The copyright debate has become one of the foremost policy tangles of our time. What used to be an arcane legal matter has grown into an issue that affects wide swathes of the population.

Copying used to be the province of the well-equipped few but owing to the digitization of media and rapid advances in information technology, it is now a diffuse, democratic enterprise. There is no other legal infraction that can be committed with as little expense. Ctrl-C, Ctrl-V. Mischief managed. A challenge of this magnitude obviously inspires an overwhelming response on the part of those who stand to lose from it. Multiple pieces of legislation seeking to defend and advance the interests of copyright-holders end up violating the civil rights of citizens, creating further resistance and animosity. One particularly delusional example is the Belgian music royalty collective, which tried to ban the reading of books to children in a library.

The content industry has actually managed to make its products less attractive or convenient to buy and own and use than to steal and deal. This is poor business strategy and a failure of epic proportions

While there is a case to be made for the rights of copyright-holders, it does not justify the heavy-handed approach taken so far, and while there is a monetary loss associated with piracy, it cannot be worth spying on citizens or limiting their access to information. Laws that permit Internet disconnection without trial or recourse essentially revoke a citizen’s right to a fair trial and are especially repugnant. Murderers and rapists and child molesters get a better deal than that. Since when is stealing a ninety-nine cent song a more serious crime than taking or destroying a life?

Given the destructive stalemate that we find ourselves at, let’s look at the merits of both sides of the debate:

Piracy does hurt artists and other rightsholders, but not to the extent advertised. Many people who pirate would not have paid for the work in question in any case: some because they lack the means and others because they don’t deem that particular work worth the purchase. They do not represent ‘lost sales’, because the sale would not have taken place anyway. Suing teenagers and grandmas creates an atmosphere of intimidation and may deter some novice distributors, but it only causes the more able ones to dig their heels in and seek better tools. The deterrence is temporary but the escalation is permanent and more damaging in the long run. The focus should instead be on people willing and able to pay who pirate instead. What factors are keeping them from paying money?

One factor is the expectation of ownership. Consumers buy media in new formats with the same set of expectations that they had with the old formats. A book can be lent, annotated, carried and read aloud to a group. So why should one not be able to lend a music file or play a movie in public? Computer files, of course, can also be copied, meaning you can enjoy a song at home and in your car after giving a copy to your friend. There is no single, exclusive instance to lug around. In economic terms, not only are the goods not rivalrous, the sharing mechanism is anti-rivalrous.

Media companies’ expectations that consumers interact with these files in a way artificially delimited by the law is optimistic at best and naïve at worst. Attempts to stop the copying of files or restrict their mobility have resulted in annoyance for customers but no profits for the companies. No customer wants to be forced to buy a song for every device that might play it (her computer, her car, her wife’s computer ….) nor do they want to be frustrated at every turn when going about their life. Is putting up barriers really going to convince consumers of the rightness of the companies’ position and make them switch to legal sources and toe every onerous line? Experience would suggest not.

Convenience is another factor. The gallon of gall rightsholders have been pouring on their users often backfires, and badly. There are people willing to pay proxy services to scramble their IP so they can share and distribute files with impunity. They are willing to pay someone else so they don’t have to pay the studios. This may look like sheer bloody-mindedness, but it isn’t. It’s rational. After the limitations on sharing, copying, distributing, recording and playing placed on legally-acquired files, is it any surprise that consumers would rather acquire them illegally, where they come with none of these obligations and truly feel owned rather than borrowed with the grudging assent of a feudal lord? The content industry has actually managed to make its products less attractive or convenient to buy and own and use than to steal and deal. This is poor business strategy and a failure of epic proportions.

If the content industry, including music and movies (and ebooks) wants to compete against illegal copies of their works, they’ll need subtler methods than the sledgehammer of regulation and take-down notices. Their profits are important to them and that’s understandable, but if those profits can only be preserved by spying on citizens and limiting civil rights, few people would choose the profits of one industry over the rights of all citizens. No, the industry needs to reform its business model and make its content easier to access and own legally.

Consider movies. A person wanting to see a new movie legally has to go to a theatre at a specified time, pay for a ticket, buy extortionately marked-up snacks and drinks, sit continuously for the duration of the show, then drive back home after it. If they have children, they have to find and pay a babysitter. If they have work or school the next day, they can’t make time today. The real price of a movie experience is much higher than the number on the ticket. It includes time, energy and stress. The illegal route is to download the movie and may be hook up the computer to the TV. Then they can watch it on their own time, invite friends, pause, rewind, skip, discuss, be loud, go to the washroom. What about discs, one might ask. Well, what about them? A movie comes out on DVD or BluRay months or years after the theatres, long after anybody is interested. A bootleg can be available on the Net the day after a movie comes out. A disc needs to be bought from a physical store, or ordered online, with the associated delay and bother. Every movie online can be found readily using one search field. A DVD only works in its own region. A pirated copy is a joy forever. The gap in convenience is huge.

The same is true for TV. Why would anyone want to shell out for a channel package for one channel to watch the one show they want? Same goes for buying music. Buying music at a store is bothersome. Amazon and iTunes make it somewhat easier, which is why consumers have willingly spent millions on acquiring songs through them. In 2008, Apple’s iTunes was the number one music retailer in the US (ahead of brick-and-mortar WalMart and Best Buy) and 15 billion songs had been sold on it by 2011. About half of US teenagers did not buy a single CD in 2007, and digital downloads accounted for 30% of all sales in Jan 2008. What would have happened to these sales without legal online downloads? Would the people who bought these have schlepped themselves to a store for discs, or downloaded them illegally? Convenience matters. Availability matters. Ownership matters.

Louis C. K. made a comedy special and put it online for $5, marketing it directly to his fans. He recouped his costs in twelve hours and made a handsome profit. Observe the beauty of the situation. His fans paid less than what a studio would usually charge them for such a video. The artist made more than what a studio would have paid him for such a video. His own comments on the situation are worth reading.

Studios like to dangle starving artists as a moral sop to guilt people into paying and yes, not everyone has Louis C. K.’s fame or fan base, but what this shows is that the studios are becoming unnecessary–redundant would be another good word–to both sides of the equation. What studios need to realise is that neither consumers nor artists are beholden to them or their business model or distribution networks anymore. They are free to communicate with each other directly, so the studios must adapt and innovate to stay relevant at all.

Why not release movies online at the same time as theatres, with access codes sold for a few dollars each? It’s not like the studios get to keep the entire price of the ticket anyway. By cutting out middlemen like the theatre and distributors, they’ll be bringing home the same profits as before, may be more. There will still be a theatre-going audience paying for the larger screen, while many casual viewers who would not have bothered to watch it except on a laptop on their couch will be captured. Once a person buys a movie, it should be theirs to keep. For life. There may be strong copy-protection, but no one who manages to circumvent it should be prosecuted. Studios should remove legal intimidation from their arsenal and limit themselves to a technological arms race, unassuming and impersonal. No system will ever be completely uncrackable, but it might be just enough to make the effort not worth it. At no point should a business sue its customers or support legislation that limits rights. Questions of morality aside, doing so is always counterproductive. Nobody roots for a bully.

Strong anti-piracy legislation in France has led to a drop in piracy, but not eliminated it completely. I imagine it’s the less savvy pirates who have been scared away, and some of that drop in traffic is simply due to pirates going further underground. The more interesting fact is on the flip-side: digital downloads in France are up, but despite the halving in piracy, conventional music sales are down. I know Hollywood doesn’t always prefer subtlety, but can they not see the writing on the wall?

If you continue to deny access to your products for months, then limit that access with geographical restrictions, then sic your lawyers on pre-teens who crack it, you will gain no sympathy and earn only distrust and distaste and disaffection, not profits.

So much for movies. What about software? Microsoft turned a blind eye to pirated copies of Windows early in its history because it knew doing so would make Windows ubiquitous and the network effects would assure its dominance. Clever, but not everyone can afford it. Smaller game and software houses are especially hurt by pirating, and they don’t always have the firepower to fight back. Lawsuits do happen, and the companies even win them, but not before spending valuable resources and losing goodwill. Fortunately, there are better ways of giving an edge to paying users. Software can include support and value-added services, and games can include in-game purchases. Rovio, the creator of Angry Birds, has decided to forego the anti-piracy litigation route entirely, recognising such efforts as “futile” and seeing piracy as a marketing opportunity. The point is that there are methods, both technology and business model-based, that achieve desirable results for all parties without causing ill-feelings or requiring litigation, or worse, legislation. A dollar spent on game development has better returns than one spent in hunting down the pirates of the last game. In the long run they achieve more with less effort. They are efficient.

All this downloading and distributing may not be legal or ethical, but businesses hung up on that point are missing the point by a parsec. Copying and sharing is so straightforward and effortless that complaining about the law or morality is immature. One may as well complain about gravity.

Ebooks are a more complicated matter. Books as a saleable commodity have a longer history than musical recordings, certainly moving pictures. As Cory Doctorow puts it in the preface to his “Makers”, books have been owned for far longer than they have been published. Yet ebooks are not owned but merely, effectively, leased. Amazon, for example, was able to pull an ebook from its collection. Not only did this title disappear from Amazon’s online store, which is the equivalent of a brick-and-mortar store discontinuing a product, and perfectly cogent, but it disappeared from the Kindles of Amazon customers as well. Simply vanished. Here today, gone tomorrow, with all their careful annotations. And which book was this? Nineteen Eighty-Four. Oh, beautiful irony. Imagine the power to make every copy of a book disappear from everywhere. Now imagine that power in the hands of a censor, or an extremist, or simply a malfunctioning piece of code or an inept employee. In a world where increasingly more books are electronic, the consequences would be devastating.
Human civilization is built on the written word. The word ‘Bible’ literally means ‘book’ in Greek, sharing a root with ‘bibliography’ in English and ‘bibliotheque’ in French. The first word of the first verse of the Qur’an revealed to Mohammad was ‘iqra’ – “read!” The most influential ideas in human history were put down in books – Principia Mathematica, The Origin of Species, The Wealth of Nations, The Communist Manifesto. People from my generation, the ‘digital natives’, still identify ourselves with books. We are the Potter generation (and we look down on the Twilight generation). Any technology that gives a few people the ability to pull the carpet from under human civilization deserves strict scrutiny and strong controls.

An ebook should belong to the person it is sold to, with the seller having no ability to influence it after the sale. Ideally, it should be sold without the buyer’s information being linked to it at all. Back-ups could be stored in an encrypted form with a user-generated key. Why would anyone buy legal copies? For one, they might come with discount codes for hard copies, or sequels, or related movies.

Again, the providers have to realise that it’s their duty to entice and convince the customer, and yes it does sound like work, but that’s what business is. The customer is free to download an illegal copy. It’s even easier than for movies or music. The files are smaller. The entire Harry Potter series is a 7 Mb file. It doesn’t download – it practically apparates.

All this downloading and distributing may not be legal or ethical, but businesses hung up on that point are missing the point by a parsec. Copying and sharing is so straightforward and effortless that complaining about the law or morality is immature. One may as well complain about gravity. Admiral Yamamoto warned against Pearl Harbor by saying that fighting the United States would be like fighting the entire world. Here’s a thought for the content industry, their lawyers and their pet legislators: fighting the Internet is exactly like fighting the entire world. And every day the Internet is growing, in places where your precious little intellectual property laws are mocked and ignored.

It is becoming less manageable, more widespread, more multilingual. Adapt, or die, because consumers are not obliged to ensure your profits if you fail to construct a functioning business plan. It is your business, not theirs. It is no longer about who is right, but who is left. Arguing from a moral soapbox will leave you broke. This is a practical matter demanding practical solutions. Art has existed for millennia without corporate houses exerting control over it, and it will outlast them long after they are dust because of their own myopic, mulish denial of reality.

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    June 7, 2013 at 2:29 pm

    Hello, just wanted to say, I loved this article. It was helpful. Keep on posting!

  2. Lesli

    August 1, 2014 at 4:11 am

    Excellent blog you’ve got here.. It’s difficult to find high quality writing like yours nowadays.
    I seriously appreciate people like you! Take care!!

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