On innovation, litigation and exasperation

I was just reading Craig Grannell’s new blog post, There’s no justification for piracy, but there are obvious reasons why it happens, and I found myself once again agreeing exactly with what he says. The post was prompted both by the amazing Matt Gemmell’s The Piracy Threshold, as well as by yesterday’s Oatmeal comic, I tried to watch Game of Thrones and this is what happened, which basically explains piracy not as justifiable, but as the inevitable result when a person exhausts every reasonable avenue for obtaining content legally.

As Grannell points out, there are arguments to the contrary, but I think what it all really comes down to is simple: People want your content. They will make a reasonable effort to obtain it legally, at a reasonable price. But when you build a wall around your content, by charging exorbitant prices, deliberately misunderstanding the concept of fair use by fighting format shifting, or simply making it unavailable altogether, a lot of people are going to find a way around that wall.

I don’t condone torrenting, nor do I participate in it. In that regard, I don’t know if I’m in the minority on the Internet or not. But I can understand why it happens. More importantly, I believe it would not be that difficult for content owners to eliminate, or at least diminsh to irrelevancy. They just need to try.

But trying means change. It means meeting content consumers halfway. First, it means recognizing them as potential customers, not as potential thieves.

Change can be hard to accept. But I just cannot comprehend how “big media” doesn’t recognize the potential here. Instead of fighting desperately to hang onto dwindling DVD and CD sales, there’s a huge potential market for online distribution. But it requires thinking differently. Prices may go down, but so will distribution costs, by a lot. Like, almost zero. Margins may be slimmer, but that can be more than made up for with volume.

Would making everything readily available online, legally, at a modest price, eliminate piracy? Probably not. But that’s not the right way to think about it. Every advancement in technology since the printing press has presented the risk of IP theft (though, granted, that’s a modern concept), but it has also presented far greater opportunity for those who aren’t afraid of it.

So, you can resent and sue your would-be customers. Or, you can respect and engage them. I think we’re all fed up with how things are working right now. Let’s be reasonable.

Some final (?) thoughts on SOPA/PIPA

We did it! Apparently. Whatever “it” is.

Wednesday’s “SOPA Strike” finally got the attention of Congress (and millions of confused high school and college slackers who had to endure 24 hours without access to Wikipedia, humanity’s only known source of information). In the wake of the protests, sponsors of both the House and Senate bills “shelved” the bills.

For now, they’re gone. But do you remember the end of Halloween, when Loomis shoots Michael and he falls out the window, and then when they look down a second time, he’s gone? Yeah, that.*

Before I move on to other topics (hopefully forever), I just wanted to share some final thoughts about SOPA/PIPA.

1. They’re not really dead. Sure, it’s entirely possible that we’ll never hear about SOPA/PIPA — by those names — again. But if you think the MPAA, RIAA, and their legions of highly paid lobbyists are going to let it all go this easily, you must be new here. As long as there’s any chance that anything the entertainment industry owns is being copied illegally, which is to say, until copyright law is forgotten during the zombie apocalypse (which might just be led by Zombie SOPA itself), old media dinosaurs will continue to fight for their lives.

Actually dinosaurs employing an army of zombies to fight Internet cyborg pirates sounds like a perfect Hollywood movie idea. (Copyright 2012 Scott Anderson. All rights reserved.)

2. Piracy is not really the problem. Sure, piracy happens. Sure, it’s illegal, and very probably even “wrong.” But what’s really wrong (as in, factually incorrect) is the idea that piracy translates directly into lost income for movie studios and record labels, or, as they (and their cronies in Congress) like to put it, lost jobs for gaffers and key grips and best boys and Foley artists and all of those other weirdly named jobs you see scrolling by in extremely small type at the very end of the ending credits of big Hollywood movies.

Yes, if Hollywood goes down, it’s going to take those kinds of middle class jobs down with it. But trotting these people out to get the average person to support this legislation is not unlike Prolife Across America’s billboards with pictures of babies and speech bubbles saying “I could wiggle my toes at 18 weeks!” Bear with me. Regardless of whether they’re right or wrong on the issue, both tactics are designed to appeal on a very simple, gut emotional level, and to discourage critical thought about what’s really going on, whose agenda is really being promoted, and what the implications of that agenda are.

Aside from the documented cases of entertainment industry lobbyists making egregious “errors” in their calculations of the numbers of jobs affected or the billions of dollars “lost” each year to piracy, there’s the simple logical fallacy that every pirated movie or CD equates to a lost sale. On reflection, this should be obvious: many, if not most, of the people who are pirating a movie or an album were not likely to buy it otherwise.

Then again, sometimes getting a copy of an album from a friend turns a person into a lifelong fan of a musician. A personal example: in my life I have purchased every album ever released by both Rush and Yes, which is a lot (there are 31 Rush albums and 29 Yes albums in my iTunes library right now), several of them multiple times, as each new remastered version is released. I have seen these two bands in concert a combined 8 times. I’ve bought their concert videos on VHS and DVD. In all I’ve probably spent over $2000 in the past 20 years on my Rush and Yes obsessions. And it all began because a friend made me cassette copies of A Show of Hands and Classic Yes (both of which I subsequently purchased on CD) back in high school.

So, you see, piracy is not really the problem in two ways: 1) an instance of piracy doesn’t necessarily mean a lost sale up front, and 2) copying now may lead to a lot of purchasing later.

3. Copyright is broken anyway. The other day I mentioned that copyright law had been changed to allow Disney to retain exclusive rights to Mickey Mouse. In fact, the Copyright Term Extension Act of 1998 was even referred to as the Mickey Mouse Protection Act! I’m not against copyright, per se. I believe that the creators of original works should reserve the right to decide how their works are used and distributed, and to profit from their efforts.

But I also believe that an ever-changing law that allows that protection to extend in perpetuity, long after the creator’s death, is counterproductive and harmful to the free exchange of ideas within a society. I’m firmly against software patents for the same reason. In fact, I’m even more against software patents than I am against indefinite copyright extension, but that’s a topic for another post. But I think it’s worth mentioning that I am equally, or even more so, opposed to protectionism in my own field than I am in the entertainment industry.

4. Adapt or die. That’s it, really. As I’ve noted previously, these bills (and any future legislation like them) are not really designed to protect the interests of content creators. They are intended to prop up a dying industry that grew fat on profits over a period (specifically the 1970s through the 1990s) when their business was built upon a model that is ultimately unsustainable, especially as new means of distribution have proliferated. Combine that with what is broadly regarded as a precipitous decline in the quality of their products, along with untenable pricing, and you have a perfect recipe for the kind of collapse and failure currently underway. Don’t blame piracy; blame yourselves for overcharging for a product of low value.

P.S. Boy, it feels good to be able to link to Wikipedia again!

* You seriously haven’t seen it, and I spoiled the ending for you? Whatever. Also, would describing a portion of a film in a blog post like this have been a prosecutable offense under SOPA/PIPA?

Recalling my brush with the DMCA, and how SOPA/PIPA would be immeasurably worse

This MetaTalk post concerning some erroneous DMCA* takedown notices reminded me of an episode from my personal experience that I had almost completely forgotten. It’s a good illustration of how even the DMCA — copyright holders’ current legal blunt instrument to wield against infringers, but nowhere near as powerful as SOPA/PIPA would be — can be used in harmful ways, either maliciously or mistakenly.

A geek, not a criminal

You see, I’m a geek. In particular, I’m a video game geek. I have a huge collection of 1980s video game antiquities. Over a dozen vintage consoles, hundreds of game cartridges. I even have a box full of instruction manuals and those catalogs Atari used to pack in with each game. And for a time earlier in the 2000s, I ran a website chronicling this obsession. I had meticulously compiled a spreadsheet of all of the games in my collection, and turned that into a page on the site, where visitors could (for some unimaginable reason) learn all about the contents of the bins full of 20+ year old plastic and silicon that I kept in my basement. It was harmless (if somewhat ridiculous) fun.

But, you see, there’s this thing called emulation. People have written computer software that emulates the hardware of these old game consoles. And people have also developed ways to “dump” the ROMs (programs) of those games as files that can be run in these emulators, allowing you to play long-lost vintage console and arcade games on your computer.

The nature of the Internet makes it very easy to share these emulators and ROMs. Except, under copyright law, it’s illegal. The emulators themselves are not illegal, and as I understand it, if you own the original cartridges, dumping their ROMs is fair use. But possessing the ROMs without owning the physical game is against the law, and sharing the ROMs online definitely is.

So, the copyright holders in these old games, at least the ones like Nintendo who still have lots of money and actually care about protecting those copyrights, have teams of lawyers scouring the Internet for sites that are illegally distributing ROMs. Under DMCA, they can demand that owners/hosts of infringing sites take down the infringing content, or face legal action.

And that’s where my dumb little video game collection site comes in. I never shared a single ROM on that site (and would never be stupid enough to try). But Nintendo’s lawyers didn’t bother to figure that out. They simply saw an HTML table full of the names of old video games, some of which were Nintendo’s IP, and they contacted my web host at the time, who also happened to be my former boss.

He called me on the phone (a rare occurrence) and was noticeably agitated. He couldn’t believe I was doing something so stupid. Because I wasn’t. Once I reassured him that Nintendo’s lawyers were barking up the wrong tree, his tone changed. He’s a Ron Swanson-esque libertarian, and was ready to fight back. And that’s the last I heard of it.

You’ve probably encountered some DMCA takedowns yourself. YouTube is the most common place to find them. Have you ever clicked a YouTube link, but instead of seeing the video, you were presented with a black box with a message explaining that the video had been removed at the copyright holder’s request? That’s the DMCA at work.

Much worse

Under SOPA/PIPA, YouTube itself could be taken down**. For that one infringement. Any any sites that were linking to that one infringing YouTube video could be taken down as well.

For a couple of years (up until word started spreading about SOPA), I was running another site called “Hall of Prog: A Curated Exhibition of Progressive Rock on YouTube.” Every post on that site was a link to a YouTube video. And given that it was all copyrighted music, most of the videos were probably infringing. Indeed, over the time I ran the site, a huge percentage of the videos on it (especially ones featuring Robert Fripp) were replaced with YouTube’s generic DMCA takedown message. When it started to look like SOPA might pass late in 2011, I decided it wasn’t worth taking any chances, so I took down the entire site. Now it’s just a redirect to americancensorship.org.

I was not making money on that site. There were no ads. And I was certainly not trying to deny the artists/copyright holders (which should be the same thing, but rarely are) their right to revenue. In fact, if anything, I was giving them free advertising. Yes, people make that claim whenever they share something. But I made sure to include links to both the artist and album page on Amazon.com for every video I posted. (YouTube sure doesn’t do that.)

Copyrights (and patents) stand at odds with the free exchange of information. There’s no way around that. As a creator myself, I deeply defend the rights of people who produce creative works to benefit financially from their efforts and to decide how and where their works are distributed. But those rights also have to be balanced with the greater societal good to be gained from freedom of speech and sharing ideas. For decades, if not centuries, means of communication changed very slowly, and copyright law could adapt (or not even bother to adapt) with them. But the Internet has changed everything, and old school copyright holders (especially corporate behemoths like the movie and music industries) have scrambled frantically for the past decade and a half not to lose their foothold — no, make that their stranglehold — over copyrighted content.

I personally believe copyright, as it is currently written, doesn’t work. (That’s why I release my work under Creative Commons licensing.) It doesn’t help that Congress keeps extending the lifespan of a copyright so Disney won’t lose control over Mickey Mouse. (No, seriously… Google it. Tomorrow***.) But I respect the law enough that I make a concerted effort to ensure that the things I do online do not infringe copyright, or are covered by fair use. I cannot, however, just sit back and let the entertainment industrial complex steamroll over my entire livelihood and way of life simply to fight (spurious claims of) piracy.

It’s not too late

The point of all of this is: we already have a law designed to allow copyright holders to take action (before resorting to legal recourse) against copyright infringers, the DMCA. And even that has already been shown to pose the risk of abuse. But the scope of damage the DMCA can inflict is at least mitigated such that it cannot significantly impede the free exchange of information and ideas so critical to making the Internet what it is — something that so many of us depend on every day. We cannot risk what SOPA/PIPA would do to our age of information. (See what I did there?)

Get involved! Go to americancensorship.org to learn more.


* That’s a Wikipedia link, so you’ll have to wait until after the SOPA/PIPA blackout to look at it.

** SOPA/PIPA is only supposed to apply to sites hosted outside the United States, but this would be hard to enforce, and could easily end up affecting U.S.-hosted sites as well.

*** Yes, I know Google’s “blackout” isn’t really a blackout. It was a joke.