All rights reserved (E)

0:00The baker is incensed. According to the folk tale, it goes like this. Every day, a poor citizen of the neighborhood would come stand in front of the bakery and inhale. deeply the smells coming out of the ovens. The person down on his luck said, well, I can't eat well, but at least I can smell these delicious odors. The baker was incensed. Theft was occurring. He went to the local judge who dragged in the poor citizen. And they said to the citizen, what are you doing? The citizen confessed, I'm standing in front of the bakery, breathing in these delicious odors. Well, the judge looked at him and said, that's theft.

0:48Go home and bring in all of your money, every penny you have. The citizen couldn't believe it. He grabbed the money from home, came with tears in his eyes to the judge. The judge took his money and said to the baker, here, come, come here. And the baker approached the judge. The judge took the money and jingled it loudly right next to the baker's ear and then handed it back to the poor citizen. And he scolded the baker and he said, you lost nothing when that man smelled your baked goods. But now, at least you've heard the sound of his money. Hey, it's Matt. And this is a special archived episode of Akimbo.

1:41I began working on this episode when I was asked to do the final credits for the audiobook for This Is Marketing, the new book I'm coming out with. Reading the audiobook is an incredible labor of love. It's draining. It's a lot more difficult than coming to you with this podcast. So I was thrilled that I was finally finished with it. and there in the final credits it said in all capital letters in bold after I read the copyright notice all rights reserved and so I read it that way all rights reserved but it got me thinking what does that even mean well it turns out it's been said since 1910 it was part of one of the original copyright conventions around the world, but it's been obsolete for at least 15 years.

2:34It doesn't mean anything. Actually, all it means is that there's a lawyer somewhere who really and truly doesn't want you to take this intellectual property, which got me thinking about intellectual property? Is it the same thing as property property? Why do we even have private property? So let's start there. There are certainly cultures around the world and have been for millennia where private property is a pretty strange concept. There's no such thing as private property. It's all of ours. But various governments created the idea and enforced the idea of private property because it can be good for all of us.

3:22If you know that your house is your house, you have a reason to maintain and upgrade your house. If you know that your factory is your factory, you have a reason to invest in it, to develop it, to make it more efficient, that all of us will benefit from people taking their private property and making it better and using it in productive ways. Underlying the idea of private property, of course, is the idea that we both can't have it. That if you have a factory and everyone in town comes and takes something, you don't have a factory anymore. If you have a farm and everyone in town comes and takes a free sample, you don't have a farm anymore.

4:07But what about intellectual property? What about the idea of words and ideas, of patents and copyrights and trademarks? Is it the same? Well, the first thing to note is that if everyone in town comes and tastes your idea, your idea goes up in value, not down in value. That ideas are different because we don't say, oh, I don't have that much in my basket. I can't give it to you. We say, I don't have that much in my basket, but if I give it to you, we'll both have it. And so the way we've been treating intellectual property has always been different than the way we treat physical property. The great Ben Franklin said that as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours, and this we should do freely and generously.

5:07That when they wrote the Constitution, they put this idea right in the beginning. Article 1, Section 8, to promote the progress of science and the useful arts. That's the first part of the clause. By securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries, that we understood that there's stuff in the world, ideas that could be discovered by one but enjoyed by many. There are cultural concepts that only work when they spread, when they are shared. And so we have a chasm right in front of us. And that chasm is, on one hand, if I write a screenplay, if I spend six months of my life writing a magical screenplay and I send it to a Hollywood studio, I think we would all agree that it wouldn't be correct for some studio head to say, great, I'm going to make a movie about this, and you can't have a penny.

6:12I'm going to take your words, your screenplay, and you can't have anything. But I think we could also all agree that if someone tells you a joke and then you tell your version of that joke to someone else, you probably don't owe that first person some money. It's the gray areas where it gets really fascinating. So Leonard Nimoy invented the Vulcan salute as Spock. Two fingers in one direction, two fingers the other in the form of a V. Now, that Vulcan salute is owned, it's a copyright owned by Paramount. So if I pass somebody in the hall and show them the Vulcan salute, do I owe Paramount a nickel?

7:02What if I'm doing a movie, a funny movie, about, I don't know, science fiction, and one character offers it to another? Does someone have to write a check to Paramount? And then once you really get going, it leads to questions about things like fan fiction. Can I write a short story about Kirk and Spock? Can I make a home movie? How good does the home movie have to get before Paramount starts scolding me? Or just consider the idea that trademarks seek to take words and concepts out of the ability of others to use them. So is it okay if I do a Google search for Chanel for Google to find sites that sell things from Chanel?

7:49Is it okay for Google to find sites that sell knockoffs of Chanel? Is it okay for Google to find sites where people are criticizing Chanel? What does the trademark owner actually own? Or consider an architect. When an architect, Frank Lloyd Wright, makes a building like Falling Water, is it okay for someone else to take a picture of that building? If I'm making a movie, am I allowed to have any buildings in the background of my movie? And what if it's not a building? What if it's a painting on the wall of a museum? Can that painting appear in a movie, or is it private property? where do we draw the line?

8:33I was thinking about this when I was in Chicago. Chicago has a beautiful park by the river, Millennium Park, and in the park is a huge stainless steel sculpture by someone named Anish Kapoor. The sculpture, which is nicknamed The Bean, is probably the size of a three-car garage, and it attracts crowds. Well, when I checked into my hotel room for the conference, I was speaking at, there was a note on the desk with what looked like a small three-pound copy of the bean. Upon closer inspection, though, it wasn't actually a copy. It was a slightly different version of the sculpture. I am confident that Anish Kapoor did not get a penny in royalties for this little miniature that reminded me of his idea without being a replica of his idea.

9:29And of course, the joke's on him, because he also, in addition to making sculptures, worked with a paint company to come up with a paint called Vantablack. And Vantablack is the blackest paint ever made. Well, Anish Kapoor did a contract with them that forbids them to sell this paint to any other artist. Is that allowed? Is it allowed for an artist to have an exclusive on a color? Stuart Semple, who's a little bit of a performance artist himself, created the second blackest black in the world, and his paint can be purchased at a pretty low price by anyone in the world, except according to the terms and conditions by Anish Kapoor.

10:19And what about this podcast? Am I breaking the law by making it? Well, until a couple years ago, a patent troll said I was. A patent troll somehow got a patent for what would eventually become, maybe, podcasts. Well, the Supreme Court threw out all of the cases in which this troll was harassing podcasters about their patent. But the question is, should it be okay to have a patent on the idea of a podcast? What about one-click shopping? Amazon famously kept Barnes & Noble from putting one-click shopping on their site because they had a patent on it recently expired. Is that okay? Do we as citizens of a culture want to create an environment where someone can come up with something that certainly seems pretty obvious, that you can buy something with one-click and then keep other people from making it?

11:19A brief aside here. There are patents, there are trademarks, and there are copyrights. And laypeople get them confused all the time. A patent is a process, an invention, that has to be useful and novel, and for a long time had to be tangible. So it's stuff. They've broadened it to processes like one-click shopping, but generally a patent is an invention. A copyright, on the other hand, needs no paperwork to be filed, works all around the world, and a copyright is simply, these are my words and ideas strung together in a comprehensive, complete, concrete way, and I am asserting ownership in them.

12:04And a trademark? A trademark is the mark as the origin of goods and services. I made this. So the trademark of Nike says this came from the Nike company and someone else shouldn't pretend to be making what we're making. In the absolute, I think most of us agree that our culture will get better if individuals and organizations get something in return for the hard work of inventing our future. the hard work of creating something worth patenting, writing something worth copywriting, being the origin of a good or service. But for how long? How big should the prize be? George Gershwin's dead. George Gershwin's grandchildren get money every time someone uses Rhapsody in Blue.

13:02This is not motivating George Gershwin to write more music. At the beginning, you got 14 years with maybe the ability to renew. But now, because corporations are putting their hands all over the intellectual property, they want to fence it in. In the EU, there's a new copyright directive. It hasn't been passed yet, but it's getting close to being passed. And it will break the internet. It will be a huge festival for lawyers and politicians, and it will break the Internet. Two of the clauses that cause a really big problem here is, one, the idea that you cannot link to a news site or other similar site without paying a tax for the privilege of doing so.

13:53And the second one is that there will be a registry, a huge expensive registry where anyone can submit anything they claim ownership in and no one else will be able to put that material online without going through the filter and having it cut off. Which means that if you're say a politician and there's video of you doing something you shouldn't have been doing, you'll just put it in the registry and no one will be able to see it. When we think about how much our culture is driven by the ideas that we all work with every day, that we've taken for granted that we can take those ideas, merge them with other ideas, and make new ideas going forward, what's happening is that there's a new enclosure movement that wants to keep the ideas away from the public and all fenced in.

14:49In Lewis Hyde's great book, Common as Air, he points out that our culture, the ideas that we live with, the fact that Marcel Duchamp could draw a mustache on a picture of the Mona Lisa without asking Leonardo da Vinci's permission, this idea of rejiggering and remixing is at the heart of what we've built. But there are lawyers and corporations that want to take it away. Jack Valenti was the famous tough-talking politician who ran for many, many years the Motion Picture Association, the people who put the ratings on movies. But he was also a leader in arguing for copyright extensions. When asked how long he thought copyrights should last, how long before a movie or a book goes into the public domain, the way Shakespeare is in the public domain, so that others could remix and use it.

15:51He famously said, forever, minus a day. Well, sure, that seems good for the person who created the copyright. But what would Hollywood do if this actually happened? Because the things that they base their stories on, the fundamental stories that are at the heart of our culture, and the images that they want to use. Oh, you can't put my sweater in your movie because I made that sweater and you didn't pay me for using my design. It paralyzes us. It keeps us from doing the work we want to do. So there are interesting approaches as alternatives. Richard Stallman famously wrote what's called the new GPL, G-N-U-GPL, which is a license for software that's based on copy left, not copyright.

16:43And his position is the freedom to work with computers and work with software is hindered by copyright. That in fact these are useful tools and there are people who want to make useful tools and remix the useful tools of people who came before. Or everything you use on the internet, that website that you visited that's running on Apache, that email protocol, you're able to do it because so many other entities were able to share these ideas. So the way copyleft works is if you use software that has a GPL license to make your software work better, it infects your software and you also have to use the GPL license.

17:34So if it works right, it will eat the world. So as the core of software in new gets bigger and deeper, it becomes more and more irresistible to use it. But as you use it, the software you add to it also becomes part of that corpus. And if enough people contribute to it, what we will end up with is an open, inspectable, improvable base of code that gives us a tool set for weaving together the culture we want to be part of. So a couple of times here I've mentioned lawyers. Lawyers aren't inherently bad, but it is their job to litigate, literally and figuratively, on behalf of their clients. And this is where copyright and trademark and patent are getting into all sorts of trouble.

18:29Because when it's just George Gershwin or Irving Berlin or George Orwell who are writing something, They're fine getting their royalties for 14 or 28 or 17 years because they got rewarded. As Tim O 'Reilly famously said, look, the enemy isn't piracy. The enemy is obscurity. That the real problem most individual creators and writers have isn't that they're getting ripped off. Their problem is that they are unknown. That getting known is more important than getting a royalty check. Because once you're known, then you're trusted. And once you're trusted and known, you have currency. Currency in the sense that people want to engage with you, and then you'll get paid.

19:18But as soon as these rights, in quotation marks, are owned by corporations that live forever, that want infinity, then the enclosure movement continues. So Pat Riley, the coach of the Los Angeles Lakers, after his team had won two championships in a row, being an optimist and perhaps a little focused on financial upside, sought out and got a trademark for the phrase three-peat. Not because he was going to be a craftsperson in the sense of sitting in a shop and making stuff, but because he wanted to charge people a licensing fee for using the word three-peat. Well, that's not in the spirit of trademark.

20:08Ironically, the Lakers didn't three-peat, but years later, the Bulls did. And yes, if you wanted to make a three-peat t-shirt, you had to send money to Pat Riley. Now, I don't think that's the way we want our culture to evolve or consider the idea that there's a chain of restaurants in Chicago that uses precious disappearing tuna to make a fast food dish called bouquet. They've named their chain Aloha. Yes, the Hawaiian term for hello and peace and all of those greetings that matter so much. and he is now, through his lawyers, sending nasty letters to poke shops in Hawaii telling them not to use the word aloha in any way.

21:01He may be a really good guy, but the corporate need to enclose the commons, to take property out of the culture is getting in the way of doing the right thing. that one of the things that trademark owners worry about is genericide. The idea that it will say Xerox machine or give me a Band-Aid or do you have a bowl of shredded wheat or can I have some saran wrap to go with my thermos? That once a word is used enough that it becomes part of the culture, it is possible to lose your trademark. And so these very same organizations that want to engage with our culture and want us to talk about them and trust them, then turn around and say, but not too much, because I really need to own this.

21:55So I don't have any answers here, because yes, if I wrote a screenplay, I don't think I would want the studio to take the whole thing. And I know that when I see one of my audiobooks on YouTube for free, that the people who worked so hard to bring my audiobook to the world are getting ripped off. And I also know that YouTube knows how to seek out and stop that copyright violation, and I sort of wish that they would. But I also know that the act of creation isn't incented by the last zero, by going from$20 million to$200 million in profit. the creator is just fine with 20 million dollars in profit that weaponizing this and leveraging this and amplifying this to the point where we are trying to change the way people do their work people speak people engage with the culture makes no sense because the culture the culture is this magical fragile thing it doesn't want to be at the service of corporations it wants corporations to be at the service of it.

23:09And science, the science of discovery, the idea of tools and software that help us do our work, the idea that there's life-saving things that can be invented, life-enriching things that can be created, those things need to happen to serve all of us. And the people who create them should get compensated fairly. But no, it's not theirs. It's all of ours. and we need to figure out how to have an honest, thoughtful conversation about what's worth turning into property and what is part of our cultural commons. Hey Seth, it's Maria. Hey Seth, my name's Kyle. Greetings, Seth. This is Stephen out in Madison, Wisconsin.

23:52Hi Seth, Alicia from Charleston here. Hi Seth, this is Anupam. Hi, this is Caitlin. Hi Seth, warm greetings from Curacao. Hey Seth, my name is Nick Ryan from Pittsburgh, Pennsylvania. Hey Seth, this is Rex. Hey Seth. Hi, this is Vasilis from Greece. Hi, this is Roberta Perry. My question is... And that completes my question. As always, we love to get your questions. We need more of them. Please visit our show page at akimbo.link. That's A-K-I-M-B-O dot L-I-N-K. And press the appropriate button. I'll do my best to answer questions each and every week. Before we get to this week's question, I wanted to thank everybody who listens.

24:39The launch of This Is Marketing, the book that came out last week in November of 2018, was the biggest book launch I've ever had the privilege to be part of. We went to number 12 on the Amazon bestseller list, but more important than that is your feedback has been tremendous. Not just to me, which I truly appreciate, but to each other. the conversations that people are having with one another about the ideas inside that book, that's why I wrote it. So thanks for that. Hi, Seth. I listened to your recent podcast on This Is Marketing, and I had a question about tribes and social media. You often speak of social media as a negative force, but I wonder if it isn't also combining all of these four revolutionary items together.

25:33And in a way where right now tribes are forming around people with the things that we have in common, but it is a place where we could go to connect people, to commit to where they're going, to create culture, to engage in making change and weaving those new stories together to create new meaning and new stories between groups and organizing new tribes. I'm just wondering if you see social media as a place where that could happen, or why do you think so negatively of social media? This is such a juicy question. There's so much to it. First, a little background for those who haven't read Tribes.

26:10My book Tribes was about the need and opportunity for leadership in an era where we are splintering away from mass. that so many people are connected, that the long tail is so long, that there are so many opportunities to see and to be seen that what we need are leaders. Leaders who will connect us, who will see us for who we are, who will inspire us to get to where we need to go. And it's very easy for tribes to go sideways, to go wrong. It's very easy for someone who doesn't mean well, who's short-sighted, who's a troll, who's trying to make things worse. It's easy for that person, that selfish person, to find others and lead them astray.

27:02And so the urgent message of the book, that leadership is not inherently good or bad, but that leadership is up to us. That if we want to make things better, we can make things better by finding people, weaving together communities, seeing what needs to be seen and saying what needs to be said, taking action to help us get to where we want to go. And into this walks social media. Social media with a capital S and a capital M. When I talk about social media, I do not mean human beings need to be social or even our need to be social when we use electronics, that email is a form of media and it's social, but that's not what I'm talking about.

27:51Social media is Facebook and Twitter and the rest of them. These are businesses, and they are businesses that are built on what I believe to be several fundamental flaws. The first one is this. The users of these services are the product. They are not the customer. that where these services went wrong is in not charging people to use them. When Twitter was on a roll, getting ready to go public, they had a decision in front of them. At the time, they had no revenue. How are we going to pay for this thing? Well, here's what they could have done. They could have gone to their 30 ,000 most powerful users, the 30 ,000 people and organizations that needed this platform to spread the word.

28:41And they could have said to them, you can be one of the founding members, and it's going to cost you$20 a month. $20 a month is$7 million a year. And for that money, they would have been verified. They would have had access to better stats. They would have had a publishing platform. To go from 30 ,000 to 300 ,000 paying users would have been easy. At that point, they're making a profit of$70 million a year. They're not interrupting people. They're not tracking people. They're not doing things against people's interests. Instead, they're building a platform where the user and the customer are the same.

29:25What we ended up with is a place, particularly with Facebook, where attention is sold to the highest bidder. So that's problem number one. Problem number two is once you're in the business of selling attention, you start hiring people who will manipulate the feelings of your users to get them to pay more attention. Because if you are paying more attention, they have more attention to sell. So the whole notion of there are people talking about you behind your back, want to see what they're saying, is one of the seductions of Facebook and other forms of social media. That's why people go. That's not healthy.

30:05The third problem is that in every open network where anonymity is tolerated, trolls show up. They just do. They always have. And the thing is, if someone in a clown suit walks into a bank, the teller doesn't say, hi, can I help you? They call the cops. Because people in a clown suit with makeup and a mask on, they're probably not there to make a deposit. They're probably there to cause some mischief or to break a law or two. And the challenge that you have when you are selling attention is that you open the door wide for anonymous people. You tolerate trolls. Trolls who would never be tolerated in civil discourse in the real world.

30:54In the real world, you can't wear a stocking mask over your face and start insulting people in the middle of a restaurant. They'll just ask you to leave. And so when we think about the tribes that matter, when we think about the organizations that we'd like to build going forward, the cohesion that we'd like to build among people who are looking for meaning, who are looking to be seen, who are looking to be part of something, we can't do that when we're also manipulating them, extracting extra attention, selling that attention, tolerating trolls, celebrating fights. That's not what makes us our best version of ourselves.

31:38And then the last part which fits together with all of this is that all of the users are complicit because in the face of all these stats and numbers and boosts and opportunity to game the system, human beings, we can't help it, We take the bait. And so we're happy when we have more Instagram followers than we used to. And we're happy when we post something that gets a bunch of hearts put on it from anonymous people that we've never met. And we're sad when we get a negative review or a personal attack. Well, yeah, that's part of being a person, but it shouldn't become the narrative of our lives.

32:18Dunbar's number is a really simple concept. and what it says is that the average person, the typical person, can handle 150 friendships. There are 150 people who you would go to their funeral if you needed to. 150, not 300, not 3 ,000, not 30 ,000. 150. And that once we get past 150, it starts to stress us out because the ties are too weak. We can't keep it all straight in our head. And so the opportunity we have as leaders, as tribe members, is to get back to that natural sense of mattering to dozens of people, not thousands of them, of choosing to figure out who we can lead, what culture can we build, and then making it easy for others to spread the word.

33:11So without a doubt, really good outcomes have occurred as a result of the connections made on Facebook and Twitter and the rest of them. I'm not throwing that baby out with the bathwater. I'm simply raising a flag and saying, figure out what it's for. This time you're spending, this emotion you're investing, what's it for? What's the best place to do it? because each of us cares about something. Each of us can see what matters. And the question we have to answer is, what are we going to do about it? Who will we connect? And who will we seek to lead? Thanks for listening. We'll see you next time.