April has been a busy month around the world in the realm of copyright law, as governments and courts try to navigate the issue of controlling and legislating the electronic movement of copyrighted works.
In the United States, the Federal Bureau of Investigation was called in to investigate after a full-length version of X-Men Origins: Wolverine, one of spring's most anticipated Hollywood blockbusters, was leaked online.
In France, legislation that would have allowed internet service providers to cut the internet connections of illegal downloaders of copyrighted material after three offences, made it through the lower house of parliament before being defeated in the National Assembly.
And in Sweden, four men linked to the Pirate Bay file-sharing site were found guilty of breaking the country's copyright law, ordered to pay damages of 30 million kronor ($4.3 million) and all were sentenced to one year in prison.
The issue of copyright is a thorny one. On the one hand there are academics, artists and consumers, who want to avoid restrictions on what they can and can't do with copyrighted material, while on the other side are the distributors of music, movies and news, who want to protect the content they own. Caught in the middle is the content creators, who want to be paid for their work and balk at the notion of their works being traded freely on peer-to-peer networks, but sympathize with people who wish to legitimately share, comment on and sample from a song, article or other work.
Michael Masnick, the writer and editor of the technology blog Techdirt, is someone who has given the issue considerable thought, and he sees hope for content producers, provided they embrace new distribution models instead of launching lawsuits.
Masnick often uses the example of Trent Reznor, who had success releasing a 36-track album last year in a variety of formats on the internet, with a portion available for free download over file-sharing networks. Masnick spoke to CBC News in April during his appearance at the Mesh social media conference in Toronto about how businesses and artists can sell their products in a world where content is often freely available.
What role will copyright have in the future?
Nobody is going to get rid of copyright. The question is what shape and form it's going to take. What's amazing to me in the last few years especially in the academic space is there has been this broad swath of research that effectively shows that copyright law has gotten out of control, it's not doing anything that it was supposed to do anymore and it's totally become about protecting the existing business model and has very little to do with incentivizing content creation.
And yet we have the entertainment industry that keeps pushing for more [protections].… It's become these two extremes. The struggle is not going to go away because these are entrenched businesses that spend a lot of money lobbying, so it's not going to change anytime soon. It does cause a lot of problems, but a lot of new methods [like Reznor's business model] will just route around it and happen outside of it.
There is a quote from Irish author Brendan Behan: "There is no such thing as bad publicity except your own obituary." Was Fox's handling of the X-Men Origins release good because it got this movie in the news, or does it hurt them?
It's a little of both. I had written in the blog how in an alternate universe Fox should have responded. They should have come out and basically said, "Look, we know this is out there, we know you are huge fans of Wolverine and you're really looking forward to it and so are we. And we know it's really tempting, but this is not a final version and we don't think it really shows the best and we think you'll be better off waiting. But if you can't — and we understand that some of you won't be able to wait — go ahead and watch it, but think of it as a behind-the-scenes look, and get ready to see what special effects we'll add."
They really could have done it in a way that was fan friendly, and instead what they did was very anti-fan and what it's done is it has gotten them publicity, and a lot of that publicity is driving people to watch that video and not to then go see the final version, where they could have set it up in a way that got people thinking, "Well, maybe I'll watch it," but then got them thinking, "Oh, wait, Fox is actually being pretty cool about this and I'll support that."
If X-Men Origins opens in May and does gangbusters, which it probably will, is everyone going to learn a different lesson from this? Will Fox say, "We were right to crack down?"
That may be because … last year's example of The Dark Knight film was a perfect analogue to this. Though the studio denies it, it was leaked online before its actual release and it was widely downloaded before its release. And it had a huge opening and was by far the highest grossing film of last year ... and the most pirated.
And yet, a week after the release, the movie studios came out and did this thing about how successful they were about preventing the piracy, about how they knew it was going to happen but it didn't happen until days afterward — which was not true — and they credited the huge opening with the fact they had prevented the piracy, which there's no indication that this was true at all. There's no clear correlation between people downloading the movie and then not going to see a movie unless the movie is really bad, and in the case of The Dark Knight it was not, it was clearly a great movie.
What you've described is for a lot of businesses a sea change in thinking, and I wonder how much of this model was based on observing the successes of someone like Trent Reznor?
Before Trent Reznor I certainly had established this sort of mental model and then when he started doing stuff, I did think it was interesting. His first few experiments weren't necessarily successful, but what's most impressive about him is he really learned from [them] tremendously and every new iteration is more and more impressive. Just the other day Nine Inch Nails launched an iPhone app: it's an incredible iPhone app, it has everything on his website and all these new features, including a location-based feature so you can find other NIN fans so if you are at a show, you take a picture, you can see where that picture was taken from. It's an impressive way to build and connect with the community.
Veteran session musician Josh Freese followed the example of colleague Trent Reznor and offered special, limited edition packages for an album he was selling online for $7. The packages attracted notoriety for their humour and unusual access to the artist's life.
One limited edition package, for example, included not only a signed CD/DVD and digital download, but also included:
- A promise to write two songs about the buyer.
- A chance to play miniature golf with Freese and Maynard James Keenan and Mark Mothersbaugh from DEVO before the three of them dropped the buyer off "on the side of the freeway."
- A tour of Long Beach, including the copy shop where a friend of his paid Dave Grohl $40 to rip up some tile just weeks before he joined "Nirvana."
- The opportunity to "pick any three items of my closet."
One lucky person bought the package for $20,000 US.
Still awaiting a sale is the $75,000 US package, in which Freese offers, among other things, to write, record and market a five-song EP about the buyer and their life.
He's been an impressive one to watch, so what's worked there has made me rethink and simplify the model to 'Connect with fans, give them a reason to buy, grow the community.' Before that when I described the model it was a five-step model, a little more complicated. The simpler you can get that message out and make people understand it, the better.
Is the transition we're seeing today a change in distribution of content, where the studio or the newspaper is being replaced by the iPhone that holds all the applications or the search tool that finds the content, and if so, is the challenge for content creators to find a way to navigate from one distributor to the next?
I think the Apples and Googles of the world have sort of figured out how this model works and are making a lot of money off it. I think what will ultimately happen is that they start to build the models — and to some extent they have already — that will fund that content creation. Google has Ad Sense and some other things and Apple has iTunes and the iPhone app store and things like that, so they are beginning to fund the model that makes the services valuable.
There's the old The Who lyric from the song Won't Get Fooled Again: "Meet the new boss, same as the old boss." Is there some way in which the new boss is an even harsher taskmaster to the content creator than the old boss?
They do present new issues, there are certainly concerns with both Apple and Google representing semi-monopolistic control over things. I tend to think that may be a problem initially but tends to go away over time because what happens is they begin to recognize the way you do value is by serving these communities better and if they don't serve those communities well other options will show up and they'll go elsewhere.
We're starting to see that elsewhere, with the iPhone app store, there is a big gatekeeper there and they have a huge lead and a great device, but we're seeing other app stores start to come about. Google is trying to create a more open solution with Android, Research in Motion is creating their own app store, so alternatives come out.
One of the things that happens is in the old-old model with the old boss you basically signed away your life, record deal, movie deal, you signed away everything. The new boss has issues, but you still have some control and some ability to walk, which wasn't as true with the old cases. So I still think there's an evolution and another level where the new boss will be more open and more accepting and even more friendly for the content creators as well.
You've pointed to a number of less famous artists such as Josh Freese [see sidebar] who have had success like Nine Inch Nails has offering fans special access to encourage sales in their music even as they make some of the music freely available. Are these artists successful because they are embracing a new way of thinking, or are they successful simply because they are doing something different, and in doing so they stand out?
There's certainly an element of that ... every time someone does something new it gets attention. Josh Freese in an interview recently did say. 'I'm getting a lot more attention for the business model than the music,' and it was the same complaint Radiohead made when they did their experiment of pay what you want. But I think you reach a happy medium where if you do connect with the fans and you have a real connection there, then even if you do the same thing someone else does, people will pay because they find it valuable and they want to participate in it.
I think there will always be new and different things you can do to stand out, and to be distinctive takes a little more work. But I don't think this idea that now that Josh Freese has done it there is no more that can be done. There are plenty more new and creative ideas.