from the criticizing-safe-harbors-from-within dept
We recently submitted our comments to the Copyright Office’s ongoing study on DMCA safe harbors, but perhaps we should have been a bit more creative. At least that seems to be the plan of the Content Creators Coalition, which has made its submission in the form of a video starring producer T Bone Burnett doing his best Werner-Herzog-without-the-accent impression. It’s… quite something. (Amusingly it’s also hosted on Vimeo, a site which — like all sites hosting user content — relies heavily on DMCA safe harbors for its existence, and indeed prevailed in a major legal battle over that very thing last year.)
Probably the word most prominent in my mind after watching that is dramatic, with optional prefixes such as melo- and over-. It starts out like this:
In its early days, the Internet was hailed a panacea. A global community — unshackled from corporate, military, or government control ready to equalize and connect the world. One of its early false prophets named it a “Culture of the Mind” that “all may enter without privilege or prejudice”. But that’s not what we got.
Remember, this isn’t a trailer for season three of Mr. Robot — it’s a submission to the Copyright Office. There’s a bit of a problem with that quote, too, but we’ll get to that in a moment. T Bone drones on:
Instead of opening up minds, it has closed them down — becoming a restrictive, abusive place where women, people of color, and anyone marked different are shunned, attacked, and shouted down. 2016 laid bare how cyberspace hasn?t rationalized dialog. It’s become a megaphone for propaganda and fake news where it?s easier to demagogue and divide than ever. Dreams of a stronger democracy have given way to foreign hackers and corporate manipulation — a shriveled politics indistinguishable from reality TV.
While some of those problems are certainly real, they are a lot more complicated and far from the primary characteristic of the internet as a whole — but more importantly, what does this have to do with musicians and the DMCA, exactly? (By the way, demagogue is not a verb.)
And for artists and creators, instead of amplifying our voices to lead the fight for change, it undermines and silences us. The Internet — with all its promise and beauty — threatens to destroy what it was supposed to save. We can?t let that happen.
This proceeding is focused on the legal safe harbors in the Digital Millennium Copyright Act ? the law that was supposed to balance the Internet?s openness with creators? ability to earn a living wage from their work. Those safe harbors have failed.
Wow, smooth transition. If I’m reading that correctly, he’s saying that artists could have cured or at least mitigated all of society’s woes if only they weren’t being “silenced” by the internet. The idea that the internet is silencing anyone, much less artists, is frankly just silly — unless of course you’re talking about the people who are directly and unambiguously censored by abuse of the DMCA. The safe harbors have failed, by having a very low bar to get content removed and failing to have any meaningful way of preventing or punishing abuse. And yet even despite this, the internet offers the biggest, most powerful and most accessible platform for artists in history.
(Also at this point, let’s revisit that quote from an internet “false prophet”. The line is actually a “civilization of the mind” and it comes from EFF founder John Perry Barlow’s famous Declaration of the Independence of Cyberspace in 1996. You’d think T Bone could have gotten the quote right, but you also have to wonder if he knows that Barlow is an artist himself who used to write lyrics for the Grateful Dead.)
The problems are familiar — they are well described in the record of these proceedings from the broken Sisyphus climb of “notice and takedown” to the gunpoint negotiations and pittance wages forced upon creators by the Google monopoly. The Big Tech ITOPIANS can track us across dozens of networks, devices, and profiles to bombard us with micro targeted ads, but they can?t even identify unauthorized copies of our work and keep them off their own servers and systems. Or they won?t.
Ah, Sisyphus — he who evaded his timely death and was sentenced to eternal fruitless toil. Not a bad metaphor for media gatekeepers and the DMCA, actually. Perhaps T Bone can imagine Sisyphus happy. Or maybe instead of wasting all this time pushing boulders up hills, the industry could have embraced digital distribution from the start and helped new platforms emerge instead of hindering them. As for detecting infringing works, ad tracking is just as flawed as any other “if they can do that, why not this” comparison on that front: the issue is not the technological ability to sort content, but the fuzzy definitions of what’s legal and what isn’t — especially since, despite T Bone’s conflation of the two, “unauthorized” does not automatically mean “infringing”. Besides, a mistargeted ad just gets ignored; a mistargeted copyright filter shuts down free expression.
(And by the way, I didn’t capitalize “ITOPIANS” like that — that’s how it was transcribed in the Coalition’s press release. Apparently someone thought it was really, really clever and wanted to make sure you didn’t miss it.)
The problem here isn?t technology ? creators welcome the digital revolution and its power to connect, amplify, and inspire. A modern recording studio looks more like a cockpit than a honky tonk, and that?s just fine. The problem is business models — designed to scrape away value rather than fuel new creation, focused on taking rather than making. To restore technology?s place as the rightful partner of tomorrow?s creators, we need change.
Oh I see: he wants artists to enjoy all of the huge advantages created by digital technology, both in terms of distributing and creating their music, but not have to adapt to any of the new challenges created by the same technology. Sure, that sounds fair. He’s right that the biggest challenge is business models, but to that I say: physician heal thyself.
The safe harbors must be restored — so only responsible actors earn their protection, not those who actively profit from the abuse and exploitation of creators’ work.
People don’t have to “earn” critical free speech protections by proving they aren’t abusing them. That’s exactly the opposite of how it works. But I’m impressed by the creativity and gall it took to describe dismantling safe harbors as restoring them.
The false prophets of the internet may have imagined an egalitarian open source creative wonderland ? but what we got was a digital playground for a handful of mega corporations and web moguls living fat off the artistic, cultural, and economic value everyone else creates online. And if our democracy becomes stunted and diverse Americans are shut out, I guess these new Galtian Lords would say, “That?s business.”
But artists and creators will never bow to that. We will never accept an Internet that turns its back on the vitality, optimism, and hope from which it was born. We will never allow our democracy to become a mere series of pseudo-events designed to manipulate people into spending money.
This, and the line that follows it, is the last quote I’m going to pick on, because it’s where T Bone’s bizarre attempt to treat art and democracy as more than related but practically synonyms finally coalesces. Because in the next line he commits to this blunt conflation whole-hog and coins a new term (emphasis mine):
Everyone with a stake in the Internet?s success and the health of our creative democracy must work together to make this right.
Well, coined it in this strange context anyway — though in fact “creative democracy” is originally the title of a 1939 essay that ended with a passionate assertion that “the task of democracy is forever that of creation of a freer and more humane experience in which all share and to which all contribute”. Now you can twist words and concepts all day to pretend that the internet somehow stifles artists, but be honest: is there anything in the world that has pushed us closer to that democratic goal than the internet, and the communication and content platforms that rely so heavily on safe harbors to exist?
Maybe T Bone and the Content Creators Coalition think differently, but in that case they should at least take this little dramatic exercise off of Vimeo.