In today's episode, Rebecca Giblin and Cory Doctorow discussion their new book Chokepoint Capitalism with The Verge Editor in Chief Nilay Patel. It was recorded on September 23, 2022.
Announcer 0:01
Welcome to Engelberg Center Live!, a collection of audio from events held by the Engelberg Center on Innovation Law and Policy at NYU Law. In today's episode, Rebecca Giblin and Cory Doctorow discuss their new book Chokepoint Capitalism, with The Verge Editor-in-Chief Nily Patel. It was recorded on September 23 2022.
Cory Doctorow 0:29
Creators aren't getting paid. That's because powerful corporations have figured out how to create choke points that let them snatch up most of the value generated by creative work before it reaches creative workers. I'm Cory Doctorow.
Rebecca Giblin 0:42
And I'm Rebecca Giblin. Our new book
Cory Doctorow 0:45
choke point capitalism pulls aside the veil on the tricks big tech and big content use to lock in users and suppliers, eliminate competition, and ultimately, Shakedown creators and producers.
Rebecca Giblin 0:59
We also share tons of ideas for how we can recapture our creative labor markets to make them fairer and more sustainable. Margaret Atwood says, we tell how the vampire has crashed the party and provide protective garlic. But don't take her word for it. Check out our extended video or read the book for more.
Nilay Patel 1:20
Hello? Neither, right there's always branding, right? Hello, everybody. I am not Cory Doctorow or Rebecca Giblin, I'm telling the editor The Verge. These lovely people have asked me to help talk about the book today. But Introduce yourselves Cory and Rebecca.
Cory Doctorow 1:37
Sure. I'm Cory Doctorow. And I'm one of the authors of this book along with Rebecca I write lots of different things. I'm the author of more than 20 books, science fiction for adults for young adults, middle grades, readers, graphic novels, short story collections nonfiction. I'm also a special adviser to the Electronic Frontier Foundation. And I have some academic affiliations and computer science and Library Science.
Rebecca Giblin 2:01
I'm Rebecca, I'm the author of three books. But this is the first one anyone might actually read. And I work I'm a law professor, I obsessed over artists rights and access to knowledge and culture, and just do all kinds of things to try and generate evidence to figure out what's really going on and how we can do a better job of achieving both of those things. Were just recently, I started a little publishing house where we published 160 books in order to, to create a new way for four out of print authors to get paid, but also to find out what kind of culture we're losing through that. And an inquiry for we were just figuring it out, like about 10
Cory Doctorow 2:41
years or so.
Nilay Patel 2:45
So I was gonna start with a list of questions about SharePoint capitalism and the creator economy. But actually, Amazon did us a great favor this week, by lowering rates for creators on twitch in a way that I think just sort of fundamentally explains the thesis of your book. So why don't we walk through that?
Cory Doctorow 3:05
Sure. So you've all heard of Amazon, you presumably all heard of Twitch, Amazon bought twitch in 2014. And for an important piece of context, this phenomenon of very large firms buying out parts of their supply chain, it's pretty new until the Reagan years, it was generally considered illegal for very large firms to buy their supply chain, that wasn't how companies grew. So this, this kind of thing that we have now where you have a company like Google that's made one and a half successful products and house they, they did a search engine and a Hotmail clone, and then everything else they did failed. And then everything they've done that successful, they bought from someone else from their ad tech to their mobile stack, to their videos to their server management. Like that just wouldn't have happened historically, this is a new phenomenon that we have this this growth through acquisition. And Amazon bought Spotify. And they said, what everyone who buys another company, every monopolist who buys another company always says, which is that there will be efficiencies and synergies will make this company work better. Now, Spotify has two sets of costs, right? They have these fixed costs, which is like developing the software, figuring out how to develop new features that help streamers get paid that kind of thing. And then they have bandwidth. So the fixed costs are fixed no matter what if you have a million streamers, you have five streamers still gotta pay the same amount of money to develop those features. Bandwidth, though, like totally depends on how big you get. So if you're gonna grow, you need cheap bandwidth. Amazon Amazon web services like the cheapest bandwidth you can buy, right? Like they they are the world's biggest consumer of bandwidth, wholesaler of bandwidth. They can they can do a real favor for Spotify with the bandwidth. So they bought it, they said would twitch rather Yeah, no Spotify. So they said, here we go. Here's our here's our new service. And we're going to launch it and they went out to the creators and they said, come on board and we'll give you a generous 5050 split, which is to say, well keep half the money you aren't. But of course there were some creators who would didn't want to give half of their money. Me to Amazon and to those craters, they quietly said, don't tell anyone, we're gonna give you 70%. So that's what they did. And they lured in a bunch of creators at that 70% rate, the cheaper guys were presumably subsidizing them years go by, they become by far the leader in their sector. And now, people are accustomed to using Twitch to watch streamers, they have the app, they have an account, maybe they've got subscriptions, and they're just kind of locked in. And if you want to be a streamer, you really got to show up for Twitch because Twitch has got your audience all in a corral. And so then they turn around to these 70 percenters and they say, We're bumping up to 50% We're altering the deal, pray, we don't alter it further. And they publish an account of why they're doing it the president of the company, it's like we're doing this for fairness. Because wasn't it unfair, that all you working schmucks got 50%, but these superstars got 70%. And it was like that is like materially unfair, and kind of shady that they were doing it all on the download. But it does raise this like really obvious question, which is, why is the remedy for that not just giving everybody 70%? After all, in his letter to his creative workers, he explains that they figured out how to like increase the revenue permitted a video by some fantastic amount, that each one of these people is making much more money for Amazon. So why don't we use some of that money to change the split so that everybody gets this 70% rate that apparently they could afford, we can tell they can afford it, because they were offering it. So this, this is the kind of little parable about choke point capitalism, you stick all of the audience inside a walled garden. And then you say to the creators, you know, I know you want to reach your audience, and we want to help you reach that audience. But to reach that audience, you're gonna have to make some concessions. Because if you don't make the concessions to us, well, you can try and go out on your own. But I think you'll find that everybody who wants to watch your entertainment is inside our little walled garden here.
Nilay Patel 7:13
So the particular part of this story that stuck with me, was Amazon published a justification.
Rebecca Giblin 7:19
This is amazing. I just put the quote up, because that's stuck with me as well. And the justification is the rates. Yeah, this was Sam Biddle talking about this, he was just like, Wait, Amazon is charging Amazon so much money to run the business via Amazon, that it has no choice but to take more money from streamers. And that's really the essence of choke point. Capitalism. Sure.
Nilay Patel 7:40
Right. So the justification is that the published rates for Amazon Web Services are quite high. And so to support one stream where they have to pay like $1,000 a year or something, but the idea that Twitch is paying the published rates for Amazon Web Services, is really quite ridiculous. Because no, almost no big company pays the published rates for anything. Also, if Twitch wasn't known by Amazon, they could go to Google Cloud, right? Microsoft Azure. It's the consolidation that creates the self serving justification and
Cory Doctorow 8:13
raises this interesting question, because if Amazon wasn't proposing to discount Twitch, once it became an Amazon company, then what was the synergy, right? What where is the same? What savings Do you realize, for moving Twitch inside of Amazon, and I think we see what the savings is, which is that you can suppress the wages of the creators who do the work that generate the revenue, because you become the only game in town that that is like a demonstrable synergy that they've produced for their shareholders, not for the streamers.
Rebecca Giblin 8:42
And this is coming as well. This is coming for other creators in the Amazon universe, because Amazon when when the publishers tried to resist Amazon's play to to get their ebook, ebooks are so cheaply that it was going to like decimate their physical book business. The publishers resisted. Amazon retaliated by changing its rates for self published authors to give them a 70% split, which is far far, far higher than any kind of royalties you could get from a traditional publishing deal. So a lot of authors did jumped ship. But of course, those higher royalty rates are still only going to be in place until everybody is locked into that system in the same way they already are with Twitch, and that's also going to be ratcheted down to that's always the play.
Nilay Patel 9:27
All right, let me push back on both of you. It should be obvious to this room that I agree with them. But let me put on my Bezos hat. Amazon does face some ferocious competition for streamers. YouTube exists. There was a platform famously called mixer that Microsoft invested a lot of money in, in paid streamers to stream exclusively on mixer. Ninja, I think most famously was paid exclusively by Microsoft to bring audience to mixer. It was a spectacular. I think it lasted Less than three months. And then now he's back on.
Cory Doctorow 10:02
Yeah, I mean, I think you're proving the point, right, which is that new market entrants struggle, because they're they just
Nilay Patel 10:08
but the new market entrants here in this case are Google and Microsoft. So Google's
Cory Doctorow 10:13
man, you're right that Google is number two, right and they're there. It's not like YouTube's a bad business. But there's this amazing thing that happens when a sector is highly concentrated, which is that without ever having to sit around a table and collude, they arrive at a common position. It just becomes just a kind of natural element of the culture. And you know, there are lots of reasons to explain it are lots of theories like these people, like if there's only a couple of companies in a sector, then everyone who's worked at one has worked at the other, right? That's how you become a senior executive. There's no room in the org chart for you, you get poached by the other guy, and then you come back and forth. And in the meantime, you're like godparents to each other's kids and executors of each other's estates. You stand up for each other weddings, you go on vacations together that persists even after you leave the firm. Because wouldn't it be weird if when you quit Amazon and went to YouTube that you had to leave all your friends behind? Of course, they stay friends, right? So so there's this one explanation, which is that they just all end up friends with each other, and then they converge on it, there is another explanation, which is that sometimes they sit around a table and collude. So one of the things that came out of the state's lawsuit against the ad tech duopoly, Google and Facebook was the revelation that Google and Facebook had a project called Jedi blue, where they just sat down and illegally colluded to rig the ad market so that they could steal money from publishers and advertisers, and put it in their own pockets. And also make sure that nobody else could enter that market and offer better rates to either advertisers or publishers, or both. So that's the other thing they sometimes do. Because it turns out when you all know each other, and you're all really chummy, and there's only two of you, you can in fact, sit around a table. And just like, I agree, sorry, go ahead. Rebecca
Rebecca Giblin 11:55
was gonna say, and you don't even need to do that in highly concentrated markets, you can just do some public signaling, oh, we're kind of thinking about doing this. And then the other one or two or three companies in the market are like, we're kind of thinking about doing this. And then once all the public signaling is done, which doesn't get in any kind of antitrust trouble. Lo and behold, everybody kind of coordinates in lockstep and does the same thing. And so that's how we often end up
Cory Doctorow 12:20
Sure. Yeah, I mean, I think a lot of people looked at that photo of the tech leaders around the leatherette billiard table at the top of Trump Tower after the election and went like, How can all these bastions of like, liberal air you died, capitalism meet with his, you know, short fingered vulgarian, and his and his mountain ire and in Manhattan? And that's, you know, fair enough, right. But like, you know, what's weirder is that everybody who runs the tech sector fits around one table. Right. And, you know, if they were 1000, companies of similar size, not only would they not be able to agree on what their common lobbying position is, they wouldn't have been able to agree on how to cater their annual meeting, right. Like, if you've ever tried to get 15 people to agree on dinner, you will know that there's just this, like exponential coordination costs when the number of firms that have to agree gets higher. And we saw this in the early days of the tech wars, right, where the, the tech companies were all mostly small. And the entertainment industry was mostly concentrated. And there was this period where the entertainment industry won these fantastic legislative wins one after another after another, against the tech sector that was, you know, in terms of total market cap much larger, but they were just disorganized, because there was a lot of them.
Nilay Patel 13:32
So Cory, I came up reading you, I became a deeply failed copyright lawyer. Because those of you I think I was not any good at it. But a lot of that moment, stemmed from consumer desires. Why can't I get all the stuff on the service? Why is your DRM in the way of what I would like to do with the content that I have paid for? And a lot of it was, like consumer preference to consolidate all of your experiences in one place, or to build a user experience set yourself up like
Cory Doctorow 14:07
that? In fact, we talked about this in the book, we talked about how a blanket license might demonstrate my deliver that because I think you're absolutely right, nobody wants to have three libraries that they keep their media, and that's why audible having a mandatory requirement that you use their DRM, if you publish with them is so scary because those listeners who buy your audiobooks are locked forever to Amazon's platform by the by the copyright locks that come with it that can't be illegally removed. It's giving someone a tool to remove that as a felony punishable by five year prison sentence. And a $500,000 fine even No Copyright Infringement takes place. So they get to lock audiences in and I think you're right people like Audible because all the titles they want are there, but nobody is like, you know what I like most about audible, and if it went away I leave is the fact that all of these books are locked to Audible, right? That's not anyone's that's not a unique selling proposition for anyone. People like iTunes having all the music, right. But nobody is using iTunes for the DRM. And so if you remove the DRM, all that you get is a new market where if I enter the market, I can say, Hey, have you got a bunch of iTunes songs that you've got, and they're stuck in Apple silo, and you want a better player that's more full featured and does stuff that Apple doesn't do, just click this button, I'll import your library for you. And I'll give you all those features, right? That that that is entirely compatible with this idea of consumer preference.
Rebecca Giblin 15:34
And the fact that Audible has managed to create this choke point with the DRM and capture such an enormous share of the market has resulted in one of the most egregious things that we write about in the book, which is a scandal called audible gate, which some of you might have heard about. Basically, what happened is that independent authors and smaller publishers get their books onto audible via something called the ACX platform, which is also owned by Audible Amazon. And they have really opaque royalty statements. And what what they were they had this, this incredible Shakedown that they were pulling, let me explain how it worked. So basically, you might have seen this, if you do have audible yourself, that's a really generous returns policy, you can return a book that you've listened, even if you've listened to the whole thing, even if you liked it, no questions asked. And this is only available to people who are actually subscribers of audible. And what Amazon is doing, there is just what we were talking about in that video and the way in, which is they're trying to use that to lock in subscribers, they want people to be paying every single month. And if one of the ways that they keep people locked in is by allowing them to return these books, then they want to do it. But who pays for that? Now, this was not at all clear in the contracts. And it was definitely not clear in the accounting, right. But what was happening is every single time one of those books got returned. And boy, was it happening a lot. Some people were using this like a library to get like unlimited credits and keep listening to books every single month. Right? What would happen is the authors would have to pay all of those royalties back. So the only reason that anybody found out about this, so outrageous bit with the accounting is that Amazon would say you've sold three units, right? That was net sales. And so it wouldn't be like you sold 13 units, but there were 10 returns, that was all hidden. But then one day, there was a data glitch, three weeks of returns all showed up in a single day. And finally people realized what was going on. And that allowed them to independent authors to mobilize against this. And they've been fighting really hard in this campaign led by an incredible author and now activist called Susan May, they have managed to get some change. But it's really, really hard to get Amazon and audible to do anything other than the bare minimum to avert the scandal. And so it's still absolutely outrageous what's going on.
Cory Doctorow 17:56
They estimate the cost of the wage theft to be in the hundreds of millions of dollars that were taken from these authors and the authors pay for to produce the books, these independent books are produced at the author's expense, they pay the narrator's or they enter into royalty splits with the narrators. Either way that they all get screwed. And Amazon locks them into
Rebecca Giblin 18:17
yet incredible seven year contracts, right without investing anything in the contracts, or anything in the production of the work. And then the other thing is, once these authors started looking into it, this other author called Colleen Krause, who used to be a financial fraud accountant, and now writes financial fraud thrillers, she started like really digging into it hang on a minute, if they're doing that, what else are they doing? And she started looking at what was going on with the royalties and just like hang on a second, what we're getting paid doesn't actually make sense if they're paying us according to what the contracts say we're supposed to get paid. And she thinks they're actually deducting the cost of those returns twice. And this is also where we get into the hundreds of millions of dollars. Not nobody knows for sure exactly what's going on. Because, again, really, really difficult to get any kind of information out of Amazon and audible. And these authors like they're really atomized individual, that they're not unionized for reasons because it's super hard to unionize as individual workers, especially here in the States. But it I mean, I'm sorry, just so outraged even talking about it, because it just stacks on every single abuse that you can possibly think of puts it on all these people hides it, and there is essentially no redress.
Cory Doctorow 19:33
And those of you who backed our Kickstarter will know that we kick started the audiobook so that we didn't have to sell it on Audible, but that we took the chapter about how Audible has stolen hundreds of millions of dollars from creators. We packaged it as a standalone audiobook, and we published it using ACX as an audible exclusive, so it's the only part of the book that you can get on Audible is the part that describes the scam that is audible.
Rebecca Giblin 19:56
Please don't buy it.
Cory Doctorow 19:58
Don't buy it. Yeah
Nilay Patel 20:00
Um, one thing that struck me as I was reading the book is the first big chunk of it is about the music industry. You're almost describing audible, which is another audio format. There's another piece of the book that's about Spotify and podcasting, it seems like these choke points are stronger in audio formats than anywhere else. In to Me, the music industry is always the leading edge of the battle between the tech industry and the culture industry. Whatever happens to the music industry seems to happen to everyone else. Five years later, you could see it coming with Spotify and streaming, it came with Disney plus, and HBO Max, like it just came down the pike that we're gonna DRM everything and stream it to you. Why do you think that is?
Rebecca Giblin 20:43
Well, what's really interesting about music is how these choke points kind of stack together and interact. And so for example, we start with the fact that there are three record labels that control I think, still almost 70% of the global recorded music market. And they own the three publishing companies that control almost as much. they've accumulated enormous reservoirs of copyright rights over time, not just from investing in the creation itself. But often by buying these up from distressed companies at fire sale prices over time. And because copyrights lasts so long, we're talking life of author plus 70 years, a little bit different for sound recordings. But we don't need to get too wonky here. Even though we don't need record labels, for production and distribution in the way that we used to, they've still got outsized power over the future of the recorded music market, because they control those rights. And so people criticize streaming companies a lot. And they're outraged that it doesn't pay artists better. But what a lot of people forget is that it was the major record labels that decided how streaming was going to work and how it would pay, right. And then on top of that, we've got there's, there's copyright reservoirs, but then we've also got this really arcane, complicated system around music licensing, so that it's really, really difficult to start a streaming company. There are so many incredibly passionate, knowledgeable people who care about artists who really want to try different models make things work in different ways, but because the licensing system is so complicated, and expensive. And because the record labels require such enormous investments in order to enter the market, people just are not able to do so in any kind of numbers, which is why we've got streaming market dominated by Spotify, and a few others that are owned by big tech, those are the people that can afford to play. So there's the interaction of those things. Spotify would like it talks, Daniel Eck talks about how we'd love the licensing system to be simplified. But this is something that really is limiting their growth. It's so expensive for Spotify to start up in new markets as well, right. But it also has the effect of limiting the competition that Spotify has to face. And that's a reality that really dramatically affects the way that that people can get their music to market.
Nilay Patel 23:14
It does seem like the the duration of the sort of standard copyright regime around the world is a real problem here. But it also seems like the opacity of how the big companies manage those copyright. Like they own a lot of it, they take really long licenses, when you sign up for any social platform, you have given everything to Google from the jump every time you upload a YouTube video. Is that a place to undo the checkpoint? Is that a place where you can extract value back out of the system?
Rebecca Giblin 23:44
Well, I'll jump in again, just because there's one other thing that we can we can stack on that also helps answer this question. There are huge inefficiencies in the system around how we actually get the money that that is paid to the streaming companies out to artists. So every country has its own collecting societies, for example, that, you know, very often tasked with matching the revenues to the creators and getting it paid. They've all got their own individual databases that they look after maintain individually, right? It's an incredibly inefficient system. Very often, they can't even work out who Beyonce is, right. And there's it's really expensive as well. So even when you look at the money that is in streaming, the amount of it that gets siphoned away at other points in the value chain, because there are all of these other trigger points as well. That's a huge influence on the amount of money that actually gets paid out to creators. And that's, I think, a one place where it's a no brainer, where we should be looking at that and doing something similar to what was done with the music Modernization Act here, which was in the publishing side to say, well, this system is just simply not working. It didn't work for anyone. So the incentives were there to fix it. We need to do that in other places as well get the incentives right, stop so much leakage and get more money actually going to Artists?
Cory Doctorow 25:00
Yeah, you know, the one of the things that prompted us to write this book is having spent decades in a kind of false binary debate, where people said, Look, we you either have to brief for Team entertainment industry, which wants to make more copyright and make it last longer. Or you have to brief for Team tech, which wants at best different copyright or maybe less copyright and that you have to just sort of you pick one side. And if you're a creator, you pick a side, you become a streamer, you become a traditional musician, whatever. And you hope that when this clash of the titans is over, that whichever giant emerges victorious, if you chose the right one, that they will reward your loyalty by dribbling a few more crumbs for you, once they once they managed to take over the industry. And we thought that this was just wrong, that there isn't a kind of excluded middle here in the form of creators seizing their own power. And that one of the problems is that so much of this debate ended up revolving around copyright, which, you know, as a, as a knock re copyright lawyer, by by your account, you'll know that like nobody understands right, that it's a field that most artists don't understand. Well, most people in publishing don't understand. Many people who work in culture ministries don't understand very well, it is often the case that just sort of basic factual errors emerge in these debates. And the problem is that if if you have a market where the thing that keeps artists from getting paid, is that they have to pass through a choke point, in order to reach an audience, then whoever has that choke point will take whatever copyright you give them, and use it to whatever extent they can to make the choke point stronger to extract so that they can extract more things for more people to go through. And I compare it to having a kid who gets bullied everyday for their lunch money. If your kid has all their lunch money stolen every day at school, it doesn't matter how much lunch money you give them. Right? They're still not going to get fed. And even if the bullies go out and have a campaign, feed America's hungry children, give them more lunch money, it's not going to get your kid fed. So one of the things that we decided to do with this book is make fully half of the book about what to do about these questions not to have what what someone when we were pitching the book around called a chapter 11 book, which has 10 chapters of like, eyewatering detail about how fucked up things are an 11th Chapter of kind of bland nostrums about we should we should do something about this, we made half the book, shovel ready, highly technical proposals, we found the leverage points that you could stick a lever into and yank on it, and money would fall out and fall on top of artists. And so, you know, one of the things we talked about is a better database system, right? Like we built a better database system for rights payments, we could simplify the mechanism by which rights are paid, and ensure that nobody could could proffer the excuse that the reason you didn't get your money is they couldn't figure out where you live Beyonce.
Rebecca Giblin 28:09
Yeah. And maybe I'll jump in and say, I feel like we're focusing a lot on streaming here, when we talk about, you know, why musicians aren't getting paid. But there are so many other parts to it. Like, no matter what we do in terms of fixing the databases, there are heaps of musicians for which streaming is just not going to be the thing that makes them money. People who, who, who write really, who make really complicated music that doesn't just get listened to ad infinitum on in on repeat, for example. But, you know, they might make money touring. Okay, but then we see that we've got Live Nation shaking down creators in and, and record labels in extraordinary ways. When we were writing the book, we always we interviewed a whole bunch of people, we always gave them an opportunity to be anonymous if they didn't want to be identified, and almost nobody took us up on it, except the folks we spoke to about Live Nation. Then you've also got
Nilay Patel 29:07
should say what Live Nation is. Oh, sorry, nation is the cloud that surrounds all of you. And I'm
Rebecca Giblin 29:12
sorry, I guess I'm very, very deep into this. And like, do we all know how evil Live Nation is? Live Nation? owns? Its Ticketmaster, right. Ticketmaster, and, but also a bunch of the biggest music, live music venues in the country in the world. Right. The ticketing business gives them an incredible view on which artist Oh, and they have a promotion side as well. Right. So music promotion, the ticket business gives them an incredible insight of you at like which artists are rising, which gives them an advantage in nabbing them before anybody else can the control over venues of the act like mobsters. There was an antitrust just last year the antitrust case brought by the DOJ last year or the year before, where they had about six days. noose, he came forward anonymously because they were so afraid of reprisals. And they were describing mob Shakedowns. Right. I think literally it was one of them said was like, we're not telling you, you've got to go through us for your ticketing, we're just laying out your options. We're telling you
Cory Doctorow 30:14
what will happen. Yes, isn't a threat, we're just explaining what happens if you make the ill advised choice to do business with someone other than us. Yeah, we're not threatening you.
Rebecca Giblin 30:24
But we'll never book anything in any of your venues again, and that's too bad because your business will be destroyed. And then, you know, outside of Live Nation, we've also got radio, right in the US, it's one of a very, very small group of countries where radio does not pay artists for AirPlay of songs. You're in a tiny cabal with Rwanda, North Korea, I always
Nilay Patel 30:51
that list. It's like the United States sucks this thing along with North Korea. And it's like, there's always that list.
Rebecca Giblin 30:59
And there have been literally dozens of bills that have been put to Congress to try and change this and get artists paid for that use, which is paid in almost every other country. But big radio manages to defeat them. So we can see over and over again, that copyright and contracts, and all of these other things we get into in the book, the servants of big business, not servants of artists, and not the public.
Nilay Patel 31:24
So I want to remind everybody, we've got some questions coming in. If you care to use your monopoly provided phone to go on the open web, you can ask us questions, we'll take them. Do you want to get to solutions? Yeah. But before I make that turn, I want to go from one wonky system of law to another deeply wonky system of law. So we talked a bunch about copyright law. We're talking a lot about competition, and how there should be more companies. And artists should have more choices, and consumers should have more choices. We are right at the edge of Boy, wouldn't it be great if the antitrust enforcement regime in United States of America was extremely active? And Joe Biden walk around with a hammer just breaking up companies? Is that one of your solutions?
Cory Doctorow 32:08
So it's not a thing we're opposed to? We just think that it's slow. Right. And it's, you know, the problem is that there's that joke from Ireland whose punch line is, if you wanted to get there, I wouldn't start from here, right, that that, historically, what antitrust regulators had competition regulators did was prevent monopoly formation. Because monopolies are very sticky, right? They have like, they have a lot of power, right? They're too big to fail and too big to jail. took 69 years to break up at&t. So yeah, let's go after the live, Live Nation. I'm a said Live Journal live.
Nilay Patel 32:42
Let's go after Live Journal, everybody, to The Live Journal. It's been enough.
Cory Doctorow 32:46
Let's bring back fanfic. So let's go off to the Live Nation Ticketmaster merger in the Instagram, Facebook merger and the Google YouTube merger, but you know, it's gonna take 69 years, it's just it's a long time or maybe a decade. It's a long run process. And while we're waiting, we need other stuff. And we do have more antitrust enforcement than we've had in, you know, 40 years, we've got these three incredible trust postures in the US government right now. Lena Khan is running the FTC, Tim Wu, who's running the White House, big tech antitrust, and Jonathan Cantor, who's who's running it for the DOJ who said, on his first day in the job, he quoted Jim Comey, and he said to his, his lawyers, they're How many of you have never lost a case? And you know, the lawyers proudly raised their hands and he said, You guys are the chicken chick club. If you're not losing cases, you're not going after the right people, because they're that you're just going after the easy pickings. So they want to do it. It's just a long run process. And what we focus on are these, like leverage points that that we can attack while we're waiting. So I'll give you an example. Right? If you sign a contract involving royalties, it usually involves the right to audit your royalty statements. Now that's expensive. It's hard to do. But like lots of creators groups. I'm a member of the Science Fiction Writers Association. We have like a lottery, where a couple of times a year will pick a member and they can go get their their royalty statements audited at the organization's expense. Problem is that if you find missing money, generally speaking, they'll say, no, no, you're you've got it wrong. We don't owe it to you, sue us if you want to get and of course, you can't afford to sue them that, you know, maybe you got a point, we'll settle with you. We'll give you the money, but you got to sign a nondisclosure. Which means that if you like many of the people we interviewed for this book, find large amounts of money one person we spoke to found six figures, money stolen from them, and this will shock and amaze you. But nearly every instance of this all about one that we encountered in our research involved an error in favor of the publisher label or studio and not the musician or I don't know how that happens. It is really just a genuinely incredible set of coincidence
Rebecca Giblin 34:54
taking 10s of 1000s of example 10s of 1000s Kate one when
Cory Doctorow 34:58
I was in the artist benefit So you find several $100,000 that were stolen from you, you're probably not alone, right? Those identically situated artists have also had large sums of money stolen from them. But to get the money, you have to promise not to tell them where to look for their own stolen wages. Well, all of these contracts because of market consolidation are concentrated in California, New York and Washington state contracts estate law matter, right, we could just introduce three very short bills. That said, as a matter of public policy, non disclosure is not enforceable in the state of New York, where it relates to royalty statement, material omissions, or errors and royalty statements. Right? At the stroke of a pen, we would put more money in the pocket of more artists all over the world than all the copyright term extensions the last 40 years combined, right? It's literally a point where you stick a two paragraph bill, give it a little twist, and money just falls out of the system on artists, right. So we, we devote half the book to this, right, we devote half the book to these kinds of proposals. And one of the things that an editor told us while rejecting the book, he said, You know, I love this book. But I got to the end, and I realized all your solutions were systemic, and none of them involve things that individuals can do. And we
Nilay Patel 36:16
feel very bad for the person who asked what can individuals do? Oh, you are fine. You did great. And I appreciate your vibe and your vigor pulse didn't know Cory was gonna dunk on you, I
Cory Doctorow 36:26
have to tell you. I can't risk I understand because it feels futile. But you can't recycle your way out of climate change. You can't Shop Your Way at a monopoly, right? Like these are systemic problems. They need systemic solutions. What the individual can do is think of themselves as part of a movement. And if you join a movement, then you and the people with you can make change, but not you on your own.
Nilay Patel 36:49
So let's talk about that movement, just in the day to day, right. This is the what can i It isn't a digital do? Yeah, there are a lot of iPhones in this room. There are a lot of I'm assuming Netflix. Now I'm just making claims about all of you. But like a lot of people in this room probably have Spotify and Netflix and watch YouTube. Raise your hand if you don't want you to zero people, we're going to publish the honest. Wait, you don't want YouTube? Not often enough, is not the answer. Right? It's like the surrounds us. There's a reason I call them clouds. Yeah, we are in the vapor of the big service. Should you try? I mean, a lot of what you guys describe as choke points are distribution monopolies. At the end of the day, you want to reach the audience, the audience is all on Spotify. Yeah, the artist has to go to Spotify. Should we be seeking out alternative distribution points?
Rebecca Giblin 37:44
It's hard, right? There's a reason why we go to YouTube, because everything there is there and it's convenient. There's a reason as well, people buy everything on Amazon now. Like it's a few years since I've been in the city. I've been so shocked to see how it's all of the packages that come into my building. I've got prime tape on them. Right? I went to Whole Foods the other day, it's look how convenient it is to return your Amazon purchases, you can just do it right here. Oh, and by the way, we'll give you a discount on a whole bunch of groceries if you've got Amazon, and like free book rentals and like free video like it's against your economic self interest and not be part of prime. Except it's so incredibly dangerous. Because once we're all in prime, we're getting checked as well. But what the kinds of things that we've suggested, it's just like, Well, how do we then make it easier for people to make different decisions but without causing that inconvenience? And one of the things we talk about is, well, if we were allowed to bypass DRM, where it's for a non copyright infringing purpose, which, after all, is what the copyright treaties, it was only asked of us, you could have like some really subversive little plugins, for example, where you you, you go, you read the reviews on Amazon, you find the book or the product that you want on Amazon. And then there's a lovely little pop up that shows you a local shop where you can get that from instead, right? Because one of the reasons that we use Amazon is because who's got the the mental bandwidth to try and figure out where else you get that like weird thing from, right. So yeah, like we can't, it doesn't make sense to force everybody into all of this unnecessary labor to bypass these systems. But it does make sense to make it easier for people to get genuine choice to support, you know, things that are much more in line with their values. You know,
Cory Doctorow 39:25
during the Napster wars, when the record labels sued 19,000 children and accounted for 2% of the federal docket.
Nilay Patel 39:32
This is the thing that drove me out of the legal industry. Yeah, I was like, what his job sucks.
Cory Doctorow 39:36
And that happened. There were a lot of people who said you should just not listen to music from the labels. And I would and I was baffled, right because I was like, you want to build a Popular Movement predicated on not liking popular music,
Rebecca Giblin 39:46
silence sit there in silence. To tell you like
Nilay Patel 39:49
there's like a teenager streaming silence on Spotify now, making six figures a day.
Cory Doctorow 39:53
I think it's like the successor to which house or something. I think that you know, I think that like it should be self evident that If you require that people not do things that are popular, you will not be popular, right? Like this should just kind of come with the territory. And you know one thing that crystallized This, for me is one of the best books I've read on antitrust and monopoly, which is a book by someone who should be familiar to you all as New Yorkers, Zephyr Teachout ran for governor a couple of years ago, Zephyr wrote this book called break them up. And at the end, she's got this thing where she says, Look, if you're going to a, a union picket, and instead of being on the picket line, you drive around for two hours to find a mom and pop to buy your markers from to make your sign. So you don't buy him from Amazon, you are not helping the movement, right? That like you know that what you have to do is, I don't want to be all Steven Pinker rationalist, here, but you do have to think about what is the effective use of your time and making the change you want to make. And if it's like running around looking for handcrafted artisanal, made in China goods to buy rather than buying them from Amazon, instead of having the time to work on these issues in a systemic way. We're even having the time to relax with your family and recharge your batteries so that you can go and work on these issues in a systemic way. Instead of being frazzled from driving all over town looking for your your your whittled, you know, leather apron and wax moustache version of the product, then then, you know, by all means, right like choose your battles, like literally choose that don't choose the meaningless consumer battle that conceives of yourself as an ambulatory wallet, right? Think of the choose that choose the collective battle that works on your collective strength. And remember, the problem with Amazon is not that it delivers things efficiently, and that it makes it easy to find the thing that you want. The problem with Amazon is the way that it arranges the commercial relations between the participants in that value chain, including the manufacturers, that labors of the manufacturers, the drivers and delivers the warehouse workers, the authors who supplied the books and so on. Those are the problems, or the problem isn't that the Kindle bookstore allows people to Self Publish. That's awesome. Right? The problem is the social arrangements and no one came down off a mound with two stone tablets, saying Jeffrey, thou shalt arrange your self publishing Empire such that the authors get totally screwed, right? Like you could absolutely make the Kindle store and take out the screw the author part and it'd be great.
Nilay Patel 42:27
I want to take the last few minutes here for questions. If you have more, please send them in. We've got a pretty good list here. That last piece around DRM. It was the book publishers that insisted on the DRM for the Kindle, not Amazon itself. I think Amazon in another world would have asked for DRM and had that request refused or denied. But it was the publishers themselves. It's it's often the creators themselves. Were asking for greater protections. In a were in a software world, those protections end up shooting in the foot and increasing switching costs for consumers. How do you break that cycle?
Cory Doctorow 43:08
So you know, the thing is that DRM as a technical matter doesn't work. I'm a pretend computer scientists have an honorary doctorate in computer science. And even as a pretend computer science, I'm here to tell you that nobody in the field except for people who work for DRM companies thinks that DRM can work. It's making bits that are harder to copy. It's like making water that's less wet. It's just not. It's not a thing. It's not a thing that we will ever do. There are other ways that we've shown that you can increase revenue. The best one is like offering good product at a good price. People buy that voluntarily. But the thing where you just had these restrictions and then fell in is baking it in and I'll tell you how you know that DRM doesn't work. Is there's a law against breaking DRM if DRM worked, you wouldn't need the law. Right? Because DRM would work, right? You would just say, Oh, well, the DRM works, so nobody can make a thing to break our DRM. What the law is done is in fact, encourage firms to make shittier and shittier DRM today's DRM is like a one molecule thick layer wrapped around the digital file that you know, falls apart if you sneeze on it, but it's what it does let them do is take any firm that attempts to enter the market by unwrapping that DRM and and charged them with a literal felony felony contempt of business model, basically. And so we publishers bought a bill of goods and the record labels bought a bill of goods, but I'll tell you the record labels turned around, right. So Steve Jobs was like, we're gonna launch the iTunes Store, and we're going to save you guys from piracy by giving you DRM. A couple of years go by and they're like, We don't want to charge 99 cents for all of our songs. And sometimes you want to sell whole albums and not individual tracks. And Steve Jobs was like, that's not how things work at Apple, right? You're holding it wrong. And they were like, no, no, that's what we want to do. And he was like, Yeah, I'm sorry. If If you want to put DRM on it from the iTunes store, you're going to have to do this and the the iPod will only play DRM music from the iTunes Store. And when real real networks tried to put DRM on the iPod, we sued them for breaking the DRM that helped that stops what software you can load onto the iPod. So really, if you want to protect your music, it's going to have to be on our terms. And they were like, What are we going to do? And Jeff Bezos turned around and said, I'm going to launch an mp3 Only no DRM Music Store whose slogan is DRM don't restrict me. Right. That was the that was the launch slogan for for the Amazon Music Store. And they turned around, they were like, Absolutely. Now today, they operate audible, and they don't let you choose whether you're gonna have DRM they require you to have DRM and the major distributors although you can choose whether you want DRM on your ebook The major distributors don't. So our plucky little lefty publisher beacon books, which is 150 years old, owned by the Unitarian Universalists published Howard Zinn. Albert Einstein once said that if the world will survive will because of the noble efforts of the Unitarian Universalist and Beacon Press, they've got an amazing brag sheet. They don't distribute themselves, they're distributed by Random House, which is like the largest publishing monopoly in the industry, Random House wouldn't carry our audio book or ebook rather, because we said you can't put DRM on it. And they were just like, it's too hard for us to tick the box that says no DRM on some of these books. We only distribute with DRM. So the copy that you buy on Amazon, if you buy it on Amazon, I don't know why you would, is although many of you are because it is the number one Amazon antitrust book right now, which is weird. But if you buy that we self published that with beacon, right, we put it in the Kindle store as like Kindle or, you know, a Kindle, self published title, it didn't go through the Random House channel. So you know, the, what's happened now is that although maybe the entertainment industry provided the initial impetus, it's now become non discretionary. Like you can't put it you can't sell a movie to Netflix for distribution and say, but I don't want the DRM.
Nilay Patel 47:10
We've got some really excellent questions here. Some of them fall into buckets. So here's one that says it sounds like the labels and publishers are more of a problem than Spotify. And I think that second question here, that is basically the follow up, say, Spotify cut its rate from 3070 to 9010, would that make a difference?
Rebecca Giblin 47:31
The thing is the economics of streaming really difficult. Okay, it does cost a lot to shift this, it costs a lot in the licensing and complying with those mazes that I talked about. Right. And it's a business that operates at scale. So there are a, it's the the artists, it's only probably ever going to be the artists that are the most commercial, and that have a lot of volume, that are gonna see substantial revenues from that. That's kind of the nature of the beast. But music has always been a place where it's really difficult to make money. So I think rather than I mean, yes, there's absolutely improvements that we can make. And I think in particular, one thing that would be really important here is more transparency, right? So there has been, for example, a DISA has been trying to for a number of years now, to run a different kind of model, which is called a user centric model. So this isn't going to be slightly wonky, but stay with me. So the way that it works at the moment, you you sign up to a screaming a streaming platform, you you pay your money, and then that all goes into a pool. And it's distributed proportionally to everybody based on how often everybody is drained. So if you are just going on to Spotify, and you are just listening to Zoe Keating 20 times in that one month, you will money doesn't just go to Zoe Keating, your money goes into the pool, and it goes to Drake. Okay. Deezer has been talking about how they would really love to try a user centric model where your money gets matched to the actual artists that you listen to. So somebody that listens to low calorie music all the time elevator music, those chill time ambient artists or whatever, right? And but they're listening to it kind of 24/7 to like, keep the voices out of their head, then the those artists get relatively less, okay, but somebody who's listening to more experimental challenging music or you know, maybe just listens a little bit less, their money would just go to the artists that they're doing. Now, our understanding, and what we've seen reported is that it's the labels who were really blocking this kind of move from happening. But also the lack of transparency in this industry means we don't even have any modeling to really kind of figure out accurately how this would work. We don't know for sure, like, who would be the winners and who would be the losers because we didn't have transparency to kind of find out how different ways of dividing the pie would work. And so that means that we can't have public debate around how it should be So I think like the number one thing that we could do straight away, and we saw it with the audible gate example about how much change we can get by shining a light into dark corners, is we need to have more transparency everywhere, including in streaming.
Cory Doctorow 50:13
Yeah, it's you know, back to that joke from Ireland, it's, I always want to call it an Irish joke. And it's not like Irish joke means something different joke from Ireland. If you wanted to get there, you wouldn't start from here, you know. So the story was Spotify and the labels is really instructive. So you had the labels that control all the catalog, they control the catalog, not because they invested directly in it, but because they bought their nascent rivals and their major rivals, often in fire sale prices. The Spotify launches, in order to get access to that catalog, Spotify sells significant chunks of equity to the labels, the labels are investors in Spotify, they own a big piece of it, they negotiate a rate with Spotify, that's very low per stream. That means that the revenue that Spotify generates, doesn't come to the labels in their, in their guys as licensed source of licensed music to them, it comes to them as investors who've made an investment, because now Spotify has a better monetary, but cash basis, right, they're paying less for the music they've got. But they also have a most favored nation status deal. So if you're an independent label, and you go in, you have to sell at the same rate that the labels themselves have done. So you can see how you get like this can knock on effect where you have the monopoly, the big gets the monopoly, you have dirty dealing, the big gets the dirty dealing. And then you have an enormous amount of opacity in the relations between the labels, and Spotify. So the labels go in and they say, Oh, well, we're going to take a lower per stream rate. But in order to protect artists, we want a minimum monthly payout of X million dollars. Well, okay, if you get X million dollars every month, but because of the low stream rate, 20 million of it is not attributable to any given stream, because you're not charging much for the stream. That's unattributed revenue, and you get to do what you want with it, you can distribute it to the artists you favor, you can put it in a special account that gets spent on you know, ivory, handle back scratchers, whatever you want. You can you can do with that money, and there's no obvious way to know what's going on. It's all sort of hidden inside this very opaque set of interlocking commercial arrangements.
Rebecca Giblin 52:20
Oh, can I jump in there? Yeah. So that's actually a great example of the value of transparency, right? Because that's how it used to be. And then there was the Spotify contract with I think it was Sony was leaked, everybody kind of found out about all of this, the ways these deals were structured, and at that, at that time,
Nilay Patel 52:36
it was like that deal. out there.
Rebecca Giblin 52:40
It was very nice. That's right, it was you're in the book with that one. Nice. So when when that got leaked, and everybody kind of finally got confirmation that a lot of stuff they'd suspected was happening was actually happening, then the major labels got kind of publicly shamed into changing the rules around what you did with the black box money, that and attributable revenue. So again, we can just see, as soon as you shine light on those dark corners, we can actually achieve change without having to wait for the 50 years, it might take for an antitrust case to wind its way through.
Cory Doctorow 53:12
And you know, we've precedent for this. So before the Enron scandal, it was common for latest shifts of CD pressings. So they would press the they would press CDs, literally in the dead of night, and they wouldn't show up on your royalty statements. And they would sell those right so they could just trouser a third of the money. After Enron they passed Sarbanes Oxley, Sarbanes Oxley attributes personal criminal liability to executives who knowingly assault signed false financial statements, and the third shifts ended. Right, they just like it just turns out that if you threaten to put the decision makers who are who know about those third shifts in prison for them, it can reform their conduct. So we know that like if we if we change the incentives for the large firms, the large firms will will do better. I mean, this is one of the problems with the argument that you often hear that if you're not paying for the product or the product, it turns out that like what really determines how a firm treats you is whether they face any penalties for mistreating you has nothing to do whether you're paying them, it has to do with whether or not they fear retribution. And if you've if they fear retribution, they will behave accordingly. As our friends on the right like to tell us incentives matter.
Nilay Patel 54:27
So speaking of darkness, corruption and criminal liability, we have a Goldman Sachs question.
Cory Doctorow 54:33
Was this about catalog? It is,
Nilay Patel 54:35
like I said, the questions are falling into groups. It's interesting. You've self selected into small groups while discussions afterwards. So here's the first one. It sounds like labels. The tech industry in Hollywood is one set of problems but private equity is becoming a new, nefarious rising third player and then the follow up question. What's the role of Wall Street at Goldman Sachs in this world of choke point capitalism.
Cory Doctorow 55:04
Yeah, I mean, I think that we're now getting into the final chapter of the book, which, where we where we introduced what I am at pains not to call our final solution, which is the which is where we discuss how the kinds of market structuring we see in music ties into market structuring we see in other sectors. So, private equity is doing roll ups and entertainment, they, you know, the the bank rolled the roll up that Ticketmaster and Live Nation did, where they also rolled up a whole bunch more venues during the lockdown in the guise of a kind of bailout for venue owners and so on. But private equity likes to roll up lots of sectors and in particular, I mean, there's they they're not hugely discriminating, but one thing that they really like in selecting a sector to do these roll ups in is the workforce in the sector, mission driven, will they show up for work even if you start mistreating them, so like health care is a really big example. Like, you can really, really squeeze nurses and doctors and they just don't want to abandon their patients to die. And so they'll show up for work the next day. And so you have these big property, rural, private equity, roll ups of hospitals and emergency rooms and so on. And, you know, one of the, again, the efficiencies that they realize they claim they're going to come from, you know, better management or whatever. And inevitably, it's like, majorly, the major efficiencies, cutting wage bills by by squeezing workers harder. And in the last chapter, we talk about the fact that this means that there is a potential for solidarity and movement building cross sectoral really, and we quote, the work of a guy named James Boyle, whose copyright scholar at Duke University, and Jamie talks about the history of the term ecology. And he says that before the term ecology came into wide use in the 1970s, there were people who worked on all these different issues, but didn't think of themselves as fighting in the same side, right? Owls in ozone, are not immediately related to one another one is a gas in the upper atmosphere. The other ones are acute nocturnal, avian, right? And so how do you know that you are on the same side as the person who cares about ALS if you're fighting about ozone, and he says the term ecology turns 1000 issues into one movement. And today, there are people who are on the wrong side of this private equity rollout, who are on the wrong side of it, because they're nurses, or because they teach in charter schools or because they work in fast food or because they work in construction, or because they work in any number of fields. And they all think that they're worried about this, these these issues that are sort of abstract and related to their own industry, what's actually happening is they're fighting the same fight as their colleagues everywhere else, and all these other sectors. And you know, this is our opportunity to say to people, if you're angry about market concentration, and not just Roelofs, although that's a big piece of it, but also the way that it hurts workers in other ways. So, you know, all the cheerleading leagues are now owned by one company, and that's bad because they raised fees and stuff, but it's really bad because they are being rocked by like toe curlingly horrific ghastly sexual abuse scandals that carried on as long as they did, because cheerleaders didn't have anywhere else to go, because it was all under one roof. Professional wrestling is one leak, right? And all those performers have been reclassified as contractors lost their health care. They're all begging for pennies to die with dignity on GoFundMe. You know, beer is two companies spirits is two companies shipping is four companies. Banking is five companies like they're all every sector, no matter where you look is it looks like this. And you might think that you're angry that you, your rent has gone way up, because Wall Street bought all the houses for sale in your town. What you're really angry about is the monopolization of those houses. And you have a co terminal policy complaint with people are angry about professional wrestling beer, the entertainment industry, eyeglasses and shipping. And so that's how we build a movement, right is by recognizing that although owls in the atmosphere are not immediately related to each other, they are in fact the same issue. They are ecology. And this is the same issue. It's pluralism versus monopoly.
Rebecca Giblin 59:14
And we know that solidarity works. And one of my favorite stories in the book is the story of the holidays. This strike by the Writers Guild of America against the big four Hollywood talent agencies, of which two were owned by private equity. They were doing this Concord packaging, right, they moved away from this, the traditional arrangement where your agent got 10% of any deal they put in place for you, and towards this packaging system. Because these agencies had signed up all the writers or the directors all of the big talent in Hollywood. And so they they said don't worry about paying the 10% We'll take care of everything for you but you don't have to pay anything but we'll get a fee from the studio. Right now. The studio is obviously getting something in exchange for this. There was a cozy little arrangement where the In the studios and the agencies would negotiate a deal that suited them. And so even though we're in what's called the golden age of television, the share that was actually going to the riders was declining and declining and declining. And they knew that they had to take action to prevent this before it went any further, they ground out a two year strike, there was one day where 7000 Hollywood writers fired the agents, and they held the line, they work together. And to those private equity companies in particular, which were in there, they needed their exit, the exit was not going to work at all, if, if if the writers were able to successfully get rid of packaging, but they still managed to do it. After that two years, the last most powerful, most private equity ish agent agency gave up the ghost. And now there are new, much fairer, much more transparent arrangements there. So solidarity does work. We this is why we talk about systemic solutions, though. We're not going to solve these problems individually. If we're going to make meaningful change. We have got to do it together.
Cory Doctorow 1:01:06
And David, a good man who who ran that strike for the Writers Guild is going to be our interlocutor. He's going to be our melee on Tuesday. So if you have friends in Los Angeles, who want to come out to the Beverly Hills Public Library, main branch, I will be doing this with David and talking more about the writer strike.
Rebecca Giblin 1:01:22
Can I just say, as an Australian? I feel it's so exotic to have a book event in Hollywood. Amazing.
Nilay Patel 1:01:29
Good. I'm actually the answer to that. There's a there's a long chapter about that strike. But then a theme through the book that comes up over and over again, is that competition law actually cuts against individual creators who might want to band together, even as it protects large companies who might otherwise compete. Can you just explain that a little further?
Cory Doctorow 1:01:49
Yeah, well, so that we've seen this, since the very beginning of competition law, there's a lot of leeway in terms of what enforcers enforce against. If creators or workers are classed as independent contractors, and they all get together to set a price for their wage, then they are, the way the law can treat them is as a bunch of small and medium sized enterprises who are rigging the price of a good, which is their labor. So you see this with like truckers in the Port of Los Angeles being accused of price fixing, because they went on strike because they're being paid subsistence wages. It's one of the reasons that worker misclassifications contractors is such a danger to workers rights. But the other thing that we see is that like the last 40 years, if it's taught us anything, it's that antitrust enforcers have an enormous amount of leeway about which cases they take and which ones they don't. And if there was there was nothing that forced the antitrust enforcers to lay off and watch as companies bought their way to dominance, but turn around and put workers who are banding together under their gimlet AI, right. That was that was a matter of choice as a matter of policy, they could have made a completely different set of policy choices. So though it's true, that under under conditions in which the business lobby holds the whip hand, and that anti trust can be weaponized against workers. it the way that the business lobby gets the whip hand is by antitrust not being used against them so that they can build up the cash reserves and the market concentration needed to spend their way to dominance and to be able to agree on how to do that spending to dominance.
Nilay Patel 1:03:33
I've got two more questions that are a bit of a pair here. Although I fear they're a darker pair than the previous ones. So this one says are the new coop artists on streaming platforms like ambled a real hope for fixing some of these choke points? And then the follow up is, is Patreon already had SharePoint? Is it inevitable that it will become one?
Cory Doctorow 1:03:52
Maybe maybe you could talk about that photographers Co Op?
Rebecca Giblin 1:03:55
Yeah, I loved this. There were a couple people who had photography company that they sold out to Getty Images. And so they did really well out of that. And then they were dismayed to see the kinds of terms on which photographers were being the terms, photographers was being offered under the new ownership. And so they used a whole bunch of the proceeds from their exit to create something called stocksy, which is a photographers Co Op. I think they control the numbers, if I remember, right, it's about 1000 members across a whole bunch of different countries, they get a way biggest share from the proceeds of licensing than you do from from other stock image platforms. There's a lot more democracy in terms of the decision making and so on. It's a really, it's an inspiring story. But you see that you've got to have these particular conditions in place in order to actually achieve something like that. One of the huge challenges for creators in particular who wanting to corporatize is getting the startup capital to allow them to do so in the first place, because they've been shaken down. So long and so hard that nobody's got any money, right? So we talk about, well, what if you know, some of these trillions of dollars of bailout money that was, you know, washing through while we're writing this book? What if some of that was targeted, instead of giving it to private equity firms to sort of cushion their margins? What if we targeted that kind of support much more directly to putting the conditions in place to allow that kind of thing to emerge? And again, it's just what we've been talking about, you've got to get the incentives right, to change behaviors. But as I was talking about earlier this day, as Stafford B says, the purpose of a system is what it does, when we say, Hey, look at all of these different ways in which all of these different laws and practices benefit big business. That's not a bug. It's a feature, right? And if we want to change things, so that that's not how it works, we need to be demanding that.
Cory Doctorow 1:05:52
And as to whether Patreon is a choke point, I think that the productive thing to say is what characteristics would make Patreon not a choke point. So portable audiences, right? If it was possible for you to easily move your audience with you to somewhere else, if you'd like Patreon, that would be a thing that would keep it from being a choke point. And one of the things about those, removing the choke points from these firms is not just that it lets people leave when the firm treats them badly. It puts the firm on notice that if they don't treat their workers well, they can leave right to disciplines firms, to know that, that there is a cost to their bad actions. It's again, it's not it shouldn't be controversial, that if a company can figure out how to make money by mistreating someone without the risk of them retaliating that there's a higher likelihood that they will mistreat that person in order to make money because they don't have to worry about retaliation. And likewise, if you make it so that there are consequences, when a firm mistreats, its workforce, then that firm will treat them better. I mean, we just saw this with the so called Great resignation, which is obviously this like complex thing that has to do with millions of people exiting the workforce, millions of people dying, and so on. But, you know, the upshot was pretty straightforward, which is that employers used to treat their employees very badly had to improve how they treated them, not just how much money they gave them, but how they scheduled them, and what their overall working conditions were. And because they just had to worry about that workers leaving you have to worry about your workers leaving you have to treat your workers better. It's it shouldn't be controversial.
Nilay Patel 1:07:29
I feel like I want to do a lightning round of things that are are and are not show points with you. Go. So let's start a Patreon is Patreon right now presently constituted as a trigger point.
Cory Doctorow 1:07:39
I don't know enough about the market to know if it's your point. I mean, there's only fans, there's Patreon. I don't know what else there is there's Kickstarter had a thing for a while that I think they dropped. I don't know two firms, probably a choke point.
Rebecca Giblin 1:07:50
Come on. Nearly, we looked at a ton of things in this book, like, Oh, what about all that things you didn't look and look at?
Nilay Patel 1:07:55
That's why I'm here. I gotta make it spicy. Right. You can't have a monopoly on the question. substack
Cory Doctorow 1:08:03
not a choke point. They let you take your audience with you.
Nilay Patel 1:08:06
But they're building an app, right? I mean, this is to me one of the big moves that all of these companies make sure they promise you an awful lot as a creator when you sign up, right? AppSec certainly promised an awful lot. It's just email, right? Yes, we are way right out of substack. Yeah. But now there's a reader app. Have they built it yet? Oh, it's out and it did it? I don't know, my favorite part of the substack reader app is that if you have it, you get the notification about a new newsletter from the reader app, like 30 seconds before the email arrives. Wow. Like, it's like it's updated that much. And I'm like, ask for it.
Rebecca Giblin 1:08:39
But if it's not, I think the answer for all of these is if they're not, they want to be that's the aspiration, right, of course, you want to roll up your market, you want to look in your your users, you want to look in your suppliers, you want to be able to use that power to eliminate competition. And then once you've done all of that, to shake everybody down so that you get more, and in fact, that's driven by you know, fiduciary directors, fiduciary obligations to their shareholders, like they have to do that.
Cory Doctorow 1:09:06
Or they, I will, I will know, without without meaning to to undermine that, that there is there are lots of people who understand shareholder law, who say that that's like just a fairy tale that greedy people tell their children to explain why they act so horrible, right that like that, like Milton Friedman said that that was the case. But like, I don't think that there are a bunch that there's a bunch of jurisprudence that says, if you take into consideration other matters, you, you have failed in your fiduciary duty.
Rebecca Giblin 1:09:35
Yeah, although I think the just veering off a little bit here, we could definitely make those duties a lot clearer so that you've got obligations to the planet for example, instead of just just hold us whatever that looks like in practice.
Nilay Patel 1:09:48
Alright, someone asked this question, and I would like to thank them, because now doesn't seem like my idea. I appreciate you. What about web three in the blockchain
Cory Doctorow 1:10:01
So I'd like to remind you that 98.7% of all conversations about the blockchain are non consensual. So
Nilay Patel 1:10:16
I want to point out, I'm gonna do my best. abstractly. The the promise of the blockchain solves many of the problems
Cory Doctorow 1:10:27
that you have people, people who this is the part where me and the blockchain are on the same side is when I hear blockchain, people talk about why they why they want to block the chain.
They're always saying things that I agree with, right? They want to devolve control, they want to spread it out, they want to make a system where users have more control, they want to make a system where there is exit to community. So communities can control the services that they use. All of that sounds great to me. And then I look at the technical and economic characteristics of the blockchain, and I go, this just doesn't do that. Right, it just, and not only that, but it can't, right. So like, again, without getting into a lot of crazy technical detail, if you're going to have like a permissionless. Blockchain, you need civil resistance, you need to make sure that like the people who are voting to make a change, aren't just the same person wearing 100 hats. And if you're gonna make it civil resistant, then you need to have disinterested third parties, like who don't care about the outcome, who do a bunch of something, they stake something, or they do some work or whatever. And if you're gonna do that, then you have to have some way to incentivize them to do it. And if you're incentivizing them out of the goodness of their hearts, then you don't even need any of this, because you're just like, Oh, I just found some people who have goodness in their hearts. So you can just throw away all of this, and the blockchain is unnecessary. But if you're like, oh, maybe they're not good, then you need a reason to incentivize them. And that's going to be something involving speculation. And so now your community owned thing is grounded in the idea that it will be controlled by people who don't give a shit about it, and are only involved because they hope that something that they did was, well, they can speculate on something that the outcome is something that they did, and gamble with it and make more money. And so this is just like a foundational disalignment in the story of worker owned community owned, decentralized, whatever. And then the actual practical outcome of cryptocurrencies has not been a distribution of power in the sense of like reducing the number of billionaires, what we've done is we've just increased the number of banks where billionaires can hide their money. Right? So you know, again, like, if you're saying, Well, we're going to decentralize finance, when when I hear that I think the part of that that I liked the sound of is reducing the number of like policy failure factories, which are billionaires, right. But this is just like making them more robust and harder to lay hands on. And I'm just not all that interested in that there is a kind of realm of distributed computation, peer to peer stuff that I'm very interested in that trades under the blanket name of subsidiarity, which comes out of like 16th century liberation Catholicism. I just found that out this week. But subsidiarity is just like this whole suite of technologies and systems designs that are grounded in like social situations, socially situated knowledge, socially situated identity, socially situated governance, and it's about like, not using speculation to organize your systems using solidarity to organize your systems. It's, it's really cool, and I'm on board for it. I'm on board for the goals of it. I just don't think that you get those goals by doing the thing that they say they're going to do. I also don't think it can ever be money. I just think that like, for a thing to be money, it needs two things. One is that there needs to be some liability that you can only settle with that thing. So like the reason us money is money is you have to pay your taxes with it. And if you don't pay your taxes, they put you in prison, which means that if you have US dollars, they will be valuable to someone because they're going to need US dollars on April 15. And so people will accept your dollars for work and that makes the US dollar valuable. Not only are there no liabilities that you can only settle with cryptocurrency there are no liabilities that you can settle with cryptocurrency nothing is for sale in cryptocurrency except other cryptocurrency and NF T's and ransomware payments, right like there's like you cannot buy a board ape hamburger at the board, APE hamburger hamburger stand with board eight coins, because of the other reason that cryptocurrency can't be money, which is that any economist whether they're a Marxist or an A an Austrian will tell you that if you have a commodity that has a fixed supply and a variable demand that the price of that commodity will be variable, right? It'll be volatile, because the number of people who want it will determine the price right price is set by supply and demand meeting. That's the Laffer curve. And if you have if the if the if the supply never changes if it's fixed, then the changes in demand will make the price go blue. Well, that's why they don't take board eight coins for board ape hamburgers, because you're paying for your ground beef and dollars. But the exchange rate between dollars and board eight coins is different from second to second. And so you go broke if you try to take cryptocurrency and exchange for things that are denominated in stable currencies, because stable currencies are stable, because we have central bankers who alter the money supply based on the amount of demand that we have for money, right. So all of that is my wonky way of saying like 96% of all conversations involving blockchain chain are non discretion are non consensual. And I think that the goals of the cryptocurrency movement are very noble, at least for some of those people, but the actual use of cryptocurrency won't achieve those goals.
Nilay Patel 1:15:44
Dear God, I'm going to do this and ask a follow up question. Oh, God, I'm so sorry. I pre apologies to everyone. Um, that's cryptocurrencies. Right. There's the other side, which is the NF T.
Rebecca Giblin 1:15:59
is such a nice venue.
Nilay Patel 1:16:01
Look, I think we're at time, so I'm just trying to do a little haul raker. Here.
Cory Doctorow 1:16:04
Again, it's one of those things where it doesn't do any of the things they say it does, right. So so an NF t like? That's the question. So an NFT, an NF T was. So Anil Dash invented NF T's as a way of allowing artists to thank people who did something nice for them. And what it was is like, if you paid me a compliment, or gave me some money, or whatever it was, and it was related to something that I made, I could then put an entry in the blockchain that would be there forever, or as long as the blockchain was maintained. That said, Nilay Patel, Cory Doctorow, those little brother, this date, right? That was all it was, it was like, it was like a little plaque on the front of the building, except that I can put any URL on there. So I can put this little plaque on anyone's building. And that was why they were like, this isn't a thing you can sell, because that would be bananas. Right? This is just a thing that like, is socially situated like Nilay values it because he knows that the building I put the plaque in front of is my building. And but the only way Neal I can tell that to someone else is if they like intrinsically trust Him, if we actually just try and trade them, it doesn't make any sense. So now you have this thing where people are able to issue NF T's that relate to any URL arbitrarily. They can also even if they control the URL, and they're saying, Oh, well, this is a testament to the uniqueness of this NFT that I just sold you. They can just copy that thing at another URL. So it's like NF T dot HTML, they can have another one called NF T one dot HTML. And they could they could be byte identical except for the file name. They could issue that all the promises about the smart contracts that go along with it. The pay artists are completely nonsensical. So this, oh, you've got a smart contract that pays a royalty every time and nfts. Trades hands while the smart contract is a little computer program that says if an event called sale occurs, then create this royalty split and send the royalty to this wallet. So if I want to sell the NFT to you, and I don't want to pay royalty, I don't call it a sale, I call it a sale underscore one. And the smart contract goes, was there a sale taking place, and it looks through its list of things and it goes I don't have an event here for sale underscore one that doesn't relate to my business logic that NFT can now be transferred that a royalty like none of the claims made about NF T's stand up to even the most cursory scrutiny, right? And so like, if there are a tower of nonsense, and and, you know, the epitome of a speculative bubble. And so I just I, again, like they, like they have to, they have to like, have a coherent story for us to critique them on a substantive level. But they don't have a coherent story. This story is like on a technical level incoherent, they're like, What if water wasn't wet? What if gravity didn't exist? What if three was equal to two? Think of all the cool things we could do? And like sure, thought experiments, great, but then they said, Guess what, three equals two. Let's go do those cool things. And you look and you're like, I'm pretty sure that's three. They're like, No, it's too it's too. You know, at a certain point, you just have to say, Guys, you're just making a lot of noise about nothing. And either you're lying to everyone else to steal from them or you're lying to yourself. Either way, I don't have anything to do with you.
Nilay Patel 1:19:18
Rebecca, you're at copyright professor. When you examine the claims, do you have a visceral reaction as far as
Rebecca Giblin 1:19:26
NF T's or a grift? They've always been a grift.
Nilay Patel 1:19:29
There's still there's a blockchain investor, like a million dollars outside. He's like, Oh, shit, he's like walking the other way. So I'll just ask you a more philosophical question with him. A lot of the reasons that the choke points exist, is because the physical scarcity of culture has gone away because of the internet and technology. Right when artists would sell a CD to you 15 bucks a sale. You could see the transaction. You could have the second sale without DRM and the way all these sorts of things, books Same deal. Amazon could not DRM, a physical copy of a book, you had to print the books shipped them all the things happen along the way. Lots of middlemen made money along the way there. We've disintermediated all of those middlemen, we now sell digital culture. It is infinitely copyable. And we mostly I know, there's a chapter in the book about the difference between streaming streaming and downloading, or at least a line, we mostly stream it to people, we treat it as ephemeral, and not as a collection of atoms, NF T's for all their many problems, and I agree with you on the many problems are an attempt to reintroduce scarcity to digital culture. Is that the right philosophical direction to go in? Or is it remake the business models for Federal Culture?
Rebecca Giblin 1:20:41
Can I push back on that idea that the choke points come from the transition to digital, right? We've always had these in creative labor markets. The right from when the very first copyright statute was created in England in 1710, the stationers company, were the ones that were controlling everything when those rights expired. So this, this was an attempt to like take control away from stationers company give some to authors. When those rights expired, then those publishers just refused. I had a gentlemen's agreement with one another, they refused to publish the books of other publishers, so that the authors still had no choice and they still managed to sew them up. We've seen these choke points throughout history in the music market, like maybe worse than anything else, when those record labels that I was talking about. And those music publishers were the ones that controlled physical distribution into stores. Right? What we saw in the early 2000s, around the Napster was, yes, there was carnage, there was blood on the walls, a lot of creators and people who worked in the music industry, so the incomes absolutely decimated. We don't want to romanticize this period. But one thing that the switch to digital did was it democratized access to these markets, it allowed musicians to reach audiences without having to go through those middlemen. And so I think that's the secret what we've got to be doing to group to break these trip points, the philosophy we're going to be aiming for, is to put the conditions in place where we can encourage new entrants, where we can, where we can support countervailing producer power in the hands of artists and investors. That's the philosophy we should be working towards.
Cory Doctorow 1:22:26
Yeah, I think that you have to remember that lots of things happened over the last 40 years. So one was the growth of digital technology, right? But the apple two plus went on sale in the summer of 1979, as Ronald Reagan hit the campaign trail, and digital technology is as old as neoliberalism, like, almost precisely as old as neoliberalism. And one of the things that happened under neoliberalism was a dismantling of the regulations that we use to stop firms from accumulating power that they could use to put the screws to their workforce. And, you know, there's a there's a much more sort of parsimonious explanation for what happened to give these companies power over their workforce than the explanation that they just used. That they that it was has to do with digital lack of scarcity, which is that they bought all their competitors, and then sewed up their audience using law and technology, right? And then that gave them bargaining power over their workers. And you don't have to reach to exotic explanations, because it's right there, right? How did Universal Music end up controlling so much of the music industry, they bought all their rivals, there's actually a great book called Creative licensed by Kimberly McLeod, that we cite in the book about the history of sampling. Peter Kohler is Peter TO CALL Thank you. Yeah, about about sampling. And, you know, when sampling started, the assumption was, there was just no copyright interest. And it was either as fair use or as de minimis too short to bother with in the law. So people just made albums with lots of samples. Paul's boutique, like hundreds of samples, takes a minute a nation of millions to hold us back hundreds of samples to top grossing hip hop albums, right, had tons of samples, none of them cleared. And then we got a couple of court cases, it became the norm that you cleared samples. And for a short period, heritage X made a lot of money, people who signed terrible record deals, and made r&b and soul almost all black, almost all having signed these, these deals when they're quite young and didn't know better under under super abusive, of course of conditions. And they got paid for a while. But the other thing that happened was that in order to license music, in order to sample it, you had to be signed to a label because the labels didn't want to return your calls if you didn't, if you didn't originate with a label, and so everyone had to sign the contract with a label if they wanted to make music that had samples in it. And when you signed that contract, you signed away your right to revenue from your samples. And so you just had this flywheel where everybody wanted to make music that had samples in it had to sign up and sign away the right to have their own music sampled and it just ended up in the labels pocket, you can see how that mechanism worked. It's not like the shifting of value from performers side of the balance sheet to labels. Investors didn't come about as a result of it being too easy to copy things. Right? It came about as a result of like this, this intermixture of copyright and and negotiating leverage that allowed them to just take control. And I think that we need to, we need to really look at the technical. When Pete when they say, Oh, this is how it happened, you need to ask what was the technical mechanism by by which the lack of scarcity caused that and if you can't find the explanation, I think you should look somewhere else. And I think we we have a lot of those explanations, not saying digital played no role, right. But I'm just saying that like, let's not overweight, this is like a clash of civilizations between the, you know, information wants to be free crowd and the information wants to be expensive crowd. And like, let's look at it as like a clash of material class interests that related to monopolies in their workforces.
Nilay Patel 1:26:10
I feel like I could definitely do another full 90 minutes. Yes, and whether you should pay for samples, and argue both sides, really quite ferociously. But we have got 90 minutes. I want to end here. It's a good question. And I think all three of us have different answers to it. It is a little individual action, but I think it's the right place to end. How do we as individuals, particularly artists, who are not getting paid enough right now, keep our heads up and survive? I mean, and you have survived every version of the creative economy.
Cory Doctorow 1:26:45
I mean, I. So I don't kid myself that I'm not very lucky. I'm very, very lucky to have to have gotten where I've gotten, you know, the, when I talk to students that I teach, as writers, I say, like, Don't quit your day job is not just a snarky thing. It's actually sound advice, it gives you something to write about, as well. So reason that I left eff for a while to write full time and then went back. And it wasn't just money, it was because like working for a nonprofit is not a lucrative thing to do. It was because I needed things to write about. And also that of all the students I've taught and who have gone on to success, the ones who had the most success were not the ones who are the most promising. They're the ones who stayed at it when they were discouraged. And I think that in the arts labor world, irrespective of monopoly or not monopoly, it's always only ever been a tiny fraction of the people who wanted to make art who found a professional living doing it, lots of people have made art, but who were able to support themselves doing it. And the chances for success are so narrow. And so few and far between that you have to keep plugging in ways that don't make any sense. I think this is one of the reasons that we get treated so badly is because like the only people who stick with it are people who can't bear to quit right as the joke about the kid who runs away and joins the circus is Dad finds them shoveling elephant shit and says son come home. And he says what and quit show business. And so I think that none of that is like a guarantee of success. But I think it is a necessary precondition for it. And I think that will be true, no matter what happens, like my goal is not full employment for every artist, except in a kind of UBI way. My goal is that if your art makes money, that you get to keep the money, I think that's like that's a that's a much more reasonable goal that we can reach to. Also I would like UBI for artists, but I think we can like before we get to UBI for artists, we can just say, if your artists making money, you should get that money.
Rebecca Giblin 1:28:51
For me, honestly, with a lot of my artist friends, I don't know how they do keep their heads up. But for the ones who are more successful at it, aside from everything that Corey said, which I agree with, it's I think it's it's around connection and community. It's around talking. I think, for a lot of people when you're not making very much money, it can feel like a real failure, you're slogging it out, you're working so hard. You're like, especially if you're writing you know, that's the sports reporter who said, what writing is not writing is not difficult. I just go over to my desk, sit down, open my typewriter, Open my veins and bleed. Right? It hurts. But by talking about it by understanding, like not trying to hide how hard it is and how little money that you're making, and then understanding that it is like that for other people too. That's one of the places to find solidarity and one of the ways to mobilize together, which is one of the things we bang on a lot about in the book, but also just to make the getting through the day to day a little bit easier.
Nilay Patel 1:29:54
My minor addition to this is that there's a difference between having an audience and having algorithmic audience. And as I read the book, the thing that struck me is we often misconstrue the audience provided by algorithms as actual audience, and that lets the choke point become ever stronger.
Cory Doctorow 1:30:12
That's well set. Thank you. Neela. Thank you nearly I don't
Nilay Patel 1:30:15
understand why I have the last word here. But it was my answer to the question. We've got a few more. Does this return want to stay here for another few minutes? Or do you want to?
Rebecca Giblin 1:30:27
Feel free to just wander off and leave at any point? During an AP starts talking about NF T's again? Do it?
Nilay Patel 1:30:33
Oh, no. There's a Metaverse question here. That's how we're gonna really the question is about a little walk here, but I think they're actually quite interesting. Why are the PRS professional rights organizations still around if the system isn't working for anyone who's that person obviously asked the question, whoever wrote
Cory Doctorow 1:30:52
it, your music coalition founder, Brian says. You answer that.
Rebecca Giblin 1:30:59
Okay. So again, we've talked about we've talked about these these powerful interests right throughout tonight, and the collecting societies are really powerful. One of the reasons for that is that they, frankly, very often, they use artists as docking horses to mask other people's economic interests. And they, they speak for artists, but very often, it's in ways that puts money directly into their own pockets, and supporting these inefficient structures that we've been talking about. It's much easier to set these things up than to get rid of them. And Korean, I think we're both not huge fans of a lot of international copyright treaties, or there's a couple that do a great job like the Marrakesh Treaty for the people with visual impairments. But I think this is a place where there is actually a really interesting possibility for an international treaty, to get countries on board with creating a modern, global, shared database that gets rid of these inefficiencies, like a global pact, that we all get rid of this corruption. I'm not saying hashtag, not all collecting societies, but a lot of them, but gets rid of the corruption and mismanagement, the waste. In order to get that money more directly into artists pocket,
Cory Doctorow 1:32:10
one of the things that we talked about in the book is that these rights collecting societies, often, if there's money that comes in, that's not attributable to an artist, they get to spend it on whatever they want. If we mandated that they had to spend it on finding artists, to give them the money, like building a better database technology, instead of instead of incentivizing them to not find the artist whose money they're holding, we could make it so that they they had to use that money to find those artists.
Rebecca Giblin 1:32:39
Yeah, and get the governance right to like we've got collecting societies that put aside a certain a certain percentage of what their license fees that they collect into things like cultural funds. The idea is that's money that can go out to support new creation of works. Fantastic. Except in some countries like Australia, it's the border of the collecting society that decides where that money goes, without any kinds of guidelines or any kind of transparency around it. What that means is that artists are incredibly reluctant to speak up against them, because they fear that one of the last remaining sort of substantial sources of arts funding might no longer come their way if they do, right, we definitely got a lot of work to do on the governance.
Nilay Patel 1:33:24
You brought up, actually international treaties and international law. We have a great question here. A lot of what we talked about is based in the US, there has been a lot of movement around the world, what's the potential to affect change by passing legislation in non US jurisdictions. The example here is the GDPR, which I think is another potential hour of debate. But I'll give you the Australian link tax situation where public where Google and Facebook have to pay publishers.
Rebecca Giblin 1:33:50
I was actually gonna say, can we talk about the different like the DSM directive instead, because that's something that's really, really interesting. The European digital single market directive has got some pretty problematic stuff in it. But it's also got some protections that are actually squarely aimed at helping creators. And that includes a transparency mandate over things like artists pay so that every member state has to enact laws to allow creators and performers to find out much more about how their work is being used and paid for those things like use it or lose it rights, if the works no longer being commercially exploited for artists to be able to get their rights back. And then there's requirements as well for fair and reasonable remuneration like like minimum wages for creative work effectively. And I think that those are really important interventions that all other countries can learn for from and we're seeing them get implemented right now. And we can see ways that it's being done well and less well. And we should be following that really closely. And thinking about much more direct mandates to to support authorship here as well. One of the wild everywhere by here, logical here everywhere.
Cory Doctorow 1:34:59
One of the one I'll think about about international copyright law is often things that are actually good in the American system that other countries try to enact. The American, the US trade representative will show up and go like that's communism. So the South African Parliament has been trying to pass Fair Use law. For years, I think they're finally going to do it, it looks like they will. But the greatest impediment to this Fair Use law which is basically a copy paste of American fair use, it has been the US trade representative who keeps showing up and going like, this is a terrible idea. Oh, my only a stupid person would have this law.
Rebecca Giblin 1:35:35
Oh, and by the way that will violate your international obligations under the Berne Convention. Yeah,
Cory Doctorow 1:35:40
yeah, it's this it's
Rebecca Giblin 1:35:42
law, we can have it, but nobody else.
Cory Doctorow 1:35:46
So one of the one of the better elements of American copyright law that still has room for improvement is something called termination, right? That Rebecca is one of the world's experts on, which is the right after 30 years to send a letter to the Copyright Office file some paperwork and say, are 3535 35 filed paperwork, I knew as I said it, I got it wrong, file paperwork, the copyright office and say, I know, I signed away my rights forever. But I'm, I'm taking them back.
Rebecca Giblin 1:36:12
That was a great idea. And in theory, right. In practice, like I said, you've got these people, these powerful lobbyists for the content industries, in this closed door room, there are transcripts that I managed to track down, which are just incredible to see that the quiet parts that they were saying out loud. And they managed to water it down from the initial proposal, which was that after 25 years, 25 years after an artist transferred a copyright, they would just automatically get it back. And then by then everybody knows what the work is worth, you've got a chance to maybe you license it's back to the same company, or maybe, you know, you know, maybe you get a fresh advance, maybe they invest something in publicity, maybe you give it to a different kind of company, we can see like how different the music landscape would be if that original proposal had come out, because the music, the record industries would know, they couldn't just rely on having your copyrights for 95 years, right, they would every 25 years have to be putting the conditions in place to make them more attractive than a competitor. And then they wouldn't have such control over the future of the market. Now, what actually happened in that closed door room is they like made it as impossible to use as as they as they could. So now it's after 35 years, it's not automatic, you've got so many hoops to jump through. And it's really unclear exactly when it will be possible to do this successfully. And a recent study that my team did, where we did a we scraped the Copyright Office database, we got every single copyright termination notices ever been issued, since that those those laws were created in 1976. And we looked at how it was actually been used and they they're hardly being used at all, because creators know that there's going to be so much expense and uncertainty if they really want to push this that there's absolutely no point. Okay, so it's a great idea and practice, implemented in a terrible way. We've got every possibility in the world of doing it better if we do you actually want to take creators right seriously,
Cory Doctorow 1:38:20
and some creators in the US have used it successfully Sweet Valley High all those books, Babysitter's Club books, or Clinton's catalog. But surely Stephen King books and Dean Koons books, they're all terminated in this way. Now the heirs of Stanley are trying to get the characters back from Marvel Disney, which is pretty wild. But and then the person who made the game of life for the Hasbro Corporation, his kids are trying to get the game of life back from Hasbro. So all of that is interesting. It's like it actually has made a material difference to a small number of creators but a substantial one. And so Canada contemplated a termination right our homegrown hero Bryan Adams I'm a secret Canadian we're like serial killers we look like everyone else and we're everywhere but but but you know, Bryan Adams went out and stomped for for this and the US Trade Representative was like I'm sorry guys, that's communism. You know that that would just be you just can't do this it would be so bad for you. You don't understand and you know it's it's it's amazing the extent to which the best features of American copyright law are those the only ones that America doesn't foist on the rest of the world. I think we can do two more. Keep going
Rebecca Giblin 1:39:40
we do have two books gonna say I got a text from Michael saying we were supposed to finish at eight.
Nilay Patel 1:39:46
I literally opened the page for the Eventbrite to see if there was an end time. Shit there isn't one. So we can we use that ID here but I'll ask this one because I think you both have an answer here. And then I promise I will leave you to sign And
Cory Doctorow 1:40:00
if we if we don't sign them, they'll be returnable. Yeah.
Nilay Patel 1:40:03
You pay breakage fees. But this one's a good one. And it's a great place and you spent a lot of time talking and movements and groups. You've danced around unions. Why is that?
Cory Doctorow 1:40:12
Oh, no, we're totally down for union. Yeah, no, that's
Nilay Patel 1:40:15
why I knew would be a good question. But there's like, it's hard to create unions, but they
Cory Doctorow 1:40:21
shouldn't no workers should have unions. And creative workers should have unions.
Rebecca Giblin 1:40:25
And that's where you look at the conditions that made it work in Hollywood, you know, where they've got really strong unions that you can't just be like, Okay, great. Now we've got a union, like, how do you build a trust? How do you build the solidarity and like the really terrific examples, they've done it slowly, over time, they've got a track record of success. People in those industries come out, and they put themselves on the line for their peers, right, even when their own deals are made. And they're not really at risk here. Because they're powerful enough, they do it because of that history. And so we need to start small, we need to rebuild trust, and we need to, you know, just just just build it up. Alright,
Cory Doctorow 1:41:01
we have a whole chapter on unions. And it involves our interview with David Goodman and the history of sectoral bargaining and Hollywood and how it used to be that all the unions would negotiate together as a bloc, and then go to the weakest studio and get the best deal they could. And then they take it to the next week, a student they go like, this is the deal you're gonna take. And under Reagan that got reverse so that now all the studios bargained together as a unit because they have an antitrust exemption, and they go to the weakest union, and they get a deal and then go to the next strongest union. And again, like we don't have to, like this is one of those things where like, there are all these explanations that are in the realm of ideas about where this worker power over, you know, the American tolerance for unions changed or whatever it's like, no, it used to be that all the unions negotiated together with the weaker studio. Now the studios negotiate together with the weakest Union. It has a completely easy to follow linear relationship between the creative wages that these workers bring in, which suggests a completely easy way to reverse the problems with it, which is to simply change the way that back to the way that we used to do it.
Nilay Patel 1:42:00
I thought I was gonna lay up short answer, but there's the answer. It's in the book. They're gonna I think you guys are gonna get assigned some books. The well thank you so much.
Cory Doctorow 1:42:07
Thank you all for coming. Thank you for coming out.
Announcer 1:42:17
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