06 January 2008

Cory Doctorow: Artist Rights

from Locus Magazine, January 2008

Sure, it's fine to talk about the artist's rights to get paid, to control copying, to have their work attributed to them and be fairly edited, but all that stuff is just the appetizer. There's one artist's right that's more important than all the rest combined: the right to free expression. No one gives out awards for writers who bring copyright suits — but we do give out awards to the brave writers who publish in the teeth of censorship and state oppression.

How lucky for us as artists, then, to live in the age of the Internet, the age of the history's greatest free-speech machine. The Internet was built on the "end-to-end" principle, first described in 1981's "End-to-end arguments in system design" by Jerome H. Saltzer, David P. Reed, and David D. Clark — three of the fathers of TCP, one of the Internet's most important protocols. In a nutshell, the end-to-end network is the one where anyone can communicate anything to anyone else without any third party intervention or permission. This end-to-endness is why Tim Berners-Lee didn't need to go around to a million phone companies and beg permission for the Web to exist — he just invented it and shipped it and we all use it, all without anyone at any ISP anywhere having to do anything special to provision the net for its use.

This principle has led to the creation of a series of ever-improving publishing tools. I remember when Blogger didn't even have headlines — every blog post was just a lump of text. Nowadays, specialized sites for publishing text, photos, videos, and every other kind of media exist, from needlepoint to interactive fiction. These sites compete by adding tempting features — friends lists, message boards, tags, automated feeds of new material, automated conversion of files to widely understood formats.... It's never been easier to make yourself heard.

We live in an age in which more people can express themselves in more ways to more audiences than ever before. The majority of this expression is intimate, personal maunderings — the half-spelled, quarter-grammatical newspeak adorning MySpace and Facebook pages. These are often intensely personal, with none of the self-conscious artifice that we've traditionally associated with "published work." By turning the personal into the public, an entirely new aesthetic is coming into being — and a huge proportion of the invisible social interaction of a generation is being recorded forever. As Charles Stross notes, we are living at the end of "pre-history" — the last days of a patchwork human history. Tomorrow's lives will be remembered by the historians of the day-after-tomorrow with astounding clarity and thoroughness, reconstructed through the midden of personal blips, twits, and chirps emitted by our social tools. By comparison, our own lives will be as opaque and unimaginable as the lives of the poor schmucks who inhabited the same cave for 200,000 years, generation after generation leaving no mark more permanent than a mouldering knucklebone lost in the soil.

Paradoxically, it is this very feature that leads many artists to view these sites with suspicion and derision. A common refrain goes like this: "These sites are filled with pirated material and they know it. They're making money off our work, and the only ‘redeeming' quality they have is that a bunch of idiots get to talk about their cats around the clock and around the world."

Could these sites be remade to prevent infringement, and if they could, what would that mean for free expression?

It's unlikely that an automated system could effectively prevent infringing materials from appearing in the first place. Copyright bots are in widespread use by the likes of the RIAA, and these programs routinely harass innocents like the poor university prof who shares his name with a pop-star named Usher uploads his lectures to university servers with filenames like "usher.mp3." At the same time, these bots necessarily miss the vast majority of infringing work, because determined infringers find it trivial to defeat them by adopting naming conventions or file-formats that the bots can't recognize. When the bots are reprogrammed, the infringers just change tactics again. Technology favors attackers, not defenders: to defend a city with earth-moving technology, you need to build a perfect wall. To attack a city with earth-moving technology, you have only to knock a single hole in it.

For a system to effectively prevent infringement by determined attackers, it would have to hold the majority of materials uploaded to it for human moderation. You could run a moderation system on the cheap, but you'd have to use badly trained people who would either let a bunch of naughty stuff through or (more likely) turn into nay-saying bureaucrats like the clerks at the Staples copy-counter who won't copy your novel manuscript or wedding photos because they "look professional."

The alternative is to use people who really understand copyright and can tell the difference between, for example, a fair-use parody and a knock-off — the kind of subtle scholars who help Mad Magazine stay on the right side of the law as they hilariously trample through the fields of trademark and copyright law. The kinds of people who understand enough about literary criticism to spot a legit quotation and an overlong one. These people don't come cheap. Hiring one out of your local IP law firm will run you in the ballpark of $400 an hour.

In 2006, Technorati tracked 57 million blogs, with 100,000 new blogs being created every day. Q3 2006 saw an average of more than 2,000,000 English blog-posts per hour. Even if Blogger, LiveJournal, Weblogs, Inc, and TypePad could afford to hire the lawyers necessary to review this material for infringement, the fact is that there aren't enough lawyer-hours between now and the heat-death of the universe to do so.

Frankly, the only way to police the net for infringement is to throttle it. And that's exactly what the proactive policing that many artists are calling for would do. If web-hosting platforms are legally required to prevent their users from infringing, the only way to accomplish this would be to severely limit who got to use the service, either by introducing high user-fees or simply telling the majority of us to piss off and go back to writing in our diaries at home.

Not only is this the height of arrogance — "Shut up about your life and everything important to you so that I can Make Art!" — it's also major bad news for artists.

We live at the mercy of publishing entities. From the RIAA to New York publishing, they're nearly the only game in town. Your local indie publisher may produce a nice-looking book, but if you want that book sold in actual bookstores, you need to deal with one of the bigs, a company with a sales force and the relations with the retail channels that make it make it possible to get your books on shelves.

This is one hell of a cat-bird seat for the publishers to sit in. It's no surprise that the word-rates stink, that the royalty reporting is complex to the point of suspicion, that we have to fight for crumbs of input into covers and jacket-copy.

But look at what's happening in the record industry: indie music isn't just for a guy with a guitar you've never heard of anymore. Now you've got industry leaders like Madonna and Radiohead walking out on their labels, striking out on their own, stepping neatly into a niche in the online ecosystem that was enabled by all this cheap publication, itself enabled by the absence of liability for web-hosting companies.

This is the leverage that artists need. Today, every recording artist negotiating a deal walks in with this implicit threat: "You know, there's another way. You're not the only game in town."

So yes, let's stand up for artist's rights — starting with the right to speak freely, without being filtered by a lawyer, and with the right to walk out of the traditional publishing channels and into a better deal in the new world.

Cory Doctorow's website is Craphound.com, and he is co-editor of Boing Boing: A Directory of Wonderful Things.

Cory Doctorow is one of a dozen Locus columnists and reviewers. Every issue, we review over 50 books and magazines, most before they appear in print. A subscription will get you all those as well as the rest of the magazine -- news, People & Publishing, commentary, reports on events, and a list of all books and magazines published that month.

Previous Cory Doctorow columns posted on Locus Online:

Comments are welcome, but are moderated.


At Monday, January 07, 2008 1:01:00 PM, Anonymous Anonymous said...

I've read this point that you've been trying to make a few times over on BoingBoing and other websites. I have to say I'm a bit confused. From your point of view I can't tell who it is you are defining as the artist: Is it the MySpace user or is it the writer of the song that the MySpace user is posting as their theme song or part of their top ten or whatever it is said MySpace user feels they are so free to do with a song without any money going to the writer?
True, in some vague way we are all artist and creators of our beautiful and special lives. But people write songs for a reason. People perform songs on a stage for a reason. And that reason needs to be respected by people who might want to use those songs for promotion, of product or self.
Radiohead and Madonna are romanticized examples of what possible. For most artist trying to make their way through the quagmire of the music industry, giving everything away for free online is a tired coffee shop ethic taken to it's ugliest extreme. It's not new and revolutionary, it's surrender to a new self proclaimed internet elite that have corroded the dignity that the ethic once stood for.
Lawyers are a bitch, but the consequence, realistically, is that people on MySpace have to click 4 times instead of 2 times to post something on a page that doesn't really belong to them in the first place in order to ensure that the artist get paid. If you find a way to get around it, you’re a clever criminal.
I'm all for regulating the internet in a way that makes a distinction between qualified, quantified art and the artists who have worked to get their art published, and the artist who’s uninspired, irreverent mash ups and diary ramblings do nothing for the betterment of the human condition.

At Tuesday, January 08, 2008 6:19:00 AM, Anonymous marko said...

My sympathies are with the other commenter. I can't see authors publishing for free can be for the good of literature. If authors can't be paid then they can't right, unless they have the luxury of some other income and a lot of free-time. Seems like a recipe to the return to an age of the non-professional writer where it was often the wealthy elite who could afford the time to write literature.

Could Mr Doctorow explain the business model for internet authorship?

At Tuesday, January 08, 2008 4:39:00 PM, Anonymous brainshades said...

"No one gives out awards for writers who bring copyright suits — but we do give out awards to the brave writers who publish in the teeth of censorship and state oppression."

I don't get it... all I hear is "blah blah blah, copyright copyright copyright, blah blah blah."

Is it just me, or is anyone else tired of Cory re-packaging the same argument, with a bit more subtlety this time, in a new box with a different bow?

At Wednesday, January 09, 2008 8:26:00 AM, Anonymous Branko Collin said...

Ah, the The-Internet-Empowers fallacy. It has always been possible for artists to strike out on their own. The likely reason that most don't is because they don't want to, because they feel they profit from getting published by a bigger name than their own. The reason that Madonna and Radiohead leave their publishers is because they no longer need that EMI or Polygram sticker on their CDs to spell success.

At Monday, January 14, 2008 6:20:00 PM, Blogger Marilynn Byerly said...

In 1995, I believed that electronic publishing and the Internet were salvation for authors, and they would finally break the stranglehold on authors and books held by the conglomerate publishers, the book distributors, and the book chains.

I took a brave or foolhardy leap into the market with one of the first epublishers. Since then, I've watched the market's changes, and I've talked to hundreds of authors, small publishers, and readers. Here's what I've learned.

Readers are creatures of habit. If it's a choice between a known factor like a bookstore/a paper book/a name author and an online source/ebook/unknown author, most readers will choose the known.

If they can't find what they want to read in paper, they may seek it in an ebook, but they will return to paper books if given the same selections. This is currently happening in the erotica market as the large publishers have entered the market. The readers are returning to the bookstore to buy many of the same authors they bought in ebooks.

At the same time, readers aren't willing to go directly to the source of the ebooks. They rarely buy from author sites or from publisher sites. Instead, they prefer the one-stop shopping of electronic distributors like Fictionwise. Most authors I know have, at the least, one hundred sales at places like Fictionwise to one publisher-site sale.

Most of these distribution sites only work with publishers, not individuals, so the major markets are closed to the author.

The original works available at electronic distributors are being drowned under wave after wave of conglomerate publisher backlist.

Meanwhile, various conglomerates and companies like Amazon are fighting to control the distribution of ebooks through software formats, distributor sites, and devices like the Kindle.

Publishing has much smaller financial numbers and much fewer sales in the digital format than the music industry so neither the author nor the small publisher are seeing much profit or success, and the small publishers are a dying breed.

Without a platform or a reputation from conglomerate publishing, most authors struggle for profit.

Those authors who succeed strictly in epublishing do so by writing a large number of first-rate, consistent books in the same genre.

So, essentially, the great digital freedom of writers from publishers that Doctorow envisions hasn't happened in the last dozen years and probably will never happen because of reader habits and the current direction in the markets.

Marilynn Byerly, author and contributor to several editions of


At Thursday, January 17, 2008 9:19:00 AM, Blogger atolley said...

So we have the tension between bits "wanting to replicate" and content producers wanting to be paid for every bit.

The arguments of the artists are rather like those of medieval knights. "We don't want to face longbows or cannon, so take them off the battlefield. If you don't respect us, who will fight your wars for you?". We know where that ended.

Arguably we are going through an enforced throttling of artist output right now, the screenwriters strike. Is tv worse, you bet. Do the Daily Show scripts need some serious upgrading, certainly. But you know what, I don't miss the tv shows that are no longer on. While the Art landscape may be poorer for the loss of professional artists, one wonders whether the general population will notice that much. Even better, they might just reject the notion that they should passively accept what they are given and instead use their brains to do something creative instead.

At Thursday, January 17, 2008 12:38:00 PM, Blogger Sandy Lender said...

You and I are on the same page:
If authors can't be paid then they can't [write], unless they have the luxury of some other income and a lot of free-time.

I'm an author but my evenings and weekends that used to be devoted to writing have been usurped by second and third jobs to pay bills generated by marketing my first novel. As the blogger, and follow-up commenters, pointed out, contracting with a smaller publisher means more work for the writer. It also means more out-of-pocket expenses. Now, we writers don't ever stop writing; we just sleep less. But to respond to your thought, no, writers can't afford to publish for free on the internet. And to address the blogger's points, no, writers can't afford to be pirated all the live-long day. Something to consider, though, is that each time you're pirated with your name attached, your reputation grows. There's a bizarre marketing tactic for ya... But how often do unscrupulous characters lift your work and claim it as yours on their Web sites and blogs? I've got a new article on my blog this week that I spent precious time researching that I wouldn't be at all upset about seeing on someone else's blog next week, as long as my name still appeared in the byline. That's writing for free. It's not going to pay any bills.

My publisher put a positive spin on the copying of e-books. My novel is a hard cover book at Barnes & Noble, but you can get the e-book downloaded off the publisher's site for half of what e-books usually run. Well, what's to stop some person from copying that to his desktop and e-mailing it to a friend? I lose a sale. But let's say that friend loves the story. (I think it's a great story!) He tells someone else about it and that person buys it off Amazon. I just increased my audience. Let's say that happens a dozen times. When the second book comes out, all those folks who read the pirated first book are sure to be interested, too.

Criminal activity will be with us as long as we have a society. If the powers that be can't police the Internet to protect innocent children from perverts, what makes us think they'll be able to stop piracy? By taking a positive view of it and thinking that copying the work is one way to promote my product for me, I'll keep working my jobs and not take too much time to think on this topic.

"Some days, I just want the dragon to win."

At Saturday, August 23, 2008 12:04:00 PM, Anonymous Anonymous said...

This essay has been translated into Russian here:



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