Umpires, Not Kings

The point of rules and referees isn’t to stop people from winning. It’s to keep the game alive.

Competition over scarce resources is at the heart of our evolution as a species and the success of Western democracies. We are the product of millions of generations of survivors who bested their rivals for food, shelter, and mates. From two single-celled organisms competing over an energy source to a pair of sisters grinding through practices in pursuit of Grand Slam trophies, competition has inspired endless effort and innovation.

Charles Darwin kept his work private for 20 years before learning a colleague was advancing a similar theory, prompting him to write On the Origins of Species. Nikola Tesla and Thomas Edison feuded bitterly on their way to establishing the building blocks of our electrically powered economy. Hemingway and Fitzgerald pushed one another to invent modern American literature, and Jay-Z and Nas mined their disdain for each other to spin lyrical and literal gold.

Common Thread

From flame-broiled burgers to retina displays, companies are spurred to improve their products not by ideals or curiosity, but because if they don’t, the other guy will eat their lunch. Avis made an entire ad campaign out of the premise: “When you’re only №2, you try harder.”

Business history is a tale of competition, redoubled effort, and greater innovation. In 1869, Central Pacific laid 10 miles of railroad in less than 12 hours from fear that Union Pacific would get there first. In 1978, Airbus entered the U.S. market for the first time; Boeing responded with three historic aircraft in five years (the single-aisle 757, the twin-aisle 767, and a revamped 737). It took a near-death experience at the hands of Japanese manufacturers to wake Detroit from its victory coma.

Silicon Valley was birthed from the “space race” competition between the U.S. and the USSR. In October 1957 the Soviets launched a dog into orbit. Within a year, the U.S. founded NASA and ARPA and authorized the investment of millions of dollars in math and science education, all of which funded the first generation of Valley firms. Competition has been in tech’s DNA ever since. Steve Jobs founded Apple 362 days after Bill Gates founded Microsoft.

The most prosperous societies are built around free-market competition. It’s uncomfortable — harsh even — so we’ve tried to design societies based on planning and enforced economic equality. But communism leads to stagnation, repression, and economic collapse. China’s economy went from starving its people to minting self-made female billionaires after Deng Xiaoping embraced private enterprise and competitive markets. “To get rich is glorious,” he proclaimed.

Winner’s Circle

However … winners’ lust for competition wanes after they’ve won. Why let anybody on the medals podium if you can occupy higher ground and repel anybody who gets near the stage?

Imagine if the team that won the Super Bowl automatically qualified for the playoffs the next season, or started every game with a 10-point lead? In fact, the opposite happens: the best teams get the worst draft picks. The NFL may be the most successful league in the world because it doesn’t let the largest market teams leverage their scale to collect more of the lucrative TV contract: The Green Bay Packers get the same share as the New York Giants. Do well in professional soccer, and you get moved up a division to face tougher opponents — and play for greater rewards.

No field sees winners try to retract the ladder behind them more aggressively than business. From Cecil Rhodes using the power of the state to turn diamond mining into a cartel, to Martin Shkreli blocking generic manufacturers so he could raise the price of a life-saving drug 56x, nothing threatens today’s competition more than yesterday’s winners.

John D. Rockefeller was upfront about his distaste for competition, once saying that he was engaged in the “the battle of the new idea of cooperation against competition.” And later: “The day of individual competition in large affairs is past and gone.” Though Rockefeller’s idea of “cooperation” was rather one-sided: To bring down the price of a refinery he wanted to buy, he’d first buy the pipeline that transported oil to it and cut off the supply.

Starting in the late 19th century, U.S. lawmakers realized that centralized economic power wasn’t just bad for business, it was bad for the country. Senator John Sherman, who sponsored the first major U.S. antitrust legislation, said, “If we will not endure a king as a political power we should not endure a king over the production, transportation, and sale of any of the necessaries of life.” We broke up Standard Oil and American Tobacco and stopped the consolidation of the railroads. The economy roared as competition oxygenated the ecosystem.

Today’s largest companies offer a masterclass in anticompetitive behavior. Amazon bars sellers on its platform from offering lower prices elsewhere, then uses the information it gleans from them to design and market its own, lower-priced products. It gives favorable search results placement to vendors that use Amazon fulfillment services (for which it’s been fined $1.3 billion by the Italian government). Defenders of the company say this is all business as usual … yet Amazon lied to Congress, repeatedly, about all of it.

Apple takes a 30% cut of app revenue, which it says it needs to run the app store, but it books billions in profit instead of cleaning up obvious frauds or copycats, while giving preference to its own products over competitors. (Can you get your iPhone to stop trying to play music through Apple Music instead of Spotify?) Microsoft charges more for its applications when users run them on a competing cloud provider. Google doesn’t merely sit on both sides of the digital advertising negotiation, it owns the negotiating table. And Facebook has stated that it acquired Instagram to eliminate a competitor.

This is hardly new for Big Tech. In the 2000s tech titans conspired to suppress competition for employees. For example, when Steve Jobs learned that Google was recruiting an Apple engineer in 2007, he emailed CEO Eric Schmidt: “I would be very pleased if your recruiting department would stop doing this.” Schmidt forwarded the email to an underling: “Can you get this stopped and let me know why this is happening?” He was told the recruiter would be “terminated within the hour” and to “please extend my apologies as appropriate to Steve Jobs.” Then a Google SVP chimed in: “Please make a public example of this termination with the group.” (We only know about Jobs and Schmidt channeling their inner Rockefellers thanks to a class action lawsuit former employees brought against the companies, which led to a $415 million settlement.)

Another favorite Big Tech trick is demanding competitors obey the rules they ignored when they were starting out. Amazon used to have a price advantage over physical retailers because it didn’t collect sales tax, and it fought to maintain that edge, even closing down a warehouse in Texas to avoid having to charge tax there. But once other online innovators became more of a threat to Amazon than brick & mortar ones, the company flipped the script, invested in the infrastructure necessary to collect sales taxes nationwide, and announced its support for a federal sales-tax-collection framework. Now Uber is following the Bezos playbook. After building its business by ignoring livery laws that regulated the hired-car market — and protected the incumbent taxi companies — Uber is embracing traditional cab companies and listing them on its app, thereby building a moat against incursions by Lyft and other digital-native competitors.

“Free speech” is a trending topic because of debates about how to police online forums, chiefly Twitter and Facebook. The leader of the supposed free speech movement, Elon Musk, says he wants Twitter to be an open playing field for competitive speech. And he’s right, that’s a great goal. But a competitive field is not an unfettered, uncontrolled one. Serena Williams has won 23 Grand Slam titles because she’s the best player in history. She’s won only 23 Grand Slam titles because she’s not allowed to use her winnings to buy a pack of tennis playing automatons and bring them onto the court with her. The rules are the same for her and each opponent, and those rules are enforced by an umpire.

In an unmoderated online forum, all speakers do not play by the same rules or have the same tools. University of Maryland professor David Kirsch has found that automated pro-Tesla Twitter accounts are responsible for 20% of the tweets about Tesla, and that the launching of these bots correlates with increases in the company’s stock price. It’s not just bots. Say something negative about Elon online, and I’ll vouch for this, the Tesla Taliban comes for you. Anyone who tells you this is “free speech” doesn’t want freedom, they want power via elimination of competitive speech.

As much as competition is natural, it’s not inevitable.

In Praise of Umpires

Competition depends on rules, and rules depend on umpires. We should fight to protect competition — not winners. Because winners subvert the process. In the name of competition, they demand that their anticompetitive acts go unpunished. In the name of freedom, they insist on their right to shout down the dissenter’s voice. In the U.S., winners have funded “think tanks” and politicians, bought newspapers and cable news stations, and convinced us the umpire is our enemy.

Our failure to police Big Tech’s anticompetitive conduct is suppressing innovation. Despite an explosion in VC funding, the growth rate of innovative young companies has actually slowed. For startups in developing sectors, a Big Tech acquisition is a kiss of death. Yes, the folks who get acquired can take the money and run, but the sector itself dries up. Research shows that when Google and Facebook purchase a company, VC investment in that sector drops 40% within three years. When Google enters an app market category, innovation among competing apps drops 5.1% and developers flock to other categories. Apple the underdog produced the Mac, the iPod, and the iPhone. Apple the colossus charges 30% for the privilege of being on the App Store. When you’re only №2, you try harder.

The standard term for the government’s role in ensuring competition is “antitrust.” It’s an unfortunate anachronism, from the Teddy Roosevelt era. Today, Senator Klobuchar gets it right when she calls antitrust “competition policy.” The point of rules and referees isn’t to stop people from winning. It’s to keep the game alive.

Capitalism is full-body contact violence at a corporate level. On the way up and down. Winners will always seek to entrench themselves, buying up competitors or starving them of resources and seizing control of political power and forums for speech and debate. Misconceptions about censorship and free speech are false flags distracting us from power grabs by those who don’t want their speech to compete, but to be promoted/protected by algorithms. Just as complaints about competition policy “picking winners and losers” or “punishing winners” are cover for letting those winners rig the next round of competition in their favor. It’s long past time to replace the idolatry of innovators with a reinvigorated respect for the rules and the umpires who enforce them.

Life is so rich,

P.S. Speaking of winning, No Mercy / No Malice has been nominated for a Webby, and we could use your vote to help us win: http://wbby.co/web-email-business. Help put us one-fifth of the way toward a WEGOT.

P.P.S. Another thing about those “genius innovators”? A lot of them are terrible to work for. Don’t be that person. The Complete Manager Sprint closes soon.

Why We Need to Keep Competition Alive was originally published in Marker on Medium, where people are continuing the conversation by highlighting and responding to this story.

Does Musk’s stake in Twitter herald a new direction for the social network, or is it another pointless distraction for the Tesla CEO?

Ed note: After this post was originally published, Twitter CEO Parag Agrawal tweeted that Musk decided not to join Twitter’s board.

Desperate to recapture a delinquent attention cycle that’s wandered off to war, Elon Musk announced Monday he is the largest shareholder in Twitter, with a 9.2% (correction: 9.1%) stake. @elonmusk has trolled me (i.e., called me names on … Twitter) before … but this feels like cosplay.

Backstory

I’ve been taking activist positions in companies (i.e. participated in $800+ million worth of investment and advocated for change at a publicly traded firm) for the better part of two decades. I’ve served on the boards of seven public companies. In December 2019 I took a stake (approx .03% the size of Elon’s ownership) in Twitter and wrote a public letter to the board, highlighting the company’s lack of innovation and weak shareholder returns, and calling on them to replace part-time CEO Jack Dorsey. I received no response. Shocker. Although the chairman’s son tweeted at me that I shouldn’t be so harsh on Sheryl Sandberg. So … there’s that. A few months later, Elliott Management, a large activist fund, called me and said they were signing my letter with a $2 billion pen. They bought a significant stake in the company and secured two board seats in record time, as the directors realized they’d been acting like sycophants vs. actual fiduciaries. Once Elliott had representatives on the board, @jack was gone. It was just a matter of optics and cadence to make it appear as if it was his idea — ego still drives the majority of decisions around corporate governance. (And war.)

Elliott has done Twitter’s shareholders — and corporate governance — a service advocating for the crazy idea that the CEO should work full time. @jack is a great CEO of Block, but he was a shitty absentee father at Twitter.

The Song Remains the Same

Twitter’s fundamental problems remain, however, and by early this year its shares had retreated back below $40. I began (again) meeting with funds to discuss taking a position and advocating for change. My pitch: Twitter is among the most important products in history (real-time news source, global communications platform), yet it remains a lackluster investment.

The company flounders in a cesspool of ad-supported media, sacrificing quality for attention in the pursuit of profits it will never realize. Twitter defines the term “subscale” in a digital landscape where three giants command 80¢ of the digital dollar: Google, Meta, and Amazon.

Twitter’s inability to monetize is reflected in its valuation. In late January, before Elon started buying, the stock was trading at a significant discount to Meta and Snap.

What to Do

Twitter should move to a subscription model (#fuckingobvious). Corporate users and users with large followings would pay for a fraction of the value they receive. I have long advocated for this model; by shifting the company’s revenue source from advertisers to users, subscription aligns economic incentives with user experience, rather than user exploitation. This leads to a myriad of benefits, which is why recurring-revenue businesses register greater growth and retention and bigger valuations.

Nothing better illustrates the value of Twitter to its users than Tesla. The carmaker spends almost nothing on advertising (GM spends $2+ billion per year), yet it has built the best brand in the industry. This is a function of performance (outstanding products, exceeding targets) multiplied by reach. The reach is a function of Elon’s 80.9 million PR agents (i.e., his Twitter followers). The social network could charge Mr. Musk $10 million a month and — after making a series of ad hominem attacks on the board/company/CEO — he would pay it. Nearly every Fortune 10,000 company and A/B/C list celebrity who uses the platform as a real-time communications tool would pay fees scaled by follower count.

In addition, ad-supported media is what drives the enragement cycle, the bots, and the misinformation plaguing Twitter. Cleaning that up would be good for business, and for the commonwealth. False stories on Twitter are 70% more likely to be retweeted than true ones — and spread six times faster.

On the basis of this pitch, I had soft-circled substantial capital. We were working through this crazy thing called SEC rules and regulations. How would we structure the special purpose vehicle? What were the Hart-Scott-Rodino requirements if one capital source provided more than 50% of the investment? Would my background advocating for change mean we’d need to file a 13D (active) vs. 13G (passive)? You know, “the law.”

By early April we’d spent the better part of a month sorting through these issues. But TWTR was suddenly on a tear, up 20% in two weeks. The market had perceived the shape of a whale moving beneath the surface. My team speculated that another big activist fund was accumulating a position and we updated our models. Then the whale breached.

Enter Elon

To be clear, there’s a lot to like here. Elon correctly saw the opportunity and seized it. Twitter was dramatically undervalued and should be better. And the board was smart to embrace him and give him a seat. The easiest way to silence an activist is to make them an insider. Corporate governance is out of fashion in an era of dual-class public stock and a dangerous diminution of government. But Twitter is 2 for 2 in recent months, showing Jack the door and putting a large shareholder on the board.

In addition, Musk is a genius. He leads two companies that are simultaneously revolutionizing important industries. Tesla makes the world’s best cars and has accelerated industry adoption of electric vehicles by years. The same day he disclosed his Twitter stake, Tesla announced record shipments. But in my view, Tesla isn’t even his most impressive company. SpaceX’s reusable rockets are fundamentally changing the economics of space hauling, core to our future infrastructure. In sum, we have the preeminent entrepreneur of his generation, who’s taken a seat on the board of a company that needs to command the space it occupies.

Glass Half Empty

But…

For starters, Musk’s track record is mixed when it comes to errant distractions from the businesses he’s responsible for. Over the past several years, he’s been reckless, toying with companies, cryptocurrencies, and technologies that captured his fleeting attention only to move on when the next shiny object caught his gaze.

To date, Elon’s stated objectives for Twitter are vague, and clearly bullshit. His main beef with Twitter, it appears, is there’s too much moderation.

Where to begin? Some basic law: Free speech is essential to a functioning democracy, but free speech is a protection from government limits on speech. Free speech doesn’t limit Twitter … it protects Twitter. Rigorous adherence to the principle of free speech means Twitter shapes its own voice, which, if it decides, is not amplifying hate speech, false speech, or speech calling for insurrection. Users who want that content can find it elsewhere, such as 4chan, or Truth Social (not really … DOA). Free speech principles are government principles, just as censorship is government action. Everything else is competing speech.

Moreover, Twitter is an important space for communication, but “free speech principles” and “democracy” do not require or even suggest that Twitter let anyone say anything. On the contrary, they militate for reasonable moderation. An unfettered forum is not free, it’s an invitation to mob rule. If Twitter is the “de facto public square,” that’s because the site moderates content, not despite its efforts to do so. Almost nobody wants unfettered speech on Twitter. Imagine your email inbox but with no spam filters … times 280. Moderation is why 4chan gets 20 million users per month, while Twitter gets 217 million users per day.

In practice, Elon’s interest in “free speech” has been mostly about intimidating journalists who wouldn’t be stenographers for his unfounded claims. His solution was a website where people could vote up or down on journalists, where the magic of crowds would fix media. He wanted to call it Pravda. Today, Pravda, like so many Elon missives, is long forgotten, and Elon’s answer to the problems facing Twitter is: “Something … something … open source.”

This echoes a long-standing interest by @Jack and others at Twitter, including new CEO Parag Agrawal, in a future version of Twitter that’s “decentralized.” A web3 Twitter, if you will. Specifics are absent — it’s easier to vomit a buzzy word salad. Users will be able to configure their own moderation, no centralized authority, all the same crypto-web3-decentralized BS that has resulted in few real products or services, but has secured billions of dollars for VCs and (other) grifters. The notion that hundreds of millions of Twitter users are all going to tinker with their personal moderation algorithm is as likely as people connecting directly to the blockchain with their handheld phone.

Opening Twitter to outside parties could be powerful, and there’s potential for a new architecture that would let different flavors of Twitter evolve. That’s the idea behind Bluesky, which Twitter created and funds. But a) Twitter is already pursuing this, they don’t need Elon on the board for it; and b) there’s no commercially viable version of Twitter without moderation. Whatever emerges from Bluesky, it will still need centralized entities that filter content and make judgment calls, or the system collapses into chaos.

Wild West

Musk’s call for a Wild West version of Twitter isn’t surprising, as it’s consistent with an emerging Valley ideology I label “takerist.” Takerists view the commonwealth as a hunting ground for personal enrichment and amusement vs. a community invested in mutual prosperity. The great taste of community — roads and charge stations, EV tax credits, air traffic control for Gulfstream 650 ERs, public universities that graduate engineers — with none of the calories — taxes, laws, the basic comity of man.

True to Form

We found out Elon was Twitter’s largest shareholder on Monday morning, because that’s when he disclosed his holdings to the SEC, as required of anyone who acquires more than 5% of a public company. Only Elon filed the wrong form, and he filed it nearly two weeks late. He filed the form for “passive” investors — and if you’ve been talking to the CEO for the past few weeks about joining the board and changing the product, you are not a “passive” investor.

Elon filed the correct form (Schedule 13D) the next day, but it requires more fulsome disclosures, which revealed he had crossed the 5% threshold on March 14. Meaning he’d been obligated to disclose his stake back on March 24. By illegally concealing his stake for 11 days, Musk was able to continue buying shares from sellers who didn’t know he was accumulating a huge position. Had he disclosed his shares properly on March 24, TWTR would have shot up 25% then, instead of on April 4, and the shares he bought subsequently would have garnered selling shareholders approximately $150 million more. That’s fraud, and while I have increasingly less confidence in the SEC, Congress has recently beefed up its power to seek disgorgement of ill-gotten gains for securities law violations. Shareholder lawsuits may also be in the offing.

Even if the SEC acts, $150 million is immaterial to Elon. On a relative basis, his entire $2.5 billion investment in Twitter is about the price of a MacBook for the average household. A $150 million fine is buying an extra charger. Takerists such as Elon are exempt from the law — they can buy their own. The rest of us would be left with a Musk-flavored Twitter, which would look similar to the replies to his announcement: a septic tank of crypto scams, far-right blather, and screeching wokeism. For all his complaints about “free speech,” Elon has always been able to speak his mind. Or if not, what hasn’t he said?

What’s Next?

Whatever we think of Elon’s move, he’s made it, and the future of an increasingly important media company is increasingly up to him. He “only” owns 9%, but his influence far exceeds that. Even on a strong board (vs. one that would tolerate a CEO on permanent safari), a mega-billionaire celebrity will command outsized influence.

As with all things Elon, it’s the Elon show (unless/until he gets bored and moves on to the next shiny object). Pop quiz: Name somebody else who works at Tesla, SpaceX, or The Boring Company.

Elon bumped the stock, but he’s also likely removed any takeover premium. His antics and wealth make him a human poison pill — neither a financial buyer nor a strategic acquirer wants to deal with the chaos and unpredictable behavior he brings. And Elon himself signed away his right to buy more when he joined the board. The market sensed these issues and, after its initial explosive gains, the stock began to check back.

Prediction: Even the flaccid SEC has to do something here … and that will be an unwelcome distraction for the Twitter board.

Inner Child

20 years ago I joined my first public company board. I was obnoxious, constantly heckling from the cheap seats and more concerned with getting credit for change than increasing stakeholder value. Two decades and seven boards later I’ve finally (I think) embraced what it means to be a fiduciary: to represent the interests of others. Elon is the most brilliant product engineer of this, and likely the last, century. A fraction of that brilliance could transform Twitter. The risk is that his takerism, constant punching down, and cold take on the First Amendment could push Twitter further off course.

Twitter’s future now comes down to one question: Can Elon Musk’s inner child develop an outer man?

Life is so rich,

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The Elon Musk Rollercoaster of Volatility was originally published in Marker on Medium, where people are continuing the conversation by highlighting and responding to this story.

You might have seen Ed Sheeran’s triumphant statement about his victory in a copyright lawsuit that alleged he’d copied elements of Sami Switch’s “Oh Why” in his song “Shape Of You”:

https://twitter.com/edsheeran/status/1511631955238047751

Sheeran’s statement makes two critical points: first, that there are only so many ways of arranging English words and musical phrases, and with 60,000 new songs being released to Spotify every day, there will inevitably be some coincidental duplications of words and melodies.

That’s an idea that’s been in the air for a hell of a long time. Spider Robinson won a Hugo in 1983 for a short story called “Melancholy Elephants” where the widow of a legendary musician tries to talk a U.S. senator out of extending copyright terms on the grounds that it will result in every copyrightable element of every art form being under copyright forever:

http://www.spiderrobinson.com/melancholyelephants.html

It’s also an idea the record industry fought like hell against. Take the Bridgeport Music case, which resulted in a judgment that a two-second sample, distorted beyond recognition, could still constitute a copyright violation:

https://en.wikipedia.org/wiki/Bridgeport_Music,_Inc._v._Dimension_Films

The industry long took the position that any taking of any kind should be controlled by the “original artist” — while simultaneously undergoing waves of consolidation that ensured that whoever the “original artist” was, they’d end up signed to one of three labels, in a deal that required them to sign away these ever-expanding rights.

It was inevitable that this would come back to bite them in the ass, and it did. In 2015, the Marvin Gaye estate triumphed in a bizarre case over Pharrell Williams and Robin Thicke’s song “Blurred Lines,” successfully arguing that while the song didn’t take any of Gaye’s words or music, it took his vibe:

https://www.rollingstone.com/music/music-news/robin-thicke-pharrell-lose-multi-million-dollar-blurred-lines-lawsuit-35975/

This opened a floodgate that saw lots of minor artists suing stars because there was some incidental, minor overlap, like a $2.3m judgment against Katy Perry over an eight-note phrase that was similar to phrases in many other songs, including an obscure piece of Christian hip-hop (Perry won on appeal).

https://pluralistic.net/2020/03/20/pluralistic-20-mar-2020/#fair-use

These suits put the music industry in a bind, forcing them to argue for fair use and other limitations to copyright after decades of arguing against them. The results were often surreal. For example, Warner Chappell repeatedly sent manual copyright takedowns to YouTube to get a video removed on the grounds that it infringed Perry’s copyright:

https://pluralistic.net/2020/03/05/warner-chappell-copyfraud/#warnerchappell

The problem? The video didn’t have any of Perry’s music in it. Instead, it had the eight-note phrase that Perry was accused of copying, over which Warner Chappell spent millions on legal bills, insisting that it didn’t sound anything like Perry’s music. What’s more, the YouTuber they repeatedly, manually, deliberately targeted was agreeing with them and had included the music to prove it sounded nothing like Perry’s song.

The music industry got exactly what it wished for: a world in which the customary borrowing and trading between musicians and their songs was prohibited, with incredibly stiff penalties. To the extent that they’d even considered that this would interfere with normal musical activity, they’d assumed that it wouldn’t interfere with their activities, since the three labels would be able to cross-license to one another, and between them, they’d own everything.

But they didn’t think it through. They failed to realize that the legal liability regimes they’d created would cut both ways, and that the peripheral acts and businesses — obscure Christian hip-hop artists, say — would see the giant labels and their stars as irresistibly juicy targets.

They were the proverbial dog that finally caught the bus, and then had no idea what to do with it.

Which brings me to Sheeran’s other important point. He takes partial blame for the “Shape of You” suit, thanks to his decision to settle another baseless suit in 2017, over his song “Photograph.” The suit sought $20m, and he judged that the cost of quick payment was worth avoiding the hassle and risk of a suit.

That, he says, opened the floodgates, as unscrupulous or deluded musicians decided to try their luck and see if they, too, could prise a settlement from him.

But it’s no accident that Sheeran settled. Modern copyright law was designed to encourage settlements, with high statutory damages (up to $150K/infringement) that makes the price of an unsuccessful defense certain financial ruin. The record industry used this to its advantage during the Napster wars, when it sued 19,000 children and extracted settlements from nearly every one of them, almost never having to go to court.

Sheeran now says that he’s video-recording all of his songwriting sessions to prove he made up his tunes, just as Russian drivers record all their trips with a dashcam in case a scammer jumps in front of their cars and claims they were maimed by careless driving:

https://www.bbc.com/news/entertainment-arts-61026308

But of course, even putting himself under 24/7 surveillance won’t help Sheeran if he gets hit with a vibes suit like the “Blurred Lines” case. As James Boyle and Jennifer Jenkins document in their seminal graphic novel, THEFT: A History of Music, all music borrows from other music:

https://memex.craphound.com/2017/02/25/theft-a-history-of-music/

And it always has (music scholars’ pet name for Brahms’ First Symphony is “Beethoven’s Tenth Symphony”).

For decades, the legal program of the music industry has been to dismantle the process by which music is made, with the idea of rebuilding it within the walls of a very small number of very large companies, who can use their position to extract contractual concessions from creators and assert control over the changing currents of taste and distribution.

In so doing, they created a set of potent legal weapons that can be wielded by people who have even fewer scruples than executives at giant record companies. Make no mistake: copyright trolls are a feature of copyright maximalism, not a bug.

Image:
Kristain Baty (modified)
https://flickr.com/photos/50389211@N02/13285976654

CC BY-SA 2.0
https://creativecommons.org/licenses/by-sa/2.0/

Cory Doctorow (craphound.com) is a science fiction author, activist, and blogger. He has a podcast, a newsletter, a Twitter feed, a Mastodon feed, and a Tumblr feed. He was born in Canada, became a British citizen and now lives in Burbank, California. His latest nonfiction book is How to Destroy Surveillance Capitalism. His latest novel for adults is Attack Surface. His latest short story collection is Radicalized. His latest picture book is Poesy the Monster Slayer. His latest YA novel is Pirate Cinema. His latest graphic novel is In Real Life. His forthcoming books include Chokepoint Capitalism: How to Beat Big Tech, Tame Big Content, and Get Artists Paid (with Rebecca Giblin), a book about artistic labor market and excessive buyer power; Red Team Blues, a noir thriller about cryptocurrency, corruption and money-laundering (Tor, 2023); and The Lost Cause, a utopian post-GND novel about truth and reconciliation with white nationalist militias (Tor, 2023).

The Ed Sheeran Problem, or, How the Record Industry Got What It Asked For was originally published in Marker on Medium, where people are continuing the conversation by highlighting and responding to this story.