POLITICS JANUARY 20, 2012
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The Web protests that led to a collapse of support in the House and Senate for two ill-designed antipiracy bills are a cause for celebration. In their current forms, both the Stop Online Piracy Act (SOPA) in the House and the Protect IP Act (PIPA) in the Senate are heavy-handed and indefensible, attempts to shut down a handful of rogue pirate sites by changing the open structure of the Internet. In allowing the Justice Department to force Internet service providers to block access to websites that “enable” pirated content, the proposed legislation would pose serious threats to free speech.
But even as we celebrate the declining congressional support for these bills, we shouldn’t forget that this isn’t simply a fight about the future of free speech; it’s also a battle about whether the financial interests of the new media will triumph over those of the old media. And, if they do, it’s not clear that the public interest will always be served. As the protest song that sprang up this week put it, “Our web means more than lawyers, lobbies, and lies, so speak up before the Internet dies.” There are lawyers and lobbies on both sides of the debate, however, and neither side is devoted to the promotion of creativity for its own sake.
Ultimately, it’s too simplistic to see the copyright wars as a battle between idealistic tech companies that want information to be free, and the greedy old media that wants to preserve a dying business model. Instead, as Robert Levine argues in his new book Free Ride: How Digital Parasites Are Destroying the Culture Business, and How the Culture Business Can Fight Back, the real battle is between two competing business models. On the one hand, there are the publishers, record companies, and movie companies that fund the content people want to watch and read. On the other, there are the tech companies, like Google and Facebook, that want to distribute content created with other people’s money and sell more ads as a result. By destroying the business model that makes it possible for AMC to invest in excellent shows like “Mad Men,” Levine argues, the tech companies will create a digital wasteland dominated by self-produced cat videos.
There’s much to be said for Levine’s analysis of the competing financial interests on both sides of the debate: The current system looks much better for the tech companies that distribute other people’s content than for the old media companies that fund it. And to the degree that it’s harder for artists and journalists to get paid for their work, the public may not benefit in the long run. What’s still unclear—and is important to figure out—is how great a role Internet piracy is playing in destroying the business model that used to allow old media companies to invest in authors, musicians, and movie producers, and support them over the course of a career.
Levine argues that “as piracy lowers the value of media, technology companies have essentially managed to set the price of music and videos and tried to do the same for books.” In a version of Wal-Mart capitalism, the argument goes, no matter what a movie or book costs to produce, Amazon and iTunes can sell it for as little as possible and make their money elsewhere—by selling iPods or kindles, for example.
But it’s not obvious that online piracy is the major factor in allowing tech companies to distribute content for less than they pay for it. Levine cites the example of the music industry, which was so spooked by the proliferation of pirated music on Napster that it struck a poor deal with Apple, replacing the sale of $15 albums with 99-cent songs. Yet there’s little evidence that the same result would not have occurred in a world without Napster: Individual bands might have struck enough deals with Apple that the music industry would still have been forced to sell its content below the cost of production.
What we need, therefore, is more empirical research about the relationship between copyright enforcement and digital creativity. There is certainly a price below which authors and journalists won’t produce good work in the first place, and also a price below which the failure to promote authors, movies, and journalists ensures they never find the audience they deserve. But whether more vigorous copyright enforcement would solve these problems needs more study.
In the meantime, there are plenty of moderate alternatives to the unlamented SOPA and PIPA. The best solution, one that protects copyright without changing the architecture of the Internet, might lie in simple law enforcement, of the kind that ensures there’s less commercial child pornography available online than there was fifteen years ago. This is the approach taken in a 2010 report by Victoria Espinel, the White House’s copyright czar, which suggests that the best way of combating international piracy is to “enhance foreign law enforcement cooperation” and “strengthen intellectual property enforcement through international organizations.” Since the number of commercial pirate sites operating overseas is small—a couple dozen, by some estimates—tracking and identifying them, and prosecuting them in cooperation with overseas police forces, is a far more focused solution to the problem of Internet piracy than shutting down free speech for everyone. But will this be enough to save the old media’s business model, and the artists, musicians, and writers it has long supported? That remains an open question.
Jeffrey Rosen is the legal affairs editor of The New Republic.
11 comments
I think it's far more likely that our conception of intellectual property will change than it is that any liberal democratic government will get a handle on piracy in the next twenty years. Fifty years from now, I think people will look at things like copyright and trademark as a protection against fraud (I really produced this document; this song is genuine) more than a statement of commercial rights. The cat is out of the bag, and the public will not accept drastic limits on the free exchange of information on the internet. Gradually, that will erode notions of property that are more appropriate to the non-digital world.
- zuludown
January 20, 2012 at 2:04am
Copyright law is one of the bedrocks of our society. And it's embedded in the Constitution. If you create something, it's yours. Period. And 'freely' exchanging someone else's work and property on the internet is nothing more than thievery and/or trafficking in stolen goods. We may be able to infringe copyright, i.e. violate another citizen's rights, very easily. That doesn't mean we should. If murder was easy, it still would never be right. It would behoove us to cultivate and develop an ethos that honors an important foundation of our civilization even if it is ridiculously easy to trample all over it. Accepting an ethos that essentially says nothing more than 'everything should be free, man,' is something we would all come to rue greatly. That is if we were still aware enough to realize we had thrown away something that was close to invaluable.
- steverino72
January 20, 2012 at 4:23am
@steverino72 A couple of comments: The executive summary: equating digital piracy to murder, or even physical theft, is substantively inaccurate; ethically nonequivalent; and only leads piracy proponents to say "There, see: I told you so." First, you make a false equivalence that points out the ethical complication of digital piracy: it is not like murder or even like physical theft. There are actually three ethical categories, at least, that you're making out to be one. First is stealing something permanently and irrevocably, e.g. someone's life. Second is stealing an object which then prohibits the owner from using it, but which may be rediscovered and returned---say, if I were to steal zuludown's phone. Third is a category where I make a copy of something that belongs to another and use that copy for myself. The original owner still has full use of his or her property and may not even realize I've recreated a version for my own purposes. Say I discovered in a park a manuscript that Jeffery Rosen was writing, and made a copy of it before returning it to him. This is the correct equivalence of digital piracy; it does not mean 'to take sole possession of', but rather 'to reproduce without authorization'. It is therefore ethically closer to plagiarism than to burglary or murder. Furthermore, if Jeffery Rosen's budding novel turns out to be trash (sorry Jeffery), but was well marketed, I may feel angry about being swindled into purchasing it. If, however, I had previously and illegally copied the novel in manuscript and liked it very much, there is a more-than-fair chance that I'll legally buy the book when it comes available---not because I need another copy, but because I wish to reward the author. This is not specious thinking; there is increasing recognition that *some* freely distributed content can actually increase an artist's later sales. Radiohead famously released their album In Rainbows for whatever price the band's fans thought it worth. Roughly 40 percent of those downloading the album chose to pay for it, at an average of $6 each, netting the band nearly $3 million of pure profit. Less well known musicians like folk singer Ani Difranco have openly encouraged pirated distribution of their own works as a means of rapidly spreading their fan base, with the supposition that will lead to increased future sales. I wanted to say some things about the constitution and your comment that 'everything should be free, man' but I think I've gone on long enough as it is. ;)
- bacchant
January 20, 2012 at 11:09am
A recent article in New Yorker about Youtube (Google) indicates that Youtube intends to create their own content rather than buying it as does cable. That seems like a very high mountain to climb, but if it works for Youtube, I would expect Netflix and others would follow. I have an "Apple tv", which is just a box that Apple limits reception to the few streamers (including Netflix) with which Apple has a deal (though some "jailbreak" and go on the internet). I think the days of cable and its tether are numbered, though cheaply bought politicians will be more than accommodating to extend the life of the tether. Sigh.
- rayward
January 20, 2012 at 11:42am
I'm with Zuludown on this. And it pains me to do so--I'm a photographer who publishes occasionally, and really do not like seeing my work distributed for free on the web, particularly without attribution. So I don't post photos on the web, except in rare and well thought-out cases. But the larger game is lost. A generation hence, we will be back to the system of authorship that was based on scrolls, back before the printing press. You can copy just about anything you can see, if you're so inclined, and the great challenge will be discerning what work is rightly attributed to whom. Copyright will continue as a means of fighting pseudepigrapha, not protecting property rights.
- gwcross
January 20, 2012 at 12:54pm
As a person that has shared music with others, first with those quaint but low quality, mix tapes, then it was on to mix CDs, then it was entire library swaps with friends. I would give a friend my collection of The Cure and he would give me his collection of Led Zeppelin. We didn't bit torrent stuff, but instead shared amongst ourselves. This was also music that I've spent a lifetime collecting and paying for. I never had the urge to go the napster route. Primarily because 95% of the music available was crap popular stuff. My musical tastes are varied to say the least. I have never bought music from Itunes and I refuse to for several reasons. I search out my music on various blogs, internet radio, and friends. I buy music directly from artists in varying formats but I also buy music digitally from emusic and pay a yearly subscription for that. I get my money's worth, the artists get their money for making it and emusic provides a wide range of music styles and caters to carrying the more obscure and small market artists that I enjoy supporting and discovering. I don't illegally rip movies either or other creative content because I understand what it means to have your work undervalued & I would rather directly support the artists making the movies and music. The SOPA / PIPA bills do little in the way of addressing piracy or black market distribution. Their sole purpose is to allow old media companies to hold onto a diminishing distribution monopoly structure instead of finding ways to continue making the content and creating distribution models that work for the internet and that people will pay for.
- singlspeed
January 20, 2012 at 1:24pm
Since the number of commercial pirate sites operating overseas is small—a couple dozen, by some estimates Oh my God, what the hell is the author smoking. I can name a couple dozen off hand. There are literally countless thousands (if not millions) all over the world, and with firefox and chrome having a translation feature you can find just about anything you want anywhere in any language. To give one example: http://www.twirpx.com/ This is a Russian site (I guess, or Ukranian) I have never heard of until just this second, I found immediately tens of thousands of copyrighted material. Using my translator is showed this: 1966440 registered users, of which 271 755 contributed to the development of the resource. The page is automatically translated for me. This is just one Russian site, I can go on Vietnamese sites, hell even Iranian sites and easily find such material. I have no idea why hollywood just doesn't mimic the megaupload method. Limit the free downloads (with commericals) of TV shows and old movies based on IP address and sell Premium membership for unlimited viewing (after all, you can only watch one show at a time) resticting multiple downloads.
- blackton
January 20, 2012 at 1:36pm
singlespeed: "The SOPA / PIPA bills ... allow old media companies to hold onto a diminishing distribution monopoly structure instead of finding ways to continue making the content and creating distribution models that work for the internet and that people will pay for." blackton: "I have no idea why hollywood just doesn't mimic the megaupload method." These comments are exactly why we have 'piracy advocates', which on the face of it seems a strange thing to call oneself. As I hopefully illustrated in my reply to steverino72, current legal notions of theft and property protection seem increasingly antiquated. As is often said, they are a 20th century fix to a 21st century problem. In any case, legal prohibitions become meaningless in the face of increasing availability and public acceptance. See also: prohibition laws and marijuana use. When public behavior contradicts public law, it's time to change the law.
- bacchant
January 20, 2012 at 2:01pm
On an earlier SOPA thread I wrote about how we seem to be going back in time to eras where people regarded their creations much differently than we do now, and made a living by performing or by being "patronized" (interesting pun, in fact) by the rich and the aristocracy. Another troublesome area we are heading toward will be: who owns genetic property? MONSANTO Corporation, one of the favorite mad scientist corporate evil villains (at least in my organic farming/gardening circles), has been patenting genetically modified seeds. Some of the spin offs: 1) Farmers and gardeners used to collecting their own seed are now prohibited from doing so. 2) Seeds of genetically modified crops such as Alfalfa drift onto farms of near by organic farmers. The result is a) The organic farmer through no fault of his own is now a lawbreaker and b) He can no longer sell his products as genuinely organic. For a real Frankenstein scenario, imagine how this will play out as we genetically modify human beings. The temptation to prevent and cure inherited diseases such as Lou Gehrig's Disease will be resistible. I am not quite sure in what horrible way this will play out, perhaps one of the smarter, more informed than I people around here has a better handle on it than I do, but something wicked this way comes. Perhaps it will be your clone. That now owns you.
- skahn
January 20, 2012 at 2:32pm
I can't resist posting a correction: Irresistible.
- skahn
January 20, 2012 at 2:34pm
From the article: "There is certainly a price below which authors and journalists won’t produce good work in the first place, and also a price below which the failure to promote authors, movies, and journalists ensures they never find the audience they deserve." Piracy and taxation are fairly similar. Both take a slice off the top that the artist never sees. Taxes disappear into the proverbial leaky bucket, enriching the few. Piracy directly benefits the consumer in the most direct and efficient way possible. And since I suspect piracy is largely an activity of the less well off (college kids, those that can't afford the music they want, etc), it is about as progressive as things get. Those that "need" it the most get it for free, those that have money buy it at amazon. Ironically, the government would like to increase effective taxes on the wealthy but a non-trivial amount: 5% or so. And much of Hollywood is behind this. Interestingly, Arthur De Vany et al suggest that piracy eats up 30-40% of revenue in the movie business. If piracy were really hurting the movie business, then those that create wouldn't be begging for higher taxes. Or, perhaps they are begging for higher taxes in return for the gov shutting down piracy. To pay 5% more in effective taxes to get 40% more in revenue seems a pretty sweet deal. Summary is this: Shutting down piracy is a very regressive activity that will overwhelmingly benefit those that openly argue that they have so much extra money should be paying more in taxes. Boggles the mind.
- seattleeng
January 23, 2012 at 3:58pm