Category: DRM and IPR

The Death of the Download?

I woke up this morning with blepharitis in both eyes. Not sure how it happened, but there you are. A considerable inconvenience, having to reschedule everything, go to the eye hospital, queue up, get seen and diagnosed, pick up the prescription, get the medications from the pharmacy, then go home. Start applying the stuff.

You could say that I was a bear with a sore pair of eyes. I spent most of the day in bed with my eyes shut, willing the infection and inflammation to go away. [Which has begun to happen, thank God.]

Anyway, there I was with my eyes wide shut and nowhere to go and nothing I could usefully do; I had the opportunity to do something I rarely get time for, but which I enjoy greatly. I just let my mind wander.

It wasn’t long before I settled on a subject close to my heart, the whole issue of “content” and its associated awfulnesses, “audiences” and “digital rights”. That was probably triggered by a number of serendipitous events:

Firstly, I received my limited edition book and CD-R of Dark Night of the Soul (or DNOTS, as it gets called), the latest work by Danger Mouse and Sparklehorse.

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My copy came all shrinkwrapped, with a sticker on top. I couldn’t help but smile when I saw what the sticker said:

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I heard about it. I paid for it. Yes, I paid a premium price for the book and the blank CD, the same way I paid for Arctic Monkeys (who started experimenting with the marketing process) or Radiohead (who tried to change how prices are discovered) or Prince (who really understood the Because Effect; he knew that digital copies of his music were essentially infinite, and that he personally represented the most valuable scarcity). [I’ve always felt that the only way I’m going to learn about how value is forming and morphing is by taking part in the process]. It didn’t take a degree in rocket science to figure out that digital downloads of DNOTS were going to be abundant, and that the physical book was likely to be scarce.

As Doc Searls taught me many years ago, Because Effects are all about abundances and scarcities; you make money with scarcity. You make money because of abundance. I’ve written about this repeatedly over the years; if you’re interested, take a look at this or this or this. And while you’re at it, you should probably re-read Kevin Kelly’s Better Than Free, which I refer to here.

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Secondly, while in ruminative mood yesterday, I read the Guardian article referred to above. Headlined Collapse in illegal sharing and boom in streaming brings music to executives’ ears, the article is well worth reading. [Don’t worry about the gratuitous use of the word “illegal” before the word “download”, that’s just a generation thing. Like saying “social” before “media”.]. The key takeaway from the article is that teenagers are beginning to move away from downloads and towards streaming.

Thirdly, no story is complete nowadays without a Twitter angle. As I said earlier, I spent much of the day with my eyes closed thinking about things. It takes a lot of effort to do very little, so I was hungry by the late afternoon. Waiting for an early dinner, I checked Twitter out and came across Tim O’Reilly’s RT of an excellent post by Andrew Savikas:

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This is a very important post. Andrew Savikas, you have made my day.

People don’t buy LPs or tapes or CDs or even downloads in order to own anything. What they want to do is to listen to music. The business of the musician is to make that music, in ways that only musicians can.

Some people seem to have forgotten that.

As Andrew says:

Whether they realize it or not, media companies are in the service business, not the content business. Look at iTunes: if people paid for content, then it would follow that better content would cost more money. But every song costs the same. Why would people pay the same price for goods of (often vastly) different quality? Because they’re not paying for the goods they’re paying Apple for the service of providing a selection of convenient options easy to pay for and easy to download.

Many people, from Rishab Aiyer Ghosh through to Larry Lessig and Terry Fisher, keep drumming this point home in their different ways. This is not about content. It’s about culture. The food and cooking pot analogies are very important. Again, Andrew Savikas makes that point very well in his post.

Read Andrew Savikas’ post. Then go and read Kevin Kelly’s Better than Free. Then come back and read Andrew Savikas’ post again. All this is a simple variant of Peter Drucker’s “People make shoes, not money”.

We should concentrate on giving customers what they want to pay for, rather than trying to force them to pay for what they don’t want to pay for. Artificial scarcities lead to artificial abundances.

An aside: For some time now, I’ve been researching and writing a book on information as seen from the perspective of food, unsurprisingly called Feed Me. Watch this space.

There’s a child in me somewhere, a child I encourage the existence of. And that child began giggling when the thought occurred to me:

What if the troglodytes finally began to realise that customers were scarce and digital music was abundant? What if they finally began to realise that downloads were an excellent way to advertise scarce things like concerts and physical memorabilia, as Prince figured out?

And what if the customers have given up and moved on, from the download to the stream?

It was never about owning content. It was always about listening to music.

It was never about product. It was always about service.

The customer is the scarcity. We would do well to remember that. And to keep remembering that.

Rambling about creativity and capital and content and frames

In this context of creativity and web, Jonathan Zittrain, or JZ as he gets called, made a number of critical points in his excellent book The Future of the Internet And How to Stop It cover.jpg One of those key points is to do with the “generative” web, the phrase he uses to describe the open and innovative and creative aspects of the web; JZ spends time articulating the rise of locked-down devices, services and whole environments as a direct response to the ostensibly anarchic nature of the generative web, with its inherent vulnerabilities and weaknesses. … ] The implied tension between “generative” and “secure” that is to be found in JZ’s book, resonated, in a strange kind of way, with some of the ideas in Carlota Perez’s Technological Revolutions and Financial Capital: 184376331101lzzzzzzz.jpg The book remains one of my all-time favourites, I’ve probably read it a dozen times since it was published.

The tragic death of Michael Jackson has dominated much of the news this past week, even overshadowing the Iran situation in some quarters. Strange but true. Jackson’s death has had some unusual consequences, as people try and deal with their own reactions in different and creative ways. While the original story broke, I believe, on TMZ, Twitter was the river that carried the news to the world.

And Twitter was overwhelmed. Which meant the arrival of the much-loved Fail Whale:

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Which led someone to come up with this:

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This concerned a small number of people, who were worried that the image may cause offence. Which in turn led someone else to this:

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And so it went on, as people sought more and more creative ways of expressing their emotions and paying tribute to Michael Jackson. Wallpaper downloads. Posters. Photographs. Videos. Collages and montages. All in double-quick time. For me the most creative was this mashup:

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BillieTweets. Where someone has taken a Billie Jean video and made the lyrics visual using tweets where the relevant word has been highlighted. Follow the link to see how it works. [Thanks to the Scobleizer for the heads-up. And safe travels.].

All this is part of the magic of the web, the value that is generated when people have the right access and tools and ideas. Human beings are so incredibly creative.

In this context of creativity and web, Jonathan Zittrain, or JZ as he gets called, made a number of critical points in his excellent book The Future of the Internet And How to Stop It

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One of those key points is to do with the “generative” web, the phrase he uses to describe the open and innovative and creative aspects of the web; JZ spends time articulating the rise of locked-down devices, services and whole environments as a direct response to the ostensibly anarchic nature of the generative web, with its inherent vulnerabilities and weaknesses. [If you haven’t read the book, do so, it’s worth it. ]

The implied tension between “generative” and “secure” that is to be found in JZ’s book, resonated, in a strange kind of way, with some of the ideas in Carlota Perez’s Technological Revolutions and Financial Capital:

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The book remains one of my all-time favourites, I’ve probably read it a dozen times since it was published. And given away many many copies, something I have done with a very small number of books, including: The Social Life of Information, The Cluetrain Manifesto and Community Building on The Web.

The resonant piece was this: One of Perez’s seminal findings was the difference between financial capital and production capital.

In Perez’s view, financial capital “represents the critera and behaviour of those agents who possess wealth in the form of money or other paper assets….. their purpose remains tied to having wealth in the form of money (liquid or quasi-liquid and making it grow. To achieve this purpose, they use …. intermediairies …. The behaviour of these intermediaries while fulfilling the function of making money from money that can be observed and analysed as the behaviour of financial capital. In essence, financial capital serves as the agent for reallocating and redistributing wealth.

Perez goes on to say that “the term production capital embodies the motives and behaviours of those agents who generate new wealth by producing goods or performing services.

Through these distinctions, she clearly delineates the differences between the “process of creating wealth and the enabling mechanisms”; these distinctions are then played out through a number of “surges” or paradigm shifts. An incredible book.

For some time now, I’ve been wrestling with the connections between Zittrain’s generative web and Perez’s production capital, and formed my own views of the progressive-versus-conservative tensions that can be drawn from such a juxtaposition.

All this came to the fore again in the context of copyright and content, as I read Diane Gurman’s excellent First Monday piece on Why Lakoff Still Matters: Framing The Debate On Copyright Law And Digital Publishing

I give the abstract of the article here:

In 2004, linguist and cognitive scientist George Lakoff popularized the idea of using metaphors and “frames” to promote progressive political issues. Although his theories have since been criticized, this article asserts that his framing is still relevant to the debate over copyright law as applied to digital publishing, particularly in the field of scholarly journals. Focusing on issues of copyright term extension and the public domain, open access, educational fair use, and the stewardship and preservation of digital resources, this article explores how to advocate for change more effectively — not by putting a better “spin” on proposed policies — but by using coherent narratives to frame the issues in language linked to progressive values.

Reading the article took me back to Perez and to Zittrain. Our Lakoffian frames of “strict father” and “nurturant parent” are in many ways congruent with the generative-versus-secure and production-versus-financial continua described by JZ and Carlota. As Gurman says:

Lakoff’s nurturant parent embodies values of equality, opportunity, openness and concern for the general welfare of all individuals. Under the progressive economic model, markets should serve the common good and democracy…. The strict father frame, on the other hand, centres on issues of authority and control. The moral credo expresses the belief that if people are disciplined and pursue their self-interest they will become prosperous and self-reliant. The favoured economic model is that of a free market operating without government interference.

A free market operating without government interference. Hmmm I remember those.

Despite the credit crunch, the economic meltdowns, the rise in fraud, despite the socialisation of losses and the privatisation of gains that ensued, many things have not changed. And they must. We need to move to a generative internet production capital world. And for that maybe we need to think about what Diane Gurman is saying.

We need to frame our arguments around our values rather than just on the facts and figures; we need to weave a coherent narrative based on public benefit via empowerment and access.

We can see the implications of this divide in many of the arguments that are being had in the digital domain. For example, the recent announcement by Ofcom of its intention to enforce regulated access to premium (and hitherto exclusive) content is a case in point, where the same arguments prevail.

The response of the incumbent, while understandable, is benighted. You only have to look at the public benefit implications, particularly those to do with human progress and innovation.

The returns expected from production capital differ from those expected out of financial capital for a variety of reasons; the most important reason is that when you’re in the business of creating value and wealth, rather than redistributing it, the returns tend to be somewhat less than astronomical.

Mother of Invention

I met an old colleague, Malcolm Dick, for a cup of tea this morning, and he pointed me towards a story that’s been going around for about five years or so.

It’s about Frank Zappa, and about an article he is apparently credited with writing in 1983, headlined A Proposal For a System to Replace Ordinary Record Merchandising. You can see a copy of the article here.

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Did he write it? I don’t know. I’ve ordered a copy of the book it is meant to be included in, so that I can tell for sure. In the meantime, whether he wrote it or not, it’s worth reading just for the sentiments in the article.

It matters to me because I’m intrigued by all manner of things to do with piracy: the arguments, the characters, the rumours, the downright lies, the posturing and gaming.

Take Rolex watches for example. Not the ones you buy from Rolex, but the ones available in China and Hong Kong and Singapore. The ones that cost you maybe $20.

Let’s figure this out. First, let’s take the person that pays $20 for a “Rolex”. Does he think he’s really buying a Rolex? Come on. So now think about Rolex the company. Does Rolex think that a buyer of a $20 “Rolex” is really in the market for a Rolex? I hope they’re smarter than that. So a person buys a product which he knows is not a Rolex, at a price which he knows is not a Rolex price, from someone who is not Rolex, and all the time Rolex knows that the buyer is not ever ever ever likely to become a customer for a real Rolex.

There’s even a replica Rolex market, selling stuff like this, for pretty stiff prices:

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The kind of fakes sold by Fancy Fakes retail at around 3-4 iPhones; that’s real money in any language. But it’s not Rolex money.

Sometimes I’ve thought that people like Rolex should take a leaf out of Paolo Coelho’s book (pun intended):

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Paolo is a great guy. Not just a great read, a great guy. The first time I met him, he told me all about Pirate Coelho, the “pirate” site for his blog. How he got into trouble for helping people run the site, and for recommending the site to people. In fact, he goes so far as to link to pirate download sites from his official site.

Somehow, I don’t think that Rolex will try and quantify each fake Rolex sold as Rolex revenue lost. I think the same is true for a lot of “pirate” films. People pay for quality. Does someone who pays $5 for a pirate DVD really count as being in the market for a $40 version. Perhaps, but I’m not that sure. I’ve never bought a pirate DVD. Nor do I intend to. I can afford to pay the going rate, and if I don’t like the rate I won’t buy it. Full stop.

When film piracy takes place in the Far East and in India, at least part of the reason for the piracy may be the economic one; a false market created by a false price. But I tend to think there’s a deeper reason, one of “artificial abundance”. I have maintained for some time that every artificial scarcity will be met by an equal and opposite artificial abundance. I have, similarly, maintained that the most retrograde and fundamentally stupid invention I have seen in recent years is the region code on a DVD. Which customer was that for? Which customer finds that useful? Puh-leese. Nothing more than a futile attempt to extend the life of a yesterday geographical business model at the expense of the customer.

Which brings me to the kernel for this post. A few days ago, I read an unusual article on BBC. Headlined Top 40 faces new digital shake-up, it contained the following chart:

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30.89m singles sold in 2003. 115.14m singles sold in 2008. This, despite recession and despite alleged piracy on gargantuan levels. Such levels that people are prepared to criminalise large swathes of humanity to stop the “crimes”. Intriguing, no?
I’ve seen some interesting stats for book publishing as well, stats that suggest that we would all do well to absorb Kevin Kelly’s majestic Better Than Free article.
There’s a lot of hype out there about “piracy”. There are a lot of people out there who are not pirates. There are a lot of people who spend a lot of money buying legitimate goods; there are some people who don’t. There are also a lot of broken business models out there, and the dialogue needs to change. People like Terry Fisher have been trying to change that dialogue for a while now, and need to be read and understood.

A simple desultory philippic about copyright

[Update: Joi has clarified what he meant, both in the comments here as well as on his blog. Do make sure you read the comments and his post. We learn through openness and transparency in our dialogues.]

I’m a fan of Joi Ito. I’m a fan of Creative Commons.

But I am not a fan of DRM. I think path pollution is a very big mistake, that it is next-generation EAI, that it is about as necessary and about as useful as region coding on a DVD.

So I had mixed feelings last night when I watched Joi speak at DLD09, as he talked about Creative Commons and RDFa and HTML5. Feelings so mixed that I decided to sleep on them rather than burst into words. [I wasn’t actually in Munich this time. The videos were uploaded in record time, and I found out about Joi’s talk via Glyn Moody, who tweeted briefly about it and linked to his blog.]

Joi’s a great guy and a great speaker. Three of the points he made really spoke to me:

  • that the old media model was about broadcast and consumption, while the new media model needs to be about participation and expression
  • that a critical part of the old value chain was about distribution, while the equivalent in the new value chain is about discovery
  • that we need to focus on where the money has moved, where people are spending the money

All this is great. But then, when he laid out this grand plan where every digital object on the web is associated with embedded digital rights, I began to wonder. A plan where the software becomes Big Brother and Nanny State and a few other things rolled into one, where the software within the browser tells you what you can do and what you can’t.

Creating artificial scarcity can never be the answer. [I’ve been Norman Mailered, Maxwell Taylored, Doc Searlsed and Bob Frankstoned, I’ve been Rolling Stoned and Beatled till I’m blind. And I’ve heard the truth from Lenny Bruce….] with apologies to Paul Simon and Art Garfunkel.

You see, I’m of the belief that every artificial scarcity will be met with an equal and opposite artificial abundance.

As I’ve written before, there’s a big Because Effect coming for music. Where musicians make money because of their music rather than with their music. When transmission and delivery costs drop to nothing, music becomes abundant. Abundant things are easy to find, so discovery is also easy. So why try and solve a problem which doesn’t exist? Why try and make something abundant scarce, so that discovery becomes an issue again?

When things are made artificially scarce, they get hacked. When movies are DRMed, the DRM gets stripped. When there is an attempt to block or shape BitTorrent, BitTorrent responds in kind. One could argue that piracy in films is largely caused by the stupidity of having different release windows for films in different countries. A separation in time that is no longer necessary and often insulting. At least now we don’t have DRM in music any more.

Any attempt to pre-criminalise large swathes of people is bound to end in tears. Nobody wants to steal money from the mouths of artists, particularly struggling artists. But we don’t need Mickey Mouse Acts either.

Okay, enough desultory philippic. Why am I concerned about what Joi said? Simple. You cannot legislate for culture, particularly for satire and humour.

Joi showed a simplified “open model” stack, consisting of Ethernet, TCP/IP, World Wide Web and Creative Commons. Creative Commons was to represent the cultural aspect of the stack. And this is, for me at least, part of where the problem lies.

If we do what Joi suggests, would Marcel Duchamp have been able to moustachio the Mona Lisa? I suspect not. Would Lewis Carroll have been able to parody Robert Southey, or Ogden Nash Joyce Kilmer? I suspect not.

If you leave it to the author of the piece, whatever the piece is, the chances are that no parodies are possible. That goes further when it comes to creating something new as a remix and sample of other things. Life is complicated enough right now, when it comes to determining what is a reasonable derivative work and what is not. I can only assume it will get a whole lot more complicated when the judge of derivative works and acceptable use is a piece of software.

I know it sounds extreme, but the vision suggested by Joi really worries me. Software in a browser telling me whether something is fair use or not. To me this is the equivalent of a hob in a kitchen telling me what I can or can’t put in to the mix when making a ragu sauce.

The “default public” approach in stuff like Flickr has produced magical results, with a great deal of sharing, so I can see where the Creative Commons people are going. With the right defaults, a lot of stuff that is currently complicated will become less so. That I agree. And the principle of seeking to reduce friction in the process of creating digital objects is a good one, something to be lauded. But the process suggested, where software acts as judge and jury, that I am not happy with. And one part of the process, where the author can make sure that satire or parody is impossible, that part really worries me. Not just for creative artists, but as much for social and political protest.

I could be wrong. I am happy to learn. Do comment and help me learn. All I have done is lay out something about what concerns me and why.

As I said, I am a fan of Joi Ito. I am a fan of Creative Commons. I am just not a fan of what has been suggested. Intuitively and instinctively not a fan.

Did you hear what I just heard?

There’s mosquitoes on the river

Fish are rising up like birds

It’s been hot for seven weeks now,

Too hot to even speak now,

Did you hear what I just heard?

The Music Never Stopped: The Grateful Dead

There’s a fascinating study out in the latest First Monday, the “peer-reviewed journal on the internet”. Marko Rodriguez, Vadas Gintautas and Alberto Pepe have analysed the relationship between “concert and listening behaviour analysis”, using the Grateful Dead as the basis for their research.

What the researchers have done is simple and elegant: they’ve sought to build a framework to look at what people listen to online in comparison to what people had the opportunity to hear “live”. And, as I hope you would expect, there is a direct correlation.

The Dead didn’t feature much on radio. So the listening patterns of their fan base related much more to live performances than anything else. And the Dead were a performing band. As far as I can make out, the study does not look at the correlation between online listening and online purchasing, but my assumption is that the correlation is direct and high. So what we have is a simple model along the lines of “live performances drive listening habits drive purchases”.

As against this, the model that has been imposed on us for some time now is closer to  “we choose the songs, purchase the airtime, advertise the songs and you buy them from us  when and how we tell you to”. Maybe I’m being unfair, but that’s the way it felt to me.

There’s a big Because Effect coming along in music. Artists are going to make more money because of music rather than with music, although they will continue to make money with music.

Bands and artists that play live will make more money than those who don’t; live performances will become more and more important, as people recognise that digital is abundant and physical is scarce. Bands and artists who allow people to reuse and mix and mash their music will make more money than those who don’t allow it, as they get their share of sheet music sales and lyrics books sales. As the number of physical performances grow, so will musical instrument sales, and artists will be able to make money through instrument endorsements. And of course we will continue to have the T-shirt/book/video/merchandising explosion.

When was the last time you went to a concert? Did you notice the queues for people buying merchandise? Think about it. People now go to concerts early so that they can get the merchandise without queueing quite as much.

Live performances. Sheet music. Endorsements. Merchandise. None of this is new. It’s just stuff that a dying segment of the industry prefers to gloss over. Gloss over in order to try and enforce the continuance of a dead model. Rather than the Dead model.

There was a time when the only way to listen to music was by going to see someone live. In fact that was the way people listened to music for hundreds of years. For a short time someone tried to change that, tried to convince us that the way to listen to music was to listen to it on mousetraps, giving them the chance to ask us to pay again and again and again for different formats that would play on different faster-better mousetraps. That day is over.

The return of live music is a rebirth, a renaissance. And it’s happening. The last throes of DRM will see an end to the mousetrap generation, and we will go back to a time when live performances become important again. The value chain is changing, and attempts to retain the lock-ins of the past in order to preserve older value chains and distribution models are bound to fail. Artists will make money. In fact they will make more money, but this money will come from a number of sources rather than just physical format music sales.

Even vinyl can and will make a comeback. For performing bands.

In the end it’s all about performance.

A coda: I’ve made no secret of the fact that I like the Grateful Dead. A lot. Which is why this photograph is one I cherish, the opportunity to meet a boyhood hero in the flesh:

Doc Searls, who introduced me to the Because Effect, was responsible for getting me to meet John Perry Barlow, who wrote the lyrics for The Music Never Stopped, quoted at the start of this post.