Unrepentant Bad Thinking on Piracy

Jenna Wortham, technology writer for The New York Times, offers this article in which she questions the illegality of IP theft online.  Titled, The Unrepentant Bootlegger, Wortham begins with a description of what some may consider an unjustifiably heavy-handed raid by DHS officers in the arrest of Hana Beshara, a co-founder of the illegal media site NinjaVideo, shut down in 2009.  One can argue that non-violent criminals should be arrested in a less dramatic way (though I wonder how that sentiment might apply to insider-trading felons), but that isn’t the point of Wortham’s article.  No, her thesis asks wether or not Beshara’s actions ought to be illegal in the first place; and I’d like to jump to her quote about SOPA near the end of the article because so much of her inquiry poses naive questions based on false premises like the following:

After the seizure of NinjaVideo and the other sites, the M.P.A.A. pushed federal legislation to continue to crack down on illegal downloading. But the bill, SOPA, was so loosely worded that it could have required all websites to be responsible for monitoring their services for potential violations — an expensive and nearly impossible challenge — prompting sites like Wikipedia, Tumblr and Craigslist to rally online sentiment against the legislation. Outrage about the bill came to a head in 2012, and lawmakers backed off.

This narrative about SOPA has been repeated so many times that even a writer for the NY Times can get away with presenting it as fact. But it just ain’t so. There was nothing about the wording of the SOPA/PIPA bills that could be used to hold US-based websites any more responsible for infringement than they already were in 2011, or than they still are at this moment.  In fact, language in the bills explicitly stated that they do not trump precedent, domestic law. The bills were specifically designed to starve foreign-based sites, dedicated to piracy, of their revenue streams strictly because the site owners themselves operate beyond the reach of U.S. law enforcement.  Wortham’s own emotional introduction to her article, describing the flack-jacketed arrest of Hana Beshara ought to indicate to anyone how utterly unnecessary it would be to have introduced SOPA/PIPA as domestic-focused laws.  Clearly, what Beshara and her NinjaVideo colleagues were doing is already enforceably illegal in the U.S., hence the guys busting into her condo and the 16 months she spent in prison.

The notion that SOPA could have shut down Facebook, et al was the result of well-orchestrated, and well-funded fear-mongering; and I stand by the assertion that (issues of piracy aside) the anti-SOPA campaign was the most successful corporate-serving bamboozlement of the electorate in my lifetime.  The campaign was holistically corrupt in that the very tools being employed to manipulate the political process simultaneously created the illusion that people believed themselves empowered through information to take action.  Never have I seen so many intelligent friends motivated to reaction based on such illogical, let alone unsubstantiated, claims.  Did it not occur to any of my progressive, educated colleagues at the time that in all likelihood no member of congress, no matter what we may think of his/her other politics, would sign the “shut down Facebook and Twitter” bill?  Yet, here we are, almost four years later, and NY Times writers are behaving as though the Internet industry talking points are historical facts.  And that brings us to the crux of Wortham’s article, summed up in this quote:

 Ms. Beshara, however, still can’t accept that what she was doing deserved the heavy hammer of the law. She served 16 months in prison for conspiracy and criminal copyright infringement, but she still talks about NinjaVideo as something grand.

Something grand indeed.  It is astonishing that even when independent artists recite their stories of working for years on a project only to have it hijacked by a pirate site, they’re accused of whining; but when profiteering site founders are busted, they’re treated like martyrs to the cause of culture and smarter business practices.  This narrative that we should credit the NinjaVideos and Megauploads of the world for giving us iTunes and Netflix is another false premise; and it is always perplexing to read declarations about the public “wanting 24/7 on-demand everything for free or really cheap” as though those making such statements believe they’re revealing some profound ethnographic discovery. Really?  People would like instant gratification and would prefer to pay next to nothing for it.  That is a shocker.  If only there were a Pulitzer Prize for the Numbingly Obvious.

The problem is that when writers like Wortham, under the imprimatur of venerable publications, repeat this self-evident observation about consumers and then pose the rhetorical question about the illegality of piracy, they fail to recognize through the fog of their own presumed humanism that they’re in fact promoting an anti-fair-trade market.  This is because it simply isn’t possible to produce all major motion pictures and television in a manner that makes all of these works instantaneously available in every market worldwide and for prices that compete with the unlicensed option of free.  To make such a demand on motion picture producers, both great and small, implies that the stake-holding subcontractors whose skills, labors, and constituent products used to produce these films must have their interests (i.e. means of living) subverted to the exigencies of black-market economics.

Going forward, I expect we will see more and more film projects organized at the contractual stage of development to facilitate early release on legal, web-based platforms — we’re already seeing this occur in some cases — but the conclusion Wortham implies is that the attitudes about piracy are so socially ingrained at this point that we ought to simply accept them and perhaps even praise them as enlightened. This isn’t surprising of course.  Normalizing negative behaviors or trends does have a tendency to screw up perceptions about the consequences of those behaviors.  Articles like Wortham’s remind me of a moment back in college when I bumped into a fellow film major — he wasn’t  the sharpest tool in the shed — one afternoon and he told me he was bummed because his friend had been expelled.  I asked why, and he said that the friend had “set his dorm room door on fire.”

“Um, Dude, that’s arson,” was all I could think to say.

“Yeah,” he replies, “but there’s so much other shit he did that the school never caught him for.”

This was sound reasoning in his mind.  His friend’s miscreant, even dangerous, behaviors had become so normalized that it seemed entirely unreasonable for the college to take disciplinary action.  And that’s the thing about the many thousands of words at this point that have been dedicated to re-contextualizing media piracy.  Call it what you want, but, at a certain point, all we can conclude is, “Dude, that’s larceny.”

© 2014, David Newhoff. All rights reserved.

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78 Responses to Unrepentant Bad Thinking on Piracy

  1. overviper says:

    David, David, David…
    You’re kind of proving my point…I’ve been saying (on this blog and in other places) that we are in a shaking out period. We will start to see more and more legal content-on-demand services as we move into the future, and eventually we will reach a new balance. Will music, film, etc. prove to be as lucrative a profession as in the past? I think not, but maybe, just maybe…if we start to see ad-revenue sharing and licensing fees that reflect reality…the creative industries might turn out OK if not better. My tea leaves aren’t telling me.

    My whole gripe with SOPA and the other similar legislation that has been proposed by the studios and record labels is that the enforcement of such legislation has proven to be heavy-handed, misapplied, and mostly aimed at the wrong people. Like the drug trade, the law usually winds up catching the guy one step above the user…mostly no higher on the ladder

    This is not conjecture. You only need to look at what they have done already. They are on a mission to trample anyone who dares infringe on their turf. Are they sending any of that largess my way? No, they still owe me money…c’est la vie…

    The answer? I don’t know….I appreciate the stand you’ve taken even though I sometimes disagree with your reasoning. To me, it is unconscionable to support legislation that so clearly (in my mind anyway) infringes on the 1st and 4th Amendments. We have lost so many of our rights already to those invoking the name of fear, I can’t go along with the concept of someone slogging through my hard drives because he may suspect I have some files he thinks he may own. We may not support piracy, but I think the sooner we can address the content stream in a rational way, the better off we all will be.

    I’m just very uncomfortable allowing people I know to be greedy bastards write that legislation…

    By the way, I read the article and I agree with most of your take on it. She’s pushing the panic button from the other side…

    • David Newhoff says:

      Overviper, I always appreciate your comments, though I honestly have no idea how SOPA targeted the wrong people or infringed on any of the Bill of Rights. Certainly, I agree that many a drug law unjustly targets users instead of kingpins, but SOPA/PIPA was directed at the kingpins, if we’re going to use that analogy. I know many have claimed the language was vague and “could be interpreted to mean,…” but having read the language, I don’t see where application could so radically have diverged from intent that any of the fears were justified. Line 1 of the Manager’s Amendment to SOPA read (paraphrasing) “shall not infringe on the First Amendment,” which sounds to me like asking SCOTUS to overturn the law should it be deemed infringing on the First Amendment.

      As for the economics, there’s no question things will change — they are changing — and maybe this will be a boon for culture and for the financial health of the industries; but if so, I think it will be in spite of piracy, not thanks to it. I say this particularly with regard to film because, as mentioned in my KPMG post, I honestly think film has adapted very rapidly despite the complex set of contracts tied to each product.

      • A says:

        But as you probably know, plenty of laws containing that type of savings clause have been thrown out as violations of the First Amendment. When you are drafting a statute, the full scope of what the language “could be interpreted to mean” is of overwhelming importance, especially where First Amendment concerns are implicated. In Stevens, SCOTUS overturned a law intended to ban a niche type of animal snuff film (“crush videos”), on the ground that the law could hypothetically be interpreted to cover videos of historically accurate bow-and-arrow hunting. And plenty of other laws, such as the DMCA, have been subjected despite neutral drafting to as-applied challenges. Among legal scholars, the view that SOPA threatened free speech was hardly a marginal one.

        It’s also pretty sad that SOPA’s sponsors didn’t even bother to include such a clause until the Google-Wikipedia-Reddit grassroots/astroturf uprising pushed the bill to the brink of defeat.

      • James_J says:

        The outrage was over a draft. If you know anything about how our Congress works, you’d know that most every bill goes back and forth Several times rewriting and revising along the way. T
        he fake outrage campaign was over a bill that was never going to even be voted on in it’s current form.
        So your comment “It’s also pretty sad that SOPA’s sponsors didn’t even bother to include such a clause ”
        is such misleading bullshit as to be laughable.

      • David Newhoff says:

        Also, your assessment of the timeline of events, A, is entirely false. Some of the more “controversial” language actually didn’t come from industry interests like the MPAA; it was just MOC doing their best to craft a bill with sound intent and extremely strong bi-partisan and executive branch support. The so-called Internet community did not shed light on anything for congress; they simply bullied the bill out of existence by getting a lot of suckers (some of them my best friends) worked up over nothing. On January 19, the reaction in DC wasn’t “Thanks for bringing that to our attention,” it was “What the hell just happened?”

        Here’s a very important premise you need to accept: SOPA’s sponsors are really really really pro-First Amendment way more than they are anti-piracy. Because, y’know, without the First Amendment, making movies and TV shows and rock-n-roll and books with lots of sex and bad words in them can get really tricksy.

      • monkey says:

        “Here’s a very important premise you need to accept: SOPA’s sponsors are really really really pro-First Amendment way more than they are anti-piracy. Because, y’know, without the First Amendment, making movies and TV shows and rock-n-roll and books with lots of sex and bad words in them can get really tricksy.”

        Thank you for this paragraph. The idea that people who have done countless fundraisers for PEN and Amnesty International are somehow trying to stifle speech by simply asking to be paid is deeply offensive.

      • A says:

        @ James and David —

        All legislation is introduced in “draft” form. The bottom line is, the version initially introduced by SOPA’s sponsors — and by “SOPA’s sponsors,” I mean Lamar Smith et al., who sponsored the bill — did not contain any of this savings-clause language. Nor was that language added until the Manager’s Amendment in December 2011. The “break the internet” outcry was well underway by November 2011. My timeline is accurate.

      • David Newhoff says:

        The “break the Internet” outcry was inexcusable nonsense, but I was referring to other aspects of the bill that were being criticized in late 2011 that were not industry motivated. Nevertheless, much of the Manager’s Amendment was an effort to mollify generally unfounded concerns. Even as the bill was being marked up and revised, nothing about its original intent or architecture threatened the First Amendment or really affected domestic law at all. God forbid, however, that Visa and Master Card might have to take some responsibility for the transactions they continue to process for pirate sites.

  2. M says:

    There is a long history of humanizing and glorifying criminality. See The Godfather. Dare I say, her story would make a good movie. A young women, life in the gutter, nobody cares about, takes solace in the dark corners of the Internet, only to rise to be the queen of an international criminal enterprise? It has Hollywood written all over it. 🙂

    • David Newhoff says:

      It does. The tension of the Godfather is, of course, that it is the story of the American Dream.

    • Actually, I think not M. Here is a lonely young lady who all of a sudden finds popularity and acceptance because she’s part of a service that abuses others to stay in business. And she’s offering a product everyone wants for free if you drop by and say hello.

      The more likely story is of a hard working, responsible artist, adored for their work, but unable to take care of their family because Hanna is enamored with her new life as a “Ninja Diva” sought after for her generosity with other peoples property.

    • M says:

      Will Buckley,

      Yes I know, it’s a far greater crime then the drug traffiking and mass murdering of the protaganist in Godfather (at least in Hollywood’s eyes).

  3. A says:

    Insider-traders and other corporate criminals are rarely arrested in this fashion. In Dealbook’s apt and elegant words, those investigations tend to adhere “to a ritualized gentility.”.

    • overviper says:

      We bust insider traders/corporate criminals when we can catch them. The problem is that when people want to become whistle-blowers there is rarely a sympathetic ear unless it’s election time. The 3 guys who blew the whistle on the VA in Phoenix had to sue to get their jobs back (they just did, thankfully)…In my opinion, we’re in the midst of a crisis of morality pretty much all over the world…And I blame the media for it, starting with Hollywood and permeating down to local level news casts that have little interest in the public being made aware of any factual content.

      How can people see the ramifications of their actions if they are not taught to think clearly, but are instead led to their decision making on the basis of touchy-feely emotional puff pieces that send the message, “If you feel it, it must be true…”? This has the real ring of Joseph Goebbels to it in spite of the fact that I usually align myself with the left wing of politics. So when Jerry brown signs a law that eliminates plastic bags, and we’re told that this is a great thing, and real progress “forward”…and no one is asking how it might play out (remember the law of unintended consequences)…and it might have been better for government to spend that money incentivizing companies to make bio-degradable plastic bags…because I’ll still have to go out and buy plastic bags for my garbage and so will everyone else…

      I know plastic isn’t good for nature…I feel that…but my point is that both sides spend their time trying to arouse my fear, anger, sympathy…whatever…so I no longer trust what they have to say at all, and it’s a short step to being able to justify being a selfish prick.

      The thing that’s missing is accountability. If it was there on every level of society, people would behave differently and David could go back to making music full time and not have to worry about getting paid for it…

      • A says:

        We bust them when we catch them, but if you read the article I linked — or speak to people familiar with white collar criminal prosecutions — the manner in which we “bust” and “catch” them is very different than for other federal crimes.

        If the federal government suspects you of dealing drugs — or trivially violating the horrifically-overbroad CFAA — they surveill you in order to gather evidence, then rush in with guns and handcuffs and sirens wailing and “raid” (wreck) your house.

        If the federal governments suspects you of securities fraud, they call you lawyer and gradually negotiate a production of evidence followed by, eventually, an interview. At the end your lawyer will make a PowerPoint presentation explaining why the government should be lenient on you. If they do decide to charge you, you discreetly turn yourself in.

        Some disparate treatment for drug dealers who are suspected to work with violent gangs might be called-for, but there is no reason that accused hackers or pirates should be treated differently from accused insider-traders. None of these guys are likely to get into shootouts with the police.

    • monkey says:

      Then petition the government to go after them. Doesn’t make this woman any less guilty.
      I remember hearing the line “why don’t you go after the real crooks on Wall Street” used in Goodfellas (a movie about people who made most of their money by selling stolen goods)

    • David Newhoff says:

      They aren’t treated thus, it’s true. That’s why I posed the question parenthetically. Those are non-violent criminals who do economic harm, and we might want to see them get roughed up a bit. Pirate site owners are non-violent criminals who also do economic harm (whether you agree or not), and they’re perceived as Robin Hoods.

      • monkey says:

        Also, the dreaded white collar criminals thrived under a system that massively deregulated Wall Street, a system praised by libertarians of a similar stripe to those who claim any legislation will “break the internet.”

        As this article points out,
        “What other industry do you know that has near zero regulation except Big Tech? We have Alcohol, Tobacco and Firearms (ATF) the Environmental Protection Agency, the Food And Drug Administration, and the Occupational Safety and Health Administration (OSHA) to name a few of the regulators. Big Tech doesn’t even police itself because if it did, it would be losing money by the truck load. This isn’t even up for debate.”
        Read more at http://adland.tv/node/156095#qYCqbF7iQ7Rzqm5M.99

        What’s astounding is that “free” advocates claim copyright is a monopoly while ignoring the much more powerful monopolies in Big Tech. Stephen King (to name one of the more successful beneficiaries of copyright law) has much less control over my daily life than Google.

  4. A says:

    Separately, I surfed here because I was curious whether you had thoughts about the copyright amendments now taking effect in the Uk (which legalize copying of DVDs, “ripping” of live streams, etc., for time-shifting personal use).

    • David Newhoff says:

      I don’t have any real information about those proposals to have an opinion (and I’m not a lawyer), but based on what you say, that sounds fairly consistent with US policy vis a vis time-shifting. In the big picture, I think it’s safe to say that the industries are generally unconcerned about low-level copying like this. Making a mix-tape has always been technically illegal and never to my knowledge of any real concern.

  5. overviper says:

    I hear a lot of complaining…but I’m not hearing solutions. What should happen to people who pirate music? Or a movie? 8 months? A year? 3 Years? $50,000 fine? Fine and prison? Solitary? Bread and Water? Public flogging?…How about people who facilitate piracy? 15 years? How about Kim Dotcom…life? 15 to life?

    Should we bring back DRM? Should we not be able to make a backup copy of a DVD we bought? Should all digital media come with malware that can sit in your Computer/Phone/Tablet and monitor your files?

    I would like to know how people in this forum would like to see punishment meted out. Then we can tell if they’re loonies…

    For me, I’m of the belief that education going forward will go a lot further than jail. I know people see it differently, but what I’ve heard (not here so much…everyone seems fairly reasonable in this blog) bandied about, it all seems like a cure worse than the disease.

    As for the white collar criminal crowd, they got Glass-Steagal repealed in the same way that the MPAA and the RIAA are seeking to enact what is in my view bad legislation…they lobby, lobby, lobby unceasingly for it and spend a ton of money to buy off politicians. I’m not saying the other side doesn’t do it too, but two wrongs don’t make a right, and the same old bullshit just leads to more of the same old bullshit…

    So how about it? How do we punish them? Me…I vote for public floggings…simple, direct, memorable…kinky.

    • monkey says:

      The “other side” has managed to dupe millions of people into thinking they’re Robin Hoods.

      It’s rather simple. If I make a record and someone rips it to their PC, I won’t care. But if someone is making money by selling ad space for a site that allows millions of people to copy that record, we have to talk.

      You didn’t answer the question, though: why should the tech industry be exempt from regulation?

      And why not just pay for what you want? I do not have a great job and I manage to buy pretty much all the media I want.

    • AudioNomics says:

      actually sopa/pipa went a long way toward a “good enough” solution. Stopping [U.S] payment to sites dedicated to infringement would let them wither on the vine. Because believe it or not, those sites are only in it for easy cash… any wrench that can be thrown into that gearhouse will have a positive effect.
      As stated many times it’s not about “stopping” piracy, it’s about managing it to levels that allow the legit market to work.

    • David Newhoff says:

      Overviper, I’m not sure if you’re asking about users or pirate site owners, because I don’t think there’s much point in comparing the two. The site owners are straight-up criminals committing massive theft for millions in profit; and many sites, like cyberlockers, are using “free media” to lure users into downloading malware designed to commit other crimes like identity theft. Those guys can go to prison, and I don’t personally care how many armed agents arrest them.

      I don’t think it is reasonable to go after individual users of pirate sites through law enforcement, practically or morally at this point. It’s bad PR and counter-productive. But I do think it is absolutely important to change users’ perceptions of the issue, not only for the sake of the industries of interest and for future artists, but because the rationales for piracy are so sophomoric and corrupt. I think most people understand there’s something wrong with it, which is why they cling so strongly to such unsound rationalizations and even buy into the self-serving, grand proclamations of guys like Dotcom. That’s part of what I find so offensive about Wortham’s article; this “dialogue” picked up by perfectly intelligent, credentialed people has created this social and moral ambiguity about criminal enterprises that are clearly detrimental in multiple ways. It’s one thing if people pirate because they don’t know any better, it’s one thing if they pirate because they live in a market with truly censored access; but in the US especially, this narrative that people like Wortham keep feeding is outright dysfunctional and needs to be rejected at every opportunity.

  6. overviper says:

    The tech industry should not be able to make money on the backs of other people’s work, and if they make money from ad revenues…they need to share it with the people who did the work…and eventually they will.
    Now what do you think appropriate punishment should be?

  7. monkey says:

    Honestly? Sites that directly profit off of infringement should be fined out of existence. Obviously this is not possible with Google, but I think you could make a good case that Google should be broken up like any other monopoly.

    When is “eventuallly?” It’s been nearly fifteen years since Napster.

    • overviper says:

      So you would shut them down and not have artists get anything instead of some kind of revenue share?

      • monkey says:

        If they compensated the artists, then they wouldn’t be infringing. Obviously I would rather they compensated artists. But if they refuse to i have no problem with shutting them down.

      • frank990 says:

        you miss the point. The reason artists get “some kind of revenue share” instead of what is required to pay to create the content and profit from their work so they can earn a living is because of the systems, criminal businesses you are defending. Please spare me how wonderful it is that they have created a way for artists and creatives to get paid a fraction of the value of their work, while losing the ability to negotiate for its value in a free market in order to obtain some exponentially smaller benefit from the people who are stealing from them and profiting. Spare me. Help like this THEY DONT NEED!

  8. A says:

    I also want to add that I would never accuse the entertainment industry of not caring about free speech. I don’t even think, at the end of the day, that they are more about copyright than speech — nor, analogously, do I think most Americans care more about national security than basic civil liberties. But the entertainment industry has demonstrated that they do care enough about copyright — the property right central to their economic survival — so as to tolerate incursions on free speech with the hope of curbing mass copyright violations. This is understandable, but it is neither surprising nor condemnable that such compromises meet with opposition from free speech defenders (including constitutional law scholars, the ACLU, etc.)

    And, David:

    Even as the bill was being marked up and revised, nothing about its original intent or architecture threatened the First Amendment or really affected domestic law at all.

    I hesitate to nitpick and rehash specific language years after-the-fact, but: come on. The 100+ law professors who came out against SOPA obviously disagreed with you re: First Amendment (as do I), and it is blatantly false to suggest the bill, especially as initially drafted, would not have affected domestic law or domestic sites.

    • David Newhoff says:

      A —

      Regarding the language of SOPA, I would have to dig way the hell back in my notes, but I do have a fairly jaundiced view of legal scholarship these days (as do several legal experts I know) because attitudes are so generally skewed toward an anti-copyright agenda. And I would accuse a large segment of these scholars to be jumping on a bandwagon because there’s no glory in championing the status quo. Regardless, you’re right that neither one of us wants to go back and retread exactly which words appeared on which dates (please tell me I’m right), but I think the point about SOPA is that the real and very normal political process was manhandled by a single industry with its own agenda and that people to this day believe it was some sort of grassroots, power-of-the-people thing.

      Regarding your first point, I think it would be impossible not to find tensions on a case-by-case basis between two sets of rights that coincide and are meant to balance against one another. And let’s face it, nearly anything can be called “speech.” If a rights holder claims infringement on a use for which there is a reasonable fair use argument, then you might claim a chilling of free speech if the rights holder prevails. Incidents like this happen, but they are not terribly common unless, as some of the scholars say we should, we expand the meaning of fair use to include pretty much anything that can go on a website. As such, there are persistent, contemporary arguments that say speech includes the unlicensed and uncompensated distribution of works. These arguments tend to focus on the user who is merely exercising his right to read, hear, and see things; and they tend to gloss over the profit-making thief in the middle of the transaction.

      I like the ACLU in general, but when it comes to courage and advocating free speech, I have to give it to artists, writers, performers, filmmakers, etc. These are the people who have gone to jail and been shot at for saying what some people don’t want to hear.

      • Sam Flintlock says:

        What evidence is there that SOPA was astroturfed?

        Apart from a bit in Techdirt (who I’m not convinced are that influential; they mostly preach to the converted) my recollection is that most of Big Tech seemed to jump on the bandwagon after it was already rolling.

        This one has been flying around for some time, but evidence seems sparse on the ground.

        Especially when we get into how diverse the organisations against it actually were.

        “Big tech lobbies in its own interest and has clout at national level” is one thing. “Big tech managed to use the New York Times, the National Association for the Deaf, Trent Reznor and Kickstarter as cover for their agenda” is starting to sound conspiratorial.

        Is it really so much of a stretch to believe that SOPA was an appallingly written bill and that a whole variety of organisations had an issue with it? Because, you are starting to sound like you’re going “but the entertainment industry bought those politicians fair and square!”

      • David Newhoff says:

        The best encapsulated account I know is in Chris Ruen’s book, Freeloading. But, yes, the initial reaction started, if memory serves, among Redditors and their ilk but in a coordinated and crafted way, not an organic one. (Again, I’d have to go back and read the details). Those early murmurs were very rapidly expanded into the scale of a campaign that could reach my friends and family (people who wouldn’t know what a Redditor is) through organizations like EFF, Public Knowledge, Sunlight, and all the OpEds that were copied and pasted right out of the talking points from these groups. All of that came to a head on 1/18 as Google, Wikipedia, WordPress, et al made their statements in ways that translated into a reaction of petition clicks and phone calls that scared everyone off the bill. Google’s “End piracy. Not Speech” meme that traveled the universe was one of the biggest lies I’d heard since GW Bush said of Al Qaeda that “they hate our freedoms.”

        SOPA was an imperfect bill, but not appalling. What was appalling was the fabrication that this was all being done in secret between the MPAA and Lamar Smith without inviting any stakeholders to participate. There was no good-faith effort on the part of the internet industry to say, “we want to solve the problem, too, but here are our concerns.” If that were the case, amping up the rhetoric about speech, about breaking the internet, and about all-powerful Hollywood that in fact can’t afford Google’s lobbyists’ lunch budget, would not have been necessary.

      • A says:

        You are right that neither of us wants to do an intensive postmortem re: which words, which dates. But you’re wrong — and I think you know you’re wrong — to suggest the legislative process was distorted re: SOPA, by “a single industry.” As with much (most?) legislation, there were several industries spending money and exerting influence here, on both sides. (Though SOPA proponents vastly outspent opponents. The pro-Internet lobby got some “free” support from internet users, of course, but the entertainment industry also commands plenty of eyeballs, and doubtless could have rallied consumers if SOPA’s provisions had not been so distasteful to so many consumers).

        Given that First Amendment experts with no commercial stake in this debate oppose measures like SOPA overwhelmingly, it’s no surprise that content-licensor interests would look askance at legal scholarship (nor surprising that the Kochs would take a jaundiced view of climate-change scholarship). Fair use is one point of contention — another seriously bothersome one involves DRM circumvention. If a rightsholder’s software takes control of a user’s PC and renders the PC vulnerable to new security threats, should users or concerned researchers be allowed to publish such information? I, most lawyers and law professors, and White House and DOJ say yes; the RIAA says no.

        As for those dissident poets and musicians and writers who’ve been shot at for saying things people didn’t want to hear — query how many of those guys actually support SOPA-style laws. I would bet that a majority don’t. Probably the most famous dissident journalist in the U.S. right now is Glenn Greenwald — neither of us needs to guess his stance. This conflict is more accurately cast as [Google + internet users + ivory tower law professors + ACLU/Greenwald/et al.] v. [Comcast + Harvey Weinstein + Lars Ulrich + maybe a few smaller artists]. And when it comes to courage and advocating for free speech, I’ll take the Jewish lawyer who argues for the Nazis’ right to march through Skokie over the media conglomerate lobbying for reduced fair-use protections, any day.

      • David Newhoff says:

        A, I have to laugh least a little. We don’t want to get into the weeds on a 4-year-old bill but we’ll conjure Lars Ulrich and Skokie. Still, that’s tangential.

        No, SOPA proponents did not outspend opponents, neither in lobbying dollars, nor especially in courting the opinion of the electorate. But let’s also set that aside because my first reaction to the anti-SOPA campaign had nothing to do with that or with the issue of piracy; it was that people were responding with Pavlovian predictability to hysterical headlines without asking rational questions. Assume for the moment that everyone is lying and congress is for sale to the highest bidder. When in doubt, follow the hyperbole and the self-interest. The industry screaming “sky is falling” happens to be the one that stands to gain from weakening protections of intellectual property. The industry that wants to protect IP has nothing to gain but quite a bit to lose from harming Free Expression and, frankly, breaking the Internet. Now, if you reject SOPA’s purpose (i.e. are pro-piracy), then we have a different quarrel; but if you agree with its intent (remember “Good intention. Bad law”?) but claim that it is a massive infringement on civil liberties cooked up by Hollywood to be fast-tracked without oversight, then methinks you protest too much, and your motivations become questionable. The bottom line is the Internet industry has been, and continues to be, opposed to legislation here and abroad that protects individual privacy an intellectual property. And they’ve tried to recreate SOPA-like reactions among people, but I suspect they blew their wad, so to speak. People aren’t giving that industry the free pass they were four years ago.

      • John Warr says:

        It was started from a strategy meeting at Mozilla early October, when a small number of mid 20 somethings where given £300,000 by Google flown from Boston to Silicon Valley. At that strategy meeting were all the big tech companies including the reddit management. A few days later inflammatory posts were put onto reddit. At the same time similar posts were placed on wikipedia, but the wikipedia community weren’t biting. Senior members of the WMF said they were already in discussion with those organizing a protest. In November WP was given $500,000 by Google’s Serge Brin and wife. A few days later a meeting of the Creative Commons board was held, chairperson is the mother of Serge Brin’s wife, also sitting on the board are YouTube execs, and Jimmy Wales of wikipedia. The CC board voted to back the protest. A few days later Jimmy Wales resurrects a proposal to black out wikipedia.

        The protest vote on wikipedia was close and different from all previous and subsequent votes. They counted anonymous IP votes and votes from newly registered accounts. Such votes are usually discounted on WP.

        Jimmy Wales to this day is incredibly sensitive to the suggestion that the WMF were bribed by Google to drive their community like cattle to the stockyard. He insists that the SOPA blackout protest was Jimmy Wales’ and Jimmy’s alone, so there.

      • David Newhoff says:

        Thanks, John. Either your memory is better or your references more handy. Indeed, if nothing else, the fact that Jimmy-ball-of-contradictions-Wales took the lead ought to have given people pause. But of course, he dresses like a professor and runs the benevolent Wikipedia, so he must be telling the truth, right? His claim that a link on Wikipedia to an infringing site could put Wikipedia in dutch under SOPA was complete bullshit. But you never know what you’re going to get from a guy who calls himself an objectivist and a devotee of Ayn Rand and then “works for free.”

      • John Warr says:

        Here is Jimmy Wales taking full credit for the SOPA blackout.
        https://www.quora.com/Wikimedia-Fundraising-Donations/Does-Wikipedia-collect-more-money-than-it-requires-to-run/answer/John-Warr

        Betcha all didn’t know that it was all Jimmy’s idea LOL.

      • Sam Flintlock says:

        John-

        Have you got cites on that? (Academic databases are fine- I have access to most of the prominent ones).

      • John Warr says:

        Start with the Quora link above and start to expand the comments, all the links are there. This Boston Globe article outlines how 5 man band Fight for the Future suddenly got a 300K grant and whisked from Boston to Mozilla HQ.
        http://www.bostonglobe.com/metro/2012/01/27/worcester-fight-for-future-helped-ignite-internet-revolt-against-antipiracy-bills/cEZNoCuuHI7mk6eADQ4lZK/story.html

        The links are here:
        https://www.quora.com/Wikimedia-Fundraising-Donations/Does-Wikipedia-collect-more-money-than-it-requires-to-run/answer/John-Warr/comment/1552078

        and here:
        https://www.quora.com/Wikimedia-Fundraising-Donations/Does-Wikipedia-collect-more-money-than-it-requires-to-run/answer/John-Warr/comment/1552822

        make up your own mind. Maybe Jimmy is right and the SOPA blackout was all his idea and he was completely unaware of anything going on at with Moeller at the WMF or Google or Mozilla or reddit’s Conde Nast management.

    • monkey says:

      You know what? I don’t really care about the “entertainment industry.” I care a bit more about the publishing industry, but what I really care about are individual creators who are saying “yes, this is hurting me, and it’s unfair,” and are being ignored and attacked.

      ani difranco is pretty much the most successful anti-corporate musician out there, and she gets pirated, just as much as Katy Perry. Individual artists are saying “I would really like it if you don’t put my stuff online without my permission” and are getting trashed for it. That needs to change.

  9. “It is astonishing that even when independent artists recite their stories of working for years on a project only to have it hijacked by a pirate site, they’re accused of whining; but when profiteering site founders are busted, they’re treated like martyrs to the cause of culture and smarter business practices.”

    You know what is truly astonishing? The prevailing idea of content creators that just because they create something, it automatically has value, simply as a bi-product of its creation. Media creators tend to gloss over the ridiculous amount of exposure the digital realms give to their works, acting as if every pirated copy is equal to a sale that has been lost. Sadly, that is a mistake.

    Lets be clear, a digital COPY of media, has no true value. Beyond the initial production costs, once the work is released into the wild, the digital file, which can be duplicated an INFINITE amount of times, has no true value in and of itself. It is the content of that file, the artistic works/performance, that is important. And protecting that element, keeping that under lock and key… That is entirely possible, but the reality is that media producers big and small want it both ways, they want infinite distribution as well as complete control.

    Sorry, but that is not how things work, nor how they are ever going to work.

    Piracy is not the problem. Sure it sucks, and it is illegal. Yup people who steal and get caught, should be punished. But that isn’t the real issue. The real issue is having the audacity to blame the consumer for wanting something that costs you NOTHING to deliver after its creation, to pay prices equivalent to an actual performance, or on par with something tangible for them to truly own.

    Big companies want to make money off of something(that they can duplicate as many times as they like) in as many ways as possible. What value does that give to the consumer? A record was collectible, a piece of history. Are you suggesting an MP3 is the same?

    You want to stop piracy? Here is your solution. Make better products, sell/distribute them in a VERY controlled manner, and rely on the quality of the product as opposed to the sheer amount of crap you toss out there.

    Media companies are stealing from consumers way more than they are losing to piracy. How? By recycling the same crap, over and over again, duping the consumer into paying full price for knockoffs and in most cases down right terrible content.

    Do a better job, let your work speak for itself and stop trying to punish the consumer for finding ways around the nonsense that is the entertainment industry.

    • David Newhoff says:

      1 — If it has no value, don’t seek it out.

      2 — The tedious repetition that the copy costs nothing is made by people who have no knowledge of the economics involved in producing these things.

    • monkey says:

      You and I have very differrent definitions of “theft.”

      You can look through a book (even digitally) before you buy it. You can hear snippets of a song before you buy it. You can watch scenes from a movie before you buy it.

      I’m not going to cry over someone duped into buying a song by Miley Cyrus or Ariana Grande.

      Finally, David has never suggested going after the consumer. No one here wants to punish individual downloaders. What they want is to prevent people from profiting off that. If by doing that it forces the consumer to pay instead of just pirating it, I have no problem..

      • footzpah says:

        Angryvillager, I don’t agree that a digital copy has not value because it costs nothing to produce that copy, but putting that disagreement aside I thing your logic doesn’t hold. The price of anything you buy is not simply equal to what it cost to produce, there is markup also. So if the digital copy cost $.01 to produce that’s what you should pay? I’m not sure how can of Coke costs to make but I imagine it is less than what you pay for it. Also by your reasoning, because you are not taking something away from the creator by pirating a download he/she shouldn’t need compensation. But if you sit with a lawyer for two hours and get advice you are not taking anything away from that lawyer — they still have all the knowledge they had coming into your meeting, even after sharing it with you. So do you agree that they should charge you nothing? I think it makes sense that you are charging them for their time and expertise. It follows that is what you are paying the creator for as well.

  10. Joshua Hall says:

    How do the Piracy sites make money? If it costs nothing to the end user to download content then someone else is paying these people. Who? Start there. Would Piracy Sites exist if there was no profit to be made from it?

    • David Newhoff says:

      Depends on the site. Advertising is a major revenue source, although ads for major brands are not placed on these sites on purpose by the brands. Major brand ads wind up there through a secondary ad-sale market. DDL Cyberlockers, as reported in the new study by NetNames, make 70% of their revenue from selling “premium” accounts to users, which is remarkable for several reasons, not the least of which is that downloading software, etc from these sites exposes users to malware. A lot of sites make revenue by advertising and linking to some really sleazy affiliate marketing schemes, including links to “Meet Asian Women” and such, which leads those who follow that path down a road toward what looks a lot like sex tourism or is at least a kind of mail-order bride scam. Whatever the revenue sources, these sites are not bastions of free expression, sharing, and cultural diffusion.

      • Joshua Hall says:

        So, If I were a major automobile manufacturer and I learned my car ads were showing up on a sleazy website – and I thought that might hurt my imagine as a Family Friendly Car Company, I might be interested in how my ads were showing up there. That might lead me to these Secondary Ad-Sale market place. and If these companies that run the secondary ad-sale market are readily identifiable then how difficult would it be to pull the ads or sue for using the ads without permission….

        or maybe the car company gave permission and therefore are also complicit with the activities on the site by supporting it with their advertising dollars….

        What I am trying to say here is – ANY 8th Grader can Find and Download ANYTHING – we know who the big players are – they get their names dropped on this blog all the time – its easy to find. We know that large companies participate in the funding of these pirate sites. And we know that there is little anyone is really doing about it except complain. Unless the movie industry is really going to go after pirates and those who support it it will not stop. Maybe instead of making Expendables 3 – they should have invested that money in shutting down the top pirate sites and shaming other industries for supporting pirate sites with their advertising dollars. “Toyota – Let’s lead the Way!! ….and if you want some Asian Women…we got you covered….thanks for visiting this sleazy site”……

      • David Newhoff says:

        Joshua, I’m not sure how closely you’ve been following these issues, but if it were that simple…

        The advertisers are beginning to get involved. They don’t particularly want their highly-cultivated brands showing up on these sites, but the mechanisms by which they do are not entirely in their control. GM suing a Russian-based ad server, for instance, is not some minor undertaking, especially since it’s largely a PR issue for GM and not one that’s likely doing perceptible harm to their customer relationships. Still, efforts are underway to get advertisers involved in helping to mitigate the problem.

        With regard to shutting down the pirate sites, the major studios and the MPAA would be only too happy to do so but for the fact that the sites are in foreign countries outside US jurisdiction. Still, the majors spend a lot of money on counter-piracy activity, though the producer of Expendables III is an independent production company, as are the producers of nearly all films. Even the largest indie companies don’t have a dedicated anti-piracy unit the way an NBCUniversal does, and I doubt many of them are engaged in ongoing DMCA takedowns, but I may be wrong about that. The reality is that the pirate sites in Ukraine et al don’t have to comply, so they don’t. That’s what SOPA was designed to address — to starve these sites of funding from at least the U.S. market since they’re beyond the purview of law enforcement. But that reasonable (in my opinion) approach was distorted into something it never was, and so long SOPA. Meanwhile, we certainly have U.S.-based companies like Google that could be far more cooperative with regard to providing high-ranking links to these sites and not treating requests to remove said links as an infringement on free speech.

      • AudioNomics says:

        it is possible.. you’ll notice certain big brands (that do a lot of advertising) rarely, if ever, show up on those type of sites and others are there consistently. Coca-Cola, for instance you will have a hard time finding ther ad on these sites, while visa and MasterCard are on almost all. This suggests that it’s about company willpower and follow-up.
        http://www.annenberglab.com/projects/ad-piracy-report-0

    • M says:

      Would Piracy Sites exist if there was no profit to be made from it?

      I would say perhaps it would reduce online piracy. But there was piracy on the Internet before commercial activity was even allowed on the Internet (back when it was called ARPANet or NSFNet).

      • AudioNomics says:

        Right, and all 123 people on usenet swapped files amongst each other, instead of the entire planet… big difference there. I only care about “mainstream” piracy. It should not be allowed to operate in broad daylight .

      • M says:

        Usenet was publicly accessible (to those with Internet access), so it was in fact operating in broad daylight even back when. The only major difference is more people have Internet access now.

      • James_J says:

        Very few people knew (or even know today) how to use usenet and i think that was the point, it’s not a point-n-click common user interface.

      • AudioNomics says:

        very few average internet denizens, even to this day –know about usenet, or even if they stumbled across it wouldn’t know how to use their convoluted system.
        I don’t care what uber-geeks do, I care that someone who never used a computer before can bring their first computer home and within the time of initial setup, they can download millions of dollars worth of stolen goods that they might even think is legit, because it shows up at the top of a google search,and the resulting page has major brands advertising on it… all one-click no brain easy. and all right in front of supposed law enforcement and the victims.

        If google or whomever had a brick-n-mortar mall, and half of the stores inside were peddling stolen and illegal goods, that place would be shut down with force by a swat team. The internet doesn’t mean laws are suddenly not applicable..

      • M says:

        It has nothing to do with Usenet or it’s difficulty. Microsoft Outlook or Mozilla Thunderbird are fine Usenet clients, you don’t have to be a rocket sicentist here. The Internet itself wasn’t operating in broad daylight, therefore, there was no mainstream piracy because the mainstream wasn’t even on the Internet. Mainstream piracy started about the same time as mainstream Internet.

        And even further, I would argue that the Internet became mainstream to some degree because of the broad knowledge that filesharing was possible on the Internet. People learned that there was a universe of content available on the Internet, largely from national news from Napster and the like. Shortly after, ISPs were advertising their services in terms of “music download speed”. This was before there was an iTunes.

        The Internet itself killed copyright, everyone responsible for the creation or development of the Internet has some responsibility for making copyright ineffective. The Internet become such a facet in our lives that nobody wants to be cought dead saying that, but it’s true. And even going after Google is just going after a really big mole, it’s still whack-a-mole when Bing or Baidu or Google 2.0 or whatever comes after it to take over the void. Whack away!

  11. monkey says:

    Advertising. The Trichordist has faithfully documented that major companies (including car companies, soft drinks, etc) advertise on these sites.

  12. You are missing the point. Content clearly has value, the thing that is being “sold” and/or pirated has none. When I produce an album, the music is of value to anyone who enjoys it, the mp3 is simply a means to an ends.

    Producing an album costs both time and money. Both of which are easily quantified into an actual dollar amount. Pressing records, making film prints, pressing CD’s… All of which can also be quantified. They require resources and thus have an inherent value beyond the content that is stored on them.

    Digital media, well that is not quite the same now is it? Conversion costs virtually nothing. Storage? That generally falls upon the companies selling the music, which is in turn paid for by them taking a cut of the proceeds. Distribution? Again, that is simply a matter of generating a listing.

    I am well aware of the “economics” of producing music. As an independent artist I know EXACTLY how much it costs me to make an album. How long it will take, and how difficult it will be to have it heard in a sea of information. What you seem to be ignoring as part of the “economics” is the colossal amount of money used to market these products. And the fact that how much a company spends on pushing their product HAS NO BEARING ON THE ACTUAL QUALITY OF THE PRODUCT. None.

    If you spend 10 million dollars to promote a record that cost 100k(a ridiculous amount) to make. And you sell 10 thousand copies at 10 bucks a pop. Who’s fault is that? The consumer? The guy who didn’t think it was worth 10 bucks and downloaded it, or better yet, just found somewhere to stream it from time to time?

    You are vastly overestimating the value of that copy. Again, just because you create something, that does not automatically give it value. Any artist worth a damn knows that the value of a work of art comes directly from the people who listen, watch, buy, trade, collect…

    How much does a copy of an MP3 cost? Since you are so versed in the “economics” of the situation? Apple charging you by the download? Do they sell so many and then ask you to pony up more loot? OR do you both start making money hand over fist the second you have surpassed your tangible costs of creation? So then, what would be the BEST way to insure content creators get the most bang for their buck?

    Going after “lost sales”? Which requires the assumption that every download not paid for would equate to a sale, which is absurd. Or reducing costs and being more selective in what you throw money behind?

    Again, piracy, is bad. It IS stealing. But thinking that it is the main problem with the industry is silly. Too much crap, too much money spend on marketing that crap, and not enough effort spent promoting art for the sake of art.

    I would gladly give away my work for the chance at exposure. And you know what? I am not alone. And it isn’t just no name independents catching on to this. So yeah, keep thinking you have some greater insight into the “economics” of producing art. And keep watching random youTube artists blow traditional media out of the water.

    • John Warr says:

      If digital files had no value then people wouldn’t be flocking in their 10000s to download and possess the files. They wouldn’t be paying for faster downloads, the advertizers wouldn’t be paying to have their adverts alongside the download buttons.

      Back in the past with vinyl the cost of pressing a single LP was pennies, not free exactly but nowhere near the cost of the album. The packaging that it came in was also pennies. The cost of distribution also pennies. That digital media can be copied and stored at almost no cost is in comparison to 25c for an old style LP.

    • David Newhoff says:

      Angry Villager, I’ll ask you to forgive my impatience and brevity. It’s not that I miss the point so much as I’ve heard all of these arguments before and have, in one context or another, addressed them in what is now over 200,000 words on this blog. You bring up a variety of issue, but I’ll stick to the economics and try to keep that brief. First, retail value of an album or a movie is not determined by its cost to produce. That would be silly. Prices are relatively flat for all of these things, whether they cost thousands or hundreds of millions to produce, and that’s a good thing overall for consumers and producers. If you are one day financially successful through sharing your work on YouTube, you may find that DIY with and ad-sharing revenue stream may not serve your needs if you want to scale what is now a small buiness in some new way. Maybe you want to produce an album that’s really going to need 10 pieces, a great producer, and an engineer; maybe you want to mount an impressive tour. Will you not pay any of the skilled people you’ll need to accomplish these things? Maybe you need investors to get there. Some artists might produce work for decades in a YT paradigm, and there’s nothing wrong with that, but it doesn’t apply to all works. And music is child’s play compared to film production. There is no revenue stream other than sales, rentals, licensing of the products themselves, and they cost a lot of money to make because they are skilled-labor intensive. The revenue pie is multi-faceted and extends over many years, so the fact that a digital copy costs “nothing” is entirely irrelevant.

    • monkey says:

      Say hello to a world where only people with enough cash and time to create are able to do so.

  13. Monkey, you can’t have it both ways. Either you accept this as part of releasing content into the wild for the sake of exposure, or you lock down the content and let it stand on its own merits. It’s that simple.

    People want music on the go. The digital medium allows for that. Let’s not pretend that the benefits of this type of availability are outweighed by people not always wanting to pay.

    • monkey says:

      None of which has anything to do with websites making advertising money by offering material they didn’t pay for.

      Artists have been told “make great work, make it accessible and make it available on multiple platforms.” And they’re saying “no shit, we tried that. And we still get pirated.”

    • AudioNomics says:

      and there exists one of the simplest and easiest ways of getting an actual license to run a service that plays music: it’s called the compulsory license, and ANYONE can qualify, if you pay the statutory fee and do the proper paperwork… there simply is zero excuse for the pirate site to exist in the 1st world.

      • M says:

        Compulsory licensing only exists for performance rights and mechanical rights. You need more rights then that to offer a song for sale for instance, or even to make an on-demand streaming service.

  14. AudioNomics says:

    oh, and in response to your lengthy post above about not confusing the product with the packaging…you go through the trouble to explain the difference, and proceed to contradict yourself… whether it’s a digital file, a digital cd, or a vinal record, those are all containers.. I can’t very well sell you an empty mp3, now can I? (or you would rightly ask for a refund) the cost difference between the products reflect the differing costs to manufacture.. it’s cheaper to buy an mp3 than a cd, precisely because of those realities, they are the same product, one is cheaper to produce…but you can’t get the actual content cost to zero.
    Don’t confuse the content with the packaging.

  15. theangryvillager says:

    footzpah – “So if the digital copy cost $.01 to produce that’s what you should pay? I’m not sure how can of Coke costs to make but I imagine it is less than what you pay for it.”

    You aren’t paying for the can, you are paying for the coke. But the can, the logo, the warehouse, the trucks needed for shipping, etc. Those all contribute to the cost of the coke. To make another can of coke, will cost the same amount as the last one, no matter how many cans they make. There is always going to be a delivery/production cost. A digital file, not so much. It is a container, and with complete control over that container, you cannot have complete control of the content. So the simple solution to controlling content is to not make is openly available. That is in fact the only way to control content. But that comes at a cost, exposure. So my point is that you have to accept that something freely available will in fact be taken, for free. If I buy a case of coke, and I leave it out for anyone to take, The CokeCola company cannot claim piracy. If I buy the coke and I sell it on to someone else, they still don’t count my sales as lost revenue. Why? Because someone had to pay for it sometime and they do not expect multiple sales from a can of coke. But the entertainment industry is trying to “double” dip. They want a sale for EVERY iteration of a song/movie/game. Makes no difference there is no actual loss of product. And this is because they are assigning value and attempting to control the container, not the content.

    John Warr – “If digital files had no value then people wouldn’t be flocking in their 10000s to download and possess the files”

    They aren’t. They are flocking to posess the content. Not the container.

    David Newhoff – “Maybe you want to produce an album that’s really going to need 10 pieces, a great producer, and an engineer; maybe you want to mount an impressive tour. Will you not pay any of the skilled people you’ll need to accomplish these things? Maybe you need investors to get there. Some artists might produce work for decades in a YT paradigm, and there’s nothing wrong with that, but it doesn’t apply to all works. And music is child’s play compared to film production.”

    Those are choices you make. You can’t assume that just because you do all of those things your work has value. No one buying your material is the same as someone downloading it for free. Value can only be derived from the people willing to pay. If someone likes a song, but they don’t like it enough to find it valuable, they may or may not find a way to get it for free. Again, that sucks, but that is not the problem with artists trying to make money. Free copies of content are readily available, yet somehow money is still being made. Content keeps being created. And the industry keeps using that as its primary metric. Throw as much out there as possible and cash in on what sticks, or what kind of sticks. Most bands get a cut of music sales, a lot of bands make most of their money from touring. No that isn’t easy. Yes it is hit or miss in terms of success. But that is kind of the point. Online music is about exposure, not sales. The bean counters funneling millions into marketing care about sales. The artists, the true artists, care about funding their tours, paying for studio/production time and getting their art out to the masses. If you are making music and focusing on sales, you are doing it wrong. That is a figurative “you” BTW.

    Monkey – “Say hello to a world where only people with enough cash and time to create are able to do so.”

    Anyone can create. If you are talking about being famous, and selling millions of albums or grossing 100 million. Yeah that takes cash, but it is by NO means necessary to be successful. Makes it easier, but I know lots of independent bands that make the music they want to make. Music is their job as well as their passion. And they don’t spend millions doing it. And sometimes, the right people hear music, someone who may or may not have paid for the album, and it catches on. Record companies are obsolete. Big studios, well, they get what they pay for. But artists, they are as successful as their material warrants.

    Monkey – “None of which has anything to do with websites making advertising money by offering material they didn’t pay for.”

    They are making money off of traffic. There is nothing stopping EMI or Sony from doing the same thing. Like I said, if you want control, you just have to be willing to limit exposure. See if Sony kept all their content in house. they could then claim exclusivity. They could more effectively target piracy. But when you send something out into the wild, you sacrifice control. They don’t need to stop piracy to make it more enjoyable to get the music legitimately, they just have to think outside the box, and stop trying to charge for said box…

    AudioNomics – ” I can’t very well sell you an empty mp3, now can I? (or you would rightly ask for a refund) the cost difference between the products reflect the differing costs to manufacture.. ”

    Sure you can. It’s called streaming. Happens all the time and a lot of major compaies have services where they charge a fee to listen. You can even pull up any song you like, just as if you had the file. You know why they can do this? Because the container is irrelevant and has not true value. People want the content. And so long as they can get it anytime they want to, they don’t care how it happens.

    Piracy is also about release schedules and the aforementioned double dipping. Companies expect ticket sales, then music buys, then possible more ticket sales, then a re-issue, etc. Consumers realize they are being duped, and some of them, don’t like it.

    • John Warr says:

      Average US income is $50K so lets take a 4 piece band if they’re gonna make average wages needs $200K before expenses, then there is usually at least one person off stage to. Approx $250K if you want a professional band. Normally they make 1 album a year. You gonna stump up the readies for that? Any of your mates gonna do it? Naw y’all to cheap to pay $10 for a download.

    • AudioNomics says:

      a.v. says- ” f I buy a case of coke, and I leave it out for anyone to take, The CokeCola company cannot claim piracy. If I buy the coke and I sell it on to someone else, they still don’t count my sales as lost revenue. Why? Because someone had to pay for it sometime and they do not expect multiple sales from a can of coke”

      ummm, if someone takes your coke, drinks your coke, or you sell your coke, YOU NO LONGER HAVE a coke. your argument makes no sense.

      again, you’re not grasping the content/container thing. The value is with the content, always with the content… it doesn’t migrate back n forth depending on your example…

      and, if an artist wants to give away product for “exposure”, that choice resides solely with the artist. Some criminal enterprise should not be making that choice for me for you or for anyone else.

      • M says:

        ummm, if someone takes your coke, drinks your coke, or you sell your coke, YOU NO LONGER HAVE a coke. your argument makes no sense.

        You wouldn’t download a coke.

  16. “ummm, if someone takes your coke, drinks your coke, or you sell your coke, YOU NO LONGER HAVE a coke. your argument makes no sense.”

    That is correct. It’s gone. It had a cost, it had a value, now it is gone. And if there was a limited amount of MP3 containers, with an actual cost to “make” more. Where as only so many people could experience the content, then there would be a case for “theft”. But that isn’t the case, now is it?

    They tried DRM, it didn’t work, you know why? Because people were used to owning the products they buy. And DRM showed people in a very obtrusive manner, that they did not in fact own anything. They had paid for the right to listen. And honestly, it might have worked, if the DRM schemes weren’t so horribly implemented.

    But now, streaming technology is everywhere. People are on board with the convenience of digital distribution(for the most part). User locked content is much more acceptable than device locked. And honestly, that is all you really need. Offer content, container independent content, and make it available to the user anywhere, any time. And what you find, is that they are less concerned about what they “own”, and happier to concede to their ability to access.

    The value has shifted. Yeah, there is still piracy. But now when you have that file, you have to take it with you. Load it up, move it around. You aren’t connected to the source. And for some people that is just fine. They would not normally pay anyway.

    How many albums do you think get bought, because of piracy? None? Some body grabs a new song and then looks up the artist, then buys their old catalog. You think that never happens?

    Ultimately my point is that you can’t stop people from treating the container as something they own. If I buy a CD, and I rip it, and I give it to my friend. I did not steal from you. I shared it, with someone who may or may not have bought it. And maybe the next time he buys his own, or passes it along to more people, and maybe they buy. Maybe they don’t. But you have to accept the possibility of both. People profiting from traffic? Please. Every page we visit is collecting data. Data that is bought and sold without most people ever knowing, so to cry foul on someone making cash from ad clicks because they have a link to the latest Biebs tune is silly.

    Better content. More convenience. Sense of ownership. Those things may not stop piracy, but they sure as heck aren’t going to drive more people to it…

  17. overviper says:

    All of this being said, I cannot understand why no one seems to be putting forth a workable solution. Everything I read here, everything I read from the “industry” professionals who focus on piracy, everything I read from “First Amendment” proselytizers…everyone seems to be staking out and protecting their turf. This helps no one…not people like me, who would like to make music and not get ripped off by a record label again, and not people who are big enough acts that piracy might actually hurt them.

    I like to look at the model of ASCAP/BMI and ask…”Why can’t something like that work here?”. In the broadcast world, when your music is picked up on a survey, or when it can be inferred that your music went out over the air, you get a little money. In the world of online content, when it cam be established that a site that hosts your content without (or with, for that matter) your permission…and is making money from ad-revenue…why should not some of that money be distributed to you, the creator?

    The important thing is to make deals people can live with. Companies have to file tax returns, they have to state earnings…they make “X” amount from click-thrus, they make “Y” amount from ads…Content creators, Rights organizations, distribution companies, etc can create an entity that looks after the money stream.

    You could even charge the already existing rights organizations with the job of collecting it, taking a fee for that service much as they do right now. They could police it…much as they do now in the broadcast world. It may be that because we are whining about what we don’t like so much, that an obvious (to me anyway) solution can’t be implemented. We have compulsory licensing? Let’s monetize that. Google wants to be able to link to content everywhere? Let’s monetize that. People want to visit torrent sites? Let’s monetize that. It doesn’t have to be for a lot of money every time…it will add up.

    This makes much more sense to me than spending time obsessing over people file-sharing…something that will happen from now until forever and cannot, in my view, be stopped without a cure worse than the disease.

    • AudioNomics says:

      Uhh…
      Compulsory licensing IS monetized…

      Piracyr isn’t because the assholes who run the sites refuse to pay the token amount of money because they are greedy money grubbing whores who see an easy buck. (and should be behind bars, as they are committing Federal crimes, for those outside of laws of civilized nations, SOPA like legislation is the next best thing, as it cuts those outside the reach of law out of the money they get which is why they’re in it in the first place)

      And for Google et al to pay .. that also requires legislation. (and we all know how useful the congress is at this point in time)

      problem solved!

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