Caveat 10.13.22
Ep 145 | 10.13.22

Do copyright laws threaten the open market?


Glyn Moody: The people at the top of the system, as I said - they don't really need this and may well fight it. But, you know, they're not the future anyway. I mean, they're the past, so...

Dave Bittner: Hello, everyone, and welcome to "Caveat," the CyberWire's privacy, surveillance, law and policy podcast. I'm Dave Bittner. And joining me is my co-host, Ben Yelin from the University of Maryland Center for Health and Homeland Security. Hello, Ben. 

Ben Yelin: Hello, Dave. 

Dave Bittner: Today, Ben discusses the new Biden executive order on surveillance and data sharing with the European Union. I got the story of the consequences of a community banning ransomware payments. And later in the show, Ben's conversation with Glyn Moody, author of the new book "Walled Culture: How Big Content Uses Technology and the Law to Lock Down Culture and Keep Creators Poor." 

Dave Bittner: While this show covers legal topics and Ben is a lawyer, the views expressed do not constitute legal advice. For official legal advice on any of the topics we cover, please contact your attorney. 

Dave Bittner: All right, Ben, we've got some good stuff this week. Let's jump right into our stories. Why don't you start things off for us here? 

Ben Yelin: So mine was a bit of a Friday news dump... 

Dave Bittner: (Laughter). 

Ben Yelin: ...But it comes from The New York Times, and the headline is "Under New Order, Europeans Can Complain to U.S. About Data Collection." So we've been tracking this for a while now. The United States and the European Union are trying to come together to an agreement to provide for data sharing. It's very valuable. It fuels a lot of economic activity. If we can share data with the European Union and they can share the data with us, it'll help our companies and these same companies that operate in Europe really maximize their bottom line... 

Dave Bittner: OK. 

Ben Yelin: ...'Cause data is extremely valuable. 

Dave Bittner: Which - so what kind of data are we talking about? Is this Facebook? Is this - like, what... 

Ben Yelin: Yes. So, I mean, the companies they mentioned specifically in this article are Facebook, Google, etc. 

Dave Bittner: OK. 

Ben Yelin: And part of... 

Dave Bittner: The biggies. 

Ben Yelin: Yeah, exactly. 

Dave Bittner: OK. 

Ben Yelin: And it's been a very economically beneficial arrangement. The problem with this type of data sharing has come up in a couple of cases that have made their way to the European Court of Justice. So we had an agreement on data sharing with the European Union that was in place about 10 years ago. And then the Edward Snowden revelations happened, and the European Union and many of its member states became skeptical about the U.S. surveillance state and whether the data of citizens in the European Union was safe, considering some of our surveillance authorities. Then GDPR came later in the decade, and it enhanced the privacy rights of members of the European Union. So it became even more of a problem. The first agreement was struck down in a case brought by a privacy activist, Mr. Max Schrems, who is a recurring character in this story. 

Dave Bittner: (Laughter) Right. Right. 

Ben Yelin: So the U.S. and the European Union came to a new agreement to try to ameliorate some of the complaints from Mr. Schrems and others in light of GDPR. That agreement was also struck down in Schrems II - the second Schrems case - where the European Court of Justice said that the U.S. had not properly reformed its surveillance laws. They cited a couple of surveillance authorities - Section 702 of the FISA Amendments Act, Executive Order 12333. They - the European Court of Justice said that the data of European citizens was not safe as it traveled through the United States. 

Ben Yelin: So since Schrems II, the U.S. and the European Union have been trying to work closely on an agreement that would pass muster in the European Court of Justice. And they have reached a preliminary agreement, and that's reflected in this executive order. The big new provision here is giving Europeans the ability to protest when they believe their personal information has been caught in America's online surveillance dragnet. So if any citizen in the European Union - or any government official, for that matter - feels that their communications have been caught up in our massive surveillance programs, they can complain to an official in the office of the Director of National Intelligence, and it will go in front of a new entity called the Data Protection Review Court. And that's going to be an independent review body. 

Ben Yelin: So there's sort of a desperation here. I mean, we might be heading into an economic downturn. This is productive economic activity. So the U.S. and the European Union certainly have incentive to come to an agreement. And the Biden administration, in announcing this step, is trying to foster that agreement. The issue comes back to the main character in this story, Mr. Schrems. He is the privacy advocate and has been the plaintiff on the first two lawsuits. When I read this executive order, I was like, you know, this is probably going to satisfy Schrems, and we might have a working data sharing agreement that's equitable for both the European Union and the United States. 

Ben Yelin: But they interviewed Mr. Schrems at the end of this article, and he said, eh, not so fast. His exact quote is - at first sight, it seems that the court issues were not solved. And he thinks that this is going to go back in front of the European Court of Justice sooner or later, so we could be staring down the barrel of Schrems III. And frankly, I don't know what else the Biden administration can do to satisfy the concerns of Schrems without significantly curtailing our surveillance state, which sounds great in theory. But it's just not going to happen. I mean, we're having a debate next year about Foreign Intelligence Surveillance Act in Section 702, which is up for reauthorization. 

Dave Bittner: Right. 

Ben Yelin: And there's not much appetite to curtail it with the threat landscape up there. It's possible that new civil liberties protections are added. But until we do that, if the European Union and Mr. Schrems are not satisfied with this new executive order, then I think it may be a while until we have a really robust data sharing agreement in place. 

Dave Bittner: So, I mean, isn't this a fundamental difference in approach to privacy? 

Ben Yelin: Yeah. I mean, that's really what's being reflected here is that we may value certain civil liberties more than our European counterparts, particularly the First Amendment. I think... 

Dave Bittner: Right. 

Ben Yelin: ...That's something we've discussed. 

Dave Bittner: Yeah. 

Ben Yelin: Because of GDPR and the political culture and some of the unique constitutions within European member states, there is more of a culture of privacy. They have a data privacy regulation. We do not at the federal level. So I think this is something that particularly their courts have become - I don't want to say obsessed with, but it's really become a fundamental value reflected in the European Union. And it's really extraordinary the lengths to which the Biden administration is willing to make sacrifices to make this agreement work. I mean, giving non-U.S. persons the ability to petition to an independent body under the office of the director of national intelligence is kind of a rare step. I mean, we usually don't grant this type of process or administrative rights to foreigners. 

Dave Bittner: Yeah. 

Ben Yelin: But I think the effort here is to try to satisfy the European Union's desire for enhanced privacy protection. And it seems like the political leaders in the European Union agree with this. It's just Schrems and the European Court of Justice that have to be brought on board. And until that happens, I don't think we can have any confidence - if you're working for one of the big tech companies, I don't think you can have confidence that this agreement is going to be maintained. 

Dave Bittner: Help me understand this right to protest. I mean, what - I mean, OK, so I am a European citizen. I am upset about something. I can bring my case in front of this new group - then what? Do they have the power to make any change? Can anything happen? Or do they pat me on the head and say, we hear you? Like (laughter)... 

Ben Yelin: Well, I think that's a good question. I mean, that's going to be developed in regulations - what the actual legal relief is here. 

Dave Bittner: OK. 

Ben Yelin: It's an independent review body, meaning it will have statutory authority. My guess is that they would be able to issue some type of injunction against whatever company is complying with the surveillance or maybe against the federal agency that's conducting the surveillance. But I don't think we're going to know exactly how that process is going to work until this is implemented. So it's not, like, a full court proceeding. It's more of - like, it's more like going in front of an administrative law judge. 

Dave Bittner: OK. 

Ben Yelin: It's kind of... 

Dave Bittner: Go on (laughter). 

Ben Yelin: Yeah. I mean, I guess it's - you're not going to have the type of adversarial proceeding that you'd have if it was a plaintiff versus a defendant. 

Dave Bittner: OK. 

Ben Yelin: It's going to be somebody - one party pleading their case in front of this independent review body. And we just don't know anything about what this review body is going to look like. 

Dave Bittner: Right. OK. 

Ben Yelin: I don't know how the members of this independent body are going to be appointed. Once that happens, I mean, the makeup of this review body could be different depending on the presidential administration that's in power. So I think a lot of that kind of future outlook on the real power involved in this executive order is kind of murky at the moment. 

Dave Bittner: Do you think that this kind of economic pressure or acknowledgment of an economic need could be something that moves the needle in terms of our nation's approach to privacy? 

Ben Yelin: That's the million-dollar question here. I mean, it seems - and I'll go beyond that. I mean, I think the reality is that our surveillance practices are hurting us economically. If we can't come up with a deal that enables the flow of data that undermine - that underpins more than a trillion dollars in cross-border trade investment - and that's according to our commerce secretary, Gina Raimondo. If we have to give that up because we're not willing to curtail some of our surveillance practices, I think that's pretty revealing about our national values. We're giving up a lot of money to maintain surveillance powers, but it's not something that's entirely surprising. 

Ben Yelin: I mean, we've been having this conversation for the past 20 years. Some of the tools that have specifically been mentioned in the Schrems cases are tools that our executive agencies do not want to give up, and that's true under the Trump administration, Biden administration, et cetera. These are the crown jewels of national intelligence. They were used for counterterrorism operations, and many of them have been successful in thwarting potential terrorist attacks. Now they're being used as authorities to deal with the threat of Russian aggression. So it's one of those things where, even if there is an economic sacrifice, I don't see our country, our Congress, our administration willing to significantly curtail the type of surveillance authorities that they value so much. 

Ben Yelin: And you can understand why they value them. I mean, it's protecting our national security. It's just - it does not come without a cost, and this is the cost that we're bearing. I think the Biden administration is trying to nudge things in the right direction and see if it sticks. And I think it comes down to whether the European Court of Justice and Schrems are satisfied with the steps that have been taken here. I think it would take a lot more for them to actually consider curtailing our own surveillance practices to placate our European allies. 

Dave Bittner: What about Mr. Schrems himself (laughter)? 

Ben Yelin: What about Mr. Schrems himself? 

Dave Bittner: I guess - I mean, could the folks on the other side of the pond say, we've had enough of you? You're - we're going to move you to a different position (laughter)? You know what I'm saying? 

Ben Yelin: You think - I mean, they could try. 

Dave Bittner: Right (laughter). 

Ben Yelin: But he has, under GDPR, a cause of action that he can bring in front of European courts. And if the courts are amenable to his complaints, which they clearly are... 

Dave Bittner: Yeah. 

Ben Yelin: ...Then there's nothing that government officials can do about it. I mean... 

Dave Bittner: Right. 

Ben Yelin: ...You can come to an... 

Dave Bittner: He's doing what he should be doing. I mean, he's doing what he was put there to do, right? 

Ben Yelin: Exactly. 

Dave Bittner: Yeah. 

Ben Yelin: It's the raison d'etre. Am I pronouncing that correctly? 

Dave Bittner: Close enough for me (laughter). 

Ben Yelin: OK. And yeah, it is the reason Max Schrems wakes up in the morning. 

Dave Bittner: Right. Right. 

Ben Yelin: To protest U.S. surveillance practices and the threat it poses to European users of the internet. 

Dave Bittner: Right. 

Ben Yelin: And I don't think he's going to stop just because the powers that be in Brussels try to tell him to knock it off. 

Dave Bittner: Yeah. 

Ben Yelin: I mean, that's just not who he is, and I don't think that's what the courts, the European courts are amenable to doing. 

Dave Bittner: OK. All right, well, we will have a link to this story in the show notes. Interesting - it's going to be fascinating to see how this all plays out. 

Ben Yelin: Yeah. There's a lot of suspense here. I mean, I'll keep an eye on whether there is a new lawsuit filed under this executive order. And we'll have to follow it pretty closely. 

Dave Bittner: Yeah. All right. My story this week comes from the News & Observer out of North Carolina - this article written by Brian Gordon. And it is an interesting example of a community banning the payment or even communication with ransomware actors - the bad guys who were, you know, hitting them with ransomware. 

Dave Bittner: So little bit of backstory here. Back in May of 2021, there was a bill introduced in the North Carolina House of Representatives. And this was to eliminate public ransomware payments. So if, you know, the state government or a county government gets hit with ransomware, this law would say, you are not allowed to pay the ransom. Indeed, you are not allowed to even communicate with the folks who have held your data for ransom. 

Dave Bittner: So while this was being proposed in front of the North Carolina House of Representatives, Colonial Pipeline happened. And so this bill flew through (laughter) - right? - as - sort of as a result of that. 

Ben Yelin: Right. It was quite a coincidence that this major event happened right as they were considering this piece of legislation. 

Dave Bittner: Right. Right. And so there's a lot of discussion now as to whether or not this is a good idea. This article has an interview with several folks who are experts in cybersecurity. They speak with a gentleman named John Stark, who's a cybersecurity consultant and also teaches at the Duke University School of Law. And he says that he thinks it's misguided. He thinks, you know, that the notion that hackers are going to know that a particular jurisdiction is prohibited from paying the ransom and therefore not going to hit them with their ransomware - he says, I don't think that's how hackers think. 

Ben Yelin: Yeah, I mean, I kind of agree with that perspective. I do think this is a federal issue, and it probably should be dealt with at the federal level because we don't want to get into a situation where 50 different states have 50 different rules about whether you are allowed to pay a ransom or even communicate with the hostage-takers. 

Dave Bittner: Right. 

Ben Yelin: It would create a lot of administrative confusion. It would create confusion in our court system. I think Congress really needs to step in and develop federal policy around this. And they've started to do that. I mean, it's not enacted into any statutes as of yet, but it's something that Congress has been paying attention to. 

Ben Yelin: I also don't necessarily agree - I mean, I understand the rationale behind it, but I don't necessarily agree that this is the right policy wherever it's being implemented. There are certainly downsides, especially for the entities that have been attacked via ransomware, to prohibiting ransomware payments. I mean, sometimes it is within the interest - the short-term interest of the company or the local government to pay the ransom. And being barred from doing so by the state government is going to create a lot of potential conflict. It could be a situation where maybe they hire consultants to evaluate the ransomware attackers, and it's some type of group that has been known to actually accept ransom payments and release the relevant data. 

Dave Bittner: Right. 

Ben Yelin: And at that point, local governments face a very difficult choice. And sometimes, either to protect life, safety or personal information of local citizens or customers, they might think it's necessary to pay the ransom. Whether that's good for all of us long term or even for the companies themselves long term is a separate question. But I think the iron hammer of the state government coming down on these companies is not a wise way to enact this type of policy change. 

Dave Bittner: Yeah, this article describes what's going on here. And it's interesting because there's also a requirement for reporting. So governments and public schools have to alert the state if they fall victim to a ransomware attack. And at that point, there's a joint cybersecurity task force, which the North Carolina governor established. They will travel to the site of the attack, assess the issue and develop corrective actions. They don't detail the corrective actions, citing security reasons. 

Ben Yelin: They sound like the coolest superheroes ever. 

Dave Bittner: (Laughter). 

Ben Yelin: They're activated. Yeah. They go to the cyber mobile... 

Dave Bittner: Right, right (laughter). 

Ben Yelin: ...And go on site to solve these problems. 

Dave Bittner: Yeah. Yeah. But it's interesting, like, what are the corrective actions? Obviously, you know, we know how people try to recover from a ransomware attack. And so if you're - if paying the ransom is off the table, you know, that limits the number of things you can do. I wonder - you know, there's a part of me that wonders - they assess the issue and develop corrective actions. Could one of the corrective actions be paying an outside party to pay the ransom? 

Ben Yelin: To pay the ransom. 

Dave Bittner: (Laughter) Right. Right. 

Ben Yelin: We didn't pay the ransom. We were just paying this consulting group. 

Dave Bittner: (Laughter) Right. Just magic - I don't know what happened, but magically and mystically, our files - we got them back, thanks to our third party. 

Ben Yelin: Yeah, I think that would be called laundering money. 

Dave Bittner: (Laughter) I see. 

Ben Yelin: But I'm not sure how North Carolina would deal with such a situation. Really, the solution here - and this is mentioned by many experts in the article - is just to increase funding on the front end to prevent cyberattacks in the first place. 

Dave Bittner: Right. 

Ben Yelin: And in normal times, we could say, well, that funding's just not available. States are strapped for cash. 

Dave Bittner: Yeah. 

Ben Yelin: That's not true right now. States are not strapped for cash. States are getting money from the federal government through Biden administration policy to implement corrective measures on cybersecurity. That is filtering down to state governments. And if they're going to pass legislation like this, I think it would behoove these state governments to really put investments on protecting state and local government agencies, protecting business, implementing the NIST framework where possible, best practices. I think more work on the preventative side is more beneficial than having this ironclad rule about paying or not paying a ransom, which, especially for the private sector, is just sometimes a very difficult decision to make and probably not something that most businesses or even local governments want the state involved in. 

Dave Bittner: Right. Right. All right. Well, I will have a link to that in our show notes, of course. 

Dave Bittner: We would love to hear from you. If there's something you'd like us to consider for the show, you can email us. It's 

Dave Bittner: Ben, you recently spoke with Glyn Moody. He is the author of the book "Walled Culture - How Big Content Uses Technology and the Law to Lock Down Culture and Keep Creators Poor." Here's Ben and Glyn Moody. 

Glyn Moody: The problem is that copyright in particular, which is the main focus of my sort of interest recently, worked pretty well for the first 200 or so years. And therefore, the copyright industry has evolved and copyright laws have evolved, assuming that that would always be the case - not an unreasonable assumption. 

Glyn Moody: And then 30 years ago, along came the digital world. And it turns out that the digital world is not just the analog world slightly tweaked. It is fundamentally different. I like to say that it's a transition that every civilization makes, but only once. It's so profound in terms of that change. And the key changes are that, in the analog world, you're essentially dealing with objects, physical objects. It's very hard to make copies of those objects, and they tend to be imperfect. So it's quite easy to police the whole business of copies because you can see when people are doing it and you can take them away. You can take away their printing press. 

Glyn Moody: In the digital world, anyone with a computer, anyone with a smartphone can make a perfect copy of any digital file. Anyone with a connection to the internet can share that perfect copy with whatever the number is today - 5 billion, 6 billion people on the internet. And so the difference from the old analog world, when copying was hard and easy to police, is now profound because it's incredibly easy to make copies and it's impossible to stop people sharing them. The copyright industry, for obvious reasons, doesn't like that. Copyright law still hasn't recognized that. 

Ben Yelin: I know this might seem like an obvious question, but why have policymakers not addressed this issue and modernized copyright law for the digital age? Do you think it's basically the power of the lobbyists? 

Glyn Moody: It's very much the power of the lobbyists and the fact that there is this curious symbiosis between the copyright industry and politicians. As you know, on both sides of the Atlantic, politicians are quite weak and vain creatures. And when they're offered the chance to meet their favorite pop star or their favorite writer by the copyright industry, they go weak at the knees, and they tend to agree to anything that they're asked to do at that point. It's very strange. I mean, it doesn't happen in other fields. 

Ben Yelin: It's true, although we're all human beings. I mean, you know, if somebody told me, you have the power to make copyright law and here, have a nice dinner with Bono, you know, maybe I would be amused as well. But they're supposed to be sort of above that fray, I suppose. 

Glyn Moody: That - they are, and in addition to that sort of human aspect - and you are quite right. I mean, you know, we all have those elements of hero, heroine worship. The fact is that copyright is a very abstruse subject. Until 30 years ago, nobody cared about it apart from the lawyers. You and I would just simply not care. What's changed is that every time we use the internet, we are actually breaking the law in terms of copyright. 

Glyn Moody: There's a very interesting paper from 2007 by a legal scholar who said, well, let's just go through a typical internet day in terms of usage and work out what would be the kind of liability of a copyright infringement. Perfectly normal things - you're not talking about a pirate or anything like that. And he worked out that the ordinary internet user would probably be on the hook for about $4 billion a year because the internet is a digital copying machine. It is based on copying. So trying to stop people copying things online is the archetypal trying to make water unwet. You can't do it. 

Ben Yelin: So it seems like we can understand why this outdated copyright frame would be bad for individual creators. Their works of art, of fiction, of music are being very easily replicated. Can you get into why this is a broader public policy problem? Like, why should people care about this who are not creating content? 

Glyn Moody: OK, so because the internet has become so embedded in our ordinary lives, it really matters what happens online. And in particular - I think germane to your particular podcast - issues of surveillance and privacy are actually embedded in the internet to a high degree. And where copyright stops the internet from protecting people in terms of their privacy, it becomes an issue not just about copyright, but about human rights. 

Glyn Moody: And one of the problems is that, as I mentioned at the beginning, copyright is trying to stop people making copies. When they were physical objects, that was relatively straightforward. Online, it becomes absolutely impossible task, but that doesn't stop the copyright entities from trying. And the way they want to do that is by keeping an eye on everything you do online. So copyright is turned into a surveillance practice to back up the belief that you shouldn't be making copies, but the only way to stop you is by checking everything you do online. So copyright has, at its core, surveillance because it's the only way to enforce it. 

Ben Yelin: That's a really interesting perspective. I don't think I thought about it in that realm. What do you think would be a preferred approach from policymakers? And I know that's a pretty loaded question. And then, beyond that, what type of, like, political groundswell do you think would be necessary to create that change, and how do we try to inspire that political groundswell? 

Glyn Moody: So one of the interesting and deeply depressing aspects of copyright is that it has built in a ratchet. It only ever gets stronger, longer, broader. If you look at the laws of copyright over the last hundred years, there is no sense that you and I, as members of the public, have any rights or any interests whatsoever. And therefore, you get this constant eating away at even our minimal rights in the realm of copyright. In particular, for example, the public domain, which is a crucially important aspect to the sort of anti-copyright, is weakened every time they bring in new laws. And so we're at the stage where it's not just a matter of what would be some good laws. We are at the stage where every law is a bad law. 

Glyn Moody: So for a start, we could stop bringing in bad laws. What you should then do, obviously, is to try to wind things back a bit. Frankly, I don't think that's going to happen because the copyright industry now has taken it as a matter of faith that you can only make copyright stronger. If you weaken it, then this is blasphemy. And so the politicians have it drummed into their heads - and indeed, members of the public have drummed into their heads to the extent they actually care about it - that copyright must stay strong. It must get stronger. And that if you weaken it, you're stealing from the artists. 

Glyn Moody: Now, in fact, that's not true because, as you say, artists are obviously very interested in copyright, but it's serving them terribly. If you look at the earnings that artists in every sphere derive from copyright, they're abysmal. They're - I mean, they're starvation wages. Everyone has to take side jobs. So this mythology that copyright is there for the artists, that copyright is necessary to keep cultural production going is a lie - is a very clever lie put about by very clever people who are paid a lot of money to put it about. So that's a kind of core problem. 

Glyn Moody: I suppose I'm saying really that copyright itself is unredeemable, that at its heart it has got this surveillance. And it's like, you know, if you weaken copyright instead of having, as we currently do, the term of copyright is life plus 70 years. So work is protected for typically 100, 150 years. Now, supposing we reduce that to 10 years. That's a bit like saying, well, you're not going to go to prison for 150 years. You're only going to prison for 10 years. That's a real improvement. I think you'll agree. You're still in prison for 10 years. And even if you reduce copyright to 10 years term, you'd have surveillance for those 10 years. So if you think, as I'm sure you do, surveillance is not a good idea and privacy is quite important, then even reducing to 10 years isn't a solution. So what my book is trying to hint at slightly boldly, perhaps, is that maybe we should try to rethink the entire system and come up with something better that doesn't take away our fundamental human rights. 

Ben Yelin: So just to play devil's advocate, if I'm somebody who is concerned that your preferred approach would be taking a hatchet to 300 years of established copyright law, that would upset a delicate system that we've relied on, I mean, how would you respond? And how would you respond to at least a class of artists and creators who have benefited from the incumbent system? How would you make that argument that your preferred approach, which is, as you say, pretty bold and radical, would actually be of benefit? 

Glyn Moody: OK. So I think there are two things there. One is - what is copyright for? And I would say that it is to reward creators fairly and to maximize the amount of creativity that you and I can enjoy. The current system certainly doesn't do that. I mean, the vast majority of artists are not being rewarded fairly for the work that they do. What's happening is that the intermediaries - the recording companies, the publishers - are doing really well. Just recently a company went on the public stock exchange, and the CEO picked up, you know, $250 million as just a bonus. I don't think many artists are earning that. 

Glyn Moody: Now, your point about the ones doing well, you're absolutely right. There's a very small number that do do well, and that's very convenient because it means the intermediaries can say, well, what's the problem? You know, some artists are doing really well. Clearly, you're not working hard enough, or, you know, you're not trying hard enough because you too could actually make that. And it for them is really convenient, too, because they only have to manage a small number of highly paid artists rather than, as I would prefer, several million well-paid but not highly paid artists. It's much easier for them as a business to manage a few superstars than to pay fairly millions of people. 

Ben Yelin: There's also - that's interesting. There's also this problem of collective action. So I remember back to the early 2000s when Napster took over, and that was a major threat to the music industry. But any artist that came out and talked about how Napster was going to cripple their industry, they became a pariah. I mean, I remember Metallica coming out. How do you work around that collective action problem where it might be disadvantageous for individual creators and artists to come out as wanting to reform copyright laws, even if it would be good for the entire industry? 

Glyn Moody: Well, again, I mean, the highly paid people may well suffer. I'm not really interested in just the 1%. Personally, I care more about the 99% in the same way that I care about the creators and not the companies that are making the money. So I want to look at the bigger picture, and I want to find a way whereby more people can make a living from creating great stuff that you and I can enjoy. And what's interesting is that in the same way that the internet has become the problem for the copyright industry, I think the internet is a solution for the creators because what's interesting is that you can now call out and reach out to your fans directly and say, look, I would like to write this book. I would like to make this song. No recording company, no publishing company is interested in me. I know you've listened to my music in the past or read my book in the past. Would you fund me for this network? So people pay forward. They don't pay for the thing that's already been produced; they pay for the thing that will be produced. 

Glyn Moody: Now, this true-fans approach was first sort of articulated by Kevin Kelly in 2008, and back then it was quite hard for that to work. Moving on those 14 years, it's now pretty easy because we've got all these sites like Kickstarter and Patreon, which makes it incredibly easy and, indeed, accepted that you do put the money in before something is created. And there are good reasons why you do that because if you love an artist's work or creator's output, you want more of it. And it's not unreasonable that you pay them to do that. So if you care, you pay them, and then you get more of what you love. So it sounds like a great deal. What's happening here is instead of the creators getting, like, 10%, if they're lucky, of the sales and the intermediaries getting 90%, with these kind of sites, they typically get 90-95%. And the rest is obviously just the costs of running those sites. So you're turning it on its head. And you don't need so many people to pay upfront as you would need for them to pay afterwards because you get a far higher cut. 

Ben Yelin: It's interesting. I mean, if you're saying, which I think you are, that you doubt policymakers would adopt your preferred approach to copyright law, which I think we can grant, is there, like the - what you're describing with using these fundraising sites to have people pay for future output, are there technological solutions so if this could be something that's market driven, that would better protect the 99% of creators that you're so passionate about? 

Glyn Moody: I think it's even easier than that. I don't think we even need technological solutions. We just need people to realize they can do it. And what's interesting is that some artists are already doing this. Cory Doctorow most famously recently wanted to make an audio version of one of his books, and basically, the terms under which he was offered that audio version were not satisfactory. So he started a Kickstarter and said, look - I really want to make this audio version for my book. Could you help fund it? And in a month, he'd raised $260,000. Now, OK, he's very high profile. He's very well-known. But he shows what can be done. 

Glyn Moody: And I think if more artists trusted to their fans, they would find that they are actually much stronger than they think they are in terms of the power relationship with the intermediaries. So I don't think we actually need more technological solutions. That said, I also think there's a huge opportunity for entrepreneurs here because we're talking about reinventing the entire cultural production ecosystem, where you don't have the enormous oligopolies which basically run publishing, music and the film industry. So there's a chance to recreate that process in terms of smaller companies, more agile companies, startups. So I think there's a lot of opportunity to serve the artists rather than serve the intermediaries. 

Ben Yelin: So for average consumers like myself, what would your short-term advice be? Should I - if I want a new Radiohead album, should I go to Radiohead's website and just front them a bunch of money and hope that this can get beyond the antiquated copyright laws? What should we do as consumers to help support this proposed transition? 

Glyn Moody: So I don't think the Radioheads of this world need this system, and they may indeed fight against it because they're doing pretty well. However, there are, you know, several million talented musicians out there, some of whom you've probably already come across, so throw them some money. Say, look - I think you're really good. I think, you know, you've got a great future. I would love to hear more of your music. Here's $10, $100, whatever you can afford, because that's the great thing. This isn't - you've got to pay $10 or $100. Anything you can do, anything you can pay is good. But find the people, the stars of tomorrow who may not become the stars of tomorrow because the system doesn't care. You can create the new cultural landscape by supporting the creators you love. So that's something everyone can do now. It's, you know, very easy in a sense. The people at the top of the system, as I say, they don't really need this and may well fight it, but, you know, they're not the future anyway. I mean, they're the past. 

Dave Bittner: Ben, this is a great interview. I'm fascinated by this topic. It's actually a topic of great interest to me. I have thoughts (laughter). 

Ben Yelin: All right. Give me those thoughts. 

Dave Bittner: So first of all - and my thoughts may be a bit outside of the mainstream here when it comes to copyright, I will say, as someone who spent a lot of time in the content creation world. 

Ben Yelin: You're a much more creative person than me, so this is more personal to you. 

Dave Bittner: (Laughter). 

Ben Yelin: I mean, I just - I don't have that same type of creative energy. 

Dave Bittner: Well, first of all, I think copyright is way too long. I don't understand why copyright is longer than a patent, for example. 

Ben Yelin: Yes. 

Dave Bittner: Why not make them the same? And my - I have friends and colleagues who are content creators who think that - I'm all wet when it comes to this - that, you know, not only should they reap the benefits of their creative work, but their children and grandchildren in perpetuity should enjoy. And I just don't agree with that. I think - and the reason for that is - and correct me if I'm wrong here. But it is my understanding that the creation of copyright law in the United States was to protect the public domain. 

Ben Yelin: Yes, yes. 

Dave Bittner: The public domain was the reason why we have copyright - to give the creators a period of time where they can profit off their work and then - so that then it can go into the public domain. It seems to me like that's upside down now, as so few things enter the public domain. And the erosion of fair use that's happened lately is also problematic. I mean, I see folks on YouTube, YouTubers, who are clearly commenting on things that have copyright protection... 

Ben Yelin: Right. 

Dave Bittner: ...But they're doing scholarly analysis of it. And they get hit with copyright violations, and there's no recourse. 

Ben Yelin: Right. And it really stops the free flow of information online. And I think our copyright laws, as Glyn was saying, are just outdated in the digital world... 

Dave Bittner: Right. 

Ben Yelin: ...Where there are so many potential fair uses one could make, especially with something like YouTube... 

Dave Bittner: Yeah. 

Ben Yelin: ...Because you could - with any creative work, you can analyze it. You can discuss it. 

Dave Bittner: Right. 

Ben Yelin: And we want people to be able to have that public conversation without constantly being worried that their content is going to be removed, that they're going to be sued under DMCA, Digital Millennium Copyright Act. 

Dave Bittner: Right, right. 

Ben Yelin: I just think that's bad for all of us. 

Dave Bittner: Yeah. I remember, you know, back in the early days of the digital transformation, there was - and, you know, people sharing things online, and there was, dare I say, moral panic... 

Ben Yelin: Right. 

Dave Bittner: ...You know? And there was a gentleman who was put in jail for videotaping a movie at this movie theater. So he set up his camcorder in the movie theater and videotaped a movie and got caught doing it. And he was convicted and sentenced to more time than he would have gotten for murder. 

Ben Yelin: Yeah. I mean, that's insane. 

Dave Bittner: Yeah. 

Ben Yelin: I kind of thought all those warnings at the beginning of movies, an FBI warning that used to get on VHS... 

Dave Bittner: Right, right. 

Ben Yelin: ...I thought those warnings weren't as robust or scary as a potential act of violence. But apparently in that one instance, it was. 

Dave Bittner: Yeah. 

Ben Yelin: And I just think that is completely backwards. 

Dave Bittner: Yeah. 

Ben Yelin: There's also a collective action problem here where any creative person - somebody who writes music, does art work, is an author - if they're the ones who try to stand up and protect their intellectual property rights, they're - they might get blackballed or be disfavored in the industry. And I think some of them have legitimate claims. I mean, you look back to the Napster era, and it was Metallica that took the hit. 

Dave Bittner: Right. 

Ben Yelin: And I don't think that's necessarily fair to them. I think this is a policy problem. You've identified the problems with the broader policy relating to copyright. And I think it's incumbent upon our policymakers to come up with something reasonable that balances the interests of individual creators versus the interests of having the free and open flow of information online. 

Dave Bittner: Yeah. I think Glyn Moody is absolutely right here and hit the nail on the head - that this transition demands that we reexamine our copyright law. It's not the same. It's just different. Digital information is different than physical copies of things. And the - and people are operating in the old way as if it's not and... 

Ben Yelin: That should be seemingly obvious, right? I mean, it's just - it's another... 

Dave Bittner: I think it is. 

Ben Yelin: Yeah. 

Dave Bittner: But I think they're just - the old - the folks who have power and, you know, every time - what is it? Every time Mickey Mouse is about to go into public domain, public - or the copyright gets extended, right? 

Ben Yelin: Yeah, exactly. And, well, anybody with incumbent power is always going to fight tooth and nail to protect that power. 

Dave Bittner: Yes. There you go. You said it much more eloquently than I did (laughter). 

Ben Yelin: Oh, well, I never. 

Dave Bittner: Well, again, thanks to Glyn Moody for taking the time for us. I'm really - I have not yet been able to dig into this book here, but I'm going to dig into this one. Again, the book is titled "Walled Culture: How Big Content Uses Technology And The Law To Lock Down Culture And Keep Creators Poor." 

Ben Yelin: I've got to say, Glyn was also a pleasure to talk with. We had an extensive conversation before we recorded, and I just really enjoyed hearing his perspective and getting to know him. So thanks, Glyn, for coming on. 

Dave Bittner: Yeah, absolutely. We appreciate him taking the time. 

Dave Bittner: That is our show. We want to thank all of you for listening. "The Caveat" podcast is proudly produced in Maryland at the startup studios of DataTribe, where they're co-building the next generation of cybersecurity teams and technologies. Our senior producer is Jennifer Eiben. Our executive editor is Peter Kilpe. I'm Dave Bittner. 

Ben Yelin: And I'm Ben Yelin. 

Dave Bittner: Thanks for listening.