NOVEMBER 25, 2015
IT IS HARD to imagine anyone better qualified than Cory Doctorow to figure out what is and isn’t in the interests of artists and creators in today’s media landscape. A Canadian version of a “red diaper baby,” born in 1971 to Trotskyist militants with advanced degrees in education, Doctorow dropped out of college to become a computer programmer, founded a software company, and then went to work for the Electronic Frontier Foundation. In 2001 he became an editor at boingboing.net, one of the first successful weblogs, focusing on the intersection of technology and the counterculture. (A typical headline might read “3-D Printer Creates DRM-free DIY Steampunk Unicorn Tattoos.”) He is also the author of a number of science fiction novels, for both adult and young adult readers.
Doctorow’s creative credentials are in order, then, and in his new nonfiction book Information Doesn’t Want to Be Free he has produced an essential primer for artists seeking to navigate the shark-infested waters of today’s media. It contains a good deal of very good advice for creators about how to figure out what is in their best interests. But Information Doesn’t Want to Be Free is more than a how-to book, or a Creators’ Rights for Dummies: it also provides the elements for a class-based theory of creative production in the 21st century.
A number of writers — including Douglas Rushkoff and Astra Taylor — have published useful books on similar issues recently, but Doctorow comes closest among these authors to understanding the interest of creators as a class interest. In my view, the class perspective runs like this: Creators are a bit different from other workers, in ways that make it difficult to analyze their behavior and interests in the class-based terms devised to make sense of 19th-century industrial labor. For one thing, musicians, writers, sculptors, and video makers all view themselves as doing very different things, and marketing the products of their labor within very different industries. Their work is also difficult to standardize: where traditional laborers make the same thing, over and over, creators, by definition, make different things: the whole point of being a creator, and the value of what the creator makes, is that each product comes out at least a bit different. While creators, like Marx’s workers, rarely own the means of production, they don’t usually sell their labor power itself. Instead, they sell the rights to reproduce their work and make money from it.
Things become even more confusing when you consider that a lot of what creators make these days takes the form of information, as opposed to physical objects. The product of the labor is a file you can copy, regardless of whether the file is text or sound or images or moving images. Audiences, like creators, usually don’t own the means of making and distributing creative work; they need platforms and software provided by tech companies and service providers to access the creator’s work at all. The overwhelming fact about life in this overdeveloped world of ours is that we don’t make our own culture for each other. There’s a whole host of culture and communication industries that stand between the creator and the audience.
The relationship of creator to audience is mediated by what Doctorow calls “investors” and “intermediaries,” typified by Hollywood (the culture industry) and Silicon Valley (the internet-based communication industry). The investor owns a stock of creative works — images, texts, recordings — most often by controlling the copyright. The intermediary controls the flow of information: they own the means of getting copies of those books or songs to audiences. Sometimes the investor and intermediary are parts of the same multinational company, and often they are not.
Investors, when they can, will try to jack up the price of reproducing creative work. Intermediaries, when they can, will take advantage of creative work they can get for free. They will also try to monopolize the channel, inflate the price to the audience, and low-ball what they pay to the investor. Since creators have the least bargaining power of everyone involved in these transactions, they usually get the rough end of the pineapple.
Information Doesn’t Want to Be Free provides a helpful thumbnail sketch of the history of these struggles over who benefits from creative production. Here’s how it works, in miniature: The piano roll business got started back in the 1880s by pirating sheet music. Sheet music investors objected, and a form of compulsory license arose, obliging the piano rollers to pay a set fee. The piano rollers went legit, and became the recorded music business. Then, in the 1920s, radio came along and began pirating recorded music. The music publishing investors objected, and a compulsory license arose, obliging radio stations to pay a set fee to play each song. The radio stations went legit, and became the broadcasting industry.
The recurrent pattern is one of new intermediaries getting started through the exploitation of creative works they got for free, followed by investors fighting back, followed by government stepping in to regulate the relation between investor and intermediary. A new intermediary gets started by offering an audience a great new way to access stuff, but part of what makes it work is that the intermediary doesn’t have to pay for the stuff. The intermediary cuts out the investor; the investor fights back. Then the government intervenes by imposing some sort of compulsory licensing regime in which intermediaries can stick whatever they want in their tube but have to pay a fixed fee of some sort to do so. This is supposed to be distributed among the investors, who are supposed to pay some of that back to the creators. As a side effect of these state-refereed wrestling matches between intermediaries and investors, creators sometimes manage to make a little money, too.
Compulsory licenses have their flaws, as Doctorow acknowledges. A compulsory license always involves a bit of a trade-off, from the creator’s point of view. It’s a system where anyone can copy your work so long as they pay the license. This is how bands get permission to cover songs written by other bands, for instance: they pay a fee to a collection agency like ASCAP and the song becomes effectively (temporarily) theirs. The original songwriter might hate the cover version, but so long as the appropriate fee is paid, there’s nothing she or he can do about it. So there’s a sacrifice of a so-called “moral right” of the creator here, in the interest of their financial remuneration. Most creators are happy with that trade-off.
Doctorow makes a good case for extending the compulsory license model further to cover the current wave of technological change. You want to remix a recording of a pop song? You want to stream your favorite TV show over a network to your laptop so you can watch it while you’re away from home? Sure, why not? Should be easy. It is not hard to imagine a world in which creators get paid for their work, and yet audiences still have a lot of flexibility about how they receive their cultural stuff and what they can do with it.
Investors and intermediaries hate this idea. The former are not really in the business of investing in the best culture. The latter are not really in the business of building the best networks. Both are in the business of making money by controlling, respectively, stocks or flows of information. So naturally they want to extract a rent — a super-profit — from that control wherever they can. Investors in information stocks have got it into their heads that they can charge for every instance in which their stock is used, ever, for all time. Intermediaries who control information flows believe that they can lock both investors and audiences into their proprietary pipelines, thereby gaining an advantage over both as well as their rival intermediaries.
Both investors and intermediaries have spent a lot of time, money, and energy trying to recruit creators and audiences to their respective points of view. The investors tell creators that the intermediaries are evil, making your stuff available for free and stealing your money. (YouTube, Spotify, Amazon: these are some of the bogeymen in this narrative.) The intermediaries tell creators that the investors are evil, acting like monopolists and manipulating prices. (Movie studios, record companies, the Big Five publishers: another rogue’s gallery.) The investors frighten audiences into thinking the intermediaries are conduits for child porn or terrorist propaganda. The intermediaries warn audiences that what the investors really want is some sort of Chinese-style police state surveillance of your streaming and browsing habits, all to stop teenagers uploading videos of themselves dancing in their bedrooms to a pop song. All of which, it transpires, is hardly exaggeration. Both investors and intermediaries really do pursue such extreme tactics, and neither truly have creators’ interests at heart. A plague on both their houses.
There’s an ever-present tension between how the culture industry works and how actual culture works. The culture industry wants to make all creative output into a commodity. Everything is to be reduced to its exchange value. But culture has never worked like this, at least not entirely. It is also, as commentators from Marcel Mauss to Lewis Hyde have noted, a world of gift-giving. I play a record for a friend because I think they might like it, and they do, so I lend it to them. I may never get a return on this “investment.” Maybe my friend will forget to give the record back. And later invite me to the movies — his treat.
Back in the days of mechanical reproduction, a lot of the sharing aspect of culture was invisible. A lot of what went on in culture took place outside the commodity economy and, strictly speaking, outside the law, taking place beneath the radar of investors and intermediaries. Record labels weren’t paying private investigators to follow their customers around and make sure they didn’t lend albums to each other.
Investors don’t recognize that gift-giving is part of what culture is all about. Certainly their lawyers don’t. Lawyers get paid to read or to listen or to watch. Every minute is billable. The idea that the rest of us share cultural information as a gift to each other, for free, out of love, just doesn’t make sense to them. Thus, the copyright lawyer’s obsession with locking down any and every possible use of a cultural artifact. Everything that is not a sale must be a lost sale: “piracy.”
In the late 20th and early 21st centuries, investors took to attacking the gift-giving side of culture technologically as well as legally. They thought they were being hard-nosed by protecting their interests, but this turn to technology, as Doctorow shows, was how the intermediaries managed to play them for suckers. The con was — and is — DRM, Digital Rights Management, or what Doctorow calls the “digital lock.” It’s a little bit of encryption code that prevents the content of a file from playing on machines that lack the right digital cryptographic key.
The digital lock, Doctorow argues, was a decisive win for intermediaries. Investors wanted to lock the audience out of the technological means of copying, but ended up locking themselves in to the proprietary systems of the intermediaries. So the song or the book or the movie is now stuck as a useless file, unless you have access to the special product from Apple or Amazon on which it can be accessed. The intermediaries now have everyone right where they want them: in locked channels that they alone control.
It gets worse: because the digital locks don’t work very well and are easily hacked, they have to be continually updated. That means the intermediaries have to gain remote control over your computers so that they can periodically change the locks. You are not allowed to interfere with this process, or even know how it actually works.
Clearly, this is bad for the audience. But the investors have their own ideas about what is in their interests, which often conflict with those of everyone else. Investors are pretty obsessive protectors of their monopolies over information stocks, and they want intermediaries to be legally liable for every single unauthorized copy that ever gets distributed over their networks. That way investors can get rich suing intermediaries, or drive out of existence those they themselves do not control.
Now, if I make an illegal physical copy of something and send it via FedEx to everyone in my address book, FedEx is not in any legal trouble. It is simply the common carrier. So long as FedEx agrees not to play favorites and will ship anything for anyone, it isn’t responsible when its customers ship something that breaks a copyright. That’s a matter between the investor who owns the copyright and the infringing party — me! — not FedEx.
It would appear to make perfect sense to extend this sort of logic to the various forms of internet intermediaries. So long as your internet service provider or your social media site is abiding by certain fair-play rules, why should it not have the same sort of common carrier status? There is already a simple process for dealing with copyright violations, after all: the owner of the copyright sends a notice to the party in violation, and so long as the infringing information comes down, there’s no additional liability on the part of the intermediary.
As Doctorow notes, this is a system that is open to abuse. If someone puts something about your company on the internet that you don’t like, you can just claim a copyright violation. But the take-down notice system, whatever its flaws, is at least a bit better than what investors really want. They want to have access not only to public but also to all private communications to look for copyright violations. And they want intermediaries to be held responsible for any violations that occur on their networks.
It’s easy to see why investors want the intermediaries to be liable. Nobody wants to be the bad guy, and it really doesn’t look good when some giant media conglomerate takes a poor teenager to court for downloading a few of its pop songs. Besides, the kid probably doesn’t have any money anyway — which rather punctures the lawyers’ argument about lost sales. Investors would rather sue intermediaries, which tend to be large corporations with deep pockets.
The power to look into private communications is something else again. As Doctorow points out, if he wants to use YouTube to send a video of his child in the bathtub to its relatives, how its that any business of the investors? So what if some Taylor Swift song was playing in the background? In short, the investors want the whole communication system to be redesigned around their particular problems.
It is tempting, when considering all of these Machiavellian stratagems, to take a side, and support the investors against the intermediaries or vice versa. But — and this is crucial to bear in mind — their interests are not our interests. As Doctorow sagely notes:
The future of the Internet should not be a fight over whether Google (or Apple or Microsoft) gets to be in charge or whether Hollywood gets to be in charge. Left to their own devices, Big Tech and Big Content are perfectly capable of coming up with a position that keeps both “sides” happy at the expense of everyone else.
So what’s a creator to do? Well, the first thing might be to stop believing that either the investors or the intermediaries have your back. Investors want to treat what you make as private property to be annexed to their vast fiefdoms, from which they think they are entitled to a rent in perpetuity. Intermediaries want to charge everyone for access to your work as it passes through their pipelines, and gather a lot of additional information about them in the process. Neither care in the least about your need to make a living or the contextual integrity of your work. Therefore, Doctorow thinks that canny creators need to think tactically about when their interests can be aligned with those of investors or those of intermediaries, or neither.
An example of an issue on which creators need to pick their allies carefully is net neutrality. Internet intermediaries are creatures of tax giveaways and regulation; without the largesse of the state, they couldn’t exist. And yet they want to claim they should be “free” to charge premiums simply for delivering your information in a timely fashion. If internet intermediaries are to be treated as common carriers, exempt from copyright liability, given right-of-way to lay their cables and so forth, then the least that can be asked of them is that they not discriminate between customers.
To give another example of the collective calculation of interests needed by creators as a class: In Doctorow’s opinion, it’s better tactics for creators to side with intermediaries who let people access stuff for free than those who advocate for digital locks or for some surveillance-based copyright enforcement regime. It’s a question of priorities: the artist has to think first about becoming known before she thinks about being paid. Having information circulate freely at least helps clear the first of those obstacles, even as it does little to address the second.
This is not the first time creators have had to revise their strategies to deal with technological change. Doctorow describes how musicians of the 1930s who did not particularly want to record but rather to focus on live performance found themselves outflanked by those who invested time and effort in record-making. They then got to tour even more because broadcasting made their recorded sound popular. Now things are rapidly going the other way. Musicians who would prefer to just record and don’t or can’t play live in front of audiences find it harder to gain an audience or make a living without touring. As always, technology’s pendulum swings favor some and devastate others.
Doctorow makes a persuasive case that it is generally in the creator’s interest for art to circulate online for free, as a kind of gift. But if you want to have a class of artists able to support themselves on the proceeds of their creative activity in this world, you still have to come up with a plan for which part of the art to commodify. You can sell tickets for in-person appearances, like the touring musician does. You can sell swag, like T-shirts or coffee mugs. There’s advertising, which is what has supported boingboing.net since 2003. You can crowdsource your livelihood, offering special premiums to backers on Kickstarter or appealing to the goodness of your fans’ hearts via Patreon. You can do work on commission. There are other options, which Doctorow leaves out: making one-off objects for wealthy patrons, otherwise known as the art market. Or you can get a day job explaining your art in academia — if you can find one.
Frankly, none of these options are great, but that isn’t really the fault of the internet. The options have never been all that great for artists. If the public isn’t purchasing your masterworks, it may not be because they can download them for free: it’s more likely they just don’t care for them, or even know they exist. No tactics or technology can counteract the power of public indifference.
Doctorow is no techno-utopian, but he does have a political or ethical lodestar that orients his work: “Anything that minimizes the drag on our collective efforts should be celebrated.” There are tools out there now, he tells us, that can support our common life. As he puts it: “Information doesn’t want to be free, people do.”
If you are inclined to think, as I am, that we are all cyborgs — perplexing mixes of flesh and tech — it might not be possible to divide “information” and “people” so cleanly. Once information started to be produced as something relatively autonomous from the material substrate that sustained it, it really does appear to have some agency. It seems to “want” to be shared like a gift. As I put it in a different riff on the same meme: information wants to be free but is everywhere in chains. It keeps getting stuffed back into the narrow confines of rather old-fashioned models of absolute private property.
The fundamental problem, I think, has to do with information itself. It is always somewhere in between complete chaos and complete order. It is neither noise nor a constant tone. It’s always a pattern with lots of redundancy. Take this article: I made up none of these letters, none of these words. These are old patterns I am repeating; I just changed the order of the words around a bit. Yet from the point of view of law and the market, I alone am its “creator.”
Hence it’s always rather artificial to call any particular piece of information someone’s “property.” It’s always just a bit of a larger pattern of information that has been collectively made. It really does want to be free — it doesn’t know how not to be — but, alas, there is a class of people who interpose themselves between us and our information, by controlling stocks or flows of it. They seem to think everything about its potential for common life has to be sacrificed to their desire to keep collecting the rent.
Doctorow is one of the finest organic intellectuals of our time, and Information Wants to Be Free is a valuable and provocative book that should be read by creators and audiences alike. (Investors and intermediaries might want to stay away.) As I have tried to show, it also includes the seeds of a class analysis that is sorely needed to counter both the techno-phobic and techno-libertarian prejudices that are so prominent in today’s discourse about creative industries and the internet.
I have etched the theoretical outlines of the class conflict of creators versus investors and intermediaries rather more sharply than Doctorow does, while he is much better than I am at the details of these issues on the technical and political level. His book provides a handy reference on a wide range of such matters, and we need that, too. But I think it has the added benefit of offering food for thought about the long-term historical struggle over information: a struggle that belongs to all of us, whether we accept it or not.