BY NEIL TURKEWITZ
Lots of words come to mind, none of which I plan to explore here other than to note, in passing, that the likelihood of the blank being filled with a word not generally used in proper company is likely to produce fundamental changes in internet governance. It is now abundantly clear that absence of real governance is not such a good idea, and that lack of accountability invites — indeed breeds, unaccountable conduct which undermines societal welfare. The events around Cambridge Analytica may have served as the precipitating catalyst for change, but they are not the cause. The underlying need for change has been evident to many of us for years, but the false promise of freedom, constructed on an architecture of the provision of seemingly “free” goods and services, has blinded too many policymakers and citizens to the consequences of the grand deceit — that one could get something for nothing. I think the blinders are off. Which does bring me back to the subject of this essay.
Deceit. It turns out that a group of the most familiar copyright skeptics like EFF, CCIA, R Street, Engine etc. would have you believe that the right word to fill in the blank would be “creator.” It’s a good thing they were not playing Family Feud as that would certainly have scored a zero. But yes, a creator. They have even launched a website called EveryoneCreates.org. Masnick explains: “One theme that we’ve covered on Techdirt since its earliest days is the power of the internet as an open platform for just about anyone to create and communicate. Simultaneously, one of our greatest fears has been how certain forces — often those disrupted by the internet — have pushed over and over again to restrict and contain the internet, and turn it into something more like a broadcast platform controlled by gatekeepers, where only the chosen few can use it to create and share. This is one of the reasons we’ve been so adamant over the years that in so many policy fights, “Silicon Valley v. Content” is a false narrative. It’s almost never true — because the two go hand in hand. The internet has made it so that everyone can be a creator. Internet platforms have made it so that anyone can create almost any kind of content they want, they can promote that content, they can distribute it, they can build a fan base, and they can even make money.”
“Even make money?” Wow, the internet is really special. Tell me more I hear you say. I highlight the phrasing of this because it is, in fact, quite telling. Masnick and the various forces behind EveryoneCreates don’t seem to grasp that filming your dog chasing a squirrel and uploading it to YouTube, no matter how amusing it might be, is not the same as producing The Shape of Water. That the video of someone lip synching to Justin Bieber is not the equivalent of Beyoncé and Sony Music making Formation.
Nor do they acknowledge that uploading content that you have not created doesn’t make you a Creator (at least not in the sense implied by the organization). They deliberately conflate being creative (a trait nearly universally shared) with the kind of originality which underlies the notion of creativity which gives rise to copyright protection. As my friend Blake Morgan says, being a cook doesn’t make one a chef. Tossing a football around on the weekend doesn’t make you a football player. I love to play soccer, but I am not Messi. Making money isn’t an afterthought. It may not be the reason that people create, but it allows people to sustain themselves through their craft, and we the public are the beneficiaries of their genius.
The contorted conflation of creativity and original creative work was hysterically, if unintentionally, on display in an R Street post entitled: The Creative Side of R Street which introduced us to the various creative endeavors of R Street staffers, along with the suggestion that somehow copyright was a threat to their creativity: “But what if, as with hair-dyeing, the government regulated creativity? What if a law said that, before being creative, she had to get a license?” I have a better question, what if a law said that one shouldn’t make things up and put them in writing? What if a law said that one should never set out to deceive one’s audience with pretend existential threats? Of course, I am not proposing any such laws (which would be clearly inconsistent with the First Amendment), but the point is, they are no less preposterous, and indeed, make more sense, than the notion that there was some imminent threat of needing a license to be creative.
So why the grand deception? Why would these groups join together to champion the ridiculous proposition that creativity is under siege, and that since we are all creators, that the entire universe is under siege? That’s simple — because there are entire industries that rely upon the ability to monetize access to unlicensed materials. CCIA even proclaims the existence of something called “fair use industries” as if that weren’t a contradiction in terms given that fair use is theoretically limited to certain special cases that don’t conflict with a normal use of the work and don’t unfairly prejudice the legitimate interest of the creator. If. unauthorized uses are the foundations of industries, one might be forgiven for thinking that by definition, they are not fair inasmuch as they suggest the presence of significant economic harm.
But saying that industries need to be able to traffic in infringing materials doesn’t sound too compelling, does it? So they need a different narrative. So they make one up. It is a story that by their telling bears repetition, and is neatly recited, as usual, by Masnick:
“And yet, those legacy players continue to push to make the internet into more of a broadcast medium — to restrict that competition, to limit the supply of creators and to push things back through their gates under their control. For example, just recently, the legacy recording and movie industries have been putting pressure on the Trump administration to undermine the internet and fair use in NAFTA negotiations. And, much of their positioning is that the internet is somehow “harming” artists, and needs to be put into check.”
Okay, so is everyone following? Let me recap:
Step 1: we are all creators.
Step 2: legacy creators are seeking to protect their turf.
Step 3: the modality for restricting competition is copyright.
Step 4: safe harbors from liability for intermediaries and fair use are critical to putative creative disruptors.
Step 5: to dislodge the dinosaurs and to free these would be creators, we need to keep everything as it is.
Let’s see, did I miss any steps? Well, yes, an explanation of the universe in which any of this makes sense. In short, it is an imaginary universe which dances to its own tune. Presumably not a good one given its rules of engagement and governance. Their arguments, however, make no sense in the world that you, dear reader, inhabit. One in which we are all creative, but not equally capable or motivated to seek to earn a living from original production of creative works. One which recognizes that copyright sustains careers and promotes creativity. One that doesn’t pretend that copyright supports a particular model and grasps that copyright enhances competition and only protects an artist from having to compete against unauthorized versions of her own work. And fundamentally, one which recognizes that the supposed agents of change/disruption are the ones clinging to outdated legislation, while the community of artists and other creators are calling for reform.
So yes, we are all creative. But that is irrelevant. We are not all the same. One person’s creative output is not the same as another’s. We must treasure these unique characteristics. The unspoken notion underlying EveryoneCreates is that we are faceless and undifferentiated inputs into a database where chaos can be ordered and monetized. No “input” is better than any other input. It is part of the march towards the Singularity — the triumph of machine. If that’s what moves you, then endorse their views. But there is a better way, and it is lit by our imaginations and our embrace of what makes us unique. Copyright empowers the individual to speak his or her mind. To determine how her creation is to be used. To be able to give or deny consent. What the folks behind EveryoneCreates would call “unwanted friction.” We have had twenty years of internet governance which has countenanced the circumvention of consent to promote efficiencies in the name of so-called innovation. We know what that path looks like. Time for the path less traveled I would say.