Creatives face a closed Net

Over the past few years, fans of the artists represented by the label Wind Up Records have spent at least a quarter of a million hours producing and sharing more than 3,000 music videos. These videos, however, are unlike anything you are likely to have seen.

They are created by remixing animé art with popular music. Kids (primarily) buy animé videos and DVDs and then, using their own PCs, re-edit the content to synchronise the art to a music track. The completed work is called an “animé music video” (AMV). The 3,000 that relate to Wind Up Records represent just 5 per cent of the total AMVs circulating on one popular site. Just about a half-a-million users frequent this site and close to 30,000 artists contribute to it.

Wind Up Records, however, did not like their fans’ love. A lawyer representing the company politely, though firmly, told the site carrying the 3,000 videos to take them down. A special filter now blocks any Wind Up Records content. The amateurs (in the original sense, meaning people who do it for love of the work and not for the money) who had been promoting artists such as Evanescence and Seether have presumably moved on to other art and other artists. No lawsuits were filed in the first legal threat against this exploding community of creators. But this promises not to be the last time lawyers speak to AMV creators.

We are well on our way to perfecting the “Read-Only” internet – that network in which every bit of culture can be bought in a single click, but bought with the rights to consume only. 2006 will be a critical stage in this process.

Apple showed the world how it could be done with music. Now it is doing the same with television content. Video stores are learning how to sell DVDs more efficiently. Amazon is experimenting with pay-per-page models for selling books. Technology will increasingly make it simple for content owners to control how and when you get access to their material, and how you use it.

Intellectual property laws will support this Read-Only internet. Indeed, copyright in the digital world gives content owners more legal control over the use of their content than in the physical world. In the physical world, there are plenty of uses of creative work that are beyond the reach of copyright because these uses do not produce a copy – for example, reading a book. But in the digital world, as every use of creative work technically produces a copy, every use, in principle, requires the permission of the content owner. And thus, as technology better controls how content gets used, the law will back that control up. A perfectly controlled Read-Only internet will increasingly displace the messy freedom that defines cyberspace now. “Piracy” will be coded away, or at least reduced so significantly in the developed world as not to matter.

But phenomena such as AMVs signal a new battle in the copyright wars that the architects of the Read-Only internet never contemplated. AMVs are just part of a growing and important “Read-Write” internet – a world in which content is bought, but not simply to be consumed. Blogs, photo journals and sites such as Wikipedia and MySpace signal an extraordinary hunger in our culture for something beyond consumption. According to a recent Pew study, almost 60 per cent of US teenagers have created and shared content on the internet. That number will only grow next year. As it does, these creators will increasingly demand freedom to create, or more precisely, re-create, using as inputs the culture that they buy. In a sense, this re-creativity of the Read-Write internet is nothing new. Since the beginning of human society, individuals have remixed the culture around them, sharing with their friends the product of these remixes. You read a book and recount its plot over dinner. You see a movie and ridicule its naivete to friends at a bar. This is the way culture has always been used. The only difference now is that technology permits these remixes to be shared. And that capacity in turn will inspire an extraordinary range of new creativity.

Yet the law of intellectual property will not easily accommodate this remix creativity. As the rules are written today, even for purely noncommercial purposes, there is no clear right on the side of the remixers. The lawyer for Wind Up Records could speak politely, because the law today speaks firmly: there is no freedom for this sort of creativity. There is no way to even license the right. And most importantly, as the technology for the Read-Only internet gets more perfectly deployed, even the technical capacity to remix will be increasingly threatened. Already, AMV creators must circumvent technological protections to get access to the underlying anime that they remix. Those protections will only get better and the war against circumvention technologies will just increase. As one type of digital technology increasingly begs for this remix creativity, a different kind will work to disable it.

It is hard for those of us from the couch potato generation to understand why the creativity of the Read-Write internet is important. But if you focus on something that we are likely to understand – market value – then the Read-Write internet, indeed, has a great deal to recommend it. The computers, bandwidth, software and storage media needed to enable an efficient Read-Only internet are but a fraction of the technology needed to support the Read-Write internet. The potential for growth with the Read-Write internet is extraordinary, if only the law were to allow it.

But to those building the Read-Write internet, economics is not what matters. Nor is it what matters to their parents. After a talk in which I presented some AMV work, a father said to me: “I don’t think you really realise just how important this is. My kid couldn’t get into college till we sent them his AMVs. Now he’s a freshman at a university he never dreamed he could attend.”

The father was right. We do not realise how significant the Read-Write internet could be. Nor can I even begin to imagine how policymakers could be made to see the harm that perfecting the Read-Only internet will have for this more vibrant and valuable alternative.

But perhaps a beginning would be a question that one might imagine asking the lawyer, or better, the chief executive, at Wind Up Records: “Now that you’ve succeeded in stopping thousands of kids from spending hundreds of thousands of hours to make fantastically creative content that promotes your work for free, do you really expect to sell more records next year?”

The writer is professor of law at Stanford Law School