James, james, james. Which is it? Filthy communists or decadent landed aristos?

(Neither really, of course.)

Hi James.

I'm planning this event, and there is no such celebration of Sweden's Pirate Party. That's not to say, however, that political movements can't be a legitimate avenue for change in this field (then after all, we wouldn't be here).

Also, did you agree with every student group on campus while you attended Harvard? I sure do not, yet that doesn't lead me to be "disgusted" by their presence.

"most of the FCM is the creation of a well-to-do upper class that realizes, quite accurately, that intellectual property is a mechanism by which others can challenge their privileges, and is determined to forestall this."

This sounds pretty far fetched -- since when did the US's longstanding intellectual property regime promote class mobility? Can you point me to a well founded argument that supports this point of view (I mean outside of this blog or your work)?

Also, when/where is the Swedish Pirate Party celebration happening? I didn't notice it on the schedule.

--Dean

Elizabeth, didn't you know? Anything even potentially mildly critical of unlimited expansion of intellectual monopolies is dangerous communist libertarian hippy terrorist propaganda! It's only right and just that all criticism be suppressed - if one can disagree with things in university, why, one might start to do it elsewhere too! Just as atheists or blacks don't deserve free speech, nor do critics of intellectual monopoly laws!

Suppress dissent! It's the american way!

Mr. Larko, you would not make thess comments if you bothered to read PFF's amicus filings in KSR v Teleflex.

Mr. Dean, the IP system gives small and independent creators bargaining power against larger/established entites. Patents and copyrights set all parties on equal ground. Look in the Academia section of IPcentral, and search for these names 1) Ronald Mann, 2) F. Scott Kieff, 3) Robert Merges, 4) Jane Ginsburg. These are several scholars that have written on the benefits of IPRs for the market entry, viability and growth of small-independent creators; which I assume can be associated with economic mobility.

I admit I take my shots at the free culture movement, but that does *not* mean I think its advocates should not be heard, nor that its messages are of little importance. Rather, I think its a young movement, less revolutionary than its proponents will admit and economically awkward. Come on, you guys want artists to sell t-shirts and other common goods just so you don't have to deal with DRM. Even if artists could make money ditching DRM and using the Internet as a marketing tool to sell t-shirts, trinkets and music lessons (as some free culture advocates have argued), what lune would be blind to the vast differences in margins from digital business models?!

Noel: When have supporters of free culture made this "t-shirt" argument that you and James both mentioned?

If anything, we're interested in alternative forms of compensation for the creation of culture. In the case of music, this could involve making money on live performances, selling merchandise, selling music while using free licenses, selling recordings of live performances, and various other models. Frankly, if we're talking about artist compensation in the music industry, it is pretty well established that *very* few musicians make money from record sales (unless they're engaging in new models like taking out the "middlemen," which I also find notable).

What is primarily of interest to me is finding ways to make culture freely available in a sustainable way. I know of many musicians in the "long tail" that have gained valuable exposure via such means. It's true that there is no one solution that has been foolproof, but I don't expect there to be just one. I'm hoping to find ways to apply new models to music and other forms of culture.

If locking things down and DRM were the answer, I think we'd be in for a very bleak future...

Patents and copyrights set all parties on equal ground.

They do their backsides! Patents quite clearly privilege the monopoly holders over all other parties, allowing them to deny other parties the use of their own physical property (each enforceable software patent issued steals a little of the value from my computer. Patentists are thieves).

"the IP system gives small and independent creators bargaining power against larger/established entites."

It gives larger/established entities far more power, at least unless modified with mandatory compulsory licenses and such. Witness IBM's and Microsoft's manipulations of the remnants of the once-vibrant merkin software industry with their immense patent portfolios. Sure, unproductive patent trolls can still eke out an existence, but patenters and real creators aren't the same thing, as shown by microsoft's successful patenting of numerous 1970s unix features. So we see a model where there's a small number of long-established behemoths, and small fry that at best get to license their patents to the behemoths. So much for economic mobility. Small fry stay small fry and behemoths stay behemoths - the american corporatist dream.

Elizabeth wrote: "unless they're engaging in new models like taking out the "middlemen," which I also find notable." That is the primary argument of Professor Jane Ginsburg in her support of DRM and the DMCA. I've reviewed several of her articles in the DRM/DMCA sections of IPcentral.

My point stands about the margins in digital distribution and offline business models. If the Internet is the paradigmatic innovation society and policy makers claim, artists (not just advertisers) should be able to tap it for revenue.

Larko, you seemed surprised that larger entities are more powerful than smaller ones. Thats *always* going to be the case, and intellectual property is one of the few things that will give small-specialize creators bargaining power with the. Intellectual property does not necessarily strengthen market entrants at the expense of incumbents, nor shift the balance of power; but they do contribute to a dynamic market. Note the turnover rate of top tech firms is much higher than that in other industries.

Larko asks: "When have supporters of free culture made this 't-shirt' argument that you and James both mentioned?"

Larko then answers his own question: "If anything, we're interested in alternative forms of compensation for the creation of culture. In the case of music, this could involve ... selling merchandise ..."

Sorry, Larko, that was Elizabeth who asked and answered.

Elizabeth also wrote: "If locking things down and DRM were the answer, I think we'd be in for a very bleak future..."

Why? Were we "in for a very bleak future" in, say, 1963, when vinyl records were "locked down" by the very nature of the technology? People weren't spinning albums in their cars, let alone "format-shifting" or whatever the latest preferred lingo for "I have a RIGHT to easily copy this DVD in the time, place and manner I want."

Honestly: Were we in for a very bleak creative future in 1963?

Tomas, correct me if I'm wrong, but there wasn't a cartel deciding who was allowed to make record players, and what features they could have, in 1963.

Oh, golly, that's right -- THAT'S what was stopping people from making unlimited copies on their personal computers and from playing their records on an unlimited number of devices.

Way to miss the point.

Tim, by cartel, do you mean major entertainment labels? I'm sorry if you feel these labels are still more successful than your peer-production crowd, but get over it. Artists should be paid and they will not be replaced by amateurs; note that in the DRM and DMCA debate, its access to entertainment from the music studios thats at issue *because its in demand*.

Tomas is right that the future is not bleak with DRM. DRM, as shown by EMI's recent moves, reacts to market pressures, as it should. Neither DRM, nor the DMCA, should react to the kind of hysteria I often see in free information arguments.

"Tomas is right that the future is not bleak with DRM"

If DRM were to function as the RIAA/MPAA would ideally have it function, the future would be bleak. Fully functional DRM *must* be implemented at *every* level of *every* system it touches: hardware, software, inputs, and outputs.

Under such a technologically restrictive regime, computers become a lot closer to the record players we used in 1963.

Open interoperability is the foundation of the internet. DRM systematically and uncompromisingly alters the openness, which is terribly bleak.

Dean, the RIAA and MPAA are amenable to the market, thus I'm not sure what you mean by how they would "ideally" have DRM function. And by market, I mean legitimate consumer transactions.

Its funny you make a comparison between DRM and the Internet, which is often considered a backbone, platform or otherwise general purpose technology. Not every technology performs similar functions as the Internet though- I'm not sure where you're going with this analogy.

Tomas, my point was that merchandise (and this does not just include T-shirts) was one of the *many* possible models, whereas Noel and James were making it sound like we were supporting merely relying on t-shirt sales.

It is true, though, that touring and selling merchandise (including CDs, vinyl, etc.) at shows is how a lot of bands make their money. Note that live performance is also key here.

And James, while I'm at it, the title of the event is the "National Free Culture Conference," not the "Harvard Free Culture Conference" as posted above.

Elizabeth, I believe artists already tap each of those for revenue…

James, Noel, it would be wonderful if someone from IPcentral attended the iSummit event in Croatia in June (www.icommons.org) I am organising a workshop on the philosophy of the commons, and it would make the event much more interesting if there were some dissenting views.

It would also be a good opportunity for you to meet a lot of people who are manifestly _not_ rich wanabee mashup artists. For a number of years I ran a free culture project in Reading, UK, which included:

- Arts workshops run with a local refugee support group and a halfway house for young offenders;
- Competitions, gig deals and other ways of hooking aspiring local musicians up with recording studios and labels;
- An exhibition selling reasonably priced art that remixed the local vernacular and existing works by local artists;
- A free festival coming this summer dedicated to showcasing local talent, rather than the usual affairs that concentrate on big signed acts coming in from London.

You'd find out a lot of this at any free culture conference - maybe you should attend the one at Harvard too. Wouldn't do much for your politicised invective, I suppose, but it would certainly be interesting for you and others in attendance.

"Why? Were we "in for a very bleak future" in, say, 1963, when vinyl records were "locked down" by the very nature of the technology?"

They were not. Reel-to-reel tape recorders existed, so records could be copied. Records could be moved or played over the radio, so they could be distributed. And they could be played on any record player, so there was no vendor lock-in. "the very nature of the technology" was that by the standards of the time records were easy to use, distribute and copy. There were no limitations that were not physical limitations of the medium.

DRM restrictions go against "the very nature of the technology". To make a record as useless as a DRM-encumbered MP3 you would need an oval record that played at speeds varying from 37.67 to 45.17 RPM over the course of a side, with a needle round on one side and triangular on the other, which would only accept your record if the shapes cut into the edge of it matched the exact ones carved into the edge of the turntable, and which would melt if you didn't play it at least once a month.

That would have made for a bleak future. Apart of course from the fact that reel-to-reel (and later casette tape) existed. But don't worry, Trusted Computing can fix that loophole.

Note the turnover rate of top tech firms is much higher than that in other industries.

Depends on your definition of tech firms, but that's mostly *because* until very recently, patents in the tech soft sphere didn't exist (and in the hard sphere, sui generis silicon rights rather than patents are most relevant). I am old enough to remember the 70s and 80s! It's rather unfortunate for the PFF that people who can remember the vibrant pre-patent days of computing are still very much alive.

If we let the patent situation continue, we'll see a stagnant situation like the engineering world, with the same old behemoths (Boeing, Lockheed-martin and friends) just swapping places every few years. We would never be truly rid of Microsoft and IBM, they'd just swap places every once in a while.

Elizabeth: "It is true, though, that touring and selling merchandise (including CDs, vinyl, etc.) at shows is how a lot of bands make their money. Note that live performance is also key here."

Yes, that is true -- in 2007. More accurately: It HAPPENS to be true in 2007, for a certain type of music artist.

See, what you'd be doing is circumscribing the definition of "musician." By limiting music careers to a certain role -- the role that happened to exist in 2007 for certain types of artists -- you'd be doing far more to stifle innovation than any DRM could ever do.

What happens when trends shift and this thing called a "concert" no longer happens to be in favor? What happens when fashions change and "owning band merch" isn't what 16-year-olds do anymore? What happens when I'm the next Van Morrison with a brilliant voice and brilliant songs and a withering case of stage fright?

If I'm that Van Morrison, I may want to just sit inside my house, record my stuff onto a new Hexagonal Plastic Music Player Thing that I've invented, and try to sell these recordings to willing buyers. I'm under no obligation to make sure my hexagonal thing is compatible with all the "devices" that other people think they should be able to use it with.

Yet what you want to do is tell me that if I'm going to be A Musician, I must offer you a hexagonal thing that can do x, y and z the way you want it to do, because, see, YOU know that hexagonal things can be capable of doing that stuff. And if I want to make a living at it, by golly, get out of that house and come sell you a coffee mug with my name on it!

The problem with the "free culture" movement is the same one endemic to all left-revolutionary movements: a tendency to view the world in terms of systems, to freeze moments in time without historical context, to conflate privileges and rights. With all due respect, it's maddening.

What happens when trends shift and this thing called a "concert" no longer happens to be in favor?

I'm sorry but I must be mistaken to believe that the role of the musician as a performer is much older than recorded music. Oh well...

The problem with the "free culture" movement is the same one endemic to all left-revolutionary movements: a tendency to view the world in terms of systems, to freeze moments in time without historical context, to conflate privileges and rights. With all due respect, it's maddening.

I'm sorry for disturbing your vision but last time I read about DRM, I got the impression that the IP maximalists, the greedy record label's executives and the lawyers were the ones who were trying to impose a panopticon system of control to society, without due respect for the citizen's rights.

Won't you just love when you find someone who is so trustful of human nature that believes that there's no possible way for an artist to make a living without having to sign a lousy deal with a big multimedia corporation, because they presume that the listeners won't have any incentive to make donations, to attend live shows and, yeah, to buy a t-shirt?

A few questions about the original post:

1. Who are 'real creators'?

1b. If 'real creators' are the opposite of 'rich-kid wannabes', please define who the rich-kids are.

1c. Who are the 'rich kids' trying to emulate?

2. Why is it assumed that a living can be made from sharing open-license works of art?

2a. Is there an hourly-wage / flat market value assigned to creative works?

3. You stated "...most of the FCM is the creation of a well-to-do upper class that realizes, quite accurately, that intellectual property is a mechanism by which others can challenge their privileges..." I am from a middle class family, does this mean creative works I make are slightly more valuable than those of a "rich kid" in your view?

3a. If yes, then suppose my creative works (valued higher, because of my lot in life) begin to sell often, and I rise to the socio-economic level of my piers. At this point, are my opinions and creative efforts less relevant / worthy?

Tomas, maddening huh?

In fact, I made that point (note that live performance is key here) because I realize that not all artists want to perform live. There are other models out there for those that do not want to perform live--alternative compensation systems, digital sales, etc. Yet for those artists that do not want to perform live in the current system, they are not profiting off of sales either. I am looking for models where they can make their work available freely and still making a living. What is so bad about this?

Welcome to the internet circa 2007. It seems that there are many musicians doing just this. Some may make several songs freely downloadable on their sites, and as a result sell more albums. Some give their music to mp3 bloggers so that they can get more promotion. Some put their music up on MySpace and sell out shows as a result. Clearly this isn't the case for everyone, but it surely a more democratic system than what we had in the past.

Noel, I agree that many artists are doing this now, and I am happy that they are. The key is that they can do this (1) without the major labels and (2) while making at least some of their music available freely.

Lastly, just because you license a particular song freely does *not* mean you still cannot sell your work. There are dozens of sites experimenting with new models to sell freely licensed works, and there are labels that are sustainably using CC licenses.

Tomas, if this sounds like madness, tell it to all of the artists and musicians that are innovating in these ways.

Elizabeth, I'm still wondering what audience you have in mind for your free culture views: artists, policy makers, consumers, those who want their culture for free? Also, what policy implications do you foresee?

The issues of margins and long term copyright policy are still too complicated in your argument. You also seem to target the RIAA/MPAA in some instances, and DRM in others; if I recall, the RIAA/MPAA support interoperable DRM, so I'm not sure why you're aiming at them.

And why should advertisers tap the Internet but not artists? Further, if you are concerned with whether artists make money off the Internet, I hope you are an ardent critic of piracy.

"RIAA/MPAA support interoperable DRM" only when Apple is getting the lion's share of the profits. And if Apple is doing so it's mainly because the labels were too afraid of online distribution for too long - Apple dragged them into it.

There's a more reasonable view regarding free culture than any that have been advanced here. Not all adherents just want music and movies free as in beer. There are good arguments to be made w/i the free culture paradigm regarding copyright reform and opposition to media conglomeration.

We live opposite the extreme presented by James; some of us just want a move toward the center.