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.
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.
A History of the iPod
The BBC  
The Guardian   
The Pirate Bay