Over the past few months, I have been researching and reflecting on free culture and what it means for my music. Free culture is about freedom, not price. Today, the vast majority of music (and other art) is not free due to a combination of technology, law and economics.
The same is true of software. In the mid-1980s, Richard Stallman began the free software movement, introducing a definition of software freedom and pioneering the concept of copyleft. Over the past 25 years or so, the movement has grown and has been shaking up the software world.
People have naturally broadened the question and asked about works other than software. In the same way that certain restrictions on software violate a user’s freedom, what sorts of restrictions on cultural works are unethical? Or, when asked in a positive sense, what sorts of freedoms are essential for cultural works?
These are the sorts of questions I’ve been asking myself lately and I think I’ve found an answer.
Background
In October 2005, my band Fishkiss recorded our live demo, which is currently available under a Creative Commons Music Sharing License (BY-NC-ND), though initially we allowed derivatives. In 2007, I began releasing my own music under the same license.
In February 2007, after seeing one too many “the wow is now” ads for Windows Vista, I found myself a GNU/Linux book + DVD in an Indigo store. By April, Ubuntu 6.06 was my main operating system and by July I had rid my laptop of Windows. A few weeks before, I had heard Richard Stallman speak on copyright at the University of Toronto, Mississauga Campus, and quite promptly became a member of the Free Software Foundation (FSF).
In January 2008, I began a thread in the FSF’s Associate Member Forum on the topic of music file sharing and free culture, searching for a definition and a standard of freedom. This was the start of the recent chain of events, which this blog post continues and ultimately concludes.
Stallman’s Categories
In Stallman’s talk on copyright in July 2007, he spoke of three categories of works:
- functional works;
- works of opinion; and
- aesthetic or entertaining works.
He argued that the four (software) freedoms should apply to all functional works, to all things which we “use”. The freedom to modify, on the other hand, he said did not apply to works of opinion.
Stallman seemed somewhat confused regarding the third category. He asserted the freedom to redistribute exact copies for non-commercial purposes (explicitly noting peer-to-peer music file sharing), was conflicted on the freedom to create derivative works, and believed that this was the one category where copyright was useful — for a limited time (ie. < 15 years) — to restrict commercial use as an incentive for creation. Regarding economics and music, he suggested that a system to voluntarily contribute money to artists (without the middleman) would be at least as effective in providing financial support to artists as the existing fragmented and crumbling business models. (Think Radiohead.)
After the talk, I wanted to ask him how allowing non-commercial music file sharing while forbidding commercial redistribution makes sense when the non-commercial distribution essentially competes with the commercial. He was hungry and I was shy and — though I waited around at the end — I never got to ask the question.
(( The basic ideas he expressed in the talk are more or less expressed here, two-thirds down the page under the heading “Three new models of copyright.” ))
My Journey
Stallman’s talk left me with some pretty clear ideas about software freedom, but I was quite conflicted on the matter of cultural works. Should the freedom to “remix” be protected? Is there any value in copyright? Does it still, in any limited way, promote the original purpose of creating an incentive for the creation of cultural works? Commercial redistribution didn’t seem to be a necessary freedom, but where is the line between non-commercial and commercial when they compete with each other? How is that distinction relevant or enforceable?
I returned to the Creative Commons. What other licenses did they have? Too many, and there is no standard of freedom among them. I was not going to find an answer there.
Freedom Defined
Then, during one of my late nights of web browsing, I stumbled upon it: The Definition of Free Cultural Works. This was exactly what I had been searching for. Not only is there a definition of free cultural works, but also a list of licenses which qualify.
But the definition was a challenge for me. All the freedoms that applied to software were defined as necessary. This means allowing commercial uses as well. I investigated the Creative Commons licenses that met the definition and found that using them would mean waiving my ability to collect royalties.
What about Stallman’s categories? Do I really need to allow commercial use and forgo the collection of royalties? Isn’t there some value in limited copyright restrictions? I sought this definition, but it had presented me with a further challenge — acceptance.
I posted on the FSF forum again.
I’m still stuck on the issue of remixes and commercial use, in general.
The definition of free cultural works from the Freedom Defined project requires that the works can be reused for commercial purposes.
I’ve yet to hear a good argument as to why that should be the case for works of art. For software, it’s a different matter because software is a tool, not a piece of art. You don’t *use* art for commercial purposes, but rather you sell it.
For example, if I were to release music under either Creative Commons licenses that meet the definition of free cultural works, I would waive my ability to collect royalties for radio airplay. Isn’t that sort of thing one of the (few) legitimate uses of copyright to promote the creation of works by offering a financial incentive?
And articles like this make me question the remix…
So confused…
Seeking an Expert
I needed expert advice and I found it. A couple links, posted by mattl, to two of Rob Myers’ blog posts on the subject put me in touch with the first real arguments for commercial freedoms of cultural works I had encountered. One of them was recent, so I left a (lengthy and poorly-written) comment detailing my remaining hangups in hope of receiving some guidance. Basically, I asked, “why should I use a free license?”
Thank you, Rob Myers. The first of two articles in response to my question. I was convinced a few paragraphs in… I can’t wait for the second!
The Persuasion
Part of the reason why I was so easily convinced is that I wanted to be. Also… because I was reading his wiki in the meantime. Inspired, I created a page on my own wiki to consolidate my thinking. I’ll attempt a summary here.
The Three Categories
Rob argues, “the categories that Stallman describes are guided by the principle of freedom of use… As freedom of use is the basic freedom for software, freedom of speech is the basic freedom for culture and cultural works… In expression or entertainment, freedom of use peters out but freedom of speech remains.” Also, he brings up the point that there isn’t a neat breakdown of works into such categories.
I would add that, regarding the freedom to modify works of opinion, copyright may not be a necessary or appropriate means of protecting an author’s reputation. After all, that was never its original purpose. That’s what libel and defamation laws are for, and social pressures are often even enough to enforce integrity.
This was the concern expressed regarding derivative aesthetic works as well. What if the derivatives were essentially “vandalism”? Well, the purpose of copyright was never about this sort of protection anyways. Freedom of speech ought to reign, first and foremost. If there’s a issue (e.g. defamation), copyright is an inappropriate means through which to deal with it. It is too often abused with respect to limiting free speech.
Goodbye, categories.
Economics
An ethic of freedom of speech rather than freedom of use applies to cultural works, and the economic harm this may cause for current business models is both acceptable as a moral consequence and can be offset by business models that are already being proven. – Rob Myers
Rob convinced me of some major problems with the non-commercial clause in this post and some of the comments helped convince me of the benefits of allowing commercial use. For example, with a non-commercial restriction, if someone were to remix one of my songs, they wouldn’t be able to benefit financially from their work. Furthermore, I wouldn’t be able to benefit financially from that work either because of the licensing restriction! Second, as noted before, non-commercial distribution competes with commercial distribution (e.g. peer-to-peer file sharing). The non-commercial restriction doesn’t protect the profit of the artist, but rather prevents anyone else from profiting in a sort of misery-loves-company, if-I-can’t-profit-neither-can-you type way. Allowing commercial use can also protect an artist from losing control of their work when signing with a label. I’ve met songwriters who can’t sell me their own CDs directly because of their contracts.
But what about the question of royalties? Well, as with free software, if this is an ethical issue then economic questions must be secondary. What other economic models could replace the royalty setup?
Rob Myers listed a bunch of ways and Techdirt is always covering new business models for musicians.
My attention was also drawn to an old post from Joel Spolksy where he says that “smart companies try to commoditize their products’ complements” because “all else being equal, demand for a product increases when the prices of its complements decrease.” Bringing in ideas from the Techdirt series on the economics of abundance, if the supply is infinite (as is the case with digital products), then the price of the product will approach zero, therefore increasing the demand for its complement. The economics of abundance teach us to use the infinite goods to add value to complementary scarce goods.
In other words, if music is the product and it is infinite because it is digital, the price will naturally approach zero. (A free culture license embraces this, allowing redistribution and reuse.) The more popular the music becomes, the higher the demand for its complements — concert tickets, t-shirts, CDs, deluxe packages, etc.
So, there are other economic models that make a lot of sense. Take a look at the $1.6 million Reznor has grossed in the past week.
Goodbye, royalties. There are other ways to make money from music while respecting freedom.
Conclusion
I still believe the original purpose of copyright might still be served with a very limited — in length and scope — application of its restrictions, but the baggage that comes along with that is not worth it.
I am now a Creative Commons BY-SA artist. Check it out.
In the same way that Stallman made the ethics of free software clear to me, Rob Myers has helped me to form my thoughts on free cultural works. A passage from George Orwell’s book, 1984, comes to mind:
The book fascinated him, or more exactly it reassured him. In a sense it told him nothing that was new, but that was part of the attraction. It said what he would have said, if it had been possible for him to set his scattered thoughts in order. It was the product of a mind similar to his own, but enormously more powerful, more systematic, less fear-ridden. The best books, he perceived, are those that tell you what you know already.
Book or blog, Rob Myers, you are my new hero.
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