Law in the Internet Society
-- AdamMcclay - 21 Nov 2008

Of the conversations we have had, none had particularly raised a skeptical eyebrow for me until our discussion of non-functional zero-marginal-cost goods. As I followed it, the argument seemed to be that the question of how the goods – in our example, music – are distributed is wholly divorced from the question of how the producer gets paid. I accept this. Putting aside for the moment the question of economically compensating the creator of a non-functional good, it is certainly the case that anarchism in distribution will make the good available to more people more quickly. Two easy examples are the nominally legal Rapidshare, which is better than iTunes or a record store, and Project Gutenberg, which has demonstrated that even books can be transformed to a frictionless, zero-marginal-cost form.

But as it stands today, the distribution of the goods still starts with someone paying money for the right to consume them. Someone subscribes to the Showtime network and records new episodes of Californication in order to put them on Rapidshare; Project Gutenberg still obtains a hard copy of each book. However, with the abolition of copyright, this first step would be eliminated. Musicians would put upload their songs directly to Rapidshare and its ilk; authors would type their novels directly into Project Gutenberg. My question is, why would they do this? Artists need to eat too. If no one need compensate the artist for his work, how does the artist buy lunch?

Really there are two responses to this. First, maybe the artist buys lunch with the wages that he earns outside of his art--from his job as a public school teacher, say, or as a barista in some ubiquitous Seattle-based coffee shop. In this case, then the inquiry ends: we do not need to support that artist, because he supports himself by selling tangible goods or services. This, without more, is not a particularly desirable solution. We should want artists to be able to support themselves solely through their art--this would allow them the time and focus to develop themselves, as well as removing any financial disincentive to become an artist in the first place. So, the second, and better, response to the "buying lunch" question is that we need for people to pay the artist voluntarily, without being required to either by law or to prevent the starving artist from starving. And we know that this happens, to an extent, in the world already. We discussed examples were provided of free cultural and moral products that are supported by anonymous voluntary donations: the Metropolitan Museum of Art, National Public Radio, Wikipedia.

I only wonder if this system cannot be improved, beyond simply eliminating copyright. It is not my intention to suggest that the voluntary sector as it exists now is incapable of supporting artists, either aggregated, as in NPR, the Met, or PayPal? aggregating the payments of donors, or otherwise, as in my friends Pete and J, whom I believe are managing to get by on the proceeds of their band, touring the country and taking up residencies in Lower East Side venues that lose money on them. What I do suggest is that the current system could be supplemented with a more centralized one, run on a strictly meritocratic basis. I imagine some modernized version of the patronage system that prevailed during the Italian Renaissance. Today, instead of the Medici family, the patrons might be non-profit organizations, funded, as non-profits are, by a mix of tax dollars, major contributions from wealthy private citizens, and voluntary contributions from ordinary citizens. Artists, if they wanted to be paid for their art, would need to apply to be sponsored by one of these patrons--a process similar to applying for a grant. The application could include samplings of the work, and an explanation of why it deserves sponsorship.

The advantage of this system is that it is not at odds with the existing anarchic, voluntary system of compensating artists. Rather, it creates a second, higher tier of artists, who "never have to work again." As before, any non-sponsored artist may create art and distribute it for free, either by supporting herself by producing tangible goods, or else by eking out a living, as Pete and J do, from individual, non-aggregated voluntary contributions. This is important: as Kate points out below, it is crucial to the vitality of the art that barriers to entry are kept low, and that bottlenecks are eliminated; this is why the grassroots approach is indispensable. But, Kate also talks about fan clubs, t-shirts, buttons, and the like. Again, there is nothing to stop grassroots artists from pursuing these methods, but this is where it seems like, if an artist is to grow beyond a certain point, she will need some big, organized money. She cannot make a t-shirt instantly on a computer, and she cannot ship it across the country through the Web. If she hopes one day to have ten thousand people, maybe more, in her fan club, she will need some stronger backing than I imagine she will get by passing around the bucket at gigs, or soliciting donations on her Myspace account, or even selling individual tracks or albums directly to consumers. I realize that I may just be cynical, and in fact I do not discount the possibility that grassroots support could help, for example, Pete and J make it big. But with the patronage system, if they are good, they will be assured that backing; if they are not good enough, or while they wait for their application to be processed, they can keep on keeping on.

Perhaps you could distinguish between your "patronizing" non-profits and PayPal? aggregating the payments of donors. Or maybe "gatekeeping for quality" turns out to mean getting for donors what they want to support. In which case the fiscal intermediary and the editor with a nearly mechanical eye on the popular consensus are the same. To the extent that they are different, their differences do not preclude mutual simultaneous existence. Which means that these and many other forms of aggregative support for creative endeavor will exist.

Which is why, as I keep saying, this "how will artists get paid?" question is less interesting than it looks. You have struggled all the way from skepticism to believing you have invented the answer by taking one of a thousand relatively short and easy roads. Amazon selling DRM-free music is taking another.

At a minimum I think you should strengthen the essay by taking another look at the issue raised above: whether you are really saying anything other than that intermediaries can amplify the coherence of donations, as NPR and the Metropolitan Museum and Carnegie Hall do now. That might lead you to asking whether the voluntary sector is as small as you think it is. That in turn might cause a major rethink. But how far you want to go is up to you.

I've tried to address some of the issues you have raised.

Adam, while I do not discount the idea of large patronage organizations, I think you are jumping onto this bandwagon a bit prematurely and it may not be the best road for us to go down. For one, anarchic distribution for the first time also means that popular artists are not hand-picked - there's no bottleneck to get through. That is a very important thing we should try to preserve. There are many different ways that artists could get paid without the sort of centralization that you invoke. At one time, the idea of online micropayments was popular. Although it has lost steam, it might still happen (especially if the Internet becomes much more closed than it currently is). That's not a great idea for right now. However, you don't mention the money that artists make from concerts and from selling merchandise. You also don't consider the money a band could make from selling membership to their fan club. Fan club members could be privy to the first round of concert tickets, be the first to receive an mp3, get specialized merchandise sent to them, etc. Music is about identity. Think of all the high school kids with bumper stickers, buttons, and t-shirts. Check out Dave Kusek for more ideas. -- KateVershov - 05 Dec 2008

I disagree that "grassroots artists ... will need some big, organized money" to sell t-shirts, buttons, etc. Buttons are dirt-cheap, and t-shirts don't cost that much time or money -- even before sites like She can, in fact, make a t-shirt (or all sorts of other swag) instantly on a computer, and ship it across the country through the Web. -- DanielHarris - 08 Dec 2008

Yes, she can make a tshirt design on a computer and distribute it infinitely. But her fans are not going to wear digital designs; they are going to wear physical pieces of stitched cotton or polyester. I am aware of Cafe Press, but it is still not the same as distributing digital information at no cost. If I want a computer, it will have to be manufactured and physically delivered to me, even if all of the business is transacted on the Web. Maybe Cafe Press has an economic model that I don't understand, but it seems like somewhere, this will cost money.


Webs Webs

r8 - 08 Dec 2008 - 19:52:02 - AdamMcclay
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM