Category: Intellectual Property

To Share or Not to Share

Last week, a report emerged from the London School of Economics claiming that piracy is not harming the entertainment industries.  One of my new Twitter pals, Jean-Phlippe Vergne (@pirateorg) sent me a link to the report calling it “scientific” rather than based on “moral claims.”  I read the report, and there’s nothing scientific about it, particularly in that it lacks any statement of methodology (science likes methodology). Like other “studies” of its kind, this one begs the reader to make a very broad and unscientific leap to the conclusion that because gross sales of movies and music went up over a given period of time, we must therefore conclude that piracy is not having any ill effects on those industries.

Never mind that the report appears to double-count music revenues or that measurements like “box office sales” alone do not paint a complete picture of the economic health of the filmed-entertainment industry, but such measurements say nothing at all about the effects of piracy.  It’s a bit like saying America has more millionaires than ever before, so the economy overall must be very strong.  The lack of rigor in the report may be attributable to the fact that its authors are not economists despite the imprimatur of the LSE, but this didn’t stop the pro-piracy crowd from making hay out of headlines like London School of Economics Says Piracy Does No Harm.  After all, nobody’s going to read the report except those of us who play inside baseball.

Regardless, the report itself has already been criticized,  but I want to go back to this refrain my new friend, Mr. Vergne has played, which is the chronic implication that the subject of piracy should not be examined in a moral context.  Why not?  I suspect because it’s inconvenient to go there because even the pro-piracy crowd reveals the subject to entail a moral choice by repeating their favorite chant, “Copying isn’t theft.”  One has to buy that premise unequivocally in order to to believe that piracy is amoral, but does anyone other than a tiny group of soon-to-be-finding-a-new-hobby zealots really accept this premise as absolute?  I don’t think so.

Of the hundreds of millions of users of pirate sites, it is a comparatively small population, who actually copy files and upload them to these sites.  I have several younger friends who have downloaded music and films from torrents and the like,  but these same people would probably not go the next step and physically rip files from a disk to upload to a site, let alone take money for having ones and zeroes on their hands.  Subtle though it may be, I bet even that is a moral step too far for a lot of people, even though they realize that as viewers, they’re benefitting from the fact that someone else has crossed a threshold they wouldn’t.  This is common enough behavior.  Smoking dope is one choice, dealing it is another.

Most of us draw and redraw moral boundary lines while making dozens of choices a day.  We typically break laws in small and presumably harmless ways, but usually within some sort of self-imposed boundary unless we are irredeemably narcissistic.  For instance, I’m betting most of us would agree that speeding on an open highway with few other vehicles around is a choice that is morally superior to speeding on a city freeway. And the uniformity of the law or possible punishment has no bearing on the moral decision in this case. We make these choices and judgment calls all the time, and I don’t think making bad choices necessarily implies corruption.  Corruption begins when we permit ourselves to stop asking the the question, to assume there are no boundaries; and with regard to piracy, this is exactly what its proponents try to do — to give particularly young and inherently narcissistic people permission to stop asking the question.

But what boundaries might exist when it comes to this activity many of us call theft and others would like to call sharing?  By way of example, I recently committed a low-volume act of copyright infringement against one of my favorite musicians, Mr. Leo Kottke (sorry Leo).  My new production assistant is also a guitarist and a singer/songwriter, and while traveling on a recent shoot, I asked her if she knew Kottke’s music because I happened to have his first album loaded in the CD player.  She hadn’t heard Kottke, but she liked it a lot, so I told her to borrow the CD and copy the files onto her Mac.  Her slightly astonished look was more sincere than mocking, knowing that I write this blog and firmly support copyright.  What gives?

Good question.  It’s an argument that’s been made — that “file sharing” sites are just a contemporary and technologically inevitable extension of what pre-digital people like me have always done with media when we share with one another.  But is it the same thing?  What makes the difference?  Is it volume?  Is it about the technologies used?  Is it about presentation or delivery mechanisms? Or is it simply that I in no way profit financially from this exchange with my assistant?  Would Leo Kottke be mad at me?  Maybe, but I don’t think artists have ever cared much about this kind of one-to-one exchange. Plus, I can accurately state that my success rate in terms of fans made in this case as 100% fans for all recipients of the free media. But maybe that’s an excuse.   If I want to be altruistic about it, maybe I should send Leo $12.26 with an explanation that it’s the current Amazon price for one extra copy of his 1969 album “6-and-12-String Guitar.”  Wouldn’t he be surprised?

My choice to “share” in this instance is bound by certain conditions that, absent the larger debate about piracy, I doubt I would examine consciously.  Nevertheless, the first condition is that I would never think of the word sharing to describe an exchange that does not involve transmission of media to an actual person I know.  Absent the connection made, the rapport built, the camaraderie fostered by introducing someone to a particular work based on some quality I recognize in the individual, the exchange would be meaningless and empty.   As such, I find the conceit of piracy’s defenders who call that activity “sharing” to be a devaluation of human interaction in the same way mass IP theft itself is a devaluation of the human labor that produced the work in the first place.  Does anyone rationally believe they can “share” anything with several hundred million complete strangers?

A component of this condition that I share with an actual person is that I have a measure of trust in that individual — that she isn’t going to do something irresponsible with the files, but almost more importantly that she’s accepting the gift because she actually gets something out of the music.  We’ve seen evidence that the free media bonanza has led to a kind of habitual gluttony among younger users who may have thousands of songs on their iPods but have little to no relationship with much of the music they’ve collected. This phenomenon was in part highlighted when David Lowery wrote his famous letter to NPR intern Emily White after she boasted that she had 11,000 songs but only paid for 15 CDs in her life.

Another component of sharing only with a known person is of course a matter of scale.  After owning Kottke’s album for two or three decades, I personally increased the number of individuals with bootleg copies by one.  By contrast, were I to upload those same files one time to a pirate site, I’ve made the album available to roughly 2.5 billion people, which is to say the entire Internet-connected world.  It’s frankly shocking that any of the debate about piracy continues to get bogged down in comparing a 1:1 exchange with a 1:2.5 billion exchange, but I assume that’s why folks like Mr. Vergne prefer semantic games and a pretense of socially progressive philosophy (i.e. bullshit) over anything so clear-cut as numbers.

And scale aside, giving the Kottke files to my assistant remains within another boundary  in that I did not serve up this artist whose work I love to be exploited for profit by the owners of pirate sites. It doesn’t matter that Kottke’s music would be downloaded substantially less than, say, Lady Gaga.  It wouldn’t even matter if Kottke’s files were never accessed via pirate site simply because his fan base likely skews toward a demographic that doesn’t generally use these sites.  What matters is a gut instinct that if I could ask Leo Kottke his feelings on the matter, I’m guessing he’d be cool with the exchange with my assistant but would be insulted and furious at my uploading his work to the entire world so some parasitic individuals can profit from its trade.  And in this simple, old-school exercise of putting oneself in another’s shoes, the moral choice is clear.

Talking Piracy with Dr. David Price (Podcast)

David Price Part I
David Price Part II

Last week, London-based NetNames released a report entitled Sizing the piracy universe, which reveals substantial evidence that piracy of entertainment media increased substantially over a 15-month period of study.  The author of that report is Dr. David Price, Director of Piracy and Counterfeit Analysis at NetNames. Dr. Price was kind enough to take about an hour of his time for a conversation via Skype.  We discussed the report itself, of course, but also other issues related to piracy and digital distribution opportunities and threats as well as a broader discussion as to why people might want to pay attention to this issue.  This is Part I of our discussion. Listen to Part II here.

Dr. David Price Bio

Dr David Price is  a leading expert in digital piracy and online counterfeiting and currently Director of Piracy and Counterfeit Analysis at NetNames. David has well over a decade of specialist experience working with companies seeking to understand the advantages and dangers of internet technologies. He designs research solutions and provides client-focused analysis that addresses the specific needs of content and technology companies.

David is a leading authority on the propagation and spread of digital piracy over time and across ecosystems, carefully analysing the underlying strategic reasons for specific instances of piracy and demonstrating how they came to be and – just as importantly for content owners – where they are heading in the future. David’s work (such as the groundbreaking reports ‘Estimate of Infringing Use of the Internet’ and ‘Sizing the piracy universe’) has been discussed in hundreds of publications, cited in Senate hearings, and his technical expertise is often used in legal cases. He is a frequent contributor to relevant topics in the media.

The Lie is Falling – Dr. Price sizes the piracy universe

In Butch Cassidy and the Sundance Kid, Butch (Paul Newman) sits astride his horse outside the same boxcar of the same train he’s successfully robbed over and over.  Frustrated by the railroad owner’s ceaseless but futile attempts to thwart the hold-ups, Butch proclaims, “If he’d just pay me what he’s spending to make me stop robbing him, I’d stop robbing him!”  Of course it isn’t true, is it?  Neither the character nor probably the real Butch Cassidy would likely have given up the life he knew for something as boring as just money.

If you wanted to watch this classic film directed by George Roy Hill right now, you could do so on Netflix or Amazon Prime or rent it from iTunes for four bucks. None of these innovations existed just a few years ago, and those who have repeatedly insisted that they “only use pirate sites because affordable, flexible, online alternatives don’t exist” are starting to sound a little dumb.  This is especially true as of yesterday, with the release of a new report by Dr. David Price of London-based NetNames, entitled Sizing the piracy universe.

As promised, the goal of Dr. Price’s study was to assess the scope and scale of online piracy, and only as pertains to non-pornographic entertainment. The 100-page report reveals some interesting data about bandwidth use, the business models of different types of pirate sites, and above all data on actual users of pirate sites.  Probably the most compelling conclusion that we can draw from the report is that it refutes this persistent and widely-held misconception that piracy is a symptomatic reaction against the failure of legacy media producers to offer more flexible, affordable ways to consume on demand. Even today’s Intellectual Property Watch website continues to bang this same, flaccid drumhead:

Ericsson has long argued that illegal access to content is mostly a symptom of a problem, not the root cause of it. The root cause being the inadequate availability of lawful, timely, affordable, competitively-priced and wide-ranging choice of digital content. This is fundamentally a market-supply failure.

This is just one of a zillion variations on the theme that a legacy industry is getting beat by a better business model and is just too stupid to learn and adapt to changing times.  Yet, despite the relatively rapid and still-growing number of legal, affordable alternatives for streaming and downloading media (especially video), piracy has in fact increased by substantial margins concurrent with the growth of legal alternatives.  The study reviews data of unique internet users and bandwidth demand over a 15-month period from November 2011 to January 2013, and the bottom line is that explicit search for infringing content increased by nearly 10% in that period alone, with 327 million unique users seeking unlicensed content just in January of 2013. Between 2010 and 2012, infringing bandwidth use increased by 159.3%, which represents 23.8% of the total bandwidth used in the regions covered by the study.

The data are gathered from North America, Europe, and Asia-Pacific, which combined, represent about 95% of total internet use worldwide.  The 327 million users who explicitly sought infringing content in January of this year represent nearly 26% of the total internet population in these regions. I asked Dr. Price how the increase in piracy corresponds to the growth of internet use overall, and he stated that not only did the rate of piracy outpace the general growth of internet adoption, but that individual users increased their personal volume of infringing consumption during the period of study.  So, even with the growth of legal alternatives, a population of web users roughly the size of the entire U.S. increased its use of BitTorrents and other infringement sites to view or download their media.

Of course, this is just one of the bigger lies about piracy refuted by the report.  There are some other noteworthy rebuttals of well-worn old saws, if you read the document.  There’s the claim we can’t define a site as “dedicated to infringement.” But the report says we can, and it sounds pretty reasonable to me.  Eliminating from the study all non-infringing uses, the report defines a site dedicated to infrignement thus:

‘Focused’ means that the infringing material comprises more than half of all links or all files posted on the site. For instance, previous analysis by NetNames shows that of all content held on ThePirateBay in December 2011, the majority was infringing (ranging from 78.1% for music to 92.9% for television)

And on the subject of the oft-heard claim that BitTorrent is used for non-infringing purposes.  This is true.  Taking pornography out of the equation, the report estimates non-infringing use at about .015% (see page29).

Finally, there’s the general perception that you can’t stop piracy. But, in fact, the report shows a significant ripple effect across the infringing ecosystems directly related to the takedown of MegaUpload and arrest of Kim Dotcom. (see page 45)

The report has been out for two days now, and we haven’t seen much criticism yet.  Maybe that’s because its methodologies and conclusions are pretty sound.  If so, maybe it’s time to stop talking about piracy as a new model or a driver of innovation or a way to express freedom from corporate control and just talk about it as a cultural phenomenon and, most likely, just a bad habit that’s getting worse.