Creative Control - Part 3
The principle of droit d’auteur is a recognition of the causal association of the service offered by the creative worker and the toil that went into providing that service, the fact that the service is entirely dependent on the toil, and that the creative worker is entirely free to withhold that service or to provide it only on whatever conditions they set, to require recompense from service users for each individual transfer so as to cover the cost of the toil. The creative worker doesn’t have to open their house up to the public, and if they do they’re quite entitled to set conditions on entry. It’s not about “ownership”. It’s simply that we’re offering a service and we can do so on whatever terms we want. You want to see what it’s like to live in our house for a bit, to use our service, well, we do require that you accept certain conditions. And actually, more often than not the creative workers provide service users with a come-all-you-want ticket — a book, a disc or a file — which allows that service user unlimited transfers. You can come back and visit our house any time once you’ve bought the ticket. You don’t just get one reading of that book you buy. You can read it as many times as you want. Hell, we’d love for you to do so. We’d love for you to use that ticket so many times you wear it out and have to buy a new one. Even if you don’t wear it out, the more you use this service, the more likely it is you’ll come back to us for the next service we offer.
The service user can even pass that ticket onto someone else, lend it or sell it second-hand. We don’t see any benefit from the second-hand sale, but we’re happy for you to sell your ticket on once you have no use for it, to… transfer your membership. It’s an act of good faith on our part, a willingness to treat the money from the ticket sale that goes into your pocket rather than ours as an investment. If you don’t appreciate our service enough to keep the ticket, you’re less likely to come back for more, while that new service user is a new opportunity who we’ll welcome with open arms. We’ll give them the exact same service we gave you. The only condition we set here is that you do not rent your ticket, because this is basically you setting yourself up on the street outside, leading service users away from the front door, sneaking them in a side-entrance and pocketing the cash. This is not theft of “intellectual property”; it’s basically a sort of conspiracy to defraud. The service user renting their ticket from an unauthorised agent is obtaining our service under false pretences. In orchestrating repeated instances of this for your own profit, you are basically conspiring to swindle us into providing a service without recompense. All that toil to be paid for, all that service we provide — and the profit you’re making is directly proportional to the value that results, and directly proportional to our loss of revenue. We might license you to do something like this if you want to share those profits. We might be happy to provide you tickets for rental as a business venture — as in the DVD rental business — but you don’t get to just rip us off.
But we’re not cut-throat about it. We allow for unlimited repeat borrowings on a non-commercial basis even when we don’t see a penny from them. With literature there are these incredible places called libraries through which we offer the service to users absolutely free. They can go and borrow a ticket, and make use of the service as many times as they want before they have to return it. In the UK, there is a royalty system, Public Lending Rights, whereby we recieve a tiny payment for each borrowing. But this doesn’t apply in the US, where the only money we see is from the initial purchase of a single ticket that will be reused countless times. In some respects this is worth it for the nationwide sales and exposure. As people who believe in art we may even wholeheartedly support it as a public service. But if you think about it, it’s a little weird. I mean, this service is considered important enough to be publicly funded in a country that doesn’t even provide healthcare. And imagine if you did have a welfare state, but the way it worked was that doctors and nurses all had to earn their money from offering their services on a private healthcare basis while, at any time, anyone who couldn’t afford it or simply didn’t want to pay could go to a “public treatment centre” where the exact same doctors and nurses had to work whatever shifts were required, offering those same healthcare services, for no payment at all. In the UK, with PLR, this public service is recognised and recompensed, but not in the US. It’s taken for granted. And not only do we not complain; we celebrate the whole idea of libraries.
But the ultimate proviso we place on our offering this service is the limitation of copying. Just as we stipulate that on purchasing a ticket you are entering into an agreement not to rent it out without our license, we require that you do not copy it in order to sell the facsimiles and thereby provide unlimited service use to an unlimited number of service users. Only those who have paid us good money for the license to print tickets are allowed to do so, because we’ve entered into a very detailed agreement with them about what they can and can’t do, in order to ensure, as far as we can, that our toil is rewarded and our service provided on the best possible terms for all concerned. Again, this is nothing to do with “intellectual property”. Your copying is not “theft”, simply “conspiracy to defraud”. It is, in fact, counterfeiting or forgery. You are printing up a perfect replica of a coupon redeemable for ten quid’s worth of services, selling it on to someone for a fiver in the open acknowledgement that it is fake, and sitting back as they walk merrily up to our front door to obtain our service, provided at the expense of a whole lot of toil, under the false pretence of having paid for it. You may even just be giving your fake tickets away in exchange for fake tickets to other creators’ services provided by other users. This is pretty much the situation with torrenting sites, and it’s why they’re basically dodgy, the internet equivalent of a print shop set up only so that would-be fraudsters can conspire together and utilise its resources in their scheme.
This condition of service-provision — that users do not distribute unlicensed tickets — has become completely unenforceable, of course. And for the vast majority of users the ethical transgression is of such minimal import that they see no wrong in what they’re doing. Many of the more culturally savvy creators, in fact, consider this a sort of moral paradigm shift that simply necessitates finding some other way of making money from the provision of services. Pragmatically, they may have found that simply giving away tickets and inviting payment on an honour system is effective. I know it’s worked out for John Scalzi. I tried it out myself by posting up “Die! Vampire, Die!” as a free download under a Creative Commons license, adding that “Feed the Madman” Paypal button. I’m not going to tell you just how few payments I got cause it’s kind of depressing. You got to know how to do these things right and you might well simply need a large enough fanbase and wide enough exposure to make it work, but I clearly don’t, so it did fuck all for me. Simply giving away free tickets in one form but having “gold-plated” tickets that users can buy as an upgrade might also be effective. This is what Charlie Stross and Cory Doctorow have done, releasing free ebooks and finding that it increased sales of the hardcopy. Sometimes people just value the object because it gives them a proper sense of ownership, or because it comes in a nice package. Like you can download all the music you want, but you still kinda want the CD with its gorgeous design, its book of lyrics, all of that extra physicality. This is one reason I’m not really in that camp of fervent anti-piracy zealots. I’d be quite tempted to try out this strategy, see if works for me. I certainly do a fair bit in terms of giving away free tickets to other services (posting up free downloads) in the hope that it’ll bring in users willing to pay for the core services, the ones you have to buy the tickets for, in Borders or Barnes & Noble or, of course, direct from Monkeybrain. (*ahem*)
But at the end of the day, what we’re really dealing with is a situation where a whole lot of people are blasé about the intellectual service — the toil and the transfer. If we can get the latter for free we’re happy to do so and gloss over the fact of the former. We’re utterly complacent in our self-serving sense of entitlement, so used to being treated well by those who service us that we’ve come to simply take it for granted. That’s what they’re there for, isn’t it? They’re performers who want an audience, and if they provide us with this service, we provide them with that audience. That’s how you get to the stage where Masnick can make his gobsmacking assertions of his own entitlement. The whole notion of “intellectual property” bothers him, all this copyright malarky. He’s talking from a service user perspective who wants their ongoing fix of “new creative works”, a steady supply of tickets to every new service that comes along. He’s living in a world where you can get those tickets any time you want, where there’s a print-shop on every corner, open 24/7. He doesn’t really give a fuck about the toil that went into providing the service. And all those details that are printed on the ticket as a sort of contract? That little copyright notice that tells us who toiled? That price that tells us how much they want in return for using the service? The conditions of use that establish the forgery’s illegitimacy? The requirements for “credit, money or control”? Those are just nuisances that might interfere with his enjoyment of his steady supply if he paid them any attention. Fuck the principle of droit d’auteur. Fuck the creator themself.
Not that this is enough. Because he isn’t just out to circumvent the conditions under which the service is provided in order to ensure free use. This is the argument of the hack, who wants to be able to set themself up as a service provider on the same level but with as little toil as possible. It’s not piracy he’s out to justify but plagiarism. This is about using the ticket to gain access to the service, copying that service in part or as a whole and using whatever “service-building” tools might be available to produce a rip-off. It’s the argument of the hack because he’s not justifying this on the basis that the result would be worth it, that he’d putting sufficient toil into it that his own service would necessarily be treated with the same droit d’auteur. No, he’s denying that there’s any reason to recognise droit d’auteur at all. There is no toil to be recognised. He can’t even imagine creative work that’s anything other than exploitative and derivative. There is no “originality”, no “creation”, no “original creator”, only remixers reusing material snatched from here or there. You can’t accuse him of plagiarism cause we’re all just hacks recycling the work of previous generations. This is not even an Open Source ethos, where the contribution of individual originators is recognised implicitly, even where those originators share their work freely, asking nothing in return — other than perhaps the benefits to be gained from other originators sharing their own contributions. No, Masneck is denying that their contribution constitutes anything that can be described as “original”. And in doing so with specific reference to “intellectual property”, setting up his straw man argument that all creative work must surely transgress the boundaries of what’s acceptable, he’s basically trying to justify plagiarism on the basis that it’s all plagiarism.
“All works are built on those that came before. All works are inspired by and use bits and pieces of what they've learned or what they've seen, heard and felt.”
Either he doesn’t understand what plagiarism is at all, or he understands entirely and is cynically trying to obfuscate it in order to justify his disregard for droit d’auteur. He might even think he’s arguing from some woolly-minded ethical stance that “information is free”, shaded by misinformed notions of Open Source projects, Creative Commons licenses, new media business models and a hundred other principles, strategies and tactics that have evolved to deal with the paradigm shift which renders access to most creative services completely unrestrictable. He might be arguing from a mindset where “all the tickets are free” has been rationalised into a philosophy that “all the tickets should be free”. But he doesn’t understand what originality is, what the process of creation actually entails, and in denying that it can be worthy of recognition, denying that it can exist at all, he simply comes across as a self-serving hack, seeking to excuse that hackdom as What All Art Is. There’s no such thing as originality. No work is truly original.
This is a rather essentialist assertion that needs to be interrogated.
[Next: Originality and the Missing Shade of Blue]