Pirates on trial
I have been keeping an eye on the news lately regarding the Pirate Bay trial. For those who may not know, The Pirate Bay is a website that indexes torrent files. These files can then be used to share files with a group of people across the Internet — you download things from other people, and they download things from you. Unsurprisingly, the vast majority of bittorrent files are used to share copywritten material — music, movies, TV shows and the like. It is for this reason that the trial is taking place — the industries in question want to stop this sharing, and keep control of their supply chains. The defendents were originally charged with “assisting copyright infringement” and “assisting making available copyright material”, but the former charge has been dropped.
While my purpose is not to report on the trial (see the links below for that), both sides are presenting ridiculous arguments:
The prosecution’s central argument is that the service exists to share copyrighted material, and that allowing users to search for and download torrents from the site is aiding the copyright violations that occur. This is ridiculous — any search engine can return a ton of torrent files in their results. Simply run a google search, and you can find as many as you like. Also not going the prosecution’s way is that the Pirate Bay is not a typical company — it is more of a community, with nobody really being “in charge”. The four accused are often not responsible for the decisions made at the website.
The defense also makes some dubious claims. For instance, one has testified that the copyright violations are a “sad consequence” of their service. This is clear bullshit — their own site states that any complaints from copyright and/or lobby organizations will be ridiculed and published at the site, and that the site was started by an anti-copyright organisation. The site is clearly in existence mainly to assist people in finding ways to trade copyrighted material. It names itself a haven for pirates, after all.
However, I do not really care to discuss the intricacies of the trial. I am wondering how it came to this. Look at this timeline:
1994 – First MP3 encoder created.
1995 – First MP3-playing-software released.
1999 – Napster goes live
2001 – iPod released
2003 – iTunes Store goes live.
You can see how the music industry might have been blindsided by this. OK — MP3 comes out, but they’ve been through this before: Vinyl, Cassettes, CDs … this is just the newest change. They’ll sell everybody a new copy of their favourite albums. Napster surprises them, and it takes four years before anybody comes up with a workable business model for selling music in MP3 format.
But why were TV show and movie producers caught by surprise? Seriously — in 1999, downloading a thirty minute video (ie, a short TV show) would have been a pain in the ass — never mind your hour long shows or movies. It simply was not realistic. These people had time to consider how they were going to deal with the apparent dawn of a new content distribution system. They had to chose a policy, and they chose to attack their customers.
The wrong solutions
To be fair, they tried a number of other solutions — mostly digital rights management — but ten years after Napster opened the peer-to-peer sharing door, why are companies still hell-bent on closing it? Why can they not accept that it cannot be closed? Why do they not search for a solution?
Even when they try solutions — such as Hulu or BBC’s iPlayer they continue to get it wrong. I challenge you to try to watch a video on each of those services. You’ll be able to do at most one, without using some sort of proxy to pretend that you’re either in the UK or North America when you’re not. Somehow, even when these massive multinational companies realise that they have a new distribution system at hand, they manage to ignore that it’s a global distribution system.
So what is good policy for these companies?
First: Recognise that worldwide rights are the only ones that count. If you do not sell rights on a worldwide basis or if you do not acquire worldwide rights to something, you are giving your content away. People who really want your content will be unable to pay for it, but able to get it for free. Limited distribution simply feeds into the pirate community. Do not attempt it.
Second: Stop suing the pirates. Hire them instead. These are technologically literate people who understand the new distribution system — get them on your side, designing your new distribution systems. Putting these people on trial is little more than a sideshow — it does not fix your business model. Revenge has no place here … let it go, make amends, and move forward as partners.
Third: Keep trying new things, loudly and on a small scale. The worst case scenario is that you have a series of media events to do with content distribution. On the other hand, if one of them works you get to be king of the hill for the near future. That’s little downside with the potential of a big payoff.
Government’s Turn
With the companies addressed, we now turn to government.
Governments need to stop passing laws trying to strengthen the ability of content owners to enforce copyright. Making it illegal to do what you want with content you have bought is simply ridiculous. Currently there is some hubbub that Amazon’s Kindle will read a book to you, because reading something out loud is akin to an audiobook — and customers are buying books, not audiobooks.
The argument is silly, but governments around the world have been encouraging this sort of behaviour by enacting laws that enable it. They seem to have developed a fetish for supporting failing business models; this is not their duty. Their duty is to protect those employed by these businesses as they fail. Instead (on the digital content side of things) they have been eroding ownership rights in an effort to prop up failing industries that do not have the will to reinvent themselves.
Now, in Sweden, they have gone so far as to prosecute people for putting links on a page. This is not the government helping to protect their industries, or the creative works of individuals. This is a government holding back innovation and free speech. And failed policy.
The Pirate Bay is charged with “assisting making available copyright material”. While I do not know what the legal definition of this is in Sweden, it sounds like something that they do. As such, they may well be found guilty.
But the real crime is the chain of failed policies which resulted in their trial in the first place.
Sources:
A History of the iPod
BoingBoing
Mashable [2]
The BBC [2] [3]
The Guardian [2] [3] [4]
Daily Tech
The Pirate Bay [2]
Torrent Freak
513 Rocks
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A friend of mine just emailed me one of your articles from a while back. I read that one a few more. Really enjoy your blog. Thanks
Nice writing style. Looking forward to reading more from you.
Chris Moran
I watch movie after movie after tv show after tv show on Hulu. Is it kicking you off after one show?
Hell, if I tell it to play my queue and fall asleep I wake up in the middle of episode 12 of Firefly instead of 2. Hulu is one of the only sites I don’t have beefs with. MSN video (I used to watch Arrested Development there) was buggy as hell, and the commercial volume was always set too loud. Netflix is subscription (which I have, and use, but their selection is so full of also-rans that it’s hard to pick something worth watching live). Hulu is working fine for now, though their selection is limited.
@Shawn
Hulu only has North American (or perhaps US) rights to the content. If you are using an IP address that originates from outside the US, you cannot watch anything. As such, it’s a broken distribution model — users have easy access to Hulu, but when they go to actually watch something, 85% of the world’s population receives a message telling them that they cannot do so because they live in the wrong place.
So what do this 85% do? Go out and buy the DVD box sets?
No — they circumvent the rules, either via sites like the Pirate Bay or by re-routing through a US server so that Hulu is fooled into displaying the content to users to whom rights have (presumably) been granted to other companies.
Hulu is an excellent concept, but any distribution model using the Internet has to be global if it is to gain a significant foothold in comparison to the Pirate Bays of the world.
@Steve
I didn’t know Hulu was restricted like that. However, when you describe it as a broken distribution model that makes it sound like the purpose of Hulu is to help eradicate illegal sharing. I don’t think that’s quite right. Hulu’s purpose is to make money. If it costs too much to secure international rights to content then maybe they don’t do that. I don’t see them as a guided arm of the machine trying to stamp out Pirate Bay. If they do succeed in weakening pirated content sharing in the U.S. I think that’s just a by-product. The producers of the content, however, might want to cheapen the cost to secure international broadcast rights so that Hulu or local rivals have more incentive to operate.
BTW, I don’t know that the reason Hulu restricts its content has to do with the cost of securing international rights. I’m just guessing from no information.
@Shawn
I agrree – Hulu is there to make money as a legal distribution channel, and they came to an agreement with the rights-holders to stream the content via their site.
They seem to have a successful business model, and more power to them.
I’m arguing that the errors are being made by those selling the rights — they should not be selling restricted rights to online distributors. If during negotiations, Hulu says “we want to concentrate on the US market, how much would it cost for the rights for that?”, the rights-holders should respond by saying “we only sell worldwide rights to online distributors”.
It’s not up to the distributors to enforce it — it’s up to the content providers to ensure that the distributors are allowed to do so. If you can watch a video for free online, legally, you can bet that someone here will refuse to pay to watch that same video online. Even if it means violating copyright.