a commercial one. The public domain art is the famous Vitruvian Man drawn by Leonardo da Vinci over 500 years ago.
The commercial use is as the image on a Ravensburger puzzle. As the Communia blog post explains:
According to the Italian Cultural Heritage Code and relevant case law, faithful digital reproductions of works of cultural heritage — including works in the Public Domain — can only be used for commercial purposes against authorization and payment of a fee. Importantly though, the decision to require authorization and claim payment is left to the discretion of each cultural institution (see articles 107 and 108). In practice, this means that cultural institutions have the option to allow users to reproduce and reuse faithful digital reproductions of Public Domain works for free, including for commercial uses. This flexibility is fundamental for institutions to support open access to cultural heritage.
This makes a mockery of the idea of the public domain, which to be meaningful has to apply in all cases, not just in ones where the relevant Italian cultural institution graciously decides to allow it. The fact that this law was passed is in part down to the success of the copyright industry in belittling the public domain as an aberration of no real value – something that can be jettisoned without any ill effects. However:
These cases are bound to leave wreckage in their wake: great uncertainty around the use of cultural heritage across the entire single market, hampered creativity, stifled European entrepreneurship, reduced economic opportunities, and a diminished, impoverished Public Domain. To address these issues, we hope the European Court of Justice will soon have the opportunity to clarify that the Public Domain must not be restricted, a fortiori by rules outside of copyright and related rights, which compromise the European legislator’s clear intent to uphold the Public Domain.
Let’s hope the Court of Justice of the European Union does the right thing, and defends the incredible riches of the public domain against every depredation – including those by Italian cultural institutions.
Copyright seems to be a fixture of our legal, economic and social systems. For 300 years, it has formed the backbone of the structures used to incentivize and remunerate creators. During that time, copyright has been extended repeatedly in length and breadth. The original term of the 1710 Statute of Anne – 14 years’ monopoly protection with a provision for renewal for a further 14 years – has blossomed into life plus 70 years for much of the world. Copyright now applies to areas far beyond the original scope of printed works. These constant and unidirectional moves by legislators around the world might seem to confirm that copyright is an effective approach where more is better, and that it is working as a means of rewarding artists fairly. The facts suggest otherwise.
For example, in 2018 the US Authors Guild conducted a survey of US writers. It revealed that the median author income was $6,080, down from $8,000 in 2014, $10,500 in 2009 and $12,850 in 2007. Respondents who identified themselves as full-time book authors still only earned a median income of $20,300, even including other sources of income such as teaching. That is a level that is well below the US federal poverty line for a family of three or more.
In the world of academic publishing, the situation is even worse: authors are typically not paid for their work at all. No wonder, then, that the leading academic publisher Elsevier has consistently enjoyed profit margins of 30-40% – far beyond what companies in other industries ever achieve. Moreover, academics are routinely required to assign the copyright of their work to the publishing companies. This has the effect of making it hard or impossible for researchers to share their own papers and results with colleagues unless they seek and are granted permission by the publisher. In this case, copyright impedes wider access to knowledge, and acts as an obstacle to the collaborative approach that lies at the heart of research.
Things are also bad in the music industry. A report published by a UK Parliament committee found in 2021 that “the terms under which the major music groups in particular acquire the rights to music favor the majors at the expense of the creators”. This has resulted in an average income for performers that is less than the median wage.
One possible explanation is that music streaming services and Internet platforms retain a disproportionately large share of the revenues they generate, and pay artists too little. A new report from the UK’s Competition and Markets Authority (CMA) explores this issue in detail. It found that “music streaming services are not making sustained, excess profits: indeed, our analysis has shown that many services have low or negative operating margins.” Another concern is that a large “value gap” might exist between what platforms like YouTube pay to artists, and what streaming services like Spotify pay for similar works. The CMA found that in 2021 the gap, such as it was, amounted to less than 0.5% of the £1,115 million total UK recorded music revenues that year – about £5 million. Shared among the 400,000 creators releasing music in the UK in 2020, that would represent an average “missing” payment of around £12 per year.
Even superstars struggle under the current system. There are few more popular musicians than Taylor Swift: her most recent songs occupied all ten of the top positions in the U.S. singles chart. And yet even she lost control of her early songs as a result of being required to assign the copyright to recording companies. Her solution was extreme: in 2020 she announced that she was re-recording those songs in order to retain rights to the new master recordings.
Copyright seems to serve the public well enough – there’s no shortage of books, music or films being produced each year. But here, too, there are problems, albeit of a less obvious kind – for example, the issue of orphan works. These are works, typically books, that are still covered by copyright, but unavailable because the original publisher has gone out of business, or simply isn’t interested in keeping them in circulation. Copyright means that unless the current owner can be located – a difficult task for obscure works that were created decades ago – it is against the law for someone else to reprint them. Nobody benefits from this, but attempts to address this situation, like the EU’s Orphan Works Directive have been half-hearted and ineffectual, and the problem remains.
The situation is arguably worse in the world of cinema. While books held in libraries are durable, and are likely to survive until such time as their copyright expires and reprints may be made, that’s not true for films, which often exist as a unique copy on extremely flammable or delicate media. It is estimated that already half of all U.S. films made before 1950 have been lost, while the figure for films shot before 1929 is over 90%. Copyright restrictions prevented copies being made of the films, which could have preserved them for posterity.
Nor is the digital world immune to this problem. The world of video games is already suffering because of copyright, which makes academics reluctant to risk transferring video-game code from older media such as floppy discs to newer, more reliable systems, for example cloud storage, in order to make backups. It also stops them from creating software emulators of the hardware needed to run old games. As a result, even when copyright protection on a game expires – in a century or so – there is a danger that copies of old video games will be unplayable because the media on which they are stored has degraded, or there is no hardware available on which to run them.
One of the main reasons that artists tolerate a system that sees most of them struggling to get by is that copyright is presented as the only way in which they can be rewarded for creating new works for the public. That may have been true in the past, but is no longer the case: the spread of the Internet means that there is now an alternative channel for creators to reach out to their audience. Music, books and films placed on a web site can be downloaded by anyone with an Internet connection, anywhere in the world. That global reach also allows completely new business models to be explored.
Perhaps the most promising of these is the “true fans” model, first articulated by Kevin Kelly in 2008. Instead of receiving a small cut of the sales revenues of works handled by intermediaries like publishers and recording companies, creators are paid directly by their most engaged, “true” fans, and keep almost all the money. That means a smaller number of true fans can provide the same level of financial support that a larger number of today’s customers offer. True fans typically pay regularly, and in advance of a work being created. The approach provides a steady income for an artist, and helps alleviate the fear of being without income until a work is finished and placed on sale.
The near-ubiquity of the Internet means that it is now possible for a creator to find true fans around the world willing to support their work, and for the latter to pay directly, using well-established services like Patreon and Kickstarter etc. A good example of how a well-known creator can use a crowdfunding platform to support work is the writer Cory Doctorow, the first person to be interviewed on Walled Culture. In 2020, when Doctorow’s publisher could not afford to pay for an audio version of his latest book, he asked his fans to fund it. Within a month, he raised $267,613.
Not everyone commands the level of support that Doctorow has garnered, but this example does at least indicate the potential of the true fans approach as an alternative to today’s copyright. The scale of this fan-based patronage ecosystem is under-appreciated. According to one research report, crowdfunding was valued at $17 billion in 2021. By 2028, the global crowdfunding market is projected to grow to $43 billion, with an average compound growth rate of 16.5% over the forecast period. Not all of that will go to creators, but many billions certainly will, which will put it on a par with payments made by traditional intermediaries such as publishers, film studios and music labels.
An interesting aspect of the true fans approach is that it although it is fully compatible with copyright, it does not require it to work. Crowdfunding aims to fund future production, by supporting artists as they create. After a work is finished and released, it is not necessary to invoke copyright law to punish unauthorized copies, since the artist has already been rewarded. Indeed, there is an important advantage in encouraging copies to be shared widely: it allows an artist’s work to be discovered by more people around the world, some of whom will go on to become true fans and to contribute money towards future work. Even mis-attributed copies can ultimately lead fans to the original source, bolstering an artist’s reputation and – potentially – finances.
This form of crowdfunding would eliminate one of the biggest problems with copyright today: the need to stop people making unauthorized copies of digital material under copyright. Every attempt to achieve that over the last twenty-five years has failed – whether through huge fines, threats of Internet disconnection or, most recently, by requiring upload filters, as the book Walled Culture explores in detail (free ebook versions available). These efforts are futile because we live in a digital world where billions of people have a cheap copying machine in their pocket: a smartphone. They use it routinely hundreds of times a day to make perfect copies, which they send out over the Internet to family and friends, who make further copies, and pass them on. Trying to prevent this sharing means fighting against both technology and human nature – a lost cause, as history shows.
A wider use of crowdfunding and the true fans approach could help address the poor rewards that the vast majority of creators receive under today’s business models relying on copyright. It might also see the importance of copyright diminish to the point that it is no longer regarded as indispensable, or requiring yet more ineffectual laws in a doomed attempt to enforce it online.
We’ve said this before and we’ll say it again: it cannot make sense to extend copyright terms retroactively. The entire point of copyright law is to provide a limited monopoly on making copies of the work as an incentive to get the work produced. Assuming the work was produced, that says that the bargain that was struck was clearly enough of an incentive for the creator. They were told they’d receive that period of exclusivity and thus they created the work.
Going back and retroactively extending copyright then serves no purpose. Creators need no incentive for works already created. The only thing it does is steal from the public. That’s because the “deal” setup by governments creating copyright terms is between the public (who is temporarily stripped of their right to share knowledge freely) and the creator. But if we extend copyright term retroactively, the public then has their end of the bargain (“you will be free to share these works freely after such-and-such a date”) changed, with no recourse or compensation.
That makes no sense.
And yet, countries keep doing it.
Canada has quietly done it: extending copyrights on literary, dramatic or musical works and engravings from life of the author plus 50 years year to life of the author plus 70 years.
Quietly on November 17, 2022, and appearing online this morning, an Order in Council was issued on behalf of Her Excellency the Governor General, on the recommendation of the Minister of Industry and the Minister of Canadian Heritage to fix December 30, 2022 as the day Bill C-19, Division 16 of Part 5 comes into force. What does this all mean? With the passing of Bill C-19 this past June, the Copyright Act was amended to extend the term of copyright for literary, dramatic or musical works and engravings to life of the author plus a period of 70 years following the end of the calendar year in which that author dies. What was unclear at the time of royal assent was WHEN exactly this would come into force — if on or after January 1, 2023, one more year of works would enter the public domain. Unfortunately, we now know that this date has been fixed as December 30, 2022, meaning that no new works will enter the Canadian public domain for the next 20 years.
This should be a huge scandal. The public has been stripped of its rights to share information for twenty years. Based on what? Literally nothing, but demands from heirs of deceased authors to continue to receive subsidies from the very public they just stripped the rights from.
It is beyond ridiculous that any country in the world is extending copyright in this day and age, rather than decreasing it.
