Every week night when I was little, I watched The Polka Dot Door and dreamed of playing the piano just like Herbert Helbig. When it was over, my younger brother and I would race to turn off the TV before that scary music started up with the man with the spooky face. As we grew older, my brother became brave: ignoring my protests he would watch just a few moments of Doctor Who before we switched the set off. (He claims I was the brave one, but I do not believe him.)
A few years later we were watching fairly regularly, but we were not really hooked. Then PBS announced that they would show Doctor Who from the beginning. We weren’t home that night, so we set our Beta VCR to record it. This was the early 1980s: TV Ontario was showing nearly-current color episodes with the 4th and 5th doctors. But it was An Unearthly Child, a black and white episode nearly two decades old, that made us fall in love with Doctor Who.
In Canada at that time, Doctor Who was a fringe phenomenon; the existence of fans probably would have been a mystery to most people. My brother and I hunted down every bit of information we could get our hands on: target novelizations, the FASA’s Doctor Who role playing game, Doctor Who Magazine, publications describing early stories. The use of the term “season” was a mystery to me then, but I knew I liked the sound of Season 5. I was crushed to learn it no longer existed. I imagined schemes to recover the lost episodes: racing them into space to pick up the radio signals, reading them from the brains of viewers who remembered, and of course travelling back in time.
We joined the Type 40 Doctor Who club that met monthly in the National Research Council’s wood-panelled granite building out by the Ottawa river. We were the youngest members, surrounded by middle-aged men who huddled around a TV and VCR watching bootlegged tapes. Orphan episodes in particular had been copied so many times they were virtually unwatchable, messes of grey blobs and a rushing sound that drowned out dialog. When Patrick Troughton died, the club showed a degraded copy of The Enemy of the World 3. When Evil of the Daleks 2 was found, we watched that too. With a surplus VHS, my brother and I borrowed and copied tapes of everything we could get.
We taped episodes regularly on TVO and PBS; when we visited grandparents we took a VCR and grabbed episodes from other PBS stations (I saw Talons of Weng-Chiang in my grandparents’ dark house when everyone had gone to bed). VCR failure was a serious event; I learned to open up the machine to disentangle and re-align the tape. Eventually we managed to wear the machine out. We completed our collection when YTV broadcast one episode per day (with commercial breaks threatening to increase our costs: an L-750 Beta videotape at the high-quality Beta II setting could only fit 7 episodes). By 1991 we had the entire extant series on Beta videotape, including orphan episodes. I still have the tapes.
My favorite Doctor was Patrick Troughton (from The Five Doctors and Box of Delights); my favorite monsters were the Cybermen. The black and white episodes are the most special to me. Many of them show a foreign but familiar culture (British, 1960s) projected into an outdated imaginary future (contrasting strongly with the brash alien arrogance of Star Trek, now also fascinating as a reflection of its time).
When the new series arrived it didn’t hold my attention for long. With its extravagant season finales, humanized Doctor, focus on present-day Earth, indulgent self-importance and frenetic pacing it was not the show I had loved. I understand the producer was inspired by the genius of Buffy, but it didn’t work for me. Tenant in particular, though I can see why he is well liked, combined my two least favorite doctors, Davison and Pertwee. Regardless, I think the program would have been better with less money. The old series profited from a miserly budget that forced an emphasis on script, character, and atmosphere over action and spectacle. Look at the second Doctor’s face at the end of episode 2 of The Moonbase, when he realizes the Cybermen are right there in the room with him: I will take that any day over high-quality special effects, location filming, or armies of extras. Despite excellent episodes like Blink and Human Nature, I left Doctor Who behind me.
Then in October I read the rumors of whole rediscovered stories; I had trouble concentrating on other things. When The Tomb of the Cybermen was found in 1991, it was my most wanted story (though I was shocked and disappointed by the carton racism). If I had made a list of my next two choices, the stories recovered this year probably would have topped it. For years – perhaps decades – I have dreamed my own version of The Enemy of the World. It is wonderful to be able to see for the first time episodes made before I was born.
Now I have started watching Matt Smith’s portrayal. My Doctor is back: deceptive, arbitrary, unknowable, ultimately good but not always nice. I can believe this is the man who sabotaged the fluid links in The Daleks, whose curiosity led people to their deaths in The Tomb of the Cybermen, who tricked Ace into facing her fears in Ghostlight, who refused to save a dying cleaning woman in Cat’s Cradle: Warhead because she knew the evil her employer was up to, yet failed to sacrifice her livelihood in a futile attempt to stop it: the man who in that magical first episode, An Unearthly Child, toyed with the lives of companions he was later to come to respect. I have high hopes for Peter Capaldi in seasons to come.
This is my latest video, about the role of culture in science. Science is dependent not only on evidence and reason, but also on the collective judgements and consensus of scientists. This video provides an overview and critique of induction and falsification, and discusses the theories of Karl Popper and Thomas Kuhn.
My latest video illustrating with several examples how the recent tendency toward extreme copyright inhibits artists and ordinary people from creativity and participation in culture.
Note that this is not a video about weighing the merits of copyright, but looking at some of the more disturbing recent trends.
Here’s a transcript (added 2012-06-17):
In my last video I said there are a number of factors inhibiting ordinary people from participating in culture. Unfortunately today one of those is copyright. So in this video I will look at some examples of what I would describe as extreme copyright. I’m not trying to weigh the merits of copyright law here; what I want to do is focus in on what I think are some destructive recent tendencies.
Now in a way this seems cheap, because finding cases extreme copyright seems to me like shooting fish in a barrel. There’s a case almost every single day. I picked four cases and I’ll mention a few others because I wanted to give an idea of a range of what’s happening, and I oriented these around the United States. The United States is both perhaps the most active player in this area and also a powerful country that’s been pushing for changes to copyright law elsewhere in the world.
The first case I’ll look at is Capitol versus Thomas. For several years now, the Recording Industry Association of America, the RIAA, has been seeking out people who’ve been engaged in file-sharing and sending them letters demanding that they pay thousands of dollars or they will be sued for copyright infringement. The vast majority of people settle, and I think you’ll see why. But in this case the defendant didn’t settle, and the case went to court.
Jammie Thomas was accused by the RIAA of sharing twenty four songs. They don’t actually know whether anybody had actually downloaded those songs from her, but they did know that she’d made them – or they claimed that she’d made them – available for download by others. And juries agreed.
There ended up being three different trials. What I want to point to, however, is the jury awards, which were: for the first, twenty two thousand dollars, second one point nine two million, third one point five million. In two cases the judges said those numbers are absurd and reduced them to fifty four thousand dollars.
But in fact the RIAA said she didn’t actually share only twenty four songs: should actually shared seventeen hundred and two. They just chose to sue her for twenty four. If they’d soon her for all of those the penalties would have been extraordinary. Because they were using statutory damages – that is, not knowing exactly how much damage she might have done to their business, if any – the law provides for statutory minimums and maximums.
The minimum would be seven hundred and fifty dollars per count. Multiplied by one thousand seven hundred two, that produces about one point three million dollars in damages. So if they had sued her for all 1702, and the jury had found her guilty, the jury would have been obliged to hit her with penalties of at least one point three million.
But if we take the maximum figure that the juries picked out of the three awards, which was actually eighty thousand dollars per count, they would have awarded one hundred thirty six million dollars for sharing music for an ordinary person.
In reality there is not a lot of difference between these figures because if you’re an ordinary person and you get hit with penalties in the millions of dollars, it’s life-changing. That’s it: you can never pay it, it just turns your life upside-down.
Now the thing is, this is a civil case so although it it does look to me as if she was probably guilty, the burden of proof was only balance probability. So the jury thought it was probable that she had broken the law here, then they would have been obliged to award at least seven hundred and fifty dollars per count, and the penalties could have been as high as you see here.
What we’re seeing is that a law that was designed for institutions, designed to regulate the internal operation of industries, is being applied to individuals. And when that happens the penalties, I think, are extraordinarily disproportionate.
One of the reasons that is often given for such extreme damages is that infringement is so widespread that an example needs to be set of a few people. And that’s probably why the RIAA has said that they don’t want to accept the fifty four thousand dollar figure: they want a bigger example to discourage file-sharing. But despite several cases like this, file-sharing continues unabated. Fear of extreme penalties simply isn’t working.
The second case I want a look at is the dancing toddler. Stephanie Lenz was a mom. She was playing some music and her son was two years old. If you’ve had a two-year-old, the two-year-old hears music: he’ll start dancing. So she did the natural thing: she grabbed a videa camera and she taped it. And then she did the other natural thing: she wanted to share with friends and family, so she uploaded it to YouTube.
It turned out that the song was Let’s Go Crazy by Prince. Prince was not pleased, so he went to YouTube and said someone is infringing my copyright, take the video down. And YouTube did because in order to not be sued for copyright infringement under U.S. law, YouTube can protect itself by taking stuff down, simply based on an accusation – no proof needed. If that happens to you, though, and you want to get your material back up, you have to claim – under penalty of perjury – that you’re not infringing copyright.
Well, Lenz was incensed by this and she got a lawyer and she went to court and she sued Prince, or his record label, saying, Hey! This is ridiculous. This is reasonable under U.S. law. I should be allowed to do this. So far the court has been sympathetic. You can imagine, though, when it’s easier to get something taken down than it is to get it put back up, that this can be abused.
In the run-up to the 2008 U.S. election John McCain had this problem. Now John McCain actually voted for the law back in 1998. What happened in 2008 was that his campaign had some ads in which they use news footage. And the owners of the news footage, networks like CBS and Fox, issued take-down notices to YouTube. The material went offline.
McCain’s campaign responded and said, this is fair use under U.S. law: put it back
up. But there was a delay of ten days to two weeks. In an election that can be a long time. McCain’s solution was that, maybe politicians should have an exemption. You could imagine if this happens to John McCain, and an accusation merely needs to be made to to take something down, that there is a serious risk that ordinary people have stuff taking down frequently. And it has happened.
Now a similar problem has happened just in general with copyright being used to stop what are potentially creative works. So for example, Alice Randall in 2001 tried to publish a book called The Wind Done Gone, which was inspired by Margaret Mitchell’s famous Gone With the Wind. The Wind Done Gone, however, is from a slave’s point of view, and it avoids the names of the locations and the characters in the original Gone With the Wind. Nonetheless, her publisher was sued, and in the end she settled to pay an undisclosed sum to a charity, in return for which she was permitted to publish the book that she had written.
The point I want to make here is that it’s remarkably easy for copyright to stop artists and ordinary people from expressing themselves in original ways.
The third case i will look at is that of Mark Fiore. Mark Fiore is a political cartoonists, a caricaturist, which obviously I am not. Mark wanted to distribute his cartoons as an app in the App Store so that people with iPhones or iPads could download it. But the thing is, if you want to get something into the App Store you need Apple’s permission. And Apple said No.
One of the reasons they gave was that “it contains content that ridicules public figures.” Well, the guy is a cartoonist. If he’s not ridiculing public figures, he’s really not doing his job. In any case, he had also won a Pulitzer Prize for his work. When Steve Jobs found out about the uproar over this he said, Hey wait a minute – we’ll look at this one again. Resubmit your app to the App Store. And indeed it was approved.
Well of course the App Store belongs to Apple. Apple should decide what goes into the App Store. But: the App Store is also the only way to get something onto the iPhone or the iPad. If I am somebody who creates a piece of art or an application, and I want to give it to you know – so I’ve got a willing seller and a willing buyer – or perhaps i just want to give it to you for free, we can’t do it without Apples permission. Because Apple has a lock on the device They have a lock on what the iPhone you own or the iPad that I own is permitted to do. You can’t put software on those machines with Apples permission. Furthermore, if you try to work around the restriction that Apple has placed on the device – to work around their so called digital lock – you’ll be breaking copyright law: at least in the United States.
Here we have a case where copyright is being used to limit the ability of artists to distribute their work – and not at the behest of creators, but in the interests of the manufacturer of the technology. What Apple has done is it has used copyright law and digital locks to create a distribution channel over which it has complete control. Even if we own the devices, they still control them. Historically of course it’s through control of distribution that artists have been screwed over and over and over again.
In another case of this a couple of years ago, Amazon discovered that it had accidentally sold some copies of George Orwell books, Nineteen Eighty-Four and Animal Farm, that it shouldn’t have. So it went into the Kindles that people owned and it remotely deleted them without notifying them first. So this isn’t the first time that technology and digital locks is being used to control what people can read and what they can write and distribute.
Finally, I’m going to look at the case of Andrew Ainsworth, another creator. Now Mr Ainsworth in 1977 was involved in the design and the production of the original storm trooper masks for the first Star Wars movie. He’s not the only person who was involved in that mind you, there were other people: it was a collective effort.
To make a bit of money, recently Mr Ainsworth made copies the masks and he sold them and he made about thirty thousand dollars. When Lucasflim found out they sued him in California and the court awarded them thirty million dollars.
However, Mr Ainsworth lives in England, so this judgment was not enforcable there. So Lucasfilm went to England to sue. The court decided first that it was implied that the copyright, if it existed, would belong to Lucasfilm, even though there was no documentation to that effect. The second thing they decided was that the masks, in fact, were not covered by copyright – because they weren’t works of art. They weren’t sculptures. The masks, the court said, were tools. They were part of the process of making the movie. Therefore, as industrial designs their term of protection was much shorter, only fifteen years. So Ainsworth was not liable. Ainsworth, however, has a bit of a problem. If he ever goes to the United States, he could be hit with that thirty million dollar judgment.
Furthermore, it occurs to me that the mask looks to me like it could be a work of art. The court judged that it was effectively a tool. It could also be seen as fashion. If we see it as a tool, there’s no harm no foul here. If we see is the work of art, the penalty could be extraordinary. And if we see it as fashion – well fashion isn’t covered by copyright, so if it’s a hat, not a mask, there’s no problem.
What these four examples illustrate is that ordinary people and artists alike are vulnerable to having their lives turned upside down by copyright law. The line between being creative, which is good, and infringing copyright is a fine one that’s often decided only on a balance the probabilities. The consequences can be disastrous. Furthermore, while most ordinary people who infringe copyright are not caught, artists operate in public so they are. So they are either at most risk, or most likely be chased into the arms of corporations and organizations that can shield them from copyright.
How this happened, how did this come about? That’s something i want to talk about in a future video.
My most recent video is about the importance of cultural participation to the formation of community and the development of people as citizens.
Here is a transcript (added 2012-06-17):
I got into trouble with some of my friends in one of my previous videos when I suggested that Star Wars perhaps was better than most YouTube cat videos. So this time I’m going to talk about why cat videos matter.
You know the twentieth century was an exceptional time. It was a time of great cultural transformation, when culture, changed from something that we do into something that we consume. Where before we used to play sports now, for the most part, we watch sports. Before we would sing or make music with an instrument; now we listen to music that’s already been made by somebody else. Whereas before in the nineteenth century a good middle-class girl in the United States would be expected to learn a musical instrument, where I believe the United States government kept statistics about the percentage of families in which all the members could play a musical instrument, now most people can’t play an instrument at all and such statistics would come out being absurdly low – not the double digits that i believe that they were then.
But the change started even before that, back when people lived on the land. They sang songs; they told stories; they made their own clothes, their own furniture their own tools. Things that today we might see his art or design for them were simple traditions of how to live. Human beings throughout our existence have had rituals and traditions to bring us together into communities, and to establish identities as members of those communities.
But with the industrial revolution, this started to change. When the peasants were pushed off the land to go and work in factories, their new employers required long hours. They didn’t want work interrupted by people singing on the line or taking a day off now and then for a festival or a feast.
As I’ve described in another video, the idea of the romantic author arose, which separated art from society so that artists were someone special outside everyday normal life. In the twentieth century in the late nineteenth century we had the introduction of many technologies – sheet music, inexpensive newspapers, radio, the gramophone – that further professionalized culture.
I’m going to illustrate the change with a particular story set in New York in 1947, when a movie called The Naked City was made. I got this at my local library, and on the DVD you could see an interview with a guy named James Sanders. Sanders talks about why this is an important film. First because it was actually made in New York: until then, Hollywood usually mocked up New York in a back lot in California somewhere instead of actually going there. The other reason is because it showed what New York was like at the time. And New York at the time had a vibrant street life, where children were playing in playgrounds, people were leaning out of windows, people knew their neighbors – and this was a working-class neighborhood of immigrants. As Sanders says, it feels like Rome or Paris or some European city, not like what New York became about thirty years later in late seventies and early eighties.
But what sanders says that’s really important, he says, “what you see in The Naked City, in virtually its last year of existence, is a kind of a way of life . . . until that year or the year after and then it would all change.” The reason it changes, he says, is
because a couple of years later television came to New York city: and when that happened, instead of sitting out on their stoops and talking to passersby, many people went inside to watch TV. My wife grew up in China and she saw the same thing happen there in the late seventies in the early nineteen eighties. Her neighborhood is still pretty vibrant, but she says how she could see in the evening when the TV shows came on people left the streets to go in and watch TV.
In Robert Putnam’s book Bowling Alone, he details a steep decline in social participation, in social capital, community involvement in the last third of the twentieth century in the United States, from the nineteen sixties onwards. One of the chief factors he points to is the advent of television. In particular, he mentions a Canadian study of a community up in Canada’s north. When TV arrived there in the sixties a team of researchers went in to see what would happen: and indeed the community life changed and faded away.
What we’ve done effectively is we’ve outsource our culture. Where before it was something we did ourselves, now it’s something that’s done by others for us. So we come to see culture as something that we consume, and not something that we do.
Which brings me to cat videos.
Now cat videos are often seen as not being very good. But that misses the point. The point is not whether cat videos can compete with the output of Hollywood, but the active participation of the people who create them: that someone who makes a cat video is doing culture rather than simply consuming culture, and by doing that that person sees themselves as an active participant in making the culture in the society that he or she lives in.
Now it’s true that I’ve said as audiences we contribute significantly to the meaning and value of popular cultural works. But that situation is quite different, because by law, and as we see ourselves, we’re acting within somebody else’s world. As long as someone who creates a fan production based on Star Wars can only do so with George Lucas’s permission, then they can’t see themselves as acting publicly in the same way. It’s certainly possible that we can construct our laws and our culture differently, but that’s not how it is right now.
Historically we’ve had significant contributions that we’ve made to the communities that we live in. We used to physically build them. Barn raisings in the early United States in which people would get together to build a barn for a neighbor are one example. Historically also we’ve built the culture that we live in. But now the distance between our culture and our actions is quite great. Even the distance between the things that we do do for an employer is quite great; what I do for my job may only have an effect far away in the world and have very little impact on my community.
So we don’t see ourselves as investing in our lives and the society that we live in in the same way. But culture and participation in that gives us an opportunity to do so. This has a relevance for politics too. We often pretend that the vote of an individual makes a difference. But the truth is, as we know deep inside, it almost never does – and in any case voting is a very weak form participation in democracy. The truth is if we want to make a difference to how we are governed and the society that we live in, we need to collaborate with other people. And the relationships and values that we form around and through culture are fundamentals of that, just as is our identity and our sense of ourselves as people who act, who are active in our society and contribute to it.
Unfortunately, the habits of the twentieth century die hard. Corporations have become rich in a model where they are at the center and we are at the periphery; and they make the content and we consume it, often individually. They want a fight to maintain the profits that they’ve made. Where a model has worked they want to continue with it. Even if we contribute as audiences they want to capture and control that value for their own interest. So they’ve been warping the environment under which we can again participate in our culture. But I’m going to talk about that more in detail in other videos.
I have made a video about the contribution of audiences to the value and meaning of creative works, contrasting with the myth that the romantic author is solely responsible.
Here is a transcript (added 2012-06-17):
Audiences make an essential contribution to the value and even the meaning of artistic works.
In a previous video, I explained the idea of the romantic author which shapes our understanding of creativity, and in fact has served as a guideline for copyright and patent law. According to this view the author is a genius who expresses something unique and personal when he or she creates a work of art. But that’s not the end of the creative process. What I’m going to talk about now is the contribution that the audience makes.
Consider artistic talent. Talent as a human characteristic, so like height or I.Q. it follows a bell curve or a normal distribution. That means that a few people have very little talent, say for drawing, a few people have exceptional talent, but most of us are somewhere in the middle.
Now if talent were the main factor affecting the success of artworks, then we would expect that artworks would follow the same pattern. In other words, say for films, we would expect that there would be a few films that were ignored, that were not popular at all, say most cat videos on YouTube; a few were exceptionally successful, say Star Wars; but most of them would achieve some degree of success without being exceptional.
In fact, what we have are lots and lots of movies that are not very popular, and a few that are exceptionally popular. We’re not talking five or ten times more popular than your average movie: we’re talking hundreds or hundreds of thousands of times more popular.
This can be represented not by normal curve but by a power law distribution. Most movies, as I say, are not very popular, and that’s represented by them being on the left of this curve. A few are somewhat successful. And an exceedingly small number are tremendously successful: way off the scale. And sometimes that includes cat videos.
This is true of many social phenomena. It is true of the success of music; of books; of computer operating systems – there are only a few operating systems that people even know about, although there are many others out there; websites – Google and Facebook have many, many, many more hits than you average blog. It’s also true of personal wealth.
Why? One might naively suggest that this has to do with advertising: that companies advertise and that makes the difference. Yet advertising often fails, and sleeper hits often succeed. One might also suggest it’s because producers choose to only produce or publish the good stuff. But that doesn’t explain the huge disparity in success between the hits and the average.
Audiences are the key factor, and they do two things. The first thing they do is they communicate and spread the word. If I watch a movie that I enjoy, I am likely to tell my friends – and they’re likely to tell more people, and so on: so the success of a film compounds. Even if I don’t talk to people I can see what’s getting attention, and that means that I notice it. There many more films out there than I can see, many more songs than I can listen to – and the mere fact of being aware of something makes a big difference.
This is something like the expression that says it takes money to make money. It takes success to make success.
This was demonstrated in an experiment by Salganik, Dodds and Watts. What they did was they took fourteen hundred something volunteers and forty-eight little-known songs. They wanted to see how these
volunteers would rate these songs. The study participants didn’t have time to listen to everything, so they had to pick some of the songs to listen to. They were divided into several groups. Members of the first group saw a random list of all the songs. They could click on some of them, and after they listened to a song they could rate it on a scale of one to five.
Members of the other study groups, however, saw something a little bit
different. They still saw the list of songs, but now the next each song was a download count showing how many other people in the same group as them had downloaded the song. The songs were sorted from most downloaded to least downloaded.
The results were stunning. The group whose members could not see download counts rated a particular song – Lockdown by the group 52metro – around the middle of the pack, about twenty four out of forty eight. One of the other groups, whose members could see download counts however, ranked it number one: and a third group, whose members could also see download counts, ranked it forty.
In other words, the assessment of this song’s quality was determined not by something intrinsic in the song, but simply by its popularity: not even by its assessment of quality by other people, but just the fact that other people were listening to it.
The other thing that audiences do is they make meetings, which I will illustrate with the song Happy Birthday to You. I’m not going to show you the lyrics because Happy Birthday to You is under copyright, and I don’t think that copyright expires until 2032 in the U.S. I don’t want to get my video taken down. Happy Birthday to You actually takes its tune, however, from an earlier song called Good Morning to You composed by school teacher in 1893.
Happy Birthday has become an institution. It is sung at every child’s birthday party that I can remember when the cake comes out. The thing is, the copyright is owned by Warner Music, and Warner makes two million dollars a year licensing and for use in movies. This is why restaurants usually won’t sing it: they want to pay the licensing fee, and they want to get sued.
I can guarantee to you that Happy Birthday to You was not worth two million dollars a year when it was first composed. That two million dollars is the result of the meanings that the audience has created around the song: not only the popularity that they’ve built up, but the association with children’s birthday parties.
It’s not only true of that, it’s true of art in general: that we associate art with feelings that we have, we build up our own personal meanings for it. This has been studied extensively in
For example, when I fell in love the first time perhaps I heard a piece of music. So I care about that piece of music: it means something special to me. Or maybe when I was a child and I saw Star Wars the first time it made me feel a sense of wonder, and so I watch the movie again: not because I’m so impressed, but because I want to recover the sense of wonder I had when I was a child.
Take the Rocky Horror Picture Show. It was not a great success when it was first released. But it later turned into a cult favorite, and movie-goers now go to the theater dressed up, throwing toilet paper rolls and playing cards at certain times in the movie.
This is true in general about art. The meanings that people give to it, the reason they care about it is always something that they construct themselves.
All of this poses a problem for media companies. What are they to do They’re notoriously bad at predicting what will succeed. By now it should be clear why: ultimately it’s the audience that decides that. Not only success: the audience also determines quality. Whether we consider the mass audience or the audience of critics, the same principles apply.
Media companies want to make money, so they need to predict. In fact, what they want to do is they want to capture the work that the audience does – popularizing works and making meanings around them – and they want to transfer those to subsequent works that they produce.
The star system is one way of doing that. If I watch Humphrey Bogart in Casablanca and I love the movie, then I think perhaps I’d like to see him also in Key Largo. So I transfer some of the feelings i have about Casablanca to Key Largo.
Another technique is to just take the same characters and the same settings and make other stories with them; and so we end up with a lot of sequels.
We also have what Star Wars innovated, or what George Lucas innovated with Star Wars, which is taking the brand and applying it to other kinds of goods like TV shows, action figures, novelizations, knick-knacks, and so on. If a kid goes and sees Star Wars and is enthusiastic about it, his imagination of what happens in the movie can then be projected into the toys as well.
The result has been that companies are focusing less and less on individual artworks and more and more on what in some industries have been called “IPs” or intellectual properties: not just a single movie, but the whole thing that surrounds it; not just Star Wars the film, but all the films, and the TV shows, and the toys, and so forth.
Now we’re a long way from the idea of the romantic author. Because IPs are owned by corporations. If you want to work on an IP as an artist, you’re going to have to work under the conditions that the corporation sets. Corporations often sell IPs or transfer them. They may decide that a different artist should be working on Batman this year, and the audience goes with the IP, not with the artist.
So the value of this is quite detached from the unique vision or genius of individuals at this point. And that genius is mediated through what companies want to do in order to maximize their profits. Meanwhile, we the audience are producing much of that value.
But there’s a downside to that, which i’m going to talk about in another video.
I have created a video about the invention of the idea of authorship. This is related both to the first enclosures, of the English common lands, and to the second enclosure of intellectual property:
Here is a transcript (added 2012-06-16):
The idea of authorship is central to our understanding our society and our economy today.
Yet the idea of the author only became popular in the past one or two hundred years. Before that it was not human beings who were creative: it was God. God created the world, and it was the role of the artist or the writer to accurately reflect the majesty of God’s creation.
But with the upheavals of the Industrial Revolution, the rise of capitalism, and the enclosures in England that I talked about in another video, society was under great pressure. People lost their place in the social structure. They were often impoverished: just seeking a way to make a living or get enough to eat.
England’s vision of itself as a rural society – one in which the peasants lived in a certain harmony with nature – no longer reflected the reality. For the peasants, with the enclosures lost their ability to live off the land, and went to the cities looking for work.
And the relationship between the common people and the country squires and nobility was disintegrating.
So thinkers asked: How are the common people to learn how to live? How are they to learn ethics and morality? How are we to structure our society for people to learn deference when things are all in flux?
The romantic poets at the same time looked back on England before all this turmoil, at the peasent rural economy of the past, with nostalgia.
They even wrote about the ruins – as Wordsworth did, for example, in Tintern Abbey, talking about a ruined church surrounded by birds singing in the trees.
One of the places that a solution was found, was culture. Culture doesn’t only mean art and writing and literature: it also suggest something to do with ethics: the idea of a cultured person as someone who appreciates the finer things in life and also someone who knows how to act correctly and behave correctly within society.
So the artist, who in the past have been essentially a crafts person: just as a carpenter might make a table or chair, the painter would paint a picture, or writer would write a poem: now the artist had a special role to educate the population.
The poet . . . is . . .an upholder and preserver, carrying everywhere with him relationship and love . . . the poet binds together by passion and knowledge the vast empire of human society . . . Poetry is the first and last of all knowledge – it is as immortal as the heart of man.
wrote the romantic poet William Wordsworth in 1798.
Now the artist isn’t simply reflecting reality, he – for it was usually he – is iluminating it. He is contributing a certain light or understanding that is bringing forth the truth of the natural order of things.
Meyer Abrams writes about this transition in his book The Mirror and the Lamp. As the artist now had a special role in society, the artist started to be seen as a special person in society, with unique characteristics.
I am certain of nothing but the holiness of the Heart’s affections and the truth of Imagination. What the Imagination seizes as Beauty
must be truth . . . The Imagination may be compared to Adam’s dream – he awoke and found it truth.”
wrote John Keats in 1817. Here the poet, the writer, is doing more than reflecting, or more than even illuminating. There is something special and unique in the individual that is being expressed in his or her art.
This is the full-fledged vision of the romantic author. We can imagine the individual working alone by candlelight, feverishly writing in the dark of his room at night, trying to express on paper the dreams in his head: and create something new, something original that had not existed before, and that is unique to him.
Shakespeare’s . . . works are so many windows, through which we see a glimpse of the world that was in him.
wrote Thomas Carlyle in 1840. J. Middleton Murray provides a more contemporary variation on the same idea:
To know a work of literature is to know the soul of the man who
This is at the heart of criticism today: that understanding art, understanding literature, entails understanding the person who wrote or created that thing.
That idea of the romantic author as an individual who creates something for the depths of his or her soul, something new and original in the world, is the heart of copyright and patent law and how they’re applied today. This is explained in death by James Boyle in his book Shamans, Software, & Spleens, where he looks at a number of cases in U.S. copyright and patent law that would appear to be inconsistent. But when he looks at them through the lens of romantic authorship, they make sense.
The idea of the romantic author, although there is truth to it, is also something of a myth: and it sustains today’s mass media industries.
I’m going to explain some of the problems with that in another video or videos.
Following up last week’s video about the tragedy of the commons, I have created a video about the enclosure of the English commons around the 18th century:
Here is a transcript (added 2012-06-16):
The English Enclosures were a wrenching change for English society. They have been described as a “revolution of the rich against the poor.” And although they happened in England, they have broader relevance.
England was becoming the first industrial society. It was becoming a market economy. And it was a colonial power. So much of what happened in England happened elsewhere later. Today, the metaphor of enclosure is often applied to the expansion of copyright and patent law.
In feudal times, land was owned by the nobility. Peasants used land that wasn’t theirs in order to grow food to survive. In return for using the lord’s land, they owed duties to the lord. They would provide him with a certain proportion of their crop, and they would also have to work with him and obey him in other ways. Even free men needed access to resources, such as firewood in the forest, in order to make a living. Over time, these rights to access land were codified and became traditional.
So when feudalism faded away, peasant villages still used shared and common land, such as shared pastures, shared cropland, sharing access to forests and fens for peat. Nonetheless, despite the fact that this regime was successful for hundreds of years, ultimately the commons were extinguished. They were eliminated and they were transformed into private property owned by individuals. The question I want to address is: Why?
One of the primary arguments given at the time was that the commoners were lazy. These were masterless men in a class society. They worked for nobody but themselves. When they had grown enough food to live, they had holidays, they had festivals, celebrations.
Our Forests and great Commons (make the Poor that are upon them too much like the Indians) being a hindrance to Industry, and are Nurseries of Idleness and Insolence.
So said John Bellers – a Quaker reformer who was trying to help the poor, and yet you can see his condescending attitude toward them.
When a labourer becomes possessed of more land than he and his family can cultivate in the evenings . . . the farmer can no longer depend on him for constant work.
This is an agricultural magazine for landowners at the time. And the argument it’s making is that if poor people can sustain themselves – if they can be independent – then they won’t have to work for anybody else, and this will be bad for the country as a whole.
Another argument was theft. Even though common right had been established and in place for hundreds of years, commoners were accused of taking things that weren’t theirs. “New hands shall learn to work, forget to steal. New legs shall go to church, new knees shall kneel.” This poet is writing about the enclosure of a fen.
Beyond these justifications, one of the primary motives for enclosure was wool. The nobility had not been very good at maing a profit with their land. That wasn’t their goal: they wanted prestige. But with the onset of capitalism, landowners realized they could make a lot of money in textiles, which was one of the driving industries of capitalism. The problem was, the land they would like to raise their sheep on was occupied by the commoners. If they could take that land back and raise sheep, they could make a lot of money.
But there was a problem. Typically, the commons were not actually owned by just a landlord. They were divided up, with different pieces belonging to different people. Often, a peasant might own a little garden, or a strip of a shared field. New if all the people in a district agreed to enclose, they could just amicably separate things up. An individual might choose to enclose the little bit that he had: but that might be a thin strip of farmland, which isn’t very practical to fence – although it did happen, apparently. But where not everybody wanted to enclose there had to be another solution.
And that was Parliament. Which was a representative, at that time, not of everybody, but of the wealthier land owners. If Parliament passed laws mandating that a district enclose, then even those who didn’t want to go along with it would have to. That’s what happened.
What they did is they looked at the proportion of ownership in a district. If the owners of eighty percent of the land wanted to enclose, Parliament would pass a law obliging the other twenty percent to go along and enclose also. You can imagine who the eighty percent were – and who the twenty percent were. The eighty percent would typically be wealthy land owners, and the twenty percent were probably the poor who were probably getting along with just barely enough to eat.
Furthermore, the peasants were at a disadvantage because they were illiterate. This was a time when law was becoming written. In the past it had been traditional common law: often agreements were oral. Now things were written down. If a poor man was asked to prove that he had common right to use land he couldn’t produce any documents. Tenants were in the worst position of all. They had had a right for hundreds of years to use land, but the government, when they were looking at rights, looked at ownership of land. So in the case of enclosures, owners of property could be compensated for the loss of common right, but tenants weren’t. They were left high and dry.
In many cases, enclosure acts required the owners of land to actually physically enclose the land with fences. For a poor peasant this could be an expensive proposition. He would have to build a fence. And to do that, he often had to sell some of his land to afford the cost. Once he had done the enclosure, he would discover, in many cases, that he didn’t have enough land left to survive, to live on, and he had to sell the rest and go elsewhere looking for a way to make a living.
The injustice of the enclosures was fought hard by the poor, who did things like destroying the crops of enclosers. Here’s a peasant complaining: “Should a poor man take one of your sheep from the common, his life would be forfeited by law. But should you take the common from a hundred poor men’s sheep, the law gives no redress.” The landlord to whom he is writing said, you’re being rude, I’m not going to talk to you. And presumably, he lost his common right.
This produced a huge increase in pauperism, that is destitution, extreme poverty, in England, which was one of the major social problems of the time. Harsh laws were passed trying to deal with this. Some of them made it so that a man without work could be forced, obliged to work for anybody who would take him. Some these people were imprisoned, even maimed. A second charge of vagrancy after a first offence could result in execution. Another solution was transportation. Paupers could be picked up off the streets, collected together on ships, shipped overseas to places like Australia and North America to work. The hardships were great. In some cases the majority of the people on a vessel would be dead within a few years from how difficult life was overseas. Even children would be swept off the streets and just plonked on a ship to be shipped out.
Of those who remained, they still had to find a way to make a living with their villages disintigrating with no way to grow food. Well, the Industrial Revolution was happening at this time and the factories in the cities had a great need for cheap labor. So the peasants, former peasants, were perfect for this.
What they found was a life very different from what they had before. The peasants before had grown enough food to eat and then, when they could, they’d taken it easy. In the factory, the hours were very long: 14 hour days were not untypical. Children had to work. Many of the machines were built to the height of children – because that’s who their workforces were. And the pay was very very little; it was just barely enough to survive. Here is Alexander Baring, a banker, complaining to the government about the price of bread: “the labourer has no interest in this question,” he says, “whether the price be 84 shillings or 105 shillings a quarter, he will get dry bread in the one case and dry bread in the other.” In other words, for the industrialist if the price of bread goes up he’s going to have to pay more to his workers, because his workers are being paid barely enough to eat.
The environmental effects were awful as well. The smog and the smoke was so thick that in the nineteenth century there were parliamentary hearings to find out whether children were growing up with rickets from the lack of sunlight – as indeed they were, and scientists were starting to realize. A representative of industrialists went before Parliament, in fact, in one case, and said: There’s not a problem! We’ve got the modern conveniences in our factories – we’ve got gas lighting. It can substitute for the sun, the kids will be fine. Of course they weren’t.
Not in the short run. For a generation or two there was absolute misery. In the long run, the enclosures may well have contributed to the success of the Industrial Revolution which produced much of the wealth that we enjoy today in the developed countries.
Despite the great injustices of the enclosures, we must be careful not to be too romantic about the village life that preceded them. The people in those villages had very little freedom to choose where they lived, who they lived with, or what they did in their lives. They had faced the ever-present worry about starvation. But in the nineteenth century, many thinkers looking at the horrors of industrialism of their day looked back on rural England as something better: something romantic. And this influenced our understanding today of culture, of authorship – and the idea of copyright law.
I’ve created a video in which I explain Garrett Hardin’s tragedy of the commons. It outlines Hardin’s argument and explains some problems with it using the historical English commons for illustration:
I am also working on a follow-up about the justifications and consequences of the English enclosures.
Here is a transcript (Added 2012-06-16):
The tragedy of the commons is an argument often used for the privatization of shared or public resources. The title comes from an influential paper by Garrett Hardin in 1968.
Hardin takes as his model the shared pasture of the medieval peasant village. In his model, this pasture is open to anybody who wants to send cattle there. So if I’m a peasant, and here’s my skinny cow, I can send her to the common pasture to fatten her up.
Of course, other peasants are going to do the same thing. Hardin argues that it’s in each of our interests to maximize our benefit or profit from the pasture by sending as many cows as we can. The problem is, if there are too many cows they will gobble up all the grass and ruin the pasture for everybody.
Hardin calls this a tragedy. Not only because it’s a bad outcome: but because, he argues, it’s inevitable. Even though I know that sending too many cows will use up the land, I also know that if I don’t do it, somebody else probably will – so I might as well get the grass while the going is good. Everybody knows this, and reasoning the same we all collectively destroy the pasture.
This has happened with real world resources: for example, fishing stocks in the oceans. Commercial fishing fleets regularly over-fish. If I’m a fishing fleet operator, I know that the fish that are there today may not be there tomorrow because someone else may catch them. So even though in the long run it’s going to destroy my business, it’s in my interests to catch everything I can now and profit as much as I can.
One of the solutions given to this is regulation by the central government. The problem with that is that the government often doesn’t have a lot of information about what’s actually happening, so it’s difficult for them to regulate use of the resource (this is really obvious in the case of fish).
Another proposal that’s often made is privatization. Instead of having a shared pasture, we divide it up into individually owned plots. So I own my piece of land, and I graze my cows there. And I know that I’m not going to over-graze. Likewise, I’m not going to let anybody else over-graze my area either. All the owners can do this, and hence the resource can be used efficiently.
That’s the argument. However, it doesn’t reflect what really happened in the real commons, particularly the famous commons in England. There are a few assumptions that Hardin makes that don’t actually correspond to what happened there.
The first is the assumption that peasants want to maximize their profit. The truth is that peasants in the commons weren’t interested in maximizing their profit at all because they weren’t operating in a money economy.
The other assumption is that the people using the commons don’t communicate. Each is treated as an individual who is reasoning on his own to maximize his benefit.
And finally, the commons is treated as something that’s open to everyone. In reality, in the real commons, the commons was not simply a resource. We have to zoom out a bit and look at the village around it: and realize that it’s part of a community of peasants who live together and work beside each other – and communicate. And, as I said, they’re not operating in a market or money economy. They’re not buying their food at a supermarket: they’re growing it themselves. The main use of peasants for money was to pay taxes, as it happens.
These peasants know that because they rely on this resource for food, if they don’t preserve it, they will starve. Of course they don’t want to starve, so they ensure that it’s not ruined. They regulate it, and they watch each other to make sure that nobody overuses the resource.
The result was that the commons in England existed successfully for hundreds of years and never succumbed to tragedy. And likewise, many other commons arrangements around the world survived for long periods of time. Elinor Ostrom, an economist, wrote a book called Governing the Commons about commons arrangements in many different societies, and how they succeeded. One of her examples, in fact, is a fishery. She won a Nobel Prize in 2009 for her work.
So the tragedy of the commons is not inevitable. Nevertheless, the peasant commons in England were ultimately enclosed. But not because they succumbed to tragedy. Ironically, the few cases we know of tragedy and over-grazing were a result of large landowners who deliberately over-grazed the commons: not so that they could gain more fodder for their cattle, but so that the commons would fail and would be privatized. Where the theory has privatization as a solution to over-grazing, in reality it was a motive for over-grazing.
In any case, economists will argue that there were a number of economic benefits to enclosure: and this is true. Private owners of land were prompter about adopting new innovations and improving agricultural output, although the benefits may not have been very great. But on a larger scale, the result for the peasants was devastating. They no longer had the means of sustenance in their villages. Hundreds of villages vanished. They were abandoned, as the people who had lived there went elswhere looking for work: looking for a way to get food.
I was on a panel about copyright at Media Democracy Day in Vancouver on November 6. I was fortunate to share the panel with Hart Snider, who makes wonderful remix films, and the tireless Martha Rans, who provides a legal support clinic for artists. The moderator was Meera Nair, an expert on fair dealing in Canadian copyright law.
The Georgia Straight blog has posted an article I wrote based on my panel remarks. I spoke about public discourse and the potential of malformed copyright laws to secure monopolies of culture and monopolies of knowledge. I am increasingly concerned that cultural participation, which has the potential to help us develop as active citizens and form relationships with other people, is instead used against us. The more we participate in culture, the more we invest our emotions and ourselves in it. When that participation is captured, part of us is also.
On Techdirt, Mike Masnik debunks a copyright maximalist who argues the Internet would be empty without the content industries. But in the discussion, someone suggests that what the point is that the Internet would be empty without content – that the Internet is, in his words, “digital paper.”
Conversation is not “content”, and the Internet is not “digital paper.”
Most culture is not “content.” Is a pick-up street hockey game “content”? Is a conversation with a neighbor over the backyard fence “content”? Is a romantic dance “content”?
For most of human history, human culture has not been “content”. Even today, most culture – human interaction and activity – is not content. It is a practice and a flow, not a thing. The fact that human communication online happens to leave a trace does not make it “content.” It’s “content-ness” is a side-effect. It is an epiphenomenon. It is not the thing – or rather the activity, the practice, the experience – itself.
Treating it as “digital paper” reduces practices to things. This is like reducing the journey to the map. Here I paused to admire the view, there I sat on a bench and ate my lunch, over there I watched a beautiful woman. You can draw a line to show my trajectory, but the essence of it, the point of it, the reason I turned this way and not that: all will be lost. (Credit to Michel de Certeau’s The Practice of Everyday Life for this example, and the next.) Or take a Chinese character. It appears to be a pattern on paper. But it is not just a shape in space. It is a movement in time. First I place my brush here, then I sweep there, I press, I lift and turn.
The Internet would no more be empty without content than would be a playground or a sports field or a sandy beach. The Internet would be empty without people. Digital paper. Hah.