The reason Fred wanted to meet with me was to "clear the air" because I criticized him on his blog as a latter-day Bolshevik. I said, like the venture communist Joi Ito, he was introducing communistic ideals even as he funded them as a capitalist, and then serving as something like the German industrialists or American tycoons of Wall Street who funded the Bolsheviks, thinking it would lead to a better world for people. What I meant was the technocommunism of things like Twitter and other platforms and apps he invested in that had this model: a) get people to sign-up for free; b) scrape their data for marketing c) stand back as they uploaded content usually not their own; d) sell ads by the content and get them to click; e) make the IP holder chase you with DMCA notices and play catch-me-if-you-can; f) lather, rinse, repeat. The California Business model, in New York, for the FourSquare generation.
I kept writing and writing my critiques. Naturally he could have dismissed or blocked me, but he thought perhaps by sitting down in a coffee shop in our neighbourhood -- I live a 10 blocks from his office in Union, where the hipsters hang out -- perhaps we could come to some agreement.
I got there early and posted myself at the doorway but didn't see him. I looked at everyone who came in the door and just didn't recognize him. Maybe it was because I was looking for someone out of an Impressionist painting, but about 20 minutes after the hour, I went in to sit down myself, and suddenly saw there patiently sitting and reading his phone texts.
I explained to him that I felt the heart of the problem with the copyleftist in people like him was that they owned multiple gadgets, they were wealthy, and they felt an imperious, impatient, arrogant irritation with not being able to copy tunes or other digital content from one gadget to another. They resented this ENORMOUSLY and never stopped whining about it on tech forums. They felt it was their God-given right and drove their entire perception of the copyright/commodity issue through this lens. The idea that they should pay twice for the same song to put it on two different gadgets would enrage them -- I had seen it 100 times on forums and Fred himself would be particularly voluble on what felt like terrible unreasonableness.
But most of us don't have that many gadgets, I explained. I didn't have an iphone at that time. I had only a desktop. My son had a laptop. My daughter had an i-pod. While many people had cell phones, they had SMS text, not i-phone capacity -- and they might not even have a computer at home. We ourselves took turns on the computers. There wasn't this felt need to make sure that the song downloaded on the computer could also go on the ipod or the laptop. Most people didn't have that burning desire to have their song collection with the everywhere all the time and copy it to every other device. Most people didn't have all those devices. They aren't rich. They don't have a car and a country home where all the digital content has to be uploaded. And in fact, there was a demographic that didn't even need to listen to music all the time in this way like a soundtrack in the movie of their life.
Naturally, Fred disagreed. He was surrounded by others like himself -- male techs with gadgets -- and the irritation was enormous among them that they were expected not to jailbreak or hack or simply circumvent the rules to put copies of content they owned on other gadgets. He also said the world was changing, the gadgets would get cheaper, and soon everybody would have the i-phones and netbooks for $50 or $100.
I didn't think the cost would come down any time soon. And this just never irritated me in the same way, as I thought the analogy was virus software. You pay $50 to have three copies on three machines. I don't know if the companies can hash-ban you by the configurations of the different machines if you try to put a 4th, but that's the rule of the license. More desks is more money. Why can't it work that way with songs?
I tried to get across to Fred the experience of Second Life, the selling of digital commodities, the permissions system, the way it worked, the ability to copy for yourself, but not transfer elsewhere, and the need to digitally engineer that same concept. But Fred stuck to the copyleftist mantra of "I paid for it, therefore I should use it" -- and I could only point out that this was not a really persuasive argument, because it seemed like a self-righteous excuse really to copy period. To send to your friends. To share. To swipe and spread further. That's what really happened with this excuse.
As it happened, there were more tech developments -- one was "the cloud," where services like Spotify or Pandora began to put all your music in the cloud so that you could access them from any gadget and you'd pay a small subscription fee of $3 or $5 or $9 or whatever -- and people did pay to get rid of the ads or get more choice and search capacity.
So that seemed to solve the problem in a way, but we weren't done yet.
Then at TechCrunchDisrupt in New York City last year, Fred was ecstatic with a new service, Open Garden, that enabled people to create tethered networks without the charges. As I wrote then:
Open Garden -- as you can tell from the name -- breaks down walled gardens intentionally and creates more Internet connection for all the apps and gadgets of Silicon Valley to be used on the lines provided by the older, crippled telecom companies.
It might be better to call it Open Theft of Services, and I believe it didn't win TechCrunch because the judges on stage (except for one obvious vote) thought it was too great a challenge to the uneasy truce holding now between Big IT and Big Telecom.
Well, Fred was in love with it because it was disruptive and fought telecoms and was Pirate Party sort of stuff -- understood.
He expressed irritation again with the services on flights -- if he wanted to use his phone, he had to pay a lot of money for these wireless services on planes, then not be able to jack in his family members -- they would have to separately get their account accounts. So he talked about how great it would be to jack in his whole family -- wife and kids -- using this Open Garden. So then it would be the daughter's boyfriend or the wife's co-worker -- where would it end? How is a network going to know it's only the "fair use" of his family?
And that's why I greet Daryl Issa's meddling on behalf of Silicon Valley copyleftists again as something that should get a pushback. You shouldn't be able to rip your DVD -- of course people will do anyway, but it's good to keep the policies and laws against it in place to prevent larger-scale piracy for profit -- and by needlessly undermining digital property as a commodity for joggers' conveniences, you harm the livelihood of content makers. There is no need for this, even for the jogger.
Issa is invoking the anger articulated by Fred Wilson to me a few years ago, speaking for all geeky guys with lots of gadgets wanting to copy things around them -- and calling that act "fair use".
I think that's a promiscuous use of the term, it isn't "fair use," and this a gambit to undermine inherency of copyright and try to get that California business model camel-nose further under the tent.
But I think you have to decide whether you are going to give up perceiving digital content as a commodity, or merely see it as license to access content, or as a service.
We had these endless debates in Second Life ages ago, of course, because it really is predictive as a model of the Internet, and I predicted then that soon we would see content as a commodity disappear, and that it would only appear as a kind of entertainment service, that you wouldn't pay for each dress or each car or each house in the virtual world of Second Life, but this or that big company would either give this to you for free in exchange for data-mining or ad-clicks or brand recognition, or it would create subscriptions to clubs by theme, or as a coupons, or whatever. That never really happened inside Second Life, although it did in Facebook, but the "license to access content" concept is more where the concept sits today, especially as the model of the inworld store with the commodity sold in it disappears, and the web store with the copy sold from the web takes over, i.e. reiterating in the virtual world the trajectory the world took from real life to the web.
Even so, I now think there isn't any call to have it be so stark. Some things will remain as digital commodities -- i-tunes still works for individual songs, even as Spotify works with subscriptions for streams. You still buy a discrete copy of a pdf file book, or pay some fee to join a discussion website and post there (rare, but it does occur) or more frequently, a newspaper subscription or magazine subscription that enables you to post -- i.e. the draw isn't just about content but the ability to post your own content in response to that content.
In any event, I see no need to "update" or "modernize" the law. Companies already issue licenses with stipulations, like Will Wright released Spore with the stipulation that you could copy five copies of the game to five computers, like an anti-virus license. Geeks and gamers still bitched because there'd be that edge-caser with the 6th computer, but honestly, most people do not need even one copy of Spore.
If "fair use" is understood to mean "I copy it as I please to my gadgets," then it will instantly start to merge to "my circles that I should get to share it with" -- my relatives and friends. The same angry indignation and sense of entitlement geeks who drive this issue feel about their own personal gadgets will seque into "my circles" that it seems crazy to draw barriers and walled gardens around. Why shouldn't the song go to a co-worker? Why shouldn't the academic journal article go to a fellow researcher? And so on.
Indeed, people who make copies for jogging ARE the problem. They are the problem because they refuse to accept that software is a commodity. They are a class of people who see it as a license to access content or a service, and they want to view it differently.
The problem is that content creators don't have a way to make a living if they open up the doors for the joggers, and then the joggers' friends -- because the jogger will feel as if he "has a right" to share it with his friends and "it doesn't hurt anyone". (The main argument that such Internet lawyers use about all this is that the content remains in the hand of the IP holder -- he doesn't lose his original like the creator of an original chair in the real world loses his original. But that's silly, of course, because what he does lose his ability to commodify and sell the digital item.)
I'm not for Daryl Issa or the Techdirtiers to get their paws on this. Leave it alone. In the world of the cloud and streaming, for one, the concept of "fair use" isn't tied to the digital commodity -- the file -- anymore. It's more about service -- and compensating companies for their payments for licenses to provide the content.
I realize that under some crazed libertarian extreme notion of copyright law, the Republicans might find themselves -- eager to get the youth vote -- championing the erosion of property rights in this realm. That would be awful.
The purpose of copyright is indeed to benefit creators who need compensation to make a living and go on creating -- and the undermining of this with constantly copyleftist yammering doesn't make it any less true. The public is not served by having creators unable to gain compensation in the marketplace.
The technocommunist Masnick engages in a particularly insidious sleight-of-hand here pretending that "government-maintained monopoly" of a private person's private intellectual property is somehow "against" laissez-faire communism and somehow rewards statism. That's absurd, as only technocommunists and libertarians can be absurd, because of course the government's use of the force of law and the law of force to back up property is legitimate in a liberal democratic state under the rule of law. Capitalism isn't about taking your time, talent, and treasure and handing it over to a rival in some notion of "laissez faire" that belongs to socialism, not capitalism.
There aren't some plethora of fake copyright claims. Google got 5 million takedown notices last year; it satisfied most of them. Let's put to bed that particular copyleftist myth.
The technocommunists jerked the chains of their allies the libertarians in Congress and got the attention of the California congress people who serve Silicon Valley and its ecosphere, but that doesn't mean we must all lose our minds about private property, protection of property rights, and the viability of intellectual property rights online.
There are all ways to engineer and drive policy to defend copyright through individual DRM on discrete commodities; through the stream subscription where the streamer pays for licenses; and for licensed access to content. None of these models require any enlargement of fair use. A radio station didn't have to change the law on "fair use" because it had one copy of a record and played it to hundreds of thousands of people in single discrete instances because those frictions were built in of time and having to wait for the song to come again or go out and buy it. Spotify or Pandora get you to pay so you can find your song again on demand. A one-time annual feel will get you the content on a news site, and so on.
You don't need a new or broader definition of fair use when the regime for accessing the content has changed -- the jogger who is manually copying his purchased or purloined tune or Youtube track from his desktop or laptop to his ipod must not have heard of Spotify -- and that's hard to believe if he's the quintessential urban hipster who jogs in the first place.
If the geek answer to this point is that now that there is streaming and licensing, the copies to other gadgets manually doesn't matter anymore is merely edge-casing again, because of course it is a blank check for copying anywhere, not just to one's own gadgets -- no one is suggesting tying copies to IP addresses or hardware registration (although that might work).
In the end, the whole "rip my DVD" gambit is contrived -- it is expanding one use case to an entire field of practice that rapidly jumps to sharing anywhere and of course even using peer-to-peer services with anybody. Complaining that it harms "fair use" of one's own property removes the context of what "fair use" doctrine originally dealt with -- use *for the public* -- for other people -- in printed matter.