Games * Design * Art * Culture

Friday, March 16, 2007

Information Wants to Cost a Buck

The argument over copyright seems to devolve to this:

Side A: Creators deserve to be compensated, you evil pirate swine!

Side B: Information wants to be free! Copying is now trivial! The old notion of 'copyright' is clearly defunct in the digital age! Fuck the man!

The problem, really, is that both sides are right.

On the one hand, creators do deserve to be compensated. On the other, copying things historically has been expensive and required you to own (or contract with people who owned) printing presses or vinyl record presses or other expensive pieces of equipment, and a whole business ecosystem of manufacturers, publishers, distributors, and retailers was built on the basic expensiveness of copying things. Today, copying is trivial, and "copyright" no longer seems a particularly relevant idea--or business model.

Lost in the argument is the fundamental fact that, by and large, creators were pretty much screwed under the old business model. As an example, the RIAA is furiously attempting to suppress unpaid copying of music--but at the same time, no business has developed such expertise in screwing creators as the music industry. When the RIAA whines that "creators are being screwed," what the really mean is "WE [that is the record labels] are being screwed"--but they've already done their level best to screw the actual recording artists.

Feel free to go do your own independent research into typical business practices in the recording industry, but here are some highlights:

1. Everything they can think of is recoupable against your royalties. Not just the cost of renting a recording studio and producing the album, but the cost of your bus, your hotel room, your meals on tour. A typical recording act never actually sees a dime beyond the initial advance, except in the form of mechanicals (about which more later).

2. Royalties are on sales, right? Not necessarily; back in the day, the recording industry took a fixed percentage of sales off the top before paying royalties, for "breakage," because 78s were fragile and a fair number broke before they actually reached the retailer. This is not a problem with CDs, but standard record industry boilerplate still takes a percentage off the top before paying royalties on this basis--something that's negotiable out of the boilerplate, if you have a decent agent, but if you're a naive teen rock band signing your first deal, well, heh, welcome to the machine, pally.

3. A typical big-label deal is a multi-album deal, and all royalties are cross-collateralized. That means that if album 1 sells poorly, but album 2 hits, well, you still have to pay off the advance for album 1, and you've probably signed up for six. So basically you may never see any actual money beyond the advance (which winds up going to pay recording studio expenses, tour expenses, etc.). In other words, you're an indentured servant to the recording industry unless you hit big.

Now, the recording industry is notoriously the most artist-unfriendly of any creative field, but others are not all that much better. Let's take film. Stars and directors and others who have clout and savvy know to get their money up front, and they do; at the top level, artists can make huge amounts of money. But let's look at the typical deal for a novelist who is selling the movie rights to his work. He gets (typically) a $50k advance, which is nice, but in exchange signs away all subsidiary rights, so that if, say, toys based on the movie become a billion dollar market, he or she gets zilch. And typically he may have some percentage of the "net" (meaning net profits), but in Mamet's words, "there is no net." That is, all movies lose money--at least according to Hollywood accounting. #1 hits typically "lose" money. That is, they actually make huge profits for the investors and the studios that release them, but after the accountants have finished massaging the books (strictly and legally adhering to the definition of 'net' provided in the contracts the studio offers), the 'net' is negative. Everyone in Hollywood knows to take the money up front, and assume you will never see another dime.

The game industry is marginally better, I guess; typically, the developer gets a 15% royalty (recoupable against development costs)--not of the consumer dollar, but of net revenue received, less market development funds, which ultimately means more like 8% of the consumer dollar. But of course, with development costs as high as they are today, this means developers are highly unlikely to see anything beyond development costs--you'd need to sell multiple millions of units.

Book publishing--probably the least corrupt and most creator-friendly industry in entertainment--at least offers an upside to authors. But when you come down to it, an author's typical share of the consumer dollar is 15% on hardcovers--and more like 8-10% on paperbacks.

In other words, when you copy a song, a movie, a game, or a story, the compensation you are denying the creator is actually small--pennies on the dollar. The people you are screwing are mostly those who have already screwed the creator. If downloading an Arcade Fire song makes you feel guilty, find a way to send them a buck. Or even a quarter. They'll probably wind out ahead.

So the claims of the film or music industries that "piracy" is "stealing" from "creators" is basically bogus--you could make an argument that you're maybe 6-15% "stealing" from creators, but the rest of the money you're denying other people is money they got under old market conditions only because they were gatekeepers, because copying stuff was hard. And they should be denied their share, now that copying stuff is easy. Now that copying is trivial, a progressive, capitalist society should find better ways of connecting people with stuff they like, and adequately compensating the creators thereof. And both creators and fans should benefit by disintermediating all those gatekeepers.

Lovely idea, of course, but how the hell do we make that work?

It's also a simplistic idea, in at least one regard: Marketing stuff is hard. The traditional gatekeepers serve three roles--funding, marketing, distribution. Distribution, in an era in which stuff can be copied, is (notionally, at least) trivial. Funding is something that should be, and can be, divorced from the other three functions. But how do you get the word out about a product, how do you get press coverage, how do you pay for advertising, and all the crap? Marketing is a discipline and a practice with its own long history, and geniuses (and idiots), and it takes money in its own right. Whoever does the marketing deserves a slice, too.

Again.... How do we make that work?

I can't say I know, entirely... But one of the things I look at with interest is recording industry mechanicals.

What's that?

Well, once upon a time, before Tom Edison, song writers made their money by contracting with sheet music publishers. Someone like John Philip Sousa could actually become rich by writing songs that people liked and wanted to play on their pianos and sing for their friends (or perform at the local village bandstand), and so went out and purchased the sheet music. Once the recording industry appeared on the scene, there was a big industry brouhaha... Edison could record a song on his wax cylinders, paying some piano player and singer on a work-for-hire basis, and sell thousands, or maybe even tens of thousands, of copies, and, well, the creator wasn't compensated.

A problem, obviously.

So Congress passed a law requiring record publishers to pay a fixed per-song price--half to the sheet music publisher, and half to the actual lyricist and song-writer--per song included on their record. The law has been modified over time, but it remains in effect today: when you go and buy a CD, the publisher of that CD is going to pay a few cents, per song, to the "publisher."

Of course, sheet music is now an after thought, so most recording artists incorporate their own "publishers", so they get 100% of the mechanicals--and since this payment is not recoupable against advance or expenses, it's often the only real money they actually ever see out of an album.

Back when Napster was the bete noire of the recording industry, I used to think that the best thing they could do, the thing that would change the whole terms of debate, would be to say "Well, fuck the labels--but we'll pay mechanicals to the actual artists." But as far as I know, it never occured to them.

Now, mechanicals are in some ways an unfortunate precedent--they're established and fixed by the state, not by negotiation on a free market. But they're the single example we have of a way to compensate actual creators, and not intermediaries who use some chokehold on the market to extract an unreasonable portion of the consumer dollar from sales, at the creators' expense.

So my basic question: Is there a way to build on that model? Suppose we had a world in which creators could say "I just want a dime/a buck/ten bucks/whatever", and anyone can sell and market. Copy for your friend, or put up on your portal and charge 2x or 1.5x or 1.1x the price the creator has established, and market to reach whatever audience you can find. Include it on a compilation disk, do whatever the hell you want with the IP--so long as any time anyone makes a copy, some bucks flow to the creator. (Of course, the creator could set an unreasonably high price--but hey, it's a free market. That means they won't find their maximal audience.)

In other words, 'mechanicals' aren't just due on songs--they're due on everything (except for those things creators choose to release as freeware, of course).

That makes sense to me. But there are some implications that EFF fundamentalists won't like, too. For one thing, it means that DRM isn't inherently evil; instead, it's pretty much essential. Creators still deserve to be compensated, and there needs to be a way to reliably extract revenue from people when they decide they want to get the full version of something. I imagine that creators will typically release something for free in order to spur a market--but that might be the first minute of a song, or a song at a lower than CD-quality, or a movie in a tiny YouTube format with the full version costing money, or the first ten levels of a game. They'll still want to be compensated for the "full" version.

And they should be; creators (not necessarily intermediaries) deserve compensation.

In this regard, I wonder whether indie games are also a model: Few people seem to bitch that the 'free to copy and use' version of indie games have some limitations. Sometimes that's number of levels, sometimes it's minutes of play, sometime it's access to some game features (like saving your game)--but in general, while music fans may whine that a DRMed version of a song won't play on a device they've owned even after they've paid for it, most gamers are okay with the notion that to get the full version, they do have to pay.

In general, I think that makes sense--you don't want to make life difficult for paying customers, but if they want the full dealie, they should pay something.

To the creator, at least primarily.

===========

Necessary waffling:

1. My business, Manifesto Games, typically passes on 60% of the consumer dollar to creators; I actually think that's too low a percentage. We won't be increasing it anytime soon, however, both because it's a better deal to developers than most operators offer and because we're still operating in the red, and we're not interested in shooting ourselves in the foot. I wouldn't, personally, mind a world in which we're forced to cut our margins for competitive reasons, however. And, yeah, we do try to justify that margin by doing some marketing for the games we carry, which has a price tag attached; at least some of our developers think that marketing has benefited them.

2. Most (not all) of the games we offer have some kind of DRM attached. I don't want to make our customer's lives difficult, nor do I want to offer them more onerous terms than they get when buying conventional software--but I also believe in locking my front door. It won't stop a professional thief, but I don't want people walking in on me unexpectedly--we offer reasonable trials to people, and think beyond a certain point, they ought to pay something, because software takes time and effort and energy to create. Creators deserve to be compensated, we pay them promptly, and arguably we're a 'gatekeeper' of the kind I've just suggested should be disintermediated, but hopefully we provide some value to the creators we work with (who, by the way, work with us entirely voluntarily, and from whom we do not require exclusivity).

posted by Greg at 1:27 AM 35 comments

35 Comments:

I think the reason for copyright to be valid, despite copying itself being trivial, is not that "creators need to be compensated", but that the community still profits from copyright, because it enables bigger investments in creation by making a return of investment possible.
Whether recent huge open source projects contradict this notion is a seperate (endless) discussion.

It followes directly from this, that the one who has the biggest part at creating something does not necessarily have the biggest part of the income for copyright to have valid normative value.
But copyright enables the creator to choose the distribution partner.

Although I am a game developer myself, feeling the lowness of our place in the food chain every day, I also think that it is incorrect to see the developer as the single creating entity. In my experience especcially big publishers play a vital role in the creation of computer games. Be it concept evaluation, project guidance, QA etc.
At least for independent developers, its a free market to choose a partner, but developers in many cases still choose the big publishers, because they do provide a lot of value.
As developers we can only hope that the value only they can provide (e.g. shelf space) does diminish by online distribution, modern marketing and a market for less production value focused consumers.

By Anonymous, at 5:21 AM

Hmm. Very interesting stuff.

I guess my major issue with your ideas is the case for the necessity of DRM - not because I hate DRM per se, but because trying to secure digital media is by definition trying to make water run uphill, and it's almost impossible to do that without crippling the product in some way.

(Games have a huge advantage - it's easier to lock a program than to lock raw data, by which I mean movies, books and music. Also, no-one expects games to be portable across as many platforms as music, film or books, and it's much easier to allow users a "taster" of games without unlocking the whole shebang than it is the other media.)

If there's a way to DRM-ise a movie (since that's the business I'm in) in such a way that -

- The end purchaser can watch it on any device he owns that can play movies.
- The end purchaser can lend it to his friends just as he would a DVD
- The end purchaser, in short, never ends up sitting there going "fuckin' DRM! Arsebandits! I hate Strange Company for their DRM bullshit!"

- then I'd certainly consider releasing (some of) our movies DRM-ised. (Not all, or even most. Like you say, marketing is hard - and free content is one of the best weapons the independent creator has in that war at the moment.) But I just don't see it any time soon.

What are your thoughts on that, Greg? Any chance for current non-games DRM to stop being shit?

By Hugh "Nomad" Hancock, at 5:42 AM

The way I see it, aside from really nasty freeloading leeches, piracy stems from publishers failing in their distribution responsibility.
Especially as said in today's age, this digital era, every user should be reachable in theory.

If the user has to take a bus to the next town or roam around kiosks all over just to find a game then the publisher has failed and the user will turn to piracy.
If a game (or any other media) is only available in a certain country (IE Japan), or rather not in his country, then the user will turn to piracy.

Were we to assume that all users have means of pay (CC or parents willing to don use of their CC for those of young age) then piracy becomes strictly a matter of pricing point (a whole another issue to debate - the increasing costs of hardware and how many of the games you would like to purchase can you actually afford).
But again, lets ignore development costs (the entire design/programming vs two third a 50 men team made of artists debate), and look onto simpler older times -- sharewares.
If we were to cut the publishers out of the picture (or at least the exploitive ones and work with a distributor the likes of manifesto) and games were offered at a fair price point and the distributor (not publisher, there's a distinction to be made) did their duty of marketing and raising public awarness then I do believe that around 90% of those who pirate (who usualy can afford and will be willing to even donate to the creator so long they can easily make purchase and play the full game) will be more than happy to pay for the software.

Hell, I personally take pride in each and every one of the game boxes I own (that's another thing - they don't make box games like they used to, no longer desireable and without the nice illustrated manuals and all the tidbits and extra goodies).

By Ramification, at 8:36 AM

I think the decentralized distribution idea is very interesting. It's like Youtube in reverse. For Youtube, lots of people make videos that are all distributed by one centralized website. For this, few studios make games that are then distributed by large amounts of people.

If there's a small proportion of would-be entrepreneur -- say 1% -- who like the game and think distributing is a good business opportunity, it could work. Distribution would have to be as easy as possible though. Can you imagine Half-Life 3 being sold by people putting a widget on their blog and getting a cut of the sale? That would be awesome.

Still, I'm not sure where you'd get the financing to develop that game...

On another note, I think piracy would drop a lot if prices dropped. $60 for a game is way too high, it's way beyond an "impulse purchase" price-point. You can get a best-selling hard-cover book for $20, a best-selling DVD for $18 and a best-selling CD for $13, but a best-selling videogame costs $60. I mean, you can buy a book, see its movie and buy its soundtrack for less than it costs to buy the game based on it. That's ridiculous.

By Pag, at 11:00 AM

I think your regarding Manifesto as a gatekeeper in the last sentence is wrong. Manifesto is a store; you would be a gatekeeper only if you somehow prevented companies from selling games through any other means. And there's nothin' wrong with stores. (until they get super-huge and turn into gatekeepers)

By Hunty, at 11:13 AM

Anyone who believes "Information wants to be free" is a moral argument has completely missed the point. It's a statement of fact about reality, a warning if you will. You might as well use "Water seeks its own level" as your anti-dam motto.

"Information wants to be free" is a warning about how humans behave, not a moral argument. It shares similar roots to "Two men can keep a secret if one is dead."

By Alan, at 3:30 PM

So rather than drm as we know it, what about a watermark or something embedded unique to each buyer. So it doesn't interfere with usage, but if it's warezed, well then you trace it to the original purchaser and then they're liable. Would probably be the best license agreement evar... "THIS IS YOUR, DON'T SHARE IT OR WE'LL GET YOU. THE END".

btw, can we get a EULA markup language? So like a common, short, end-user READABLE, license? That'd be great.

By Jeff, at 3:35 PM

taking alan's point...

In The Future of Music (Kusek & Leonhard) the point is made that P2P distribution of copyrighted music is simply the reality. Even digital DRM solutions are eventually cracked over time. Watermarks may be just a vulnerable.

The essential question becomes "How can creators be fairly compensated when the digital content is freely distributed?"

By Anonymous, at 5:00 PM

Greg, you need to think about this some more.

In this world, the more exclusive a thing is, the more one can charge for it, and so the more does get charged for it.

Your hypothetical situation requires perfect DRM. With perfect DRM, no copy gets made unless permission is given and money is paid. Under these conditions, digital data won't be cheap - it'll be expensive. Very expensive. Britney Spears would cost $99.99 a track, not $0.99.

This is, like, axiom #1 in business. Get a patent. Get a copyright. Get exclusivity. Get a monopoly. Because you can charge much, much more.

So when you postulate total monopolies on digital data, you need to think about what the real consequences of that would be. IT wouldn't be some utopian vision where everyone charges 1/10th cent for a copy - it would be a dystopian world where everyone charges $2,000 for a copy.

The record industry isn't pushing for more DRM so they can *lower* prices. You put DRM on your Manifesto games so that you can increase prices. If you had perfect DRM, you could increase prices even more. And you would.

By Anonymous, at 7:45 PM

Watermarks may be as crackable as DRM, but I think that people would expend much less effort to defeat watermarks.

A) Watermarks are really only useful for identifying large-scale pirate distributors, and it is not necessarily true that these distributors are the same people who can and do break DRM.

B) Watermarks do not prevent a legitimate user from legitimate use of their product. A poorly implemented (i.e., most) DRM system does to some extent.

So, even if they could be defeated just as trivially as most DRM, I do not think that technically savvy people like DVD Jon will step up to defeat a perfectly cromulant way to monitor usage of distribution of product.

By failrate, at 10:06 PM

Sure, the actual roots of the laws and precedents of the contracts are born out of transferring content to a tangible media and baring out manufacturing, distribution and marketing costs, but the practical reality of copyright is this: it is a transfer of ownership. The RIAA becomes the defacto "creator" of the album with the band becoming the "work-for-hire" contractor, there's just an infinitely more complex legal structure around it.

Its not that copyright laws are bad, or that information wants to be free... its that folks are dishonest and folks want to maximize personal benefit for every dollar expended. And I mean to apply that to both consumers and producers, both RIAA and college students, both you and I.

Giving a friend a copy of my favorite CD fits within my ideas of fair use. If that friend then gives a copy of that copy to someone else, well, that's *not* fair use. Moving my music from an iPod to a Mac to a PC to my Xbox360 is fair use. Uploading my music to Napster so that 10,000 fewer people buy a popular single... well, that's not fair use.

The debate over copyright and patents and DRM needs to be clearly separated into a discussion over fair use of copies in a world where copies are free, and what business models make sense in a world where distribution, manufacturing and even production are infinitely cheaper than they were 10 years ago. The RIAA is a business model that simply doesn't make sense. That doesn't necessarily justify pirating, nor does it invalidate copyright, nor does it broaden the intent of fair use.

By Troy Gilbert, at 1:50 AM

Let me add my voice, too: DRM is not a necessary component of a distribution system such as the one you describe. DRM is, as others have pointed out, fundamentally broken, and interferes with what users can legitimately do with their products into the bargain.

Now on the other hand, I have no problem with the 'DRM' you use - if you can even call it that. When it only restricts what I can do with a free trial, and gets out of my way once I've paid for it, it would be churlish to complain.

I reserve the right to change my mind if I do something 'unusual' like reformat my computer and suddenly my purchased manifesto games don't work, though. ;)

By arachnid, at 4:38 AM

I don't see how watermarking is enforceable. If someone buys your product, moves to [insert country of choice], and then tries to undercut you by reselling that copy to people at half price, what can you do about it? It could just as easily be uploaded to a server for free download.

-Brendan

By sgeos, at 12:39 PM

Your analysis is quite correct.
Creators must get rid of the middle man.
It is educating the creators that
needs being done more than anything else.
Rarity has disappeared with the net, and so should exclusivity (artificial rarity).
With that, market forces would allow anyone to distribute as long as rights were being compensated to the creator.
How that can be done while being reasonable in price and manageable is a huge undertaking but certainly the best way forward.
Suppressing illicit agreements on price-fixing is also part of it.
For all the moaning of creators and publishers, I see that they are
still left with a few crumbs and not all suddenly going bust...

By Anonymous, at 8:17 AM

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By Anonymous, at 4:25 PM

Do you know who downloads and shares the most music among my friends? The guy who owns the local independent record store, people who play in original indie bands (as in not cover bands), my friends who run record labels, and the people I'm always running into at shows and at the record store. Historically, before p2p, who was the best person to get a mix CD from? A record store owner. Who bothers to download enormous game files? The only people who can name a good game store.

This whole argument hinges on the idea that piracy reduces compensation for creators, which is not necessarily true. Given how *much* media there is to consume, and my same old media budget, it doesn't seem strange to me that I would buy as much media (music, games, movies, books, show tickets, software, photos, typefaces, conference passes, magazines, art...) as I can afford and try some more for free. At least that gives creators a better chance of seeing a cut of my media budget!

If I gave 500 pirated video games to my friend, she would not buy all 500 games but I bet she'd get more into games and buy more than she would have otherwise. I doubt her proportion of legit to pirated games would increase, but I bet her total legit games would.

There are so many examples. When I borrow comic books from my friend, it makes me want to buy comics, just not the exact same ones.

By Sarah, at 1:18 PM

I guess that whole rant was to say: maybe that way that bloggers make a living is a better model than old publishing industries. It's all about indirect benefits.

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