Andy Baio On The New Prohibition Created By Copyright

from the chilling-effects dept

Andy Baio has an absolutely fantastic video presentation that he did recently for Creative Mornings/Portland on what he’s calling The New Prohibition. It’s half an hour long, but absolutely worth watching.

Some of the discussion covers ground that you’re probably familiar with — such as discussing how much culture is really infringing by nature (an awful lot of it). From there, it shifts to Baio’s unfortunate experience with Kind of Bloop, a story we covered a couple years ago. If you don’t recall, Baio, who is quite knowledgeable about copyright law, produced a chiptunes 8-bit version of Miles Davis’ Kind of Blue album, which he called Kind of Bloop. He knew that, for cover songs, he needed to pay compulsories, which he did. He then funded the hiring of artists via Kickstarter (he was Kickstarter’s original CTO and helped launch the site). It was one of Kickstarter’s first success stories. Baio made no money off of it. He produced the album, hired the musicians, made the CDs, and any leftover money went to the artists as well.

But the photographer who took the photo on the cover of Kind of Blue sent his lawyers after Baio. Even though Baio had had someone create a very carefully done 8-bit version of the Miles Davis photo (i.e., he didn’t just apply a Photoshop filter…), and believed strongly that it was fair use (it was transformative, non-commercial, had no negative impact on the market for the original, etc.), the threat of the lawsuit, and the years of fighting the lawsuit, including significant expenses (even with pro bono legal help), made him decide to settle for $32,500 of his own cash to the photographer Jay Maisel (an incredibly successful photographer who literally lives in the largest single family residence in New York City).

We wrote about this at the time, horrified at this kind of result. The one good thing in all of this was that Baio fought for, and won, the right to write a single blog post about the experience — rather than be silenced via a typical gag order that is all too common in legal disputes like this. The story got widespread attention (and there was significant backlash against Maisel, which Baio, himself, tried to quash).

However, since then, Baio hasn’t said much (publicly) about the experience. This video lets him talk a bit about the aftermath — to explain the true chilling effects of the threat and the eventual settlement. Baio is a creator. It’s in his blood. It’s what he’s always done, but after this he was afraid to create. Being threatened with a lawsuit, even if you believe you’re right, is a scary and possibly life-altering moment. Lots of people who have not been in those shoes think it’s nothing and that they could handle it. You don’t know.

As he notes in the talk, copyright law is probably the most violated law in the US after speeding and jaywalking (and I’m not even sure copyright infringement is really in third place in that list). But getting rung up for one of those gives you a “bad day” situation, not a ruined life. Copyright, on the other hand, can ruin your life. And chill your speech and creativity.

And this is the worst part: so many people, especially kids, are at risk. Baio also famously highlighted the prevalence of the phrase “no copyright intended” on YouTube. Tons of kids uploading videos use clips of music and videos with a phrase like that. Or with statements about fair use. Or with copyright law quotes. All, as he notes, to try to find that magic voodoo that wards off a possible lawsuit. Most of those people aren’t being sued.

But they could be.

Baio points out that he used to find all those “no copyright intended” messages humorous. And now, he fears for all of them. Just as copyright trolls have sued hundreds of thousands of people as a part of a business model to shake down people, he notes it is not out of the realm of possibility that others will start copyright trolling on YouTube. In fact, while he doesn’t mention it, we’ve actually seen the beginnings of just that kind of thing.

And, as he notes, this is terrifying. This is the new prohibition. People are creating amazing and wonderful new things, inspired by and building off the works of others — just as has happened throughout human history. This is how culture works. And rather than celebrate and encourage that… we’ve made it illegal.

And, not just illegal, but illegal in such a way that you can be threatened with life-destroying financial damages. And it’s happening all the time and likely to happen even more.

Baio notes that this requires true reform. Fair use is not enough. Fair use is barely worth anything in this setup, as he himself discovered. Baio argues for making non-commercial use non-infringing, which is a step in the right direction, but still leads to trouble in figuring out what really is commercial or non-commercial on today’s internet. Still, the crux of the message is vital for people to understand in learning why our copyright system isn’t just broken, but seriously damaging to speech, creativity and culture.

We’ve seen some copyright system supporters in our comments insist that if we don’t like copyright, that’s fine, “just don’t use it” and leave them to use it how they see fit. And that would be great if copyright law didn’t get in the way of what most people feel is a perfectly natural way of expressing themselves. But it does. And it does so in a way that stifles true cultural creativity, the exact opposite of what we should be seeking under the clause in the Constitution that is supposed to “promote the progress.” Baio’s speech is worth watching, just so people can understand what’s at stake here. This isn’t about “piracy” or people wanting stuff for free. This is about speech and culture and the ability to stifle it completely and destroy people’s lives. These are the reasons why so many of us speak out about the way copyright law is used today.

Filed Under: andy baio, copyright, fair use, prohibition, statutory damages