Copyright

Levine, a former Billboard executive editor who has also contributed to Rolling Stone, Vanity Fair and the New York Times, asks, effectively: Can the culture business survive the digital age? It’s a welcome reconsideration after the cheerleading that has greeted the Web and the structural changes in the U.S. economy. We spoke to the Berlin- and New York-based Levine about how we got here and where we go next.

The Internet has caused a revolution, and in any revolution there are winners and losers. How do you think that’s worked out here? Who’s won and who’s 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 don’t 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, it’s unclear what they’re 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 can’t make videos, YouTube isn’t much of a business. It’s still a great social phenomenon, but it’s not much of a business.

Was this inevitable, or were there policy choices that led to this state of affairs?

Oh, I think it’s all policy choices. It’s 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 – didn’t 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 isn’t very valuable if you can’t rent any good movies. Movies aren’t very valuable if you can’t 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 down…

And DMCA is?

I’m 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. That’s very different from “they can’t use it until they ask for permission.” 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. We’ve had that for 300 years. That should change and it should evolve, but what we’re doing now is we’re dismantling that market. I think that’s really scary, because, first of all, you are going to see a lot of job loss. Secondly, I think you’re 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 there’s not as much news to Google. I mean, Google is an information search tool, right? It’s not a moral issue. But the problem you’ve 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. It’s 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 weren’t 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 it’s a good deal or a bad deal. It’s 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 hasn’t been eliminated. There’s 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 don’t 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. Who’s stopping their market power? No one, and everyone is saying it’s a progressive thing.

Europe has responded a little differently to piracy and assaults on copyright. What effect has it had?

Well, I think it’s two things. One is, in continental European law, there’s a different tradition of copyright. One of my problems with the “copyleft” is that you don’t 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, you’ll see copyright is a limited monopoly and a balance between the author and the public interest, if you will. That is very true. It’s the roots of Anglo-American copyright law. What you rarely hear is that the French tradition – and this applies, to varying degrees, to a lot of other countries in Europe – copyright is a fundamental right. It is your work and you have a fundamental right to it. What’s 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, there’s 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. It’s a moral right. So someone says, “I want to remix Rob Levine’s book so that every 10 words it’s going to say: Rob Levine eats stinky poo” – by the way, I’m fairly certain that somebody would call this an art project – I can say, “No. I have a right to my work.” 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 people’s rights has been seen as a progressive idea. It’s the “free and open Internet.” But if you really think about that for a second, that’s not a progressive argument. It’s a libertarian argument, because the same regulations that annoy you might be the regulations that protect me.

From the beginning, hasn’t the Internet been framed as the second coming of the Wild West?

I think it’s 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 won’t change because they come out of human nature. Like people look at Wikipedia and they say, “See. People will all work together. We don’t need regulations.” I think that Wikipedia is a great thing but I wouldn’t 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 don’t have your interest in mind – 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 it’s a huge help to them. Right? I was on a panel a couple of weeks ago and this guy from Creative Commons said:  “You should concentrate on art; you shouldn’t worry so much about these contracts.” That’s 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. They’re on their side. I don’t think that’s a bad thing, because Google’s greed and self-interest has led to the creation of a valuable company, and many jobs, and some really remarkable technology, but it’s the government’s job to make sure they don’t 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. It’s a more important value than copyright. In most countries it is. But there’s an argument on the other side. There’s a great quote by Justice Sandra Day O’Connor that says: “The Framers intended copyright itself to be the engine of free expression. By establishing the marketable right to the use of one’s expression, copyright supplies an economic incentive to create and disseminate.” That’s a pretty powerful argument on the other side.

Her argument, which I think is yours, is that copyright doesn’t inhibit free speech, but encourages free speech.

I think it does both to different degrees. It’s not that simple. Let me be clear, I hammer on that Justice O’Connor quote because it’s not something you’ll 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, that’s not a useful way to talk about a problem. The problem is copyright infringement. If you download my book illegally, I’m not angry. I hope you don’t. If a lot of people do it, I’ll be angry. The idea that someone is going to download my book illegally doesn’t bother me. The idea that someone is selling advertising against that transaction and profiting from it really does upset me. There’s just a lot more nuance there. You have one side calling it digital theft and saying that downloading things is a moral wrong. You’d have to ask a philosopher. Then you have another side saying you have the right to see movies. Well, that’s even dumber. I don’t think anyone is going to go to hell for downloading “Iron Man 2.” 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 that’s limited in scope and that’s limited in time to profit from your own work. That’s 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 we’re talking about on a very basic level. You can hire expensive lawyers to parse this in all sorts of ways, but let’s get real here. Mass distribution of stuff like this is really a problem. That’s what I’d like to see: a nuanced legal solution to solving and a nuanced discussion of what’s going on.

If you look at countries with functioning copyright systems and countries without functioning copyright systems, who creates more culture? That’s not a question. Cory Doctorow gave a speech at the New America Foundation about how copyright endangers democracy. That’s not a responsible comment. That’s just a bunch of bloviating. Democracies tend to have copyright. Countries with copyright tend to be democracies. I’m not suggesting a causal relationship, but to suggest that copyright endangers democracies – it doesn’t even meet the laugh test.

Let’s look to the future. You say in your last chapter: “Over 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.” Tell us what you mean by this.

If you think about the cable system, it’s closed. You can’t publish or broadcast without permission; you can’t receive or consume without paying. On the Internet it’s 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. There’s a lot of problems with the cable system. It leads to monopolization. The prices keep going up and there’s a lack of diversity of points of view. But there’s also good things about it. Television has never been better. We enjoy better TV. If you say, “Oh my God. Look how my cable bill rose in the last 10 years,” what you get is completely different. It’s a revolution of quality. Now let’s look at the Internet. It does a lot of things as well. You’ve got free expression. It’s a great thing. The Internet is very valuable. You get an incredible diversity of opinion. It’s very cheap. There’s a lot of good things about it. There’s 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 don’t want to choose between “Breaking Bad” and the skateboarding bulldog.

I would like to see the advantages of both. I would like to think the technology would allow that. And I’d like to think we can regulate smartly to encourage that.

What would you like to see happen? What’s the best-case scenario for the situation we’re in now? Because some things aren’t coming back totally. Newspapers, publishing, probably not coming back.

I’d 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 that’s what we need. There’s obviously problems with the market. I’m not one of these “worshiping at the altar of the market” 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.