In a speech that steered clear of policy proscriptions, but that urged a need for creative thinking about copyright and content distribution, former President Bill Clinton on Friday called for further discussion “about the need to give people an appropriate return on their ideas and development of them, and presentation of it, in film and music and in other areas, and the need to give it as quickly as possible to the world.”

Clinton’s speech came at the Creativity Conference, a half-day meeting hosted by the Motion Picture Association of America, Microsoft, and Time Magazine, where participants ranging from House Majority Leader Eric Cantor to HBO CEO Richard Plepler discussed issues in the creative economy ranging from federal research and development investment to copyright. While there was a clear consensus on the first issue, with even Cantor, who has focused on spending cuts, suggesting that the government had a valuable role to play in research and development, some participants spoke frankly, and even harshly, on the subject of copyright.

“So I think a very good business plan [is] here, use somebody else’s content for free, deliver it, don’t pay them anything, and build a $500 billion silicon valley company, and then have cool slogans like ‘We just want to help the world,’” said Harvey Weinstein, co-chairman of the Weinstein Company, appearing to refer to YouTube and its parent company Google. “They’re stealing. That’s what they’re doing. My artists, they can’t be artists if they’re hungry. The starving artist, trust me, that’s a myth. When you’re starving you’re starving. It’s hard to be creative in that situation.”

Clinton, by contrast, sought to establish a different framework in his remarks, suggesting that the conflict in creating copyright policy was not between who should be allowed to profit from the creation of individual work, from music to pharmaceutical development, but between balancing the interests of content finding a wide audience and making it sustainable to develop. “We have to keep struggling to find the right balance between creativity, broadly and quickly shared, and as widely understood as possible, and making it reasonably profitable for people to be creatives,” Clinton argued. As one example, he praised Saint Jude’s Children’s Research Hospital, which does not accept fees for services, but encourages patients whose families can pay to make ongoing donations to the institution, and which voluntarily makes public significant amounts of its data to aid in drug development.
Read more

I was lucky enough to spend some time at Swarthmore College last week thanks to a kind invitation from the Swarthmore Feminists to talk about sexuality and television, but the real treat for me was a chance to sit and chat with the students there about what television they watch, and how they watch it. Keeping in mind, of course, that this is hardly a representative sample size, that college students aren’t at the height of their purchasing power, and that it isn’t always easy to set up cable subscriptions on campus, it was still a revealing conversation, and one that did more to convince me than cord-cutting numbers have thus far that television could face a comparatively sudden realignment of its business model as a generation of television watchers comes of age, and turns out not to watch television live, in the timeslot, or through the conventional means of accessing television programming at all. I was struck by three key takeaways in particular:

1. If They Own Television Sets, It’s Mostly For Gaming: I didn’t really develop the habits of a television viewer until I’d graduated from college and had access to cable for the first time, but even then, I owned a television, and my sense was that most rooms had one, if only to watch DVDs. DVD drives didn’t come standard on laptops at the time I purchased my first one, tablets were a theoretical product, and streaming video wasn’t a commercial-ready product that could support long clips and heavy usage. Now, with all of those things standard, televisions are less a primary means of watching video content than large objects that take up space in a single or a common room. If you’re serious about video games, they might be a necessity. But all the Swarthmore students I talked to were building their habits as television viewers through their interactions with Netflix and Hulu, rather than with channel surfing. And that means a very different, and much more highly curated user experience. Television watching is a habit as much as it is an optimal consumer experience, and if it’s not developed early, there’s no reason to believe it will remain primary.

2. They Don’t Feel Any Real Hesitation About Pirating Content On Either Moral Or Quality Grounds: Only one of the students I talked to said she avoided watching content that had been illicitly downloaded on moral grounds, and she admitted that her refusal to watch movies or television that hadn’t been paid for or borrowed in some licit way marked her as something of a square. The consensus seemed to be that television networks and studios don’t really need the students’ money, that someone else is putting up the money to support the continued production of content. I obviously think that’s a fairly shortsighted perspective, but it’s illustrative of how deeply it’s taken hold as a convenient excuse for not purchasing content.

3. They Don’t Care When They See Whole Seasons, Much Less Individual Episodes: This was probably the consensus opinion that hit me hardest: the students were very comfortable with watching not just episodes of television but whole seasons of television long after they’d aired. Neither the prospect of so-called spoilers, nor the desire to engage in a cultural conversation tied temporally to air dates seemed to matter very much. And that seems like it should scare television producers more than anything else. If there’s no such thing as must-see-TV, whether it’s the old expectation that viewers wouldn’t see every episode of their favorite shows, or the modern one where it’s expected that we’ll tune in to every episode of long-arc narratives, then it’s hard to see what the television business model is at all.

For those of you who were hoping that we might figure out a sane way to resell digital content in the same way there’s a thriving secondary market for used books, CDs, and movies, seem about to be disappointed after a New York judge, in a sweeping decision, rejected the idea that files are objects in the same way that other means of delivering content are:

The company believed that the lawsuit that followed was one of “first impression” insofar as the plaintiff — Capitol Records — might wish to have it declared that the first-sale doctrine didn’t apply to digital goods. Supporting ReDigi’s side was Google, which unsuccessfully attempted to file an amicus brief. Other tech companies also had a stake; Amazon, for instance, has gained a patent on a market for “used” digital music and movie files.

The record industry wasn’t seeking a big declaration. In its own papers, the plaintiff only said that letting users buy and sell previously purchased tracks on iTunes amounted to a “clearinghouse for copyright infringement.”
Nevertheless, on Monday, U.S. District Judge Richard Sullivan went swinging for the fences; unfortunately for ReDigi and those hoping for a vibrant e-market of used song files, the judge wound up completely rejecting the company’s position. He did so not only by turning to the law of copyright but also the law of physics, declaring the “impossibility” of what ReDigi was touting. “The first-sale defense,” he wrote, “does not cover this any more than it covered the sale of cassette recordings of vinyl records in a bygone era.”

This strikes me as a decision that goes against the interest of both consumers and content providers. If content providers want individuals to get on board with the idea that files are property, and that the transfer of them without compensation causes damage to creators, an important part of that idea is that files are distinct objects, rather than ephemera that can be copied at no loss to them from a production standpoint, or loss of their ability to sell other downloads. I also am not sure how Judge Sullivan’s understanding of physics transfer to cyberspace, but perhaps he’s never bumped up against the memory limits of an iPhone before. From a business standpoint, it would obviously be preferable to content companies if they were the only people who retained the right to sell those objects. But that’s an idea they had to surrender on with physical objects a long time ago, learning that it creates a more stable market and preserves product standards to let people resell objects they’ve purchased than to block the first sale doctrine and see illicit copies of textbooks, burned CDs, or bootlegged VHS and DVD copies of movies begin circulating among people who aren’t actually a market for those products in their new, unused form.

Digital resale, I’d think, actually represents an opportunity for content companies to get more of their money back from resale than the resale of physical objects. If resale can be brokered through the original venues that sold the tracks, movies, or books, those venues could write contracts with publishers, studios, and record labels that let artists and content companies get some money back from those resales, along with both the sellers and the venues. A stable and brokered secondary market is probably the only way to guarantee that people who sell files will really get them off their computers—I imagine iTunes could write its code such that if you resell a track through the service, then try to upload it to iTunes without paying for it again, the file would be disabled and you’d get a warning, in the same way Amazon could probably scrub all versions of a track you’ve resold from its cloud storage. Having both sides in the digital content debate acknowledge that files are objects could produce a kind of detente, in which content companies grant consumers some more rights to do what they want with the objects they’ve purchased in exchange for consumers’ acknowledging that if they’re getting money off resale, there is in fact value in individual copies of files.

If you get your internet through Verizon, AT&T, Comcast, Cablevision or Time Warner, and you’re still downloading music, television, or movies without paying them, you may start feeling something in addition to your guilt. In collaboration with the Center for Copyright Information, a group that includes both those internet service providers, the Recording Industry Association of America, the Motion Picture Association of America, Independent Film and Television Alliance, and the American Association of Independent Music, the companies will let you know they’re watching what you’re up to:

As part of what’s known as the “six strikes” system, the ISPs will deliver to consumers a graduated series of six messages that starts with a warning and ends with some sort of action…While the first two alerts serve as warnings or reminders, the second two require consumers to confirm receipt of the message. The final two, called mitigation alerts, could result in some sort of action, like slower Internet connection or suspending service. The CAS doesn’t specify what consequences ISPs should impose on consumers and leaves it up to each ISP.

The Stop Online Piracy Act may have died last year, but it seems inevitable that internet service providers, as well as search firms like Google, would get into the business of trying to crack down on illicit downloads. Media consolidation means that cable and internet companies like Comcast have as part of their business model creating and distributing original content. An organization like Google seems to be gradually discovering that there’s more money to be had in distributing, if not yet creating, original content instead of merely showing other people where they can find other distributors. In other words, the interests of the people who make content and the interests of the people who help people get to that content are converging.

Whether this is a preferable turn of events for SOPA opponents is up to them. I certainly hope it becomes clearer which providers are levying which consequences as the system goes into place. And from both a business and consumer behavior perspective, it would be great for notices to include information about where consumers could get the same content licitly, though that would pose a formidable technical challenge, and it might feel too invasive to consumers for ISPs to be monitoring their activity at that granular a level. There may always be some consumers who have no interest in paying for certain content, or supporting it by sitting through ads, an attitude I think shows very little awareness of what it takes for that content to keep getting produced, and ISP warnings probably won’t do much to deter those folks. But helping consumers who do understand that nothing comes for free find ways to give their money or their eyeballs to the people who produce and distribute that content—or to let them know when they’ll be able to do so if something isn’t available legally yet—could help change practices. Then, government could be in the position of advocating for well-intentioned consumers, while still letting internet and content companies develop their business models in an organic way.