One of the common misapprehensions one hears from the “music/facts/books/news/movies/games are like water” crowd is that creators don’t deserve the royalties and residuals for which their unions and they fought for so long. But that is just one of many arguments to justify theft we have heard from the radical tech “libratarians”, belying an inapt sense of entitlement to the labor of creations like the natural resource of water.
How Did We Ever Get Along Without Him
As a senior copyright official once said to me during the Google Books debacle, we made it through a couple hundred years without a Constitutional challenge to the U.S. Copyright Act and then the cat dragged in Lawrence Lessig, a/k/a “Ace” the Poker Prof. It should also not be lost that when came Lessig, so came people who wanted to profit themselves from works of copyright and commoditize all those works–the same people who gave $2 million to fund Lessig’s business at Stanford and $1.5 million to fund Lessig’s pet Creative Commons.
In order to accomplish this bone-crushing destruction of authors, someone needed to provide the unifying ideology and pathology that allowed people to believe that it was OK to take away these Constitutional rights by force.
But the point is that the profit made them do it.
Not being satisfied to undermine copyright, the commoditizers now are doing it with privacy–with information about people’s lives. In a unquenchable quest for free information to sell and resell, these tech oligarchs are now taking–often stealing as will no doubt be shown–private information from uncompensated users. This should come as no surprise–another well-adjusted titan of Silicon Valley, Scott McNealy, said as long ago as 1999 (that fabulous year) “You have zero privacy. Get over it.” (Scott McNealy of Sun Microsystems, former employer of Google’s Eric Schmidt.)
This will sound familiar–Lessig told a rapt audience a couple years ago (foreshadowing the “break the Internet” trope) “Hollywood needs to get over it.” Zuckerberg says “the age of privacy is over.” In both cases–the commercial reality is that both copyright and privacy are “over” because they each get in the way of one of the greatest income transfers of all time.
Make What You Earn
Royalties, and especially residuals, are one of the breakthrough egalitarian concepts. I will create a song for your movie and you can pay me a bit now, but I will retain my right to receive income in the future on exploitations of my works. I will write a screenplay for your television program, but if I am writing a television script under a Writers Guild agreement, I get certain future rights–separated rights, residuals, a variety of additional income streams. If I write a book, I will get an advance now, but I will get future royalties for a long, long time on the book and maybe get the book rights back eventually. If I write a song for a featured artist to record, I don’t get cash up front from the artist, but I do get future royalties if the record sells–by law. (Whether I can enforce the law against Google is a whole other question.)
These residuals and royalties are not paid to me because I am lazy, they are paid to me because someone else is making money from my work and I am entitled to a share of that money both now and in the future. Sometimes I may get an advance as a bet against future earnings–more frequently I do not, or I do not get a very large advance and certainly even the biggest earners are getting lower advances than they did ten years ago, or even five years ago.
But I didn’t get that money because I asked for it nicely. I get that money because I fought for it and generations of artists before me did, too, mostly due to organizing into unions.
It is important to remember when the Net Coalition and other union busters come knocking that royalties and residuals are nothing like the defined benefit pension plans that Net Coalition thugs have vilified. Artists in the creative industries are rarely employees. They are almost always independent contractors. So the overwhelming majority of the time, whatever health care they have they have they have because they paid for it, whatever retirement savings they have, they have because they paid for it. Union employers pay a relatively paltry contribution to union benefit plans, but authors, illustrators, photographers, cartoonists–these workers rarely have benefits.
But even so–royalties and residuals are not benefits. Royalties and residuals are a profit share paid to the creator of the work, the performer, and others. And if you don’t like paying royalties or residuals, we don’t want you to feel put upon–don’t use the work.
There is something inherently egalitarian about residuals and royalties. And like most things egalitarian, someone fought to get those rights. Artists did not always have the protections they now enjoy. They got those protections by organizing into unions, by holding the line in negotiations, by standing up for themselves.
And if the age of royalties is over like the tech oligarchs would like you to believe about privacy and copyright, then it will be because nobody stood up to defend the future.
Tote that Barge
But we are often told that the royalties and residuals paid to songwriters, directors, screenwriters, actors, musicians, singers, artists, authors and others in the creative community are payment to lazy people that they extract from a government monopoly (that’s copyright itself for the blessedly uninitiated). Not only that, but–horrors–the children or worse yet the grandchildren of lazy people with no corresponding work being done. Meaning that these layabout directors, actors, authors and songwriters once worked, but archaic government monopolies require that they continue to be entitled to payment for the exploitation of works long after the work’s creation and even after the author’s death. A long time, in any event, frequently life plus 70 years to be more precise.
Lift that Bale
These residuals are a government mandated copyright tax on consumers–see how easy that [LEAP] was? Every bit as much, as one of my fellow panelists put it recently, as the corrupt government tax of mandating prescriptions! Getting high on your so-called prescription drugs is the last bastion of the rugged individualist and bring me John Galt while you’re at it. Yes, he really made that libratarian argument–right after he made the “copyright tax” argument.
The copyright law, we are told, should be changed to cut off these creator louts after a much shorter period of time–you pick it, 7 years, or Lessig’s favorite, 14 years. This is because these artists should bargain for the assignment or license of their rights and then after that–poof. The author’s rights vanish and “consumers rights” take over. No mention of anyone else being able to exploit that author’s work. Like…let me guess. Could they mean “consumer” as in the “Consumer Electronics Association”? One of the members of the Computer and Communications Industry Association, perhaps? Maybe…Google? Oh, I see–maybe they really mean the rights of consumerists?
Get a Little Drunk and You’ll Land In Jail
Well, if you can believe that copyright is a tax and that prescriptions are an unjust monopoly favoring doctors, then you’ll be well prepared to believe the argument of Felix “BYOB” Oberholzer-Gee and Koleman “Everclear” Strumpf:
“A…decline in industry profitability might not hurt artistic production [or] artist motivations. The remuneration of artistic talent differs from other types of labor….[Artists]might continue being creative even when the monetary incentives to do so become weaker [because] many of them enjoy fame, admiration, social status, and free beer in bars – suggesting a reduction in monetary incentives might possibly have a reduced impact on the quantity and quality of artistic production.”
Harvard University Professors Felix Oberholzer-Gee and Koleman Strumpf
Next they’ll be quoting Earl Butz.
Yes, these piker creators just need to lay back and get their “admiration” (if you catch my drift) and “free beer” and let the MF music play, mofo! Let it play on YouTube preferably, royalty free!
For the good of consumerists, naturally.
Music Technology Policy 