My mother is an
intellectual property lawyer. She has worked for one of the big Hollywood
studios for over two decades now, dealing with television, film, physical
merchandising and online entertainment. She is good at her job and as I grew up
she consistently contradicted every stereotype typifying lawyers as
slick-haired lying shysters. In fact, her primary occupation to this day can be
best characterized as keeping other people honest. Her work put me through
private high school, college and graduate school. Intellectual property law has
given my family a charmed life.
At the same time, I came
of age along with the internet and internet piracy. Given my upbringing, it was
initially very easy to condemn peer-to-peer file sharing, illegal streaming of
copy-righted material, and DRM cracks as harmful practices with no redeeming
value to society. I was very comfortable with the notion of pirates being bad
guys. As I matured however, curiosity, greed and other stranger circumstances
led me to participate in each of these activities, and my views have slowly
changed. Piracy can teach people things about technology. It can create
subcultures that are much more nuanced and benign than the entertainment
industry gives them credit for. In rare circumstances, it can even benefit
studios, record labels, and software publishers. These benefits are significant
enough that it is time to seriously reconsider the way copy-rights work (or
fail to work) in today’s increasingly digital world.
That is an obvious claim
cheaply made, however. When the collective internet went into furor over SOPA
and PIPA this past winter, it became painfully clear that Hollywood and the
pirates have some truly alien notions about each other, and how they ought to
adapt to one another. It was immediately apparent that the people behind the
legislation did not understand how the internet piracy works. Worse yet, those
legislations failed to appreciate the scope and general significance of the
internet to an entire generation of people and businesses. At the same time,
these hated pieces of legislation whipped pirates and copy-right reformists
into an absurdly self-righteous, militant frenzy that is equally ignorant of
how the entertainment industry works and why it is still culturally
significant.
The common problem at
the root of these delusions is that the entertainment industry and the software
pirates fail to understand the medium of their opponent. Both parties focus on
the content being stolen and produced, rather than the actual practices of
theft and production and the value systems that motivate them. In this essay, I
detail the three most prevalent fanciful fantasies of the entertainment industry
and those of the pirates and copy-right reformists.
Entertainment Fantasy 1: Piracy is a
cancer that can be cured with DRM and Legislation.
Reality: Digital piracy
is here to stay, and it will not regress to pre-digital levels. The internet is
not only too big, but too mercurial to be comprehensively policed in a
practical and humane way. Even if it were
possible to create legislation or DRM that could comprehensively prevent
piracy, the terms of those systems would have to fundamentally subvert the
rights and privacy of all those who
use it; pirates and innocent alike. SOPA and PIPA did not provoke wide-spread
condemnation due to a vocal minority of pirates; they threatened benign uses of
the World Wide Web in ways that were obvious to the average, avid internet
user.
To
begin with, granting corporations the right to request government blockage of
IPs carried a tremendous potential for abuse. SOPA and PIPA foisted the legal
onus of defending content onto the internet sites. This is harmful at both the
small and large scale. Bloggers, and
other small, hobbyist websites simply do not have the time, money or legal
prowess to compete with an entertainment studio’s accusation of piracy and
government mandated IP suspension. Even more damning, SOPA and PIPA would not
require the government to obtain a warrant, or even provide a significant body
of proof from the entertainment companies before issuing an IP blockage.
Consequently, one can easily see how a news conglomerate, movie studio, record
label, software publisher, or traditional publisher could abuse such a system.
The
implications of such legislation are even more damaging when they are applied
to larger entities. Sites like YouTube, Twitter, social networks, and wikis
cannot keep track of all their users, let alone review all of the content that
is submitted. Under SOPA and PIPA, those sites would not only be compelled to
remove copy-righted content (as they already are under current law) but liable
for damages stemming from said content. This would force the sites to review
all content before making it available on the web. The spirit of spontaneity
that has made these sites uniquely compelling would not only be compromised,
but altogether prevented by that legislation. Furthermore, it is inevitable
that some amount of copy-righted content would still slip through the cracks, and
these sites will be fiscally punished for the misconduct of their users.
DRM
is similarly undesirable and unviable, but for different reasons. From the perspective
of an honest consumer, Digital Rights Management can (and often does) pose
barriers to enjoyment and value to legitimate consumers. Worse yet, it does nothing
to staunch pirates who inevitably circumvent those systems altogether. DRM does
function as a limited deterrent by preventing less-tech-savvy consumers from
pirating movies, music and games in obvious ways. But as the general population
grows increasingly competent with the internet and digital media, the return on
investment of developing new, increasingly draconian forms of DRM will shrink.
I
am not suggesting that Hollywood give up or roll-over. But the studios and
labels need to recognize that piracy has seeped into the groundwater and that
it is here to stay. Instead of preventing potential piracy, the studios must
look at how to monetize pirates, or reclaim customers from piratical practices.
The most obvious way to combat piracy is to make spending money convenient.
This includes digital distribution, but it also entails adding value to
products that is difficult or impossible to obtain by simply copying computer
code. Social interaction is one such type of value. Many people who stream
copyrighted material do so for the social interaction rather than viewing the
material itself. Watching a film streamed over the internet facilitates
conversation and commentary in ways that are prohibited in theaters, and
impossible through current television interfaces.
Entertainment Fantasy 2: Piracy is
identical to physical theft.
Reality: Copying
computer data is fundamentally different than illegally confiscating a physical
object. To pretend otherwise, as per the “You wouldn’t steal a Car” ads of 2004,
is both naïve and deliberately misleading.
To begin with, physical theft is often accompanied with or facilitated by
physical violence. Downloading a music CD does not physically hurt anybody or
threaten them with a physical weapon. Furthermore, physical theft deprives
content publishers of material that was costly to produce. When a file is
copied or streamed, the studio maintains possession of the digital file which
can still be sold through digital of physical channels. These caveats do not
justify acts of piracy, but it deals a different type of economic damage than traditional
theft does.
Finally,
many pirates claim to “sample” content before making actual purposes. This
argument is usually something to the effect of “I bought this CD after pirating
it, and I would not have bought it if I did not have the opportunity to try it
for free.” Admittedly, this justification comes across as a convenient and
over-used excuse. Subsequent claims that piracy can drive sales are even more
suspect. But this “try before you buy” mentality does exist in digital piracy and it is far more prevalent than
shoplifters returning to retailers to pay for boosted games, movies and music
that they have enjoyed.
Entertainment Fantasy 3: Piracy is
solely motivated by greed and is culturally bankrupt.
Reality: This fantasy makes
it much easier for the entertainment industry to condemn practices that are
ill-understood. Worse yet, it serves as a justification for continued, willful
ignorance. Refusing to think about why and how people pirate not only results
ineffective DRM and dangerous legislation, it makes Hollywood seem dumb and petulant. Greed
is a not a negligible factor in the piracy equation, but it is only one piece of the puzzle.
Many
people pirate movies and music because they are not released through legitimate
channels in their country. Other times, people download illegally translated
copies of movies because no official localization exists. Hollywood’s
distribution channels are impressive and pervasive, but it has yet to cater to
the entire world. Admittedly, this does not provide any justification for first-world
piracy, but it is an element of the piracy equation that Hollywood
systematically ignores. They have nothing to gain from acknowledging it.
The
entire world over, pirates can also derive numerous benefits from the actual
practice of piracy. To begin with, piracy provides learning experiences at the
very least, and compelling puzzles at best. When I was younger, I pirated
dozens of ROM files for the Super Nintendo and Game Boy Advance emulators. The
time I spent finding the files and setting up emulators paled in comparison to
the time I spent playing my pilfered titles. Tinkering with software and
hunting down files taught me a lot about research, and how sprites, controls
and technology work. I never tried to circumvent DRM but I have met people who
have, and they describe the experience as solving a very specific type of
puzzle. Again, being educational does not mean that piracy is right, or that it
ought to be encouraged. But that quality is valuable enough that it warrant
more careful consideration than open, unqualified contempt.
Finally,
piracy can facilitate unique cultural and communal interactions. One such
example is streaming movies. Conceptually, streaming a movie that has already
left theatres is no more egregious than inviting a group of friends over to
watch the same film on DVD. The internet has changed the way people socialize;
agoraphobes, or even the socially anxious and awkward often feel more at home
in an internet chat room than they would in another person’s home. There is a temptation
to treat anonymous interaction as something inherently insidious, and it is
admittedly risky. But it can also be benign. Again, this form of piracy is not
driven by greed or even activism, but a desire for communal interaction that is
not supported through existing channels of interaction.
Piracy Fantasy 1: Hollywood is solely
motivated by greed and is culturally bankrupt.
Many
piracy proponents, particularly members of the Swedish torrent site, The Pirate
Bay, have spoken out against Hollywood, and demonized it as a greed-driven,
creatively destitute manipulation machine. These proponents of radical
copy-right reform frame writers, directors, actors, musicians, producers, as
vampiric fat-cats that subsist off of royalties, rather than working to constantly
innovate. They further vilify paying audiences as cud-chewing sheeple who must
be freed from the matrix or done away with in violent revolution.
It’s
difficult to comprehend where to begin. The most patently idiotic implication
of this line of thinking is that creative control and ownership are equitable
to greed. A person who downloads some data ought to be entitled to the same
fiscal and creative rights as the people who spent months, or years of their
lives creating the initial artifact. The further implication is that the truly
creative people will be sufficiently rewarded by virtue of their reputation and
public charity. Admittedly, such a business model can sustain certain creative
practices. Several web-comic creators, most notably Jeph Jacques of Questionable Content, and Jerry Holkins
and Mike Krahulik of Penny-Arcade,
have proven that fans will eagerly support endeavors of sufficient quality. But
when the costs of making a film like Inception
are weighed against writing, drawing and uploading a three to five panel
JPEG on the internet, the absurdity of this suggestion begins to become
apparent.
The
Pirate Bay would likely assert that we don’t need blockbusters in any medium.
They might argue that the entertainment industry has lost its way, if they even
acknowledge that it was ever a valuable institution to begin with. They would
have us disregard the legacy of technological experimentation and advancement
that movie making, audio production, and game development have yielded, or
simply admit that the time of those giants have now passed and that they should
be put to pasture. A new and glorious renaissance of independent art will
resume once the corporate goliaths have been slain by the slings of piracy.
Even if we are to buy into the dubious assertion that entertainment has lost
its way, who is to say that the theoretical hacktivist auteurs that follow will
produce more thought-provoking work? Is YouTube the new paradigm we are
supposed to be embracing?
The
second assertion is even harder to swallow. The millions of people who admire movie
stars, writers and musicians, the passionate fans who line up for midnight
releases for the latest sequel in a beloved franchises, the people who believe
in paying a predetermined price for a meaningful artistic experience; these
people are all wrong, or severely misled. Radical pirates believe that all
information, and imagined information in particular, ought to be given away.
The question this begs is who ought to be paid? At what point can a creative
person expect to be compensated for their work? If you are allowed to
completely “sample” my novel, or song, or movie and find it insufficient, am I
supposed to thank you for your time and lack of patronage?
Piracy Fantasy 2: Piracy isn’t actually
hurting the entertainment industry that much.
Pirates
are quick to point out that the studios, record labels and game developers have
largely remained in the black throughout the recession, or at the very least,
suffered less red ink than many other industries. But the brick and mortar
theaters and retailers that support these giants are going under at an alarming
rate. Those that remain have to raise their prices, further diminishing their
enduring audiences. Before we discuss how the entertainment conglomerates may
adapt, I would like to look at the implications of brick and mortar death; a
meaningful cultural change that radical pirates are willing to write off as an
inevitability.
There
is value in going to a location and purchasing a good, or service. Physical
goods, and services like concerts and feature films, must reach a certain level
of completion and quality before they are distributed. This practice may
persist even if we completely switch to digital channels of distribution, but
my suspicion is that incomplete, iterative, or serial narratives will become
more prevalent. We may start to see ‘betas’ of movies, music and books as well
as software and games. This notion introduces new opportunities from the
perspective of participatory cultural, but it also discounts the value of
craftsmanship in entertainment. There is a lot to be said for a cohesive, and
decisive incarnation of a story, song or game. These artifacts must “work,”
like a completed system.
Furthermore,
there are other values to going to a physical location. Notions such as going
to a specific place for a unique experience, leaving the house and risking
random interpersonal interaction, and browsing the physical selection of a
store may sound sentimental or antiquated. This does not dissolve their value.
If we do away with physical stores, we truncate a huge variety of social
experiences that have persisted throughout history. Pirates often argue that
movie theaters and bookstores will still likely persist in some limited
capacity. They will not only be limited in prevalence however, but in regard as
well. Going out to see a movie will likely be seen as a curiosity or
eccentricity. This diminished demand will likely yield increased prices. Consequently,
activities that were once communal and popular, will be reserved for the
affluent or backward.
Piracy Fantasy 3: The entertainment
industry merely needs to adapt to digital distribution.
Reality: According to
soft-ware pirates, superior service and digital delivery would supposedly
staunch piracy enough for the entertainment industry to stay afloat. This is
largely true for the game industry, which uses digital methods of production. It
might also work for music production. But it is simply absurd to assume that
television and movie industries that depend on expensive analog production methods
can easily transition to digital methods and recoup the costs of production.
Both of these mediums have a legacy of physicality that cannot be short-cut by digital
distribution methods.
Let’s
consider the costs associated with training an actor for a role in an action
movie. For the sake of argument, we will assume that she is a no-name, and will
not require the mammoth salary and manifold benefits currently afforded to
stars like Johnny Depp and Halle Berry. First, the actress will need to get in
shape for the role, necessitating a trainer and probably a nutritionist. Next
she will need to learn martial arts, requiring another trainer. Next, she will
need a stunt team, as you average actor will not be able to pick up enough
skills in the time it takes to produce a film involving jumping out of
buildings, dodging explosions, and participating in numerous hand-to-hand
fights. These dangerous activities require medical personnel to be present on
set, when something inevitably goes wrong. We also need make-up artists and
costume designers, those these roles can admittedly be stretched across the
rest of the cast as well as our star. These requirements are just the
beginning, for a single star. Some of these effects might be exchanged with digital
special effects, but this will likely have a meaningful (and not necessarily
positive) effect on the film’s aesthetics.
Ten
dollar digital downloads will not recoup the revenue lost from the dissolution
of physical box offices and Blu-Ray sales. Furthermore, revenue from other
physical merchandise will suffer from the lack of impulse buys associated with
home media sales. Finally, to protect losses from continuing piracy, the
studios will need to develop compelling digital assets to drive legitimate sales,
incurring additional costs.
Conclusion
Hollywood
cannot secure lasting economic stability from the threat of piracy until it earnestly
seeks to understand the non-economic values and material conditions that
motivate piratical practices. Conversely, pro-peer-to-peer and copyright reform
movements cannot be endorsed or taken seriously until they move beyond
superficial and trendy notions rebellion. The most pressing delusion that
clouds both entities perception of each other is the preoccupation with content
rather than the material realities that define their culture and practices.
