19 January 2012

A Word On Piracy of Intellectual Property

Let’s analyze the current debate about intellectual property, along with the bills SOPA and PIPA. I will begin with an observation:

Content distributors support SOPA and PIPA. Content creators and sharers are against SOPA and PIPA.

By now, everyone should be up to date on what exactly are SOPA and PIPA, but to sum it up, they are twin bills going through Congress that seek to punish sites for featuring copyright-infringing content. These bills were funded by groups like the RIAA and MPAA to protect their businesses against the new and growing threat of unauthorized internet distribution. This is done under the guise of protecting “American” intellectual property against foreign theives.

Earlier today, the world’s most popular site for copyrighted content sharing, The Pirate Bay, issued a press release that made a fine point:

Over a century ago Thomas Edison got the patent for a device which would "do for the eye what the phonograph does for the ear". He called it the Kinetoscope. He was not only amongst the first to record video, he was also the first person to own the copyright to a motion picture.

Because of Edisons patents for the motion pictures it was close to financially impossible to create motion pictures in the North american east coast. The movie studios therefor relocated to California, and founded what we today call Hollywood. The reason was mostly because there was no patent. There was also no copyright to speak of, so the studios could copy old stories and make movies out of them - like Fantasia, one of Disneys biggest hits ever.

There you have it: Hollywood and the MPAA would not exist today if not for the initiative to skirt existing copyright law. Now, they are the ones who are fighting hardest to uphold it in the wild frontier of the Internet.

Content creators, otherwise known as artists, oppose SOPA and PIPA because they understand how sharing not only plays a part in their creative process, but also benefits their careers by exposing their work to a larger audience. Gone is the Metallica mentality. Artists do not create in a vacuum. They are influenced by other artists. They sample and borrow snippets to create whole new pieces. Andy Warhol’s legacy would be diminished if not for wholesale copying of images of Campbell’s Soup and Marilyn Monroe. The entire “jungle” genre of electronic music is based off the unauthorized sampling of a single piece of copyrighted music. Every aspect of society and culture is built from the pieces that came before it.

The Internet decentralizes artistic promotion. No longer are artists required to sign with a label or distribution company in order to get their works seen and heard by an audience. The quality of their work speaks for itself as their audience distributes it willingly based on their enjoyment. The whole process builds community, loyalty and collaboration like nothing that centralized distribution could ever hope to achieve. In other words, the RIAA and MPAA now have a better, more efficient competitor, and they’re trying to use Congress to stamp it out.

Of course there is the question of if actual damage is caused by illegal sharing and usage of copyrighted material. The going rate for music sharing is a penalty of around $150,000 per song. When it costs about $1 to purchase a song, coupled with the fact that only but the most extremely popular songs are downloaded as many times from a single source, such a charge is outrageous and completely out of line with similar crimes. Serious fraud and property damage carries lesser fines. If damage is caused by illegal sharing and usage, it is unlikely to match the magnitude that their fines indicate.

If we were to value every song at such an enormous rate, it would be safe to say that the barrier of entry for using any song in, say, a video montage would force the montage creator to forgo music completely. The result is that nobody hears the music, nobody gets curious and looks it up. Nobody listens to the album that its on and develops a love for the artist. Nobody buys tickets to the concert when the artist visits their town. The distributor and the artist lose out by restricting use and enjoyment of their product to only people who have been distinctly marketed to and have paid the upfront cost. In this way, it is likely that distributors are actually harming their business by aggressively enforcing their copyrights.

In the meantime, while the artist or distributor may not be paid up front by the consumer who illegally downloads a song, there are more opportunities for both parties to make money. The consumer may later purchase the song or album, or may purchase a subsequent song that they wouldn’t have discovered otherwise. There are concert tickets and merchandise to consider. There is word of mouth, which gets an enormous boost when consumers don’t feel like their wallets are being pried open.

In 1979, Fred Rogers, known for his PBS show Mr. Rogers Neighborhood, appeared before the Supreme Court to testify against the idea that recording a television show with a VCR (or Betamax in this case) is piracy. The Supreme Court upheld his testimony in their ruling. It seems that the lesson was not learned, however, because distributors still consider music sharing to be theft. The primary motivation for this classification must be victimization because it does not coincide with any economical analysis.

With any shift in the way intellectual property is distributed, it is up to the artists and primary distributors to change their tactics or else they fall behind the trends, which are far more powerful than legislation. Fashion designers, in response to having their designs copied by counterfeiters, have resorted to making their designs more complex, using materials and construction that are impossible to replicate with ease. The rock band Foo Fighters recorded their latest album Wasting Light using only analog equipment and every CD was packaged with a small section of the master tape, thus giving the consumer incentive to purchase a valid copy of the album. Solutions are out there, but it takes a certain sense of entitlement to think that using the courts is an acceptable substitute for coming up with them.

The reason why movies and music are pirated in the first place has less to do with getting things for free and has more to do with accessibility. Media is overpriced to begin with, and when people can afford it, they are required to put up with a range of hassles in order to enjoy it. DRM (digital rights management) and copy protection often prevent consumers from enjoying their purchase in many ways. The measures that companies put in place to protect their content from being stolen ends up motivating consumers to find an alternative distribution without those hassles. Still, despite all of this, companies are posting record profits while weathering ever-increasing piracy rates.

It is understandable to be sympathetic towards the MPAA, the RIAA and the gaming industry. After all, the existing law is on their side and every business has the right to pursue a profit. Not to mention that companies are obligated to enforce their copyrights, lest they lose them. Further, it seems to be that the people most responsible for the alleged copyright infringement are the ones calling for copyright law reform, stating that there has been a paradigm shift -- one that they started. But, as a society, a few principles should be held above all other motives. Freedom of speech and the free exchange of ideas top that list, and any legislation that supposes to inhibit these principles, either by direct restriction or by interpretation of vague statues, should be struck down swiftly and conclusively.