May 4, 2005
The Commoners’ Common Platform
Downhill Battle recently released their Fort Culture site. It gives me an opportunity to talk out some things I’ve been thinking about lately in regards to what the Commoners’/Free Culture common platform should be – that is, what planks, from the array of diverse interests involved in the copyfight, can we synthesize into one common cause. Talking this out in this post will partly take the form of criticizing Fort Culture and Downhill Battle, but I really don’t mean to pick on them in particular. I don’t like to criticize them, because I have respect and appreciation for much of what they do. 3 Notes and Runnin’ was a brilliant way of bringing attention to sampling issues, and both it and the Grey Tuesday campaign took real courage. The tools they create are an important, practical way of actually effecting change. In particular, I look forward to the release of their desktop video player and “broadcast machine.”
Fort Culture, to some extent, also has a great deal of value. It is useful to synthesize the different related issues. Not only is it helpful to introduce others to these issues, but also it’s also useful to bring related groups together in the fight for free culture
However, I am deeply uncomfortable with their excusing and encouraging widespread, infringing P2P file-sharing, and I particularly disagree with their doing so as a means to destroy the major record labels. I think that association with this stance poses the greatest danger to succeeding in the copyfight.
We can argue that lawsuits against file-sharers will not reduce infringing file-sharing and, in turn, help provide sufficient compensation for artists (and rights holders). In that light, we can argue that the lawsuits are bad on the whole and that a VCL would be an optimal resolution. We should care about ensuring sufficient compensation, and we can do so without saying that we want to do whatever it takes to ensure it no matter the costs. We can recognize that not all file-sharing is harmful and that there is not firm evidence that it has already done significant harm.
But we can say all that without supporting widespread infringement on P2P and, indeed, by actually saying, don’t infringe. Not to say it without any nuance, but still to say in general, as Lessig is willing to do, “I have no patience for people who download music contrary to the wish of the original copyright owner. ”
In fact, we should take seriously what the merits would be if widespread infringing file-sharing withered away – the benefits of a scenario in which, contrary to what may be our projections, the direct infringement lawsuits effectively reduce widespread infringement. We should take seriously the legitimate, long-run economic argument that widespread infringement will do harm. If we are interested in getting artists compensated, we cannot reject these arguments out of hand. And if we’re going to defend certain types of file-sharing, we should be clear about the types we don’t condone.
Perhaps you feel that file-sharing, of any kind, shouldn’t actually be against the law. Simply legalizing all file-sharing seems like a terribly rash course to take – is that really the position we want to defend? The VCL is still predicated on a continued right to control copying and distribution, and I think part of its draw for many is that it’s still a market-oriented approach that does not involve the government or completely remove compensation for distribution of copies.
Furthermore, when we rationalize infringement as a means to our legitimate ends, or when we condone potentially infringing activity uncritically, we weaken our pursuit of those ends. We may make pursuit of free culture look like a cover for getting music for free.
We might worry, for instance, about the end of file-sharing leading to the rise of more DRMed systems, but let’s argue about how we should treat the DMCA and DRM. If DRM is the worry, we should be addressing it head on, without using activity we’d otherwise consider improper as a means to our desired end.
I also do not see how widespread infringing file-sharing is a legitimate means to changing the music industry. So many times I hear people throw around ideas like “civil disobedience” to justify this practice, and I worry that many take on such justifications recklessly. If you don’t like the majors, if their business model is really so bad, then don’t buy their music and help compete with it – promote alternative channels of marketing and distribution, fight for their protection, build those tools, and empower artists and consumers to use them. Deeming it an illegitimate business model by itself doesn’t provide a sufficient rationale for infringement. If it’s really a “cartel”, we have legitimate, legal means to deal with it (and maybe we need better ones). You may prefer a VCL, but those ends don’t justify the means either.
There certainly is room for important nuance and gray area in considering these issues. For instance, I still share music with my brother – I’ll give him CDs of MP3s, and he’ll do the same. Could we say that activity is indistinguishable from most infringing file-sharing? I suppose. Still, at a very basic level, I can’t find much reason to get upset at myself or others for such activities. This is a conversation we should have (one Ernest has long urged), but it feels like a different conversation, built around different goals and ideas, than talking about widespread infringing P2P file-sharing in general.
Some say that Downhill Battle helps make other groups like EFF or PK seem more moderate by contrast. I worry that, instead, other groups who do not share these views get lumped in with Downhill Battle. I worry that, for instance, the EFF’s Let the Music Play campaign gets interpreted as expousing similar views, and that, when the EFF supports building a tool like Tor, it’s interpreted as merely a means to shield unlawful online activities.
We have worked hard to distance ourselves from extremes, the alls and the nones, as Lessig likes to call them. This cavalier stance on file-sharing seems to pull us back toward those who want no IP at all. I recognize some, like Downhill Battle, will still want to pursue it. Regardless, it seems like an infirm basis to create a shared platform for all commoners and to define collectively “what’s at stake in the fight for digital rights.”
Filed by Derek Slater at 10:51 pm under General news
2 Comments
You’re not the only one who worries about EFF’s Let the Music Play campaign. I still can’t manage to interpret what EFF actually promotes, in this case, as not encouraging or excusing infringement. And I don’t believe that helps the cause of balanced copyright. (As you may or may not know, I write about this stuff some as well…)
Anyway, great post: I’ll save it to use in a future Cites & Insights commentary.
David, before I comment I should apologize for not having the time to respond to each of your arguments directly. That said, your URL (and my good friend Kevin Driscoll, who I believe you’ve spoken with) tell me you’re in Cambridge, so we should definitely get together sometime to hash this stuff out in person–and then podcast it of course 🙂
Anyway, right now I’d just like to respond to your point about flanking–the one I think is most essential:
“Some say that Downhill Battle helps make other groups like EFF or PK seem more moderate by contrast.”
Many successful political movements have flanks, and having a flank is good for a number of reasons. Take the Republican majority in Congress on the fillibuster issue, for example. When the mainline party wants to get some politically aligned judges pushed through, it can use its evangelical flank to whip up a media frenzy about “activist judges who hate God”. In the context of that frenzy, the option once dubbed nuclear seems like a reasonable option, and *only partly* because the mainline party can look very measured next to its evangelical flank. It seems like the main impact of the flank in this case is to allow republican leaders to pose as “addressing an issue of grave importance to our constituency” rather than changing the rulebook to get what they want. The flank is also great for reframing the public debate; right now some dumb but well-meaning journalists are starting their segments with the question “do judges really hate God?” rather than the question “Why is the republican leadership so pissy when they don’t get what they wants”. Whatever the fate of the nuclear option, tactically the relationship between the flank and the mainline is clearly work astoundingly well. I mean, they’ve taken a proposal whose very name bespoke “I am not even gonna touch that” and made it a balanced national debate.
There may or may not be specific lessons for the free culture movement in the Republican’s use of their flank, I don’t know. But the point here is that there are lots of things you can use a flank for, if you know how.
One more reasons to use your flank, and this has obvious applications to free culture.
Different people respond to different arguments.
Lots of people don’t care that democrats are blocking Bush’s judicial nominees. Republicans could whine about “obstructionism” all day long and most people would just see it as politics as usual. But if you say “democrats are blocking these judges to pursue a secular agenda” then a lot of people (now) care.
It’s really easy to see how this works in the copyfight space if you think about it. The geeks and technologists and tech-law folks driving the discussion really like cool new gadgets. If you say “this law THREATENS INNOVATION” then geeks will get up in arms. But if I’m the average hip hop or rock musician and I hear “threatens innovation” that sounds a) irrelevant to me or b) kind of like the business lingo that the people I hate use. PK shouldn’t strike “protect innovation” from their talking points; they work great for a certain audience. The solution (which will happen anyway if you let it) is that new groups come on the scene with similar long-term goals but with very different arguments. Some of these arguments, if you project them onto a moderate <-> extreme axis (though I’d say even that’s a mistake because given the newness of IP issues to most people, they don’t know where the center is yet and really more than anything else you have a chance to define it) are going to show up near “extreme”. But hell, rock n roll is extreme. And hip hop is extreme. And if you can strike the right relationship with these other messages, you’ve got your organic, emergent solution to the problem of how to reach lots of very different people who think very different things, which is particularly important in this case because copyfighters desperately need to identify a) large discreet kinds of musicians who you can potentially appeal and b) ways to appeal to them.
As for the question of whether the flank can harm the center, I think it’s possible, but it happens a lot less than you think. Again, look at the Republican party and its evangelical flank. Is their flank very inflammatory? What the rapture and threatening judges and all? Hell yes. But has this stopped the Republicans from generally kicking ass? Not really. And I think the answer is that most of those people who freak out when they even think about the flank don’t agree with republicans anyway. And most mainline republicans see them as allies and a convenient source of clout. And most people in the middle, well, they go both ways. Sometimes the flank will seem like extremists or hypocrites, but other times they’ll sound like they really are being persecuted just for taking God more seriously than everbody else.
The key to using your flank is to understanding your own interest. Rich, secular pro-business Republicans know what side their bread is buttered on and go along for the (evangelical) ride not because they necessarily like the company along the way, but because of where it gets them.
Once everybody understands their mutual interest, each can take public positions against the other, but with that mutual understanding in place that unites, generally, everybody’s efforts.
Because the copyfight movement is primarily made up of people who got technology (or law) first, and politics second, there is still a general fuzziness about what is and is not in the interest of the movement as a whole. I think that’s the main barrier to these tactical relationships.
But I think that discussion could wait till our podcast.
By the way, when I say “copyfight needs a flank” I don’t mean “copyfight needs Downhill Battle”. In a way I think we could have been a much *better* flank, and right now we would rather there were other groups picking up that ball and running with it.
Look forward to meeting with you sometime. Email me and we can exchange numbers.