Whose Data is it Anyway?

Data!?  Why would you care about data?  You’re an artist, not a geek, right?  Creative people don’t deal with data.  That’s for computer programmers and database administrators.  Artists deal with art materials, media and squidgy, squashy, tangible stuff.  What does any of that have to do with data?

Sorry, that’s becoming an increasingly incorrect and anachronistic viewpoint.  Whatever kind of art you make, the chances are very good that at some point or another, during your artwork’s life cycle, it will be rendered to and perhaps even distributed in a digital form.  You artwork will become fixed in a data stream.  Your creative output will become a file, filled with bits and bytes that capture the essence of your original creative work.  Your pure inspiration and thoughts will be frozen in computer memory.  It will, in short, become plain old data.

Think about it.  Books have morphed into eBooks, with the “manuscripts” now often created with word processing software.  Music and films have been digital data for decades.  Photographs are captured in data form and reworked with Photoshop.  Animation, character modelling, editing, compositing, colour correction, titling, automatic dialogue replacement, Foley and effects, soundtrack composition, computer generated imagery (CGI), virtual reality, augmented reality, computer games, and wire-frame models – all the staple processes of modern story-telling deal with digital data.  Even if you are a product designer, jewellery designer, sculptor or other artist working in three dimensions, chances are that computer aided design tools (CAD) or computer aided manufacturing (CAM) systems will capture your work in data form for onward processing.  In any case, just publishing a photograph of your design on a web site makes the salient elements of your clever design available as data.  Paintings and drawings are often photographed digitally for the creation of limited edition prints, to advertise the art and to impress gallery owners.  Musicians are familiar with MIDI files, digital music score formats and tablature on-line.  They assemble their recordings and compositions using digital audio workstations and software synthesisers.  The latest piece of story-telling magic is called “transmedia”, where the story is told on multiple digital platforms at once.  (http://en.wikipedia.org/wiki/Transmedia_storytelling , http://news.bbc.co.uk/1/hi/programmes/click_online/9688435.stm)

As an artist, it is hard to avoid the fact that your work might be created as a data representation, or else captured as data and maybe even transmitted and sold as data.  Data is an art issue.

Creatives and artists ought to care intensely about the value of their digital assets and how these are traded, sold and copied.  The value of their creative output is so frequently locked up in digital form and communicated that way.  Their data represents their product.  They ought to care about who has access to their data and under what conditions they can grant or withdraw that access.  Control of data is a crucial concern of the modern artist.

The more that art has become data, the easier it has become to copy it and the harder it is to maintain control over those copies.  Once art becomes data, it can take on a wayward life all of its own, independent of the artist.  Producers wish to maximise their rewards from creating this data and exert some kind of control over its use (to prevent abuse, theft, degradation and disrespect of the artwork), whereas consumers wish to use the data within fair use limits, but certainly want limited sharing with close family members, resale and lending rights and wish to have the convenience of data portability (i.e. being able to access the data on multiple platforms or devices) and the ability to protect the viability of any digital assets they have bought, so that they don’t lose their access to the work, because of damage to the digital storage device the data is captured on.  All of that sounds reasonable, on the surface, doesn’t it?

Another seismic shift in the world of art as data is that it has become much cheaper to produce and distribute art, with today’s digital tools.  Moore’s law didn’t exclude artists.  You can create works of monumental quality with quite modest means, these days.  The data you and I create can be indistinguishable from the data created by giant media corporations, such as Hollywood movie studios or global record companies, if the artist has the skills and low cunning to produce a work of such quality.

Art isn’t produced by “them” anymore (meaning an elite cadre of carefully selected artists and the corporations that fund and exploit their creative works for profit).  Much of today’s data (or art) is produced by “us”.  We’re generating the user generated content.  It’s our original work.  The line between producer and consumer has never been more indistinct, now that the art we create and consume is just data.

Sometimes our interests as consumers of this data are in direct contradiction with our interests as producers.  We want our freedoms over other people’s data, but want our controls over data we made.  In that sense, we’re no different to Google, Facebook, Twitter or YouTube, in that they also want freedoms over other people’s data, but wish to tightly control the data they think they own or made – each and every one of us.

There is ample evidence of the tensions between producer and consumer of digital data.  Recently, the ructions in response to the proposed Stop Online Piracy Act (SOPA), which sought to impose Draconian sanctions on those alleged to have been associated with the misappropriation of art captured as digital data, caused Google, WordPress and Wikipedia to make very public statements against this proposed law.  The protests were so loud that the SOPA bill may have to make its way into legislation by stealth, funded as it is by giant media companies who are determined to see it into law, now that the fanfare that accompanied its blaze of publicity backfired entirely and met with such vehement and strong consumer resistance.  Consumers are indignant that producers of this data should have things so blatantly their own way and exclude ordinary consumers from being producers too.  It’s a bill for legalised monopoly and censorship, which favours the commercial interests of a very small group of producers at the expense of everybody else’s rights, in effect.

As part of the theatrical demonization of digital data piracy, the FBI shut the file sharing web site Megaupload down and arrested its directors, fully covered by pre-arranged news cameras and press releases, alleging that the site was aiding and abetting the wholesale theft of Hollywood’s precious digital data (their art).  It was all a transparent effort to sway public opinion to support and get behind the SOPA act.  In what is, in my opinion, a superb irony, however, users of Megaupload that entrusted their precious, valuable and original data (representing their work and their art), which they had produced themselves, to this file sharing site have had their data illegally seized by the FBI.  They have been denied access to their own digital assets, which may represent irreplaceable and unreproducible years of their creative output as data.  In fact, it is thought that this data will be deleted next Thursday.   Some of that data, such as the results of medical and scientific research, may well be priceless.

People that have lost their valuable data are agreeing with the FBI in decrying the theft of their art stored as data.  It is theft.  The FBI has, in one action, become one of the biggest thieves of digital data that ever existed.  The value of the legitimate data they have stolen from these perfectly law-abiding users of the Megaupload site dwarfs the value of the movies and records allegedly stolen by pirates, irrespective of what you think about Megaupload’s executives.  The data owned by media conglomerates represents a tiny fraction of the value of the data owned by legitimate users of Megaupload.

In upholding the rights of a small group of art as data producers, the FBI has become the biggest pirate of everybody else’s art as data on the planet.  You can’t protect the rights of one set of producers by stealing blatantly from all the other producers.  I expect class actions and law suits.  The FBI has clearly committed crimes, to my way of thinking – crimes that they themselves claim to be fighting.  It will be interesting to see how this plays out.

Twitter recently announced that it was going to play big brother and censor what could be displayed on twitter time lines, in various countries, if the “authorities” in the country concerned ordered them to censor it.  Last Saturday, a twitter blackout was organised in protest against the company’s proposed policies.  As far as I could see, the blackout was reasonably well observed.  What protesting twitter users were saying is that the content they post on twitter belongs to them and that the company had no business or consent from the users to monkey around with that data.

Google recently “consolidated” their multiplicity of privacy policies into a single, overarching privacy policy, but it varied the terms and conditions so radically, that they appear to have carved out a brand new set of rights and revenue streams for themselves, from people’s personal data.  The backlash over this move is yet to fully manifest itself.

Facebook was recently voted the most hated social media company, in a respected consumer poll, largely because of its fast and loose attitude over our privacy and data (i.e. the content we fill the empty Facebook container with daily and our relationships).  MySpace scored slightly worse, but it is hardly relevant, these days, proving (if proof were needed) that mass audiences of millions can and will defect, when dissatisfaction rises beyond a threshold and a viable alternative appears.  Maybe Facebook hasn’t heard about MySpace’s demise, or else it imagines such a fate could never befall them.

In Britain, the recent revelations over the habit of various newspaper reporters and their publishing companies (e.g. News Corp) employing dubious phone hacking, email hacking and other forms of data abuse to get otherwise unobtainable stories, which they exploited for profit, has rocked the highest levels of our government.  This scandal has not played itself out fully yet, either.  People don’t like their data being misused and abused, even if it isn’t high art.

Spotify, as the man-in-the- middle sitting between art-as-data producers and consumers, has found a way to pay insulting low amounts to producers, while simultaneously trading the audience’s attention, data and inferences about the audience as a commodity, to the highest bidder.  Declaring contempt for both parties is a very thin-ice strategy.  ITunes similarly hijacked a massive revenue slice from producers and became an almost monopolistic gatekeeper over artist’s music (data) reaching the public.  By the same token, they exert such control over consumers’ use of this data, through their digital rights management techniques, that many of the fair use rights people have taken for granted over their music for decades have been unilaterally rescinded.

The problem with media companies, search engine providers, e-commerce stores and social networking companies is that they think our data is their asset and our attention a commodity to be bought and sold.  On the other hand, we think these convenient, free, on-line services are a handy utility that holds our data in trust and only with our express, conditional permission and consent.  We think we can move on to the next utility provider, as soon as it is offered and we get a better deal for access to our data and dissolution of our privacy.  We’re both wrong.

Half the problem is that artists selling digital data (the film makers and recording artists, to take two obvious examples) don’t actually know what they’re selling.  Are they selling plastic products or licenses to enjoy their intellectual property?  Both?  Neither?  They don’t actually know.  They don’t even know, with certainty, who owns which rights and how to get their permission to license.  Musicians are especially confused.  Is it any wonder consumers have no idea what they bought and what rights and restrictions actually apply to their purchase?  Nobody knows for certain.

Look, if you already bought the download or CD for a piece of music, presumably some of that price went to cover the license to enjoy the intellectual property.  It clearly wasn’t a single use license, because you are permitted to play the CD over and over again.  Why, then, when you listen to a track on Spotify, are you indirectly paying the artist for the license component again?  Or does Spotify simply sell access to their system?  Well that would mean the intellectual property has no value.  That can’t be right.

You should pay something for the delivery medium, for sure, whether that be a bit stream served from a data centre, or a plastic, digitally-encoded disk, but that’s relatively cheap.  When you buy a download for an album you already bought on CD, vinyl record or musicassette, why are you paying to relicense the art?  You already bought a multiple use license for access to the music.  You’re fully paid up.  But no artist offered a price break to such people.  It cuts both ways, this fairness thing.

Here’s another thing.  If you listen to music that you didn’t pay for, the chances are high that you don’t care enough about that music to have bought a license from the artist for repeat personal listening.  Your use of an unlicensed copy is not necessarily a “lost sale” representing “lost incremental revenue”, because in all likelihood you would have bought the music legitimately, if you had liked it enough.  The fact that you don’t means that this listening experience is probably closer to being an advertisement falling on deaf ears, rather than an art appreciation session.  I’m not advocating piracy at all, but I understand why people bristle at being forced to pay for listening to each and every rendition of a piece of music, directly or indirectly, no matter how little they actually like the music.

The music industry (and Hollywood, for that matter) absolutely needs to decide whether they are selling manufactured plastic units (copies) or intellectual property licenses.  If they hold that they are shipping units, then that implies they value the intellectual property at zero.  Clearly that isn’t what the record company (and especially the artist) intends.  If they license the intellectual property, why do they care how many copies you’ve made?  They might care who you give them to, but not which device or how many times you make a copy for personal use, surely.

They’re hopelessly confused about what their offer actually is, asserting it is one thing, when it suits their purpose and the other, when that is the more convenient model.  It doesn’t give the industry very solid grounds to quibble about breaches, in all honesty.

Everybody is fixated on the idea of a copy.  Copyright.  Rights over copying.  Control.  But the “copy” is an antiquated concept.  The idea of a copy implies units that they manufacture and further, that they manufacture every one of them, but self-evidently, in a digital data world, they don’t have sole control over the means of copy production.  They don’t manufacture all of the copies at all.  We can and do, too.  Therefore, counting copies as a means of control over rights is inevitably destined to fail.  Trying to tinker with copyright law is equally futile.  The notion of a copy no longer serves as shorthand for control over access to the intellectual property (data).

I think that the law of copyright needs to be jettisoned in favour of a more flexible set of laws about licensing.  Licenses are far more applicable than copies.  The industry needs to clean up its act and price the licenses for access to intellectual property separately to the cost of the delivery medium.  If you make the copy, instead of the record company, then all you need is the license.  The industry also needs to gather all of the information it has about rights and restrictions over their intellectual property (i.e. art as data) and the ultimate ownership of these creative works and make it available as a database, on a fair and equitable basis.  Then, on line, real-time, direct-to-consumer license clearing houses could be established to permit consumers to easily obtain the license they require.  With this kind of source data, your software could warn you if the copy you were about to make or share was in breach of the licensing terms you had paid for.  It would also make license compliance easier to police and enforce.

Distancing the industry from the idea of selling units (copies) would have the added benefit of preventing record companies from treating artists as fast moving consumer goods, or disposable and temporary fads.  It would also remove the silly breakage clauses from most recording contracts, which shadier record companies use to claw back enormous sums of money from artists, to replace CDs supposedly broken in transit and handling.  Some dubious record companies even try to claim a breakage rate over digital downloads, where breaking the plastic disk or its packaging is clearly impossible.  It’s a very crooked practice.

There doesn’t have to be a single type of license at a single price point on offer, either.  Artists could sell public performance or broadcast licenses at one (expensive) price point, or single-play licenses at the economy end of the market, ten-play licenses for music you weren’t sure about, unlimited multiple-play licenses to most of us, tied-to-the-device licenses to cost-conscious teenagers, or portable licenses for music distribution in the home, for example.  They could license the whole album, their entire anthology or a single track at a time.  Upgrading from one license to another would be entirely possible at favourable upgrade pricing and unlimited play licenses could be sold on to others.  The marketing possibilities are endless.  If the music is played at you involuntarily, it’s an ad or artist promotion and the performance license holder or the artist pays.  If the music is played on demand, it’s a purchase and at least a single-play license, paid by the consumer.  This flexible licensing approach opens up a new route to economically and cost-effectively restoring the idea of a promotional single, which encourages the sale of the album.

Here is another thought:  Why should the traditional music and film industries be the only ones to license their art as data?  When we produce art as data, we should be able to license our data and user generated content to consumers and to companies that aggregate our content (such as YouTube, Google and Facebook) on similarly fair and equitable licensing terms.  The prices may depend on what the market will bear for our works, but why should there be any ideological distinction between the creative intellectual property that Hollywood and traditional record companies produce and what we make?  They may spend more on the production and achieve higher production values, but their works are usually no more original, entertaining or compelling than user generated content – often far less so.

Also, why should a social networking company help themselves to a perpetual broadcast license to our creative data, for the price of providing access to their web site?  That would be like a broadcast television network helping themselves to a perpetual rebroadcasting license of a blockbuster film in exchange for letting the film maker use their distribution channel one time only.  It is hardly fair.

It’s our data, goddamit!  We made it.  We own it.  Under the admittedly anachronistic copyright laws, we have rights.  We ought to have similar rights under a revised intellectual property licensing law, too.  We should have the ability to control derivative works beyond ordinary “fair use”, for example.   We should be able to license its use, for money or some other consideration, by consumers, corporations and governments.  We should equally be able to withdraw those licenses at will, too.  We might not want our data shared or broadcast and our privacy shredded, or we might see that as a means of raising money.  The point is, the terms of the license granted should be under our control. Our data, whatever it is, should not be forcibly or covertly taken from us.

What about data that isn’t our art, but is personal, private and about us?   Is spying on you digitally, through interconnection of databases that hold fragments of your personal data, in order to build up a rich and detailed meta-profile about you, so that some company or government can discover and infer your habits and beliefs, really a “fair use” of your data?  I would challenge the notion.  It’s a derivative work that falls outside of fair use, I would submit.  It doesn’t sound fair to me to give one side, in a commercial transaction, more information and insight into the other party than the other one has of them.  It doesn’t result in a fair deal.  It’s also unfair for a government to see all and know all, for possibly unethical and nefarious purposes, when we can’t obtain the same about our so-called authorities.  These scenarios create a gross and obvious information inequality that ought to render all commercial contracts (and contracts with the state) made under these conditions null and void.

If we rebalanced the intellectual property licensing laws to give consumers the ability to also be producers of art as data, while retiring the archaic copyright laws in favour of more flexible intellectual property licensing provisions, markets might realise that properties like Facebook, Google, Twitter and LinkedIn are just containers for other people’s property.  If this property were better protected by law than it is today (user content aggregators simply assume and assert control over this data today, for example), then the market valuations of these companies would probably adjust downward.  They don’t own the books in the library, just the shelves.  That’s as it should be, in my opinion.  They don’t own the content.  They don’t own the audience.  Our attention isn’t theirs to sell, it’s ours to license.  Would that make these useful web sites no longer viable?  Maybe, but I doubt it.  Moore’s law almost guarantees that.

Meanwhile, we actually have no idea whether or not Google, Facebook and Twitter are just massive data gathering exercises on behalf of the CIA or some other secret, government, “security” agencies, run solely to keep the rich powerful and dissent contained.  They might not be, of course, but we can’t be sure.  There isn’t enough transparency in these private corporations to really tell.  Certainly their numbers don’t add up.  Advertising revenue?  I don’t think so.  Do the maths.  Nobody really clicks through enough to make this strategy pay.  Who are they kidding?  So what is supporting the massive data storage costs?  We can only speculate.  Right now, it is very difficult for individuals to opt out or to monetize the value of our information and art, as data.

The biggest irony in all of this is that data is not information.  Information requires inference and understanding.  Even machine inferences have no meaning unless the inference is understood within some human framework of cognition.   At the end of all the data transactions is a human being with a mental model of what they are looking at or hearing.  They may have prejudices or a twisted viewpoint.  They may believe in violence and control.  They may view all information through this lens.  If their mental model turns out to be wrong, though, then their understanding is faulty and the information, consequently, useless.  Licensing data that provides no real meaning is actually a profoundly stupid exercise.  So is accumulating it by stealth.  Meanwhile, the data accumulates – relentlessly.   Our data.  Data about us.  Our views.  Our opinions.  Our creative, intellectual output.

Maybe, when more enlightened systems of belief eventually prevail (which they will tend to do, as we continue to evolve as a species) that accumulated data (our profiles, our private data and our digital artworks) will inform future people about us in a very positive way.  Authorities and corporations, if they still exist, won’t use our data as a tool of control, fear and oppression over us.  It will tell them all about us in a way that we can be proud of.  Our data will proclaim, beyond doubt, that we stood for something, we shared and we made beauty.

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About tropicaltheartist

You can find out more about me here: https://michaeltopic.wordpress.com/. There aren’t many people that exist in that conjunction of art, design, science and engineering, but this is where I live. I am an artist, a musician, a designer, a creator, a scientist, a technologist, an innovator and an engineer and I have a genuine, deep passion for each field. Most importantly, I am able to see the connections and similarities between each field of intellectual endeavour and apply the lessons I learn in one discipline to my other disciplines. To me, they are all part of the same continuum of creativity. I write about what I know, through my blogs, in the hope that something I write will resonate with a reader and help them enjoy their own creative life more fully. I am, in summary, a highly creative individual, but with the ability to get things done efficiently. Not all of these skills are valued by the world at large, but I am who I am and this is me. The opinions stated here are my own and not necessarily the opinion or position of my employer.
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2 Responses to Whose Data is it Anyway?

  1. Carlos Ariana says:

    I’ve been thinking about this a great deal, too. I think this is the age of “content.” In the digital age, content has become data. And data can be replicated and controlled by a small number of venues. While in the old age, you could have a friend over, and turn up the radio and play an album for them, today, you could share a song on their facebook profile, but somehow, now the same act translated into the digital age involves “borrowing” or “stealing” data.
    The problem is that historically content has been in the realm of the vernacular, like an oral tradition, like old coal miner songs and the Iliad, they live in the mouth. Now, our stories live in the digital mouth, and digital vernacular is data. Facebook has trapped the daily contents of our lives the way Microsoft has trapped my short fiction. They don’t own it—but I cannot access it, edit it or print it, without their help and permission (by paying a license).
    The assumption companies should earn money from every instance content enters the public sphere because such content and the sphere is digital is very scary.
    Good read!

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