If It Streams and There’s No One to See It, Is It Owned?
Lots of opinions and attitudes feisty have been stirred up by the recent announcement from Netflix that the company will be split down the boundary of physical media (neue nambre Qwikster) and streamed media (Netflix sans DVD). Personally—and maybe this is a first-world problem—but I didn’t even notice the price change, and I’ll—for the moment—keep subscribing to both services. It’s not like I own any DVDs, so getting them in the mail and then saving the plastic for someone else to view is good for the environment and lowers the price of oil. And it’s not like anyone has a streaming service that has everything. And Netflix business decisions are not my problem. What is my problem (as an artist) is what streaming means for artists’ rights to distribute their work.
What struck me as such an odd conundrum is what Bill Gurley, author of Above the crowd has to say about this matter. Apparently, there are laws that imply art can be divided into two separate constructs. In one case, art is something physical that you buy. In the second case, art is something that only briefly occupies the circuits of a computer that you own. In his article he quotes from the first sales doctrine:
“The doctrine allows the purchaser to transfer (i.e., sell, lend or give away) a particular lawfully made copy of the copyrighted work without permission once it has been obtained.”
It’s not at all implied in the law, but the way that companies tend to stream media implies that because I have experienced a work of art, and because I cannot somehow physically recover the bits–the work of art in its basic coded form—I can no longer experience it again. That is strange when one considers that I have a memory—in the very, very personal computer in my head—of said work of art. I could, of course, re-create the work in my own fashion, but that would likely get me sued. This is one of those classic US laws that has become silly over time. I can redraw a lot of art I’ve seen—I’m happy to do it for experimentation, and I wouldn’t ever release a counterfeit. I respect artists too much. Let’s instead assume that information is out and about on the internet and is really “out there“—as if to say, the work of art is not residing on any particular piece of physical hardware at all times. While that’s possible, it’s rare and don’t matter so much. The substrate of a work of art is hardly the point of any work of art.1 Chances are, in the case of streaming artwork, it resides on your personal property (your computer) for a time (and then your brain). Said work of art certainly uses your resources and, if nothing else, adds to your electricity bill. But then, once it’s over, it’s not yours anymore. What a dodo. I promise you that you will forget which cell phone you had in ’98 but that you will never forget a sanctioned smooth part of the wall of the MOMA labeled Art.2 That seems reasonable until such a time that I ensure that my machine copies every frame as it “streams” to property that I own, and physically so. So if I have bits on a DVD, I can trade it, but if I stream it, copy it to my hard drive and give you a copy on a USB disk copy—I bet distribution companies wouldn’t like that so much.
The “first sales doctrine” should include my hard drive—frankly, any equipment owned by me, utilized in the streaming process, should count as a “physical” copy. The business I rented the movie from borrowed my resources (with my consent) and then proceeded to show me a work of art. And I can no longer access it once all the bits have arrived on my equipment? I don’t find that circumstance to be distasteful most of the time, because, let’s face it; most video you can stream isn’t worth watching twice. But this is yet another chunk of the right to copy removed from us and handed over to those who claim that there is such a thing as intellectual property. I rail against the idea of intellectual property quite often and so it should be no surprise that I do not think the separation of a work of art from its medium of distribution should suddenly create brand new rights for the producers of the artwork. It’s not like we’re talking about the artists here—we’re talking about the corporations trying to legalize their business model. Their business is an anomaly that’s only been around for the last few hundred years and it deserves to go down the drain but they would rather ruin Netflix instead.