Autumn talk, part 1: Why copyright is now about tools, not works

Here follows notes from a lecture-in-progress, presented in five blog posts. It is based on talks given at various places in Europe during the autumn of 2008, which in their turn evolved from a recompilation of previous talks, trips and writings. Future versions will be based on your response.

  • Autumn talk, part 1: Why copyright is now about tools, not works
  • Autumn talk, part 2: Bass and place, meaning and abundance
  • Autumn talk, part 3: Greyzone communities
  • Autumn talk, part 4: The method of Kopimi
  • Autumn talk, part 5: Afterthoughts

Copyright, which was once a law about books, is now becoming a law controlling the access to tools. A very condensed history of copyright could be told in three steps, century by century: 1800 – 1900 – 2000.

Copyright as we know it is an invention from the time around year 1800. At that time it simply regulated the use of one machine, and it was not one of these that we today carry around in our pockets, but the printing press. Whatever happened with the books after their printing was not of copyright’s business.
This changed from around year 1900, because of the new media for sound and moving pictures, and an explosion of popular urban entertainments. Through complex maneuvres in the field of legal philosophy, copyright was extended to cover “works”, independently of any specific medium, and not only as reproduced objects but also including public performances and broadcasting. To organize all these flows of money, rights management had to be collectivized to a range of new monopolist collectives, which developed quite specific norms for each new medium.

A radio station was one thing, a record shop something else. These were not only technologically different, but operating with very different business models, complementing each other in the music economy. As simulations on the internet, these become “streaming” on one hand, and “downloading” on the other. Within the digital cable, however, it is the same data transfer. It appears first in the software at the receiving end, which either plays the sound instantly, or saves it in a file for later playback. The first configuration is called “streaming”, the second “downloading”. Any stream of sound that can be heard can always be turned into a download.

That was the case already with tape recorders. Recording music from radio will remain legal. Even the record industry can live with that. After all, they were not killed by home taping 30 years ago. The difference is that digital streams also contain information about the music: simple metadata like the song title, artist name and length of the track. Special software can access it in order to automatically separate individual tracks, tag them, index them and sort them in a MP3 library. Several new services are doing exactly that, thus exposing the difference between streaming and downloading as just a simulation.

At the moment, the record industry lobby is pushing for new laws to ban the any such software. This is typical of 21st century copyright — regulating access to tools, rather than to individual works. In the longer perspective, the question of controlling tools becomes a question of controlling skills. Circumventionist software can be put together by the combination of two completely legal components. To prevent that, copyright law would have to override freedom of expression and criminalize the sharing of skills. There are already tendences in this direction.

The tendency of contemporary copyright maximalism:

  • Massive free downloading is accepted in practice.
  • Indexing tools that can make the downloads meaningful are attacked.

This kind of archival politics is characteristic for 21st century copyright. It is less concered with the rights to individual works, and more with access to entire technologies.
The development threatens to undermine the freedom of choice that Creative Commons licenser aim to realize. Creative Commons are operating on the level of works, trying to stay out of the battles about tools which are raging over search engines and other centralized indexes. Most iconic of them all, except for Google, is maybe The Pirate Bay, the world’s largest bittorrent tracker, which is based in Sweden. That battle is primarily about indexing, not distribution.
The problem with focusing too much on sites like The Pirate Bay is that we then easily forget that digital piracy is in terms of distribution far from limited to online P2P networks. A recent study shows that British yout are to an even larger extent engaging in copying via usb sticks, portable hard drives, writable cd’s, chat software, e-mail, etc. Such practices constitute the darknet — a term for all the spontaneous networks which will always keep the most popular material available.

The original darknet has been called the sneakernet: walking by foot to a friend, carrying video tapes and floppy discs. However, it is not only history. Off-line file-sharing in sneakernets will remain very relevant, because of the exponential growth in capacity for small, cheap storage media.

Within 10-15 years, a cheap pocket-size media player will have room for all recorded music that has ever been released. There will be no way of preventing two individuals to copy all this from one device to another. Such a scenario is not good or bad in itself, but can be a starting point for dealing with questions that are partly beyond copyright.

One such question is: Will all music ever recorded have any value at all for us? How can the addition of one more song on top of an archive like that produce any feelings at all in us? The question is not about a hypothetic future — we already have acces to so much more than we can incorporate in our lives.

When we are able to listen to any piece of music, whenever, whereever, the experience of listening is deprived of its emotional value. Instead we start desiring musical experiences which can not be accessed whenever and wherever. We begin seeking out contexts which are specific for a place and a time. Some of these contexts are by convention known as “live” music, others are just multiplicating small habits which are still not institutionalised.

10 kommentarer ↓

#1 Några fynd från piratjägarlagen « V, fildelning & upphovsrätt on 12 October 2008 at 8:41 pm

[…] 11, på s 199ff, ser ut som ännu en bekräftelse på det Rasmus Fleischer brukar trycka på: att dagens immaterialrätt handlar mer och mer om verktyg. Tyvärr kan jag inte […]

#2 Kalle P on 13 October 2008 at 2:09 pm

Ser fram emot “Bass and Place”-pratet – har inspirerats av det i mitt gubbslemsprojekt. Där blev ju slem-mappningsfilmen självt en imitative ray, en “plugin” som skapade en “nedladdningsbar subjektivitet”. Och denna kan ju spåras; den är materiell, i någon mening.

Det är fint att tänka i de materialistiska termer som du nämnde en gång – i vilka ekologier/miljöer kan dessa replikatorer leva vidare, fortplanta sig? I ditt fall, dubstep-ritorneller, i närheten av feta baselement; i mitt fall, bilden av oss som gubbslem, i datorer upphookade till hög bandbredd på Humanisten vid Göteborgs Universitet.

#3 Ludophile on 15 October 2008 at 1:27 am

Svengelskan haglar. Här följer… vilka i sin tur… Från tiden kring… Begripligt, men klumpigt och svårläst. Och så typiskt svenskt; “Äh, det är okej, jag är ju jättebra på engelska!”

#4 rasmus on 15 October 2008 at 7:56 am

Ludophile: Så vad vill du ha sagt? Jag är fullt medveten om att jag inte skriver bra engelska. Fortfarande är det dock så att folk runt om i Europa bjuder in mig att hålla föredrag. På engelska, vilket i allmänhet heller icke är deras modersmål. Kanske borde gnälla på dem istället.
Detta är ett hastigt upp-skriv (write-up) baserat på dessa föredrag, och i viss mån en förberedning för kommande. Det är anledningen till språkvalet.

Så, vad ville du ha sagt?

#5 Copyriot › Bas suspenderad on 15 October 2008 at 9:51 pm

[…] Autumn talk, part 1: Why copyright is now about tools, not works […]

#6 Sasi on 18 October 2008 at 6:44 pm

“When we are able to listen to any piece of music, whenever, whenever, the experience of listening is deprived of its emotional value. Instead we start desiring musical experiences which can not be accessed whenever and wherever. We begin seeking out contexts which are specific for a place and a time. Some of these contexts are by convention known as “live” music, others are just multiplicating small habits which are still not institutionalised.”

…mmm… very philosophic. Not sure if unlimited availability of recorded music will make us desire live music more (is that what you are suggesting?).

Having said that, artificial and real scarcity will always be a characteristic of live music; while new technology has/will remove the artificial scarcity that copyright has created around recorded music (read movies etc), as well as eroding the real scarcity of recorded music brought about by the cost of producing a copy (which is almost 0 now). Scarcity is still one of the main selling points in the media industry (the emotional value of waiting four months for a movie being released in your country, and then waiting another 6 month to get your sweaty hands on the DVD).
I disagree that being able to listen to any piece of music deprives the experience of listening of its emotional value. The emotional value of music is the music itself…. removing the emotional value created by scarcity wont change that. Its still great or shit music, even if it’s free.

“…others are just multiplicating small habits which are still not institutionalised” what’s that? Jumping around in your bedroom :-)

I think your basic assumption is that we will always desire what we can’t have… accepting the mantra of the “I am because I shop” aspirational society. I am not sure about that. I think that with unlimited availability of music people will start to judge it more based on its artistic merit, rather than the hype created by the media industry (lets face it, the Spice Girls had hits because of the hype/emotional value artificially created around them, not because the music had a lot of emotional value in itself).

Its conceivable that removing the emotional value attached to artificial scarcity will mean we go back to consuming what we need, rather than consuming what we desire… back to the early 20th Century when shopping was a “necessity” rather than a “leisure activity” or “self expression”. I guess you see that with downloads – when people first hit the pirate bay they tend to download massive amount of stuff (desire), end up deleting most of it, and then only download what they need (thats when people start downloading single song or albums, rather than the entire back catalogue with all B sides).

#7 Sasi on 18 October 2008 at 8:03 pm

just occurred to me that copyright is now about tools, not works, because the tools eliminate artificial scarcity… hence revenue.
Now back to jumping around in my bedroom.

#8 Copyriot › Autumn talk, part 2: Bass and place, meaning and abundance on 20 October 2008 at 12:48 am

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#9 Copyriot › Autumn talk, part 3: Greyzone communities on 25 October 2008 at 9:28 pm

[…] Autumn talk, part 1: Why copyright is now about tools, not works […]

#10 Copyriot › Autumn talk, part 4: The method of Kopimi on 30 October 2008 at 8:44 pm

[…] Autumn talk, part 1: Why copyright is now about tools, not works […]

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