Tech Law: Content piracy and a panicked industry
by Paul Jacobson (@pauljacobson) We’re so accustomed to the term “piracy” in the context of copyright infringement that we just accept that it is an appropriate term for what is going on. The Entertainment Industry decries rampant content piracy and how the artists are suffering at the hands of these callous Joe and Janine Publics who couldn’t be bothered to pay for the content they are stealing. Legislators and honest consumers worldwide respond almost viscerally to the “piracy” metaphor applied to the practice of making use of content without permission and to the underlying notion of copyright as property, which is capable of being stolen in the first place.
To make matters worse, the Entertainment Industry really seems to have the facts and figures on its side. Well, that is what we are led to believe anyway. In his book, Moral Panics and Copyright Wars, William Patry tackles this topic in some detail (and it is worth reading his book to understand the subterranean dimensions of this metaphorical war on consumers). Some of the figures the Entertainment Industry shares with legislators in the United States (and likely with other legislators in other countries) are 750 000 and the $200 to $250 billion figures. As Ars Technica’s Julian Sanchez explained in his critical article titled “750,000 lost jobs? The dodgy digits behind the war on piracy” –
If you pay any attention to the endless debates over intellectual property policy in the United States, you’ll hear two numbers invoked over and over again, like the stuttering chorus of some Philip Glass opera: 750,000 and $200 to $250 billion. The first is the number of U.S. jobs supposedly lost to intellectual property theft; the second is the annual dollar cost of IP infringement to the U.S. economy. These statistics are brandished like a talisman each time Congress is asked to step up enforcement to protect the ever-beleaguered U.S. content industry. And both, as far as an extended investigation by Ars Technica has been able to determine, are utterly bogus.
It turns out that the key figures the American Entertainment Industry relied on in its lobbying efforts as measures of the terrible impact content “piracy” was having on the artists (the poor, beleaguered artists) were, in fact, nonsense. These metrics have been massaged, exaggerated and blown out of proportion since their genesis in the 1980s but otherwise accepted as truth by, presumably, well meaning politicians trying to understand an apparent economic menace.
What is emerging from more critical examinations of the Entertainment Industry’s reports on “piracy’s” impact on the industry is that these reports are somewhat self-serving and inaccurate. Mike Masnick, writing at Techdirt, has been writing about this for some time and his posts are insightful and challenge misleading and false assertions made by Big Media. His post, titled “RIAA Insists That, Really, The Music Industry Is Collapsing; Reality Shows It’s Just The RIAA That’s Collapsing” speaks to the music industry’s health in the context of a report which reviewed the music industry around 2010 and 2011 and found that, contrary to the Recording Industry Association of America’s assertions, the music industry is doing pretty well.
The report’s findings confirm what many artists and content creators have reported for years. Even in the midst of all this apparent content “piracy”, the effects on the industry as a whole have not nearly been as dire as Big Media would have us and legislators believe. In fact, as I mentioned in a post I published a little while ago, many content creators embrace this “piracy” because its tends to boost legitimate sales of their content. As Masnick points out, the problem is more a perceptual one based on increasingly obsolete business models Big Media clings to:
The real problem here is that the RIAA ignores the zeros. In the past, under the old system, if you weren’t some hugely successful label musician, you generally weren’t a musician at all. You made zero and you dropped out of the market entirely. So you didn’t count. But thanks to the new opportunities, many more people can make music, release music and make money from music. But that means a lot more competition. So, sure, if you don’t compete with that wider base of competition, perhaps you’re going to make less. But that’s not a sign indicating a decline in health of the overall market. It’s exactly the opposite.
I’m reminded of the early studies when computers were first introduced into the workplace. For about a decade afterwards, there were studies that showed that, on average, offices that had computers on every desk saw productivity decline. So, some argued, companies shouldn’t computerize. But that’s a misunderstanding of statistics. The problem was that many companies didn’t know how to properly use computers. Those that did were thriving. Those that didn’t had negative results — and when you netted it out, early on, the negative results outweighed the positive, but that turned the corner once people started to figure things out.
The same thing is happening in the music industry. Many artists are so used to the way things were that they don’t quite understand how to embrace and use these new offerings. For them, life is definitely more difficult. But as more and more tools have made life easier, there’s more and more opportunity, and those who do understand these things are seeing success.
The Entertainment Industry’s focus tends to be regimented licensing arrangements which appear to be designed to protect a business model which developed before the Internet went mainstream and which is designed to protect entrenched distribution channels. The industry has made excellent use of metaphors like “pirate” and “piracy” to malign consumers who obtain and share content illegally and without making use of existing, yet inconvenient and overly restrictive, distribution channels.
As the Internet increasingly becomes a part of our daily lives and sharing our lives more frictionless, consumers expect to be able to obtain their content just as easily. Rather than making a concerted effort to change its business models and embrace the Internet and the opportunities it presents, the entertainment industry has adopted a protectionist strategy and has lobbied legislative bodies to clamp down on consumers who defy the industry. Those consumers are labelled pirates and branded criminals and yet there is a wealth of anecdotal evidence that consumers will generally pay for content they can conveniently obtain at a reasonable price. I believe this is why so many South Africans create foreign iTunes accounts to buy content from the iTunes store even though the complete iTunes store isn’t available in South Africa yet.
Terminology that depicts consumers frustrated with irrelevant entertainment industry business models is more indicative of a failing industry unwilling to adapt to changing technologies, consumers’ demands and new business models than it is an indication of a real threat to artists and to rights-holders. Clearly unauthorised content use is problematic and rights-holders are entitled to determine how their content may be consumed but labelling consumers who are desperately seeking alternatives to conventional distribution models and media formats as pirates is more likely to further alienate consumers and aggravate the problem.
– Paul Jacobson is founder and director of Web•Tech•Law
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