Sometimes people look at the challenges artists, songwriters, and indie labels face in trying to earn sustainable revenues from recorded music and conclude "copyright is broken." Let's unpack that with a quick THREAD. #FixStreaming 1/?
"Copyright is broken" is an attractive bumper sticker; it expresses legitimate frustrations that might be felt by creators, audiences, etc. But it doesn't do much to advance understanding of the situation we're all in. 2/
To begin with, it's binary. It imagines copyright (a system that has evolved over hundreds of years that encompasses laws, abstract concepts, real-world practices, institutions) as something that can either be broken or unbroken. 3/
It might be more helpful to imagine copyright as the NYC subway system. It's complex, difficult to navigate if you're not used to it. Parts of it break down and need upgrades. There are accessibility issues. 4/
Maybe if you could destroy what currently exists and rebuild from scratch you could come up with something simpler and more accessible, but that's not really an option when so many working people are relying on it on a daily basis right now. 5/
So instead there's a constant iterative process of repair, modernization, upgrades, and needs assessment. Those processes can be contentious but good outcomes can be possible. 6/
When problems emerge (big or small) it doesn't really help to say "The subway is broken!" It's helpful to say "The 6th street line is way over capacity" or "there's a car on fire on the M line" or "our stations aren't accessible enough to be safe for the visually impaired." 7/
It's the same with copyright. Calling it "broken" is less helpful than saying "creators don't have sufficient leverage in negotiating with big platforms" or "too many songwriters aren't getting the streaming mechanicals they're owed" or "payola is driving wages down." 8/
Another problem with "copyright is broken" is the passive phrasing doesn't tell you anything about what happened to break it, and who's responsible. It sort of suggests that the problem is inherent to copyright itself. 9/
Copyright law and policy and practice is complex and has evolved over time, so dysfunction rarely has one party fully to blame. Nonetheless, it's important to try and understand how problems happened to remedy them and avoid them in the future. 10/
"Copyright is broken" often implies that "less" or "weaker" copyright would lead to improvement. This reinforces the laziest ways of talking about copyright policy debates: Less copyright protection and enforcement on one side vs. more protection and enforcement on the other. 11/
In fact, what benefits creators and the public interest is *better* copyright policy, with more accountability, accessibility, transparency, and equity built in. 12/
Back to responsibility: some of the folks most prone to using "copyright is broken!" framing are actually the same people who've fought the hardest against straightforward fixes for artists, at times outright lying about what legislation would do. 13/
Thomas Frank had a book a few years back called "The Wrecking Crew" describing a process by which anti-government ideologues in positions of power would deliberately work to make government less functional, then use this as evidence that govt is incapable of solving problems. 14/
The goal was to diminish the role of government and regulation generally by convincing people that government itself was the problem, leading to more deregulation. "Copyright is broken" can be about a version of the same thing. 15/
It doesn't really make sense to argue that "copyright is broken" when you've fought against simple and straightforward measures like the CASE Act (passed in December) that are designed to fix a part of copyright law that isn't working. 16/
One problem with © law has been that remedies were inaccessible to small creators who can't afford expensive legal fees. If an ad agency used a Beyonce song without permission, she could take them to federal court. A broke indie artist didn't have that option. 17/
CASE Act creates a small claims system to allow for disputes to be adjudicated in a way that isn't burdensome for small creators, while protecting free expression. It's not a silver bullet, and we'll be watching implementation closely, but it's a step in the right direction. 18/
Another example? When digital radio (like Pandora, satellite radio, etc) first came into existence, there wasn't really a legal regime to accommodate it. We and many other artist groups worked for a solution that had fairness and equity built into it. 19/
What came out of that process was the creation of @SoundExchange, which has meant that artists who get paid under the statutory license for digital radio get at least half of any royalties, paid directly, regardless of whether they're in debt to their label. 20/
It's not a perfect system, and there are more improvements to be made. But the point is to be guided in this ongoing iterative process by a goal better copyright policy that centers the needs of creators and communities, not just "more" or "less" copyright 21/
So let's apply that to the frustrations being voiced around interactive streaming compensation. It's easy to understand why some folks want to throw their hands up and say "this whole thing is just broken!" It's important to drill down on what's broken, why, and how. 22/
Low streaming rates on services like Spotify have a lot of causes, but one important factor is the downward pressure on rates caused by the way section 512 of the DMCA has been abused by Google's YouTube. (see pp 4-7). ftc.gov/system/files/d…
This is something that has been affirmed both by a recent WIPO study into the economics of digital streaming and by the UK's recent inquiry into the issue: Youtube's combination of market power and abuse of copyright law deflates wages on Spotify and other services #fixstreaming
Artists and rightsholders have pushed for years for changes to section 512 that would help address these problems and compel YouTube, and ultimately Spotify etc to improve rates. Naturally, such changes would have to be made carefully, in ways that protect free expression. /25
But some of the biggest opposition to making these helpful changes has come from some of the same parties who tend to use "copyright is broken" language. Effectively they're invoking frustration with streaming compensation to sabotage the possibility of fixing streaming.🤯 26/
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