The Internet has caused a revolution, and in any revolution there are winners and losers. How do you think thatís worked out here? Whoís won and whoís lost, so far?
I think the revolution is still ongoing. The short-term losers are media companies. The short-term winners are technology companies. The long-term loser is everyone. I donít think anyone wins. The premise of my book is that most online companies rely for their content, and hence for their money, on traditional media companies. If they destroy that business model, itís unclear what theyíre going to have to distribute. If you look at YouTube, eight of the top 10 videos are major-label music videos. If the major labels shrank to the point where they canít make videos, YouTube isnít much of a business. Itís still a great social phenomenon, but itís not much of a business.
Was this inevitable, or were there policy choices that led to this state of affairs?
Oh, I think itís all policy choices. Itís inevitable that there would be a problem, but technology creates uncertainty and regulation solves uncertainty. When the car was [created], no one knew how fast you were allowed to drive. We came up with speed limits and that solved some of the uncertainty Ė didnít solve it perfectly, but it made the roads safer. As copying technology evolved, we came up with other copyright laws to regulate it. Media companies thrived. Technology companies thrived. And despite not liking each other, they thrived together. A VCR isnít very valuable if you canít rent any good movies. Movies arenít very valuable if you canít watch them on a VCR. Then [Congress] came up with the DMCA, which I think was sort of the original sin. The idea was we have to say something before you want to take something that infringes on copyright downÖ
And DMCA is?
Iím sorry, the Digital Millennium Copyright Act. The important provision was notice and takedown. You have safe harbor from copyright liability if you follow this notice and takedown procedure. It turns 300 years of copyright law on its head by making it an opt-out system instead of an opt-in system. Dozens of sites will use this interview until you specifically tell them not to. Thatís very different from ďthey canít use it until they ask for permission.Ē What that does is it destroys the market.
One of the desirable things that copyright laws do is create some kind of market for intellectual property. Weíve had that for 300 years. That should change and it should evolve, but what weíre doing now is weíre dismantling that market. I think thatís really scary, because, first of all, you are going to see a lot of job loss. Secondly, I think youíre going to see the quality of things get affected. You see that happening with newspapers already. Third, I think the whole system suffers. Google News is not as useful if thereís not as much news to Google. I mean, Google is an information search tool, right? Itís not a moral issue. But the problem youíve created, you create a very powerful incentive for somebody to create a better search engine. You eliminate [the] incentive to create better journalism. That is a problem.
Music was one of the first businesses to get hit hard. What happened there? Was it all piracy?
This is one of those questions that is hard to answer. Itís very hard to say exactly what caused what, and I would argue that separating those things out is impossible. Right now, the single biggest problem with CD sales is all the stores where you used to buy CDs are closed. Well, what caused that? Well, people started buying songs online. That became a problem because people were only buying singles instead of albums and they werenít spending a lot. Well, why did that happen? Because piracy put so much downward pressure on prices that you have to take any deal, whether itís a good deal or a bad deal. Itís very hard to separate these things. Any study where people say this has nothing to do with piracy is a bunch of bullshit.
When the Internet emerged, we thought we would be dropping the middleman out of this, that musicians and artists would connect directly with their fans.
The middleman hasnít been eliminated. Thereís a new middleman. YouTube is the new middleman. YouTube, just now, was giving professional content creators advances against future royalties. Is it a good middleman? I donít know. YouTube has a lot of good technology. They obviously have other advantages. It could be a smart deal. It depends on the advance; it depends on what you want. But I would say that the idea that YouTube is fundamentally different from a record company is silly. YouTube probably has a higher percentage of the market for online video than all four major labels combined have of recorded music. Whoís stopping their market power? No one, and everyone is saying itís a progressive thing.
Europe has responded a little differently to piracy and assaults on copyright. What effect has it had?
Well, I think itís two things. One is, in continental European law, thereís a different tradition of copyright. One of my problems with the ďcopyleftĒ is that you donít hear that. If you read Lawrence Lessig and Tim Wu and all those sort of copyleft books, and there are 25 or 30 of them, youíll see copyright is a limited monopoly and a balance between the author and the public interest, if you will. That is very true. Itís the roots of Anglo-American copyright law. What you rarely hear is that the French tradition Ė and this applies, to varying degrees, to a lot of other countries in Europe Ė copyright is a fundamental right. It is your work and you have a fundamental right to it. Whatís interesting is you have a lot of people talking about the right to remix. In Europe, not only is there very little legal support for a right to remix, thereís a decent amount of support for a right not to be remixed. You have a right to the paternity and the integrity of your work. Itís a moral right. So someone says, ďI want to remix Rob Levineís book so that every 10 words itís going to say: Rob Levine eats stinky pooĒ Ė by the way, Iím fairly certain that somebody would call this an art project Ė I can say, ďNo. I have a right to my work.Ē I think a lot of people would find that very reasonable.
The idea that the Internet is somehow immune from law or regulation or the protection of peopleís rights has been seen as a progressive idea. Itís the ďfree and open Internet.Ē But if you really think about that for a second, thatís not a progressive argument. Itís a libertarian argument, because the same regulations that annoy you might be the regulations that protect me.
From the beginning, hasnít the Internet been framed as the second coming of the Wild West?
I think itís been framed as the second coming of Jesus H. Christ in full 3-D Cinerama Smell-O-Vision. Look, a lot of very smart people believe the Internet will change things that wonít change because they come out of human nature. Like people look at Wikipedia and they say, ďSee. People will all work together. We donít need regulations.Ē I think that Wikipedia is a great thing but I wouldnít want to change my system of government based on the 10-year track record of Wikipedia. Right? It gets a little wacky. People like to cooperate; people like to give things away. Yes, but people also like to violate the rights of other people. I want certain kinds of protections.
Your book is about several industries. You talk about the music industry, the movie industry, publishing, etc. I wonder if there is a common mistake that you saw most or all of these industries make along the way?
Yes. Listening to people who donít have your interest in mind Ė they have their own interest in mind. When Google says newspapers should be free on the Internet, they may really believe that, but you also have to keep in mind that itís a huge help to them. Right? I was on a panel a couple of weeks ago and this guy from Creative Commons said: ďYou should concentrate on art; you shouldnít worry so much about these contracts.Ē Thatís exactly what any artist should never do. The record company guy does not want to make you money; he wants to make him money. Same with your concert promoter. Same with Google. They are not on your side. Theyíre on their side. I donít think thatís a bad thing, because Googleís greed and self-interest has led to the creation of a valuable company, and many jobs, and some really remarkable technology, but itís the governmentís job to make sure they donít trample the rights of other people.
How often is free speech used as a cudgel against copyright that claims free speech?
Several times a minute. Free speech is very important in the U.S. Itís a more important value than copyright. In most countries it is. But thereís an argument on the other side. Thereís a great quote by Justice Sandra Day OíConnor that says: ďThe Framers intended copyright itself to be the engine of free expression. By establishing the marketable right to the use of oneís expression, copyright supplies an economic incentive to create and disseminate.Ē Thatís a pretty powerful argument on the other side.
Her argument, which I think is yours, is that copyright doesnít inhibit free speech, but encourages free speech.
I think it does both to different degrees. Itís not that simple. Let me be clear, I hammer on that Justice OíConnor quote because itís not something youíll see in a lot of other books. But this is a complicated issue. Copyright often encourages free speech. It sometimes inhibits free speech. The idea that copyright is the be-all and end-all of free expression is simplistic. The idea that it inhibits free speech is simplistic. I think this is true of politics in general, but everyone argues about stuff like a 4-year-old.
Entertainment companies talk about digital theft. In my mind, thatís not a useful way to talk about a problem. The problem is copyright infringement. If you download my book illegally, Iím not angry. I hope you donít. If a lot of people do it, Iíll be angry. The idea that someone is going to download my book illegally doesnít bother me. The idea that someone is selling advertising against that transaction and profiting from it really does upset me. Thereís just a lot more nuance there. You have one side calling it digital theft and saying that downloading things is a moral wrong. Youíd have to ask a philosopher. Then you have another side saying you have the right to see movies. Well, thatís even dumber. I donít think anyone is going to go to hell for downloading ďIron Man 2.Ē But saying you have the right to download it is also pretty silly.
We need to look at what copyright was meant to do. It was not meant to inhibit the copying you do at home. It was meant to give you monopoly thatís limited in scope and thatís limited in time to profit from your own work. Thatís what I want. I want to have a monopoly on profiting from my own work. So, if you lend my book to a friend, God bless you. If you put it on the Internet and distribute it to 100 people, even if you are not benefiting from it directly, that goes against what weíre talking about on a very basic level. You can hire expensive lawyers to parse this in all sorts of ways, but letís get real here. Mass distribution of stuff like this is really a problem. Thatís what Iíd like to see: a nuanced legal solution to solving and a nuanced discussion of whatís going on.
If you look at countries with functioning copyright systems and countries without functioning copyright systems, who creates more culture? Thatís not a question. Cory Doctorow gave a speech at the New America Foundation about how copyright endangers democracy. Thatís not a responsible comment. Thatís just a bunch of bloviating. Democracies tend to have copyright. Countries with copyright tend to be democracies. Iím not suggesting a causal relationship, but to suggest that copyright endangers democracies Ė it doesnít even meet the laugh test.
Letís look to the future. You say in your last chapter: ďOver the next decade, we will choose between two competing visions for the online world: media companies want the Internet to work more like cable television, while technology companies want cable to run more like the Internet.Ē Tell us what you mean by this.
If you think about the cable system, itís closed. You canít publish or broadcast without permission; you canít receive or consume without paying. On the Internet itís the opposite. Anyone can publish or broadcast; just about anyone can consume without paying. And again, sorry to keep hammering on this, I would say that those are two absolutes. Thereís a lot of problems with the cable system. It leads to monopolization. The prices keep going up and thereís a lack of diversity of points of view. But thereís also good things about it. Television has never been better. We enjoy better TV. If you say, ďOh my God. Look how my cable bill rose in the last 10 years,Ē what you get is completely different. Itís a revolution of quality. Now letís look at the Internet. It does a lot of things as well. Youíve got free expression. Itís a great thing. The Internet is very valuable. You get an incredible diversity of opinion. Itís very cheap. Thereís a lot of good things about it. Thereís also some bad things about it. It resists regulation in a very fundamental way. You have some people saying the Internet must be cable-ized; you have other people saying that cable must be Internet-ized. Is that really the best we can do? My argument is that we deserve better. I donít want to choose between ďBreaking BadĒ and the skateboarding bulldog.
I would like to see the advantages of both. I would like to think the technology would allow that. And Iíd like to think we can regulate smartly to encourage that.
What would you like to see happen? Whatís the best-case scenario for the situation weíre in now? Because some things arenít coming back totally. Newspapers, publishing, probably not coming back.
Iíd like to see enough law applied in a smart way that we can bring back a market. U.S. publishing is never coming back, but I think we can enforce enough law to create a market, and thatís what we need. Thereís obviously problems with the market. Iím not one of these ďworshiping at the altar of the marketĒ kind of dudes. But the market for intellectual property has served us very well both in terms of job creation and in terms of art. And I think that that is very important.