If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
The Supreme Court has just turned down a petition to hear an appeal in a case that held that AI works can't be copyrighted. By turning down the appeal, the Supreme Court took a massively consequential step to protect creative workers' interests:
At the core of the dispute is a bedrock of copyright law: that copyright is for humans, and humans alone. In legal/technical terms, "copyright inheres at the moment of fixation of a work of human creativity." Most people – even people who work with copyright every day – have not heard it put in those terms. Nevertheless, it is the foundation of international copyright law, and copyright in the USA.
Here's what it means, in plain English:
a) When a human being,
b) does something creative; and
c) that creative act results in a physical record; then
d) a new copyright springs into existence.
For d) to happen, a), b) and c) all have to happen first. All three steps for copyright have been hotly contested over the years. Remember the "monkey selfie," in which a photographer argued that he was entitled to the copyright after a monkey pointed a camera at itself and pressed the shutter button? That image was not copyrightable, because the monkey was a monkey, not a human, and copyright is only for humans:
Then there's b), "doing something creative." Copyright only applies to creative work, not work itself. It doesn't matter how hard you labor over a piece of "IP" – if that work isn't creative, there's no copyright. For example, you can spend a fortune creating a phone directory, and you will get no copyright in the resulting work, meaning anyone can copy and sell it:
If you mix a little creative labor with the hard work, you can get a little copyright. A directory of "all the phone numbers for cool people" can get a "thin" copyright over the arrangement of facts, but such a copyright still leaves space for competitors to make many uses of that work without your permission:
Finally, there's c): copyright is for tangible things, not intangibles. Part of the reason choreographers created a notation system for dance moves is that the moves themselves aren't copyrightable:
https://en.wikipedia.org/wiki/Dance_notation
The non-copyrightability of movement is (partly) why the noted sex-pest and millionaire grifter Bikram Choudhury was blocked from claiming copyright on ancient yoga poses (the other reason is that they are ancient!):
Now, AI-generated works are certainly tangible (any work by an AI must involve magnetic traces on digital storage media). The prompts for an AI output can be creative and thus copyrightable (in the same way that notes to a writers' room or from an art-director are). But the output from the AI cannot be copyrighted, because it is not a work of human authorship.
This has been the position of the US Copyright Office from the start, when AI prompters started sending in AI-generated works and seeking to register copyrights in them. Stephen Thaler, a computer scientist who had prompted an image generator to produce a bitmap, kept appealing the Copyright Office's decision, seemingly without regard to the plain facts of the case and the well-established limits of copyright. By attempting to appeal his case all the way to the Supreme Court, Thaler has done every human artist a huge boon: his weak, ill-conceived case was easy for the Supreme Court to reject, and in so doing, the court has cemented the non-copyrightability of AI works in America.
You may have heard the saying, "Hard cases make bad law." Sometimes, there are edge-cases where following the law would result in a bad outcome (think of a Fourth Amendment challenge to an illegal search that lets a murderer go free). In these cases, judges are tempted to interpret the law in ways that distort its principles, and in so doing, create a bad precedent (the evidence from a bad search is permitted, and so cops stop bothering to get a warrant before searching people).
This is one of the rare instances in which a bad case made good law. Thaler's case wasn't even close – it was an absolute loser from the jump. Normally, plaintiffs give up after being shot down by an agency like the Copyright Office or by a lower court. But not Thaler – he stuck with it all the way to the highest court in the land, bringing clarity to an issue that might have otherwise remained blurry and ill-defined for years.
This is wonderful news for creative workers. It means that our bosses must pay humans to do work if they want to be granted copyright on the things they want to sell. The more that humans are involved in the creation of a work, the stronger the copyright on that work becomes – which means that the less a human contributes to a creative work, the harder it will be to prevent others from simply taking it and selling it or giving it away.
This is so important. Our bosses do not want to pay us. When our bosses sue AI companies, it's not because they want to make sure we get paid.
The many pending lawsuits – from news organizations like the New York Times, wholesalers like Getty Images, and entertainment empires like Disney – all seek to establish that training an AI model is a copyright infringement. This is wrong as a technical matter: copyright clearly permits making transient copies of published works for the purpose of factual analysis (otherwise every search engine would be illegal). Copyright also permits performing mathematical analysis on those transient copies. Finally, copyright permits the publication of literary works (including software programs) that embed facts about copyrighted works – even billions of works:
Sure, you can infringe copyright with an AI model – say, by prompting it to produce infringing images. But the mere fact that a technology can be used to infringe copyright doesn't make the technology itself infringing (otherwise every printing press, camera, and computer would be illegal):
Of course, the fact that copyright currently permits training models doesn't mean that it must. Copyright didn't come down from a mountain on two stone tablets. It's just a law, and laws can be amended. I think that amending copyright to ban training a model would inflict substantial collateral damage on everything from search engines to scholarship, but perhaps you disagree. Maybe you think that you could wordsmith a new copyright law that bans training without whacking a bunch of socially beneficial activities.
Even if that's so, it still wouldn't help artists.
To understand why, consider Universal and Disney's lawsuit against Midjourney. The day that lawsuit dropped, I got a press release from the RIAA, signed by its CEO, Mitch Glazier. Here's how it began:
There is a clear path forward through partnerships that both further AI innovation and foster human artistry. Unfortunately, some bad actors – like Midjourney – see only a zero-sum, winner-take-all game.
The RIAA represents record labels, not film studios, but thanks to vertical integration, the big film studios are also the big record labels. That's why the RIAA alerted the press to its position on this suit.
There's two important things to note about the RIAA press release: how it opened, and how it closed. It opens by stating that the companies involved want "partnerships" with AI companies. In other words, if they establish that they have the right to control training on their archives, they won't use that right to prevent the creation of AI models that compete with creative workers. Rather, they will use that right to get paid when those models are created.
Expanding copyright to cover models isn't about preventing generative AI technologies – it's about ensuring that these technologies are licensed by incumbent media companies. This licensure would ensure that media companies would get paid for training, but it would also let them set the terms on which the resulting models were used. The studios could demand that AI companies put "guardrails" on the resulting models to stop them from being used to output things that might compete with the studios' own products.
That's what the opening of this press-release signifies, but to really understand its true meaning, you have to look at the closing of the release: the signature at the bottom of it, "Mitch Glazier, CEO, RIAA."
Who is Mitch Glazier? Well, he used to be a Congressional staffer. He was the guy responsible for sneaking a clause into an unrelated bill that repealed "termination of transfer" for musicians. "Termination" is a part of copyright law that lets creators take back their rights after 35 years, even if they originally signed a contract for a "perpetual license."
Under termination, all kinds of creative workers who got royally screwed at the start of their careers were able to get their copyrights back and re-sell them. The primary beneficiaries of termination are musicians, who signed notoriously shitty contracts in the 1950s-1980s:
https://pluralistic.net/2021/09/26/take-it-back/
When Mitch Glazier snuck a termination-destroying clause into legislation, he set the stage for the poorest, most abused, most admired musicians in recording history to lose access to money that let them buy a couple bags of groceries and make the rent. He condemned these beloved musicians to poverty.
What happened next is something of a Smurfs Family Christmas miracle. Musicians were so outraged by this ripoff, and their fans were so outraged on their behalf, that Congress convened a special session solely to repeal the clause that Mitch Glazier tricked them into voting for. Shortly thereafter, Glazier was out of Congress:
https://en.wikipedia.org/wiki/Mitch_Glazier
But this story has a happy ending for Glazier, too – he might have been out of his government job, but he had a new gig, as CEO of the Recording Industry Association of America, where he earns more than $1.3 million/year to carry on the work he did in Congress – serving the interests of the record labels:
Mitch Glazier serves the interests of the labels, not musicians. He can't serve both interests, because every dime a musician takes home is a dime that the labels don't get to realize as profits. Labels and musicians are class enemies. The fact that many musicians are on the labels' side when they sue AI companies does not mean that the labels are on the musicians' side.
What will the media companies do if they win their lawsuits? Glazier gives us the answer in the opening sentence of his press release: they will create "partnerships" with AI companies to train models on the work we produce.
This is the lesson of the past 40 years of copyright expansion. For 40 years, we have expanded copyright in every way: copyright lasts longer, covers more works, prohibits more uses without licenses, establishes higher penalties, and makes it easier to win those penalties.
Today, the media industry is larger and more profitable than at any time, and the share of those profits that artists take home is smaller than ever.
How has the expansion of copyright led to media companies getting richer and artists getting poorer? That's the question that Rebecca Giblin and I answer in our 2022 book Chokepoint Capitalism. In a nutshell: in a world of five publishers, four studios, three labels, two app companies and one company that controls all ebooks and audiobooks, giving a creative worker more copyright is like giving your bullied kid extra lunch money. It doesn't matter how much lunch money you give that kid – the bullies will take it all, and the kid will go hungry:
Indeed, if you keep giving that kid more lunch money, the bullies will eventually have enough dough that they'll hire a fancy ad-agency to blitz the world with a campaign insisting that our schoolkids are all going hungry and need even more lunch money (they'll take that money, too).
When Mitch Glazier – who got a $1m+/year job for the labels after attempting to pauperize musicans – writes on behalf of Disney in support of a copyright suit to establish that copyright prevents training a model without a license, he's not defending creative workers. Disney, after all, is the company that takes the position that if it buys another company, like Lucasfilm or Fox, that it only acquires the right to use the works we made for those companies, but not the obligation to pay us when they do:
If a new, unambiguous copyright over model training comes into existence – whether through a court precedent or a new law – then all our contracts will be amended to non-negotiably require us to assign that right to our bosses. And our bosses will enter into "partnerships" to train models on our works. And those models will exist for one purpose: to let them create works without paying us.
The market concentration that lets our bosses dictate terms to us is getting much worse, and it's only speeding up. Getty Images – who sued Stability AI over image generation – is merging with Shutterstock:
This is where this new Supreme Court action comes in. A new copyright that covers training is just one more thing these increasingly powerful members of this increasingly incestuous cartel can force us to sign away. That new copyright isn't something for us to bargain with, it's something we'll bargain away.
But the fact that the works that a model produces are automatically in the public domain is something we can't bargain away. It's a legal fact, not a legal right. It means that the more humans there are involved in the creation of a final work, the more copyrightable that work is.
Media bosses love AI because it dangles the tantalizing possibility of running a business without ego-shattering confrontations with creative workers who know how to do things. It's the solipsistic fantasy of a world without workers, in which a media boss conceives of a "product," prompts a sycophantic AI, and receives an item that's ready for sale:
Many bosses know this isn't within reach. They imagine that they'll get the AI to shit out a script and then pay a writer on the cheap to "polish" it. They think they'll get an AI to shit out a motion sequence, a still, or a 3D model and then pay a human artist pennies to put the "final touches" on it. But the Copyright Office's position is that only those human contributions are eligible for a copyright: a few editorial changes, a few pixels or vectors rearranged. Everything else is in the public domain.
Here's the cool part: the only thing our bosses hate more than paying us is when other people take their stuff without paying for it. To achieve the kind of control they demand, they will have to pay us to make creative works.
What's more, the fact that AI-generated works are in the public domain leaves a lot of uses that don't harm creative workers intact. You can amuse yourself and your friends with all the AI slop you can generate; the fact that it's not copyrightable doesn't matter to that use. I happen to think AI "art" is shit, but you do you:
This also means that if you're a writer who likes to brainstorm with a chatbot as you develop an idea, that's fine, so long as the AI's words don't end up in the final product. Creative workers already assemble "mood boards" and clippings for inspiration – so long as these aren't incorporated into the final work, that's fine.
That's just what the Hollywood writers bargained for in their historic strike over AI. They retained the right to use AI if they wanted to, but their bosses couldn't force them to:
The Writers Guild were able to bargain with the heavily concentrated studios because they are organized in a union. Not just any union, either: the Writers Guild (along with the other Hollywood unions) are able to undertake "sectoral bargaining" – that's when a union can negotiate a contract with all the employers in a sector at once.
Sectoral bargaining was once the standard for labor relations, but it was outlawed in the 1947 Taft-Hartley Act, which clawed back many of the important labor rights established with the New Deal's National Labor Relations Act. To get Taft-Hartley through Congress, its authors had to compromise by grandfathering in the powerful Hollywood unions, who retained their right to sectoral bargaining. More than 75 years later, that sectoral bargaining right is still protecting those workers.
Our bosses tell us that we should side with them in demanding a new law: a copyright law that covers training an AI model. The mere fact that our bosses want this should set off alarm bells. Just because we're on their side, it doesn't mean they're on our side. They are not.
If we're going to use our muscle to fight for a new law, let it be a sectoral bargaining law – one that covers all workers. You can tell that this would be good for us because our bosses would hate it, and every other worker in America would love it. The Writers Guild used sectoral bargaining to achieve something that 40 years of copyright expansion failed at: it made creative workers richer, rather than giving us another way to be angry about how our work is being used.
We were deceived in the belief,
To receive all that you can conceive:
Just perceive—and then go and achieve.
Tricks up their sleeves, now I feel naïve,
How long have I been here asleep?
Disconnect from your fellow man,
Lose respect for everything you can,
Don't object when they neglect,
Everything they suspect to be a scam.
Don't correct and don't lay hands,
Just inject and sink into a trance,
Don't select what's correct,
Don't be direct, don't take a stance.
It's exactly what they hope for,
To distract more than ever before,
To extract everything they lack,
Then bring the attack right to your door.
Make makin' an impact feel like a chore,
So unattractive you don't do it anymore,
Making the captives into the distracted,
To blunt the impact of what you're here for.
You got the knowledge of the universe on your phone,
You got the wattage to converse, but you're all alone,
Attending college so you learn, but you never grow,
It's symbolic and rehearsed; you just wanna be stoned.
You're melancholic, unalert; your morals aren't toned,
They demolish then coerce and you ignore—therefore condone,
Diastolic, won't exert, ‘cuz you call it overblown,
It's vitriolic and it hurts ‘cuz you're reaping what you've sown.
They don't even want you making art these days,
They don't even want you taking part of the pay—
Unless they can profit on your imagination,
And then replace it with artificial generation.
The creative labor industry (CLI) has become an increasingly popular field especially for people who are unable to receive a formal education in other fields. Late capitalism has certainly taken advantage of the popularity of Do-It-Yourself (DIY) trend that has permeated CLIs. Capialist markets need the originalty of creative laborers to increase capital gains and maintain easily-identifiable products/brands.
Consequently, capitalist markets ensure independent contractors (ICs) remain underpaid/underemployed to support a highly profitable CLI. Reliance on ICs has led to a dramatic decrease in professional digital graphic design (DGD), which distinctly disengages with white male narratives, because of technological advances that make the field more accessible to workers who would otherwise be excluded. Although accessiblity has increased, clients/buyers and “employers” of DGD workers have degraded working conditions for workers--both professional and amateur--by structuring the industry in an assembly-line-like fashion that maintains precarity as workers are ICs rather than employees working from home.
Technology Democratizes Industries; Chips Away at Barriers Based on Racism/Misogyny/Classism
The term “professional” has largely been claimed by white male hierarchal figures who have plenty of access to resources that allow them to claim authority in certain fields including access to secondary and tertiary education, connections, money, and apprenticeships. The advent of certain technologies, which are easily pirated on at-home desktops and personal computers, such as Adobe Illustrator and Photoshop, has a (limited, but still releveant) democratizing effect on CLIs; democratizing these industries breaks down the barriers that certain people who are not read as educated, middle class, white, and/or male are otherwise unable to access. As the internet became more accessible, tutorials and the DIY culture expanded which
“democratiz[ed] the design process through amateur practices...allow[ing] individuals to find personal meaning and that open up design to a wider range of participants.” (Beegan, Gerry, and Paul Atkinson. “Professionalism, Amateurism and the Boundaries of Design.” Journal of Design History, vol. 21, no. 4, 2008, pp. 305-313. JSTOR).
DIY allows individuals interested in certain CLIs to learn and practice techniques and theory of design without leaving their homes--no applying to prestigious (re: expensive) universities with no guaranteed careers after. DIY has allowed individuals (who have access to internet and a desktop computer) to gain access to an affordable (re: practically free) education that the higher educational institution would bar fromt heir either based on class, exposure, or age. DIY allows individuals to bypass gatekeepers of education, which certain allows them to avoid commercial uniformity where everyone gets the same education in university settings that the corporate world relies on for professional standardization.
My interviewee for this research, Alicia Garcia (a Latina in Texas), certainly acknowledges the advantages of DIY work and appreciates the democratization of the industry. As a lifelong passion, Photoshop and Illustrator have allowed her to launch herself into the industry without formal education--one that is otherwise too expensive and, as she believes, not in her best interests. Working from home as an IC allows her to “stay at home, with [her son], and raise him.” (Personal interview. Alicia Garcia. November 8, 2017). Although Alicia states sometimes the precarity of employment affects her financial situation, she would still much prefer working from home so she may continue her duties as a mother and a partner to her husband. IC work allows Miss Garcia to have a certain freedom to do what she wants, and how she wants to. Unfortunately, as further research has provided, it seems this liberty of work in the CLI has been mostly restricted to white men who have authority and “professional” accreditation.
Hey friends! Just letting you know I have a Ko-Fi page now. Ko-Fi is a website that lets you leave small tips for content. You’ll see a link in the header of my blog and on select posts.
I like the tipping model because it is completely voluntary, works for people like me who (at the moment) don’t create any kind of content on a regular-enough schedule to fit the Patreon model, but still provides a small way to acknowledge the creative labor people put into making art and writing even when those things are done on our own terms for fun and not on commission/assignment.
So if I’ve written something that you liked and you would like to buy me a coffee, it will be very much appreciated! And if you have Ko-Fi or something similar, please let me know and I will buy you a coffee when I has the monies.
Raymond Biesinger’s “9 Times My Work Has Been Ripped Off”
I'm on a tour with my new book, the international bestseller Enshittification: catch me next in Miami, Burbank, Lisbon! Full schedule here (New dates just added in San Diego and Denver!).
Raymond Biesinger's new book 9 Times My Work Has Been Ripped Off is a masterclass in how creative workers can transform the endless, low-grade seething about the endless ripoffs of the industry into something productive and even profound:
Biesinger is an iconic designer and illustrator whose instantly recognizable style and entrepreneurial hustle have allowed him to achieve the coveted and elusive status of full-time, economically secure(ish) artist. But over the years – and even in recent times – Beisigner has found himself in the all-too-common and endlessly frustrating circumstance of being owed money by people who refuse to pay it. The sums involved are typically small by the standards of corporate budgets, but it's what Biesinger calls "needed money" – money that makes a huge difference to the life of the artist to whom it is owed.
Speaking from personal experience, getting stiffed is one of the most embittering things that can happen to a creative worker – or any worker (as the tradespeople who've had their wages stolen by Trump can attest). I remember every time I got shafted by a client and often find my mind returning to those humiliating, frustrating moments.
There was the "friend" who hired me to do some work and then just decided never to pay me the $150 we agreed on. There was the university prof who asked me to speak to his class and promised me reimbursement for the taxi and then stiffed me for 20 quid. There was the international magazine who commissioned a short story from me, accepted it, then tried to cram a bullshit contract down my throat and refused to discuss any modifications to its terrible terms, finally stiffing me for the $500 they owed me.
There was the largest publisher in the world, who commissioned a novella from me for an anthology, promising me tens of thousands of dollars, who accepted the novella, and then "discovered" they hadn't ever finalized the contract for the anthology and canceled it, stiffing me in the process. The fact that I went on to sell that novella several times over, both in book form and as a graphic novel, and for film rights (twice!), making far more money in the process, doesn't make me any less angry about these fuckers who just screwed me without a second thought.
Objectively speaking, there is no reason for me to dwell on these little humiliations. It doesn't do me any good. It doesn't make the dickheads who screwed me feel bad. It is, as the proverb goes, "drinking poison and hoping your enemy dies." But I can't help it.
Neither, it seems, can Biesinger. But unlike me, Biesinger has found an incredibly productive – and inspiring – way to deal with that otherwise pointless seething. In 9 Times My Work Has Been Ripped Off, Biesinger reflects on the nine titular ripoffs, telling the story of how he got ripped off, what he did to get his own back, how he felt about it at the time, and how he feels about it in retrospect.
The book's subtitle ("An informal self-defense guide for independent creatives") sets up this book as a kind of manual for navigating these situations in your own life, and there's plenty of that in here – successes and failures for the rest of us to learn from. These stories are often very satisfying, as the little guy gets the justice he deserves. But the most interesting part of this book is Biesinger's reflections on the meaning of the different ripoffs he confronted, and how they relate to his own work.
Because – as Biesinger will tell you – he rips stuff off, too. All artists do. "Good artists copy; great artists steal." (said Picasso) (who was ripping off Faulkner) (or Stravinsky) (or Eliot) (or Trilling). He carefully parses through the muddied ethics of lifting elements for collage, for inspiration, and just because you forgot that you weren't supposed to. Much of Biesinger's early work was collage, and (as a collagist myself), and you can't do that work without developing complicated feelings about creative ownership.
Biesinger also straddles a line between commercial illustrator, producing commissioned pieces to order for magazine and advertising art directors; and fine artist, making "artistic" pieces for his own satisfaction, and selling these as prints. While he's proud of all this work, it's clear that how he relates to his own work depends a great deal on whether it falls into the former category or the latter. Part of that difference is a blanket prohibition on licensing his "artistic" pieces for commercial work.
This just adds to the moral complexity of Biesinger's deliberations: when an extremely well-funded charity misappropriates an "artistic" piece to accompany an exemplary article on women's health advocacy, he wrestles with a whole suite of concerns and mitigations – the "charity"'s reputation as a money-laundry for a wealthy plutocrat, his support for the article, his principle about not licensing his "artistic" work. It's typical of the kind of nuance that Biesinger brings to these chapters.
Also fascinating is Biesinger's chapter about a fan who solicited artistic advice from him, but went on to produce a portfolio of uncredited knock-offs of Biesinger's own signature style. Biesinger describes how he blasted this young artist for abusing his goodwill and unjustly profiting from Biesinger's own work developing his style, and then, in later years, repented of his angry outburst. In a delightful coda, Biesinger recounts how he looked up this artist years later, only to discover that he had matured into a talented, original, successful and ambitious creator. When Biesinger emailed the artist to apologize for his furious letter, the other artist replied that Biesinger's blast had been the kick in the pants he'd needed to finally figure out his own style, and he credits his later success to Biesinger's fury.
At the root of all nine tales of ripoffs is the inadequacy and/or inappropriateness of the legal system as a tool for redress when an independent creator is ripped off. In the case of commercial ripoffs – by agencies large and small, by fly-by-night concert promoters, by gallerists peddling unauthorized reproductions – the sums involved are usually far too small to involve lawyers or the courts. In the case of disputes with other artists – like the copyist who bit Biesinger's style – the law is (rightly) silent, because styles are not copyrightable.
In telling these nine tales, Biesinger beautifully illustrates the limitations of copyright as the sole regulator of creative activity. Copyright law (and its cousin, contract law) might be suitable for mediating commercial transactions between creative workers and businesses, but it's utterly unsuitable for other kinds of interactions, including interactions between artistic peers, or between artists and creators working in related disciplines. The most important thing that Biesinger is doing in this book is setting out a continuum of relationships and detailing many of the different tools available to creators to resolve disputes arising at different points on that continuum.
Given Biesinger's justly deserved fame as an illustrator, this is also a beautiful book, published in pocket-sized trim by Drawn & Quarterly, one of the world's great indie comics presses. The many, many illustrations in this small volume don't just bring the subject matter to life – they're artistic delights in their own right. It's a reminder of how wonderful the "art" part of all this stuff is, and how that complicates the all too familiar labor issues at the book's core.
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
I'm on tour with my new novel The Bezzle! Catch me next in SALT LAKE CITY (Feb 21, Weller Book Works) and SAN DIEGO (Feb 22, Mysterious Galaxy). After that, it's LA, Seattle, Portland, Phoenix and more!
Enshittification describes how platforms go bad, which is also how the internet goes bad, because the internet is made of platforms, which is weird, because platforms are intermediaries and we were promised that the internet would disintermediate the world:
The internet did disintermediate a hell of a lot of intermediaries – that is, "middlemen" – but then it created a bunch more of these middlemen, who coalesced into a handful of gatekeepers, or as the EU calls them "VLOPs" (Very Large Online Platforms, the most EU acronym ever).
Which raises two questions: first, why did so many of us end up flocking to these intermediaries' sites, and how did those sites end up with so much power?
To answer the first question, I want you to consider one of my favorite authors: Crad Kilodney (RIP):
https://archive.org/details/thecradkilodneypapers
When I was growing up, Crad was a fixture on the streets of Toronto. All through the day and late into the evening, winter or summer, Crad would stand on the street with a sign around his neck ("Very famous Canadian author, buy my books, $2" or sometimes just "Margaret Atwood, buy my books, $2"). He wrote these deeply weird, often very funny short stories, which he edited, typeset, printed, bound and sold himself, one at a time, to people who approached him on the street.
I had a lot of conversations with Crad – as an aspiring writer, I was endlessly fascinated by him and his books. He was funny, acerbic – and sneaky. Crad wore a wire: he kept a hidden tape recorder rolling in his coat and he secretly recorded conversations with people like me, and then released a series of home-duplicated tapes of the weirdest and funniest ones:
But – and this is the crucial part – there are writers out there I want to hear from who couldn't do what Crad did. Maybe they can write books, but not edit them. Or edit them, but not typeset them. Or typeset, but not print. Or print, but not spend the rest of their lives standing on a street-corner with a "PUTRID SCUM" sign around their neck.
Which is fine. That's why we have intermediaries. I like booksellers (I was one!). I like publishers. I like distributors. I like their salesforce, who go forth and convince the booksellers of the world to stock books like mine. I have ten million things I want to do before I die, and I'm already 52, and being a sales-rep for a publisher isn't on my bucket list. I am so thankful that someone else wants to do this for me.
That's why we have intermediaries, and why disintermediation always leads to some degree of re-intermediation. There's a lot of explicit and implicit knowledge and specialized skill required to connect buyers and sellers, creators and audiences, and other sides of two-sided markets. Some producers can do some of this stuff for themselves, and a very few – like Crad – can do it all, but most of us need some help, somewhere along the way. In the excellent 2022 book Direct, Kathryn Judge lays out a clear case for all the good that middlemen can do:
So why were we all so anxious for disintermediation back in the late 1990s? Here's a hint: it wasn't because we hated intermediaries – it was because we hated powerful intermediaries.
The point of an intermediary is to serve as a conduit between producers and consumers, buyers and sellers, audiences and creators. When an intermediary gains power over the audience – say, by locking them inside a walled garden – and then uses that lock-in to screw producers and appropriate an ever larger share of the value going between them, that's when intermediaries become a problem.
The problem isn't that someone will handle ticketing for your gig. The problem is that Ticketmaster has locked down all the ticketing, and the venues, and the promotions, and it uses that power to gouge fans and rip off artists:
The problem isn't that there's a well-made website that lets you shop for goods sold by many small merchants and producers. It's that Amazon has cornered this market, takes $0.51 out of every dollar you spend there, and clones and destroys any small merchant who succeeds on the platform:
The problem isn't that there's a website where you can stream most of the music ever recorded. It's that Spotify colludes with the Big Three labels to rip off artists and sneaks crap you don't want to hear into your stream in order to collect payola:
The problem isn't that there's a website where you can buy any audiobook you want. It's that Amazon's Audible locks every book to its platform forever and steals hundreds of millions of dollars from creators:
The problem, in other words, isn't intermediation – it's power. The thing that distinguishes a useful intermediary from an enshittified bully is power. Intermediaries gain power when our governments stop enforcing competition law. This lets intermediaries buy each other up and corner markets. Once they've formed cozy cartels, they can capture their regulators and commit rampant labor, privacy and consumer violations with impunity. That capture also lets them harness governments to punish smaller players that want to free workers, creators, audiences and customers from walled gardens. It also hands them a whip-hand over their workers, so that any worker who refuses to aid in these nefarious plans can be easily fired:
A world with intermediaries is a better world. As much as I love Crad Kilodney's books, I wouldn't want to live in a world where the only books on my shelves came from people prepared to stand on a street-corner wearing a "FOUL PUS FROM DEAD DOGS" sign.
The problem isn't intermediaries – it's powerful intermediaries. That's why the world's surging antitrust movement is so exciting: by reinstating competition law, we can keep intermediaries small and comparatively weak, so that creators and audiences, drivers and riders, sellers and buyers, and other groups seeking to connect will not find themselves made subservient to middlemen.
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
Copyright won't solve creators' Generative AI problem
The media spectacle of generative AI (in which AI companies’ breathless claims of their software’s sorcerous powers are endlessly repeated) has understandably alarmed many creative workers, a group that’s already traumatized by extractive abuse by media and tech companies.
If you’d like an essay-formatted version of this post to read or share, here’s a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
Even though the claims about “AI” are overblown and overhyped, creators are right to be alarmed. Their bosses would like nothing more than to fire them and replace them with pliable software. The “creative” industries talk a lot about how audiences should be paying for creative works, but the companies that bring creators’ works to market treat their own payments to creators as a cost to be minimized.
Creative labor markets are primarily regulated through copyright: the exclusive rights that accrue to creators at the moment that their works are “fixated.” Media and tech companies then bargain to buy or license those rights. The theory goes that the more expansive those rights are, the more they’ll be worth to corporations, and the more they’ll pay creators for them.
That’s the theory. In practice, we’ve spent 40 years expanding copyright. We’ve made it last longer; expanded it to cover more works, hiked the statutory damages for infringements and made it easier to prove violations. This has made the entertainment industry larger and more profitable — but the share of those profits going to creators has declined, both in real terms and proportionately.
In other words, today creators have more copyright, the companies that buy creators’ copyrights have more profits, but creators are poorer than they were 40 years ago. How can this be so?
As Rebecca Giblin and I explain in our book Chokepoint Capitalism, the sums creators get from media and tech companies aren’t determined by how durable or far-reaching copyright is — rather, they’re determined by the structure of the creative market.
https://chokepointcapitalism.com/
The market is concentrated into monopolies. We have five big publishers, four big studios, three big labels, two big ad-tech companies, and one gargantuan ebook/audiobook company. The internet has been degraded into “five giant websites, each filled with screenshots from the other four”:
Under these conditions, giving a creator more copyright is like giving a bullied schoolkid extra lunch money. It doesn’t matter how much lunch money you give that kid — the bullies will take it all, and the kid will still go hungry (that’s still true even if the bullies spend some of that stolen lunch money on a PR campaign urging us all to think of the hungry children and give them even more lunch money):
But creative workers have been conditioned — by big media and tech companies — to reflexively turn to copyright as the cure-all for every pathology, and, predictably, there are loud, insistent calls (and a growing list of high-profile lawsuits) arguing that training a machine-learning system is a copyright infringement.
This is a bad theory. First, it’s bad as a matter of copyright law. Fundamentally, machine learning systems ingest a lot of works, analyze them, find statistical correlations between them, and then use those to make new works. It’s a math-heavy version of what every creator does: analyze how the works they admire are made, so they can make their own new works.
If you go through the pages of an art-book analyzing the color schemes or ratios of noses to foreheads in paintings you like, you are not infringing copyright. We should not create a new right to decide who is allowed to think hard about your creative works and learn from them — such a right would make it impossible for the next generation of creators to (lawfully) learn their craft:
(Sometimes, ML systems will plagiarize their own training data; that could be copyright infringement; but a) ML systems will doubtless get guardrails that block this plagiarism; and, b) even after that happens, creators will still worry about being displaced by ML systems trained on their works.)
We should learn from our recent history here. When sampling became a part of commercial hiphop music, some creators clamored for the right to control who could sample their work and to get paid when that happened. The musicians who sampled argued that inserting a few bars from a recording was akin to a jazz trumpeter who works a few bars of a popular song into a solo. They lost that argument, and today, anyone who wants to release a song commercially will be required — by radio stations, labels, and distributors — the clear that sample.
This change didn’t make musicians better off. The Big Three labels — Sony, Warners, and Universal, who control 70% of the world’s recorded music — now require musicians to sign away the rights to samples from their works. The labels also refuse to sell sampling licenses to musicians unless they are signed to one of the Big Three.
Thus, producing music with a sample requires that you take whatever terms the Big Three impose on you, including giving up the right to control sampling of your music. We gave the schoolkids more lunch money and the bullies took that, too.
The monopolists who control the creative industries are already getting ahead of the curve on this one. Companies that hire voice actors are requiring those actors to sign away the (as yet nonexistant) right to train a machine-learning model with their voices:
The National Association of Voice Actors is (quite rightly) advising its members not to sign contracts that make this outrageous demand, and they note that union actors are having success getting these clauses struck, even retroactively:
https://navavoices.org/synth-ai/
That’s not surprising — labor unions have a much better track record of getting artists’ paid than giving creators copyright and expecting them to bargain individually for the best deal they can get. But for non-union creators — the majority of us — getting this language struck is going to be a lot harder. Indeed, we already sign contracts full of absurd, unconscionable nonsense that our publishers, labels and studios refuse to negotiate:
Some of the loudest calls for exclusive rights over ML training are coming not from workers, but from media and tech companies. We creative workers can’t afford to let corporations create this right — and not just because they will use it against us. These corporations also have a track record of creating new exclusive rights that bite them in the ass.
For decades, media companies stretched copyright to cover works that were similar to existing works, trying to merge the idea of “inspired by” and “copied from,” assuming that they would be the ones preventing others from making “similar” new works.
But they failed to anticipate the (utterly predictable) rise of copyright trolls, who launched a string of lawsuits arguing that popular songs copied tiny phrases (or just the “feel”) of their clients’ songs. Pharrell Williams and Robin Thicke’s got sued into radioactive rubble by Marvin Gaye’s estate over their song “Blurred Lines” — which didn’t copy any of Gaye’s words or melodies, but rather, took its “feel”:
Today, every successful musician lives in dread of a multi-million-dollar lawsuit over incidental similarities to obscure tracks. Last spring, Ed Sheeran beat such a suit, but it was a hollow victory. As Sheeran said, with 60,000 new tracks being uploaded to Spotify every day, these similarities are inevitable:
The major labels are worried about this problem, too — but they are at a loss as to what to do about it. They are completely wedded to the idea that every part of music should be converted to property, so that they can expropriate it from creators and add it to their own bulging portfolios. Like a monkey trapped because it has reached through a hole into a hollow log to grab a banana that won’t fit back through the hole, the labels can’t bring themselves to let go.
That’s the curse of the monkey’s paw: the entertainment giants argued for everything to be converted to a tradeable exclusive right — and now the industry is being threatened by trolls and ML creeps who are bent on acquiring their own vast troves of pseudo-property.
There’s a better way. As NAVA president Tim Friedlander told Motherboard’s Joseph Cox, “NAVA is not anti-synthetic voices or anti-AI, we are pro voice actor. We want to ensure that voice actors are actively and equally involved in the evolution of our industry and don’t lose their agency or ability to be compensated fairly for their work and talent.”
This is as good a distillation of the true Luddite ethic as you could ask for. After all, the Luddites didn’t oppose textile automation: rather, they wanted a stake in its rollout and a fair share of its dividends:
Turning every part of the creative process into “IP” hasn’t made creators better off. All that’s it’s accomplished is to make it harder to create without taking terms from a giant corporation, whose terms inevitably include forcing you to trade all your IP away to them. That’s something that Spider Robinson prophesied in his Hugo-winning 1982 story, “Melancholy Elephants”:
This week (Feb 8–17), I’ll be in Australia, touring my book Chokepoint Capitalism with my co-author, Rebecca Giblin. We’re doing a remote event for NZ on Feb 13. Next are Melbourne (Feb 14), Sydney (Feb 15) and Canberra (Feb 16/17). I hope to see you!
CC BY 3.0
https://creativecommons.org/licenses/by/3.0/deed.en
[Image ID: A poster for the 1933 movie ‘The Monkey’s Paw.’ The fainting ingenue has been replaced by the glaring red eye of HAL9000 from 2001: A Space Odyssey.]
