Sweet Little Lies

Intellectual property rights attract intellectually thin arguments...watch out for them in the months to come.

This piece was inspired by the mighty Polly Vernon, who rightly couldn’t fathom how readers could get so cross that they were asked to pay to read her (excellent) Substack articles, when they would rather read her life’s work for free.

Polly is not the only creator pushing back on their right to be rewarded for their work this week. The Knights (McCartney, Elton) and the Lords were all at it too this week, debating the future of copyright law in a world of all seeing AI.

Most debates of this nature are a battle to define one side as the good and the other as bad-tending-to-evil. In this case it is important to the Content Larcenists movement that they can define creators as greedy, selfish, technically uneducated or just dull defenders of the status quo. (1)

Here are a few of the arguments that are starting to become familiar to those of us on the side of creators and their income.

The Moral Obligation Lie - “It’s so good it should be free to everyone”

Used in platform contexts, particularly for freemium publishing where some content is accessible and some is paid. The main argument is that the content in question is so good that it is selfish of the creator to try to profit from it, and that they therefore have a moral duty to make it free to all.

This one comes with phrases like “Everyone needs to know this” or “if you put it behind a paywall no-one will read it” or “If you really cared about the subject you wouldn’t try to make money off the back of it”.

In the end it’s just entitled toddler logic; “I see it / I want it / I deserve it / I am crying hard so you’ll give me it”. Good parents and creators must resist this behaviour and remind people that they make the rules.

Anyone who creates writing or music of value can decide how they choose to charge for their work. If they can’t make a living no more great writing or music gets made. The moral obligation here is in fact to support it.

The Whatabout Lie - “But I can get it for free over there”

The next argument is a variety of “Whataboutery’, and old Soviet tactic which aims to deflect criticism by suggesting double standards are at play.

In the copyright debate this comes in response to an assertion of the right to be rewarded on some platforms or channels, and says ‘well what about platform X? You give it away free there?’

Essential argument is that once permission is given for any access to a person / a platform / a publisher, that all rights are automatically waived. E,g as soon as I publish an article and allow Google to index it for search, I am automatically giving permission for Google to use it in any other products they choose, plus any AI company the right to scrape it plus anyone the right to lift and republish on their own site etc etc etc.

Or as Mark Zuckerberg (2) put it recently -

“When you put something out in the world, to what degree do you still get to control it and own it and license it?"

No. Anyone who creates can decide how to distribute their work. Like any brand they get to decide to work with many distributors and retailers where they like the terms of trade, because they own the product.

The Pace of Progress Lie - “New technologies are too fast for old laws”

In any period of technology innovation in history, the new order seeks to replace the old, and gain exemption from a few laws on the way.

Uber didn’t want to be held responsible for their drivers. Napster didn’t want to pay musicians. Railroad barons didn’t want to have to pay fair prices for the land their tracks ran through. Many owners of the first printing presses didn’t want to pay authors, leading to the Statute of Anne in 1710 which gave authors rights over their work.

This is not a new phenomenon. The modern twist is where this is built into the capitalisation and business models of the companies themselves - it is existentially important to the share price of social media and artificial intelligence companies that they do not have to value content fully. So important in fact that they can’t speak of it.

A more attractive argument is that the law is old and boring and slow, and new things are exciting and fast. Nothing to be done about it and so in the interest of progress / growth / future prosperity we should just leave the law behind and anyone who says different just wants to slow the future down.

The lawyers representing those companies will know that protection against this is actually built into English law under the “Always Speaking” principle. That says that the intent of any law automatically applies to things that did not exist when it was written, if they are just modern versions of logically similar things. Good laws expect to have to move with the times, because good legal principles don’t change that much. (3)

No. Anyone who creates deserves protection from the law as it has been established (this is true of all property rights law). New ideas often challenge the boundaries or interpretations of laws with new use cases - but they still should operate within the same principles of rights that democratic economies are built on.

The Eyerolling Complexity Lie - “Sure, but it’s too hard”

If the first three arguments are overcome the last defence can be to simply shrug at the unimaginable complexity of it all and argue that even if this is what we wanted it is just too difficult operationally so it is better not to bother.

This worked well for social media companies resisting age verification, and even better for Google on ad tech monopoly rent seeking.

My favourite version of this recently is where the spokesperson explains how agentic AI will be able autonomously to learn, make decisions and collaborate with humans to solve millions of problems faster than ever before, but that building copyright licensing tools into that design is simply impractical given how complex it would be.

No. If the rule of law applies, and you can’t manage to stay within it, the problem lies with you not the system. Physician, heal thyself.

These are my current four favourites to watch in action - please do share back any examples that you see of these sweet little lies in action. I leave the last word to Paul McCartney (4);

"The truth is, the money's going somewhere. Somebody's getting paid, so why shouldn't it be the guy who sat down and wrote Yesterday?"

Footnotes

This article was previously published on Substack https://substack.com/home/post/p-155930250 . Sign up there for email newsletters of this type.

(1) Status Quo as in ‘that state which exists’, not the band. As a reward for those of you that read the footnotes here is an AI generated image of Francis Rossi which he very likely did not approve. https://creator.nightcafe.studio/creation/uKN0VLpRB2T0JaA2s7Mu

(2) https://www.theverge.com/2024/9/25/24254042/mark-zuckerberg-creators-value-ai-meta

(3) This was one of the principles that we used in The Times High Court case to keep digital newspaper editions at a zero VAT rating - the intent of zero rating print newspapers applied equally to iPad editions that could not have been captured by the original draft.

(4) https://www.bbc.co.uk/news/articles/c8xqv9g8442o