Tuesday, May 22, 2012

Competing Fantasies Concerning Intellectual Property

My mother is an intellectual property lawyer. She has worked for one of the big Hollywood studios for over two decades now, dealing with television, film, physical merchandising and online entertainment. She is good at her job and as I grew up she consistently contradicted every stereotype typifying lawyers as slick-haired lying shysters. In fact, her primary occupation to this day can be best characterized as keeping other people honest. Her work put me through private high school, college and graduate school. Intellectual property law has given my family a charmed life.

At the same time, I came of age along with the internet and internet piracy. Given my upbringing, it was initially very easy to condemn peer-to-peer file sharing, illegal streaming of copy-righted material, and DRM cracks as harmful practices with no redeeming value to society. I was very comfortable with the notion of pirates being bad guys. As I matured however, curiosity, greed and other stranger circumstances led me to participate in each of these activities, and my views have slowly changed. Piracy can teach people things about technology. It can create subcultures that are much more nuanced and benign than the entertainment industry gives them credit for. In rare circumstances, it can even benefit studios, record labels, and software publishers. These benefits are significant enough that it is time to seriously reconsider the way copy-rights work (or fail to work) in today’s increasingly digital world.

That is an obvious claim cheaply made, however. When the collective internet went into furor over SOPA and PIPA this past winter, it became painfully clear that Hollywood and the pirates have some truly alien notions about each other, and how they ought to adapt to one another. It was immediately apparent that the people behind the legislation did not understand how the internet piracy works. Worse yet, those legislations failed to appreciate the scope and general significance of the internet to an entire generation of people and businesses. At the same time, these hated pieces of legislation whipped pirates and copy-right reformists into an absurdly self-righteous, militant frenzy that is equally ignorant of how the entertainment industry works and why it is still culturally significant.

The common problem at the root of these delusions is that the entertainment industry and the software pirates fail to understand the medium of their opponent. Both parties focus on the content being stolen and produced, rather than the actual practices of theft and production and the value systems that motivate them. In this essay, I detail the three most prevalent fanciful fantasies of the entertainment industry and those of the pirates and copy-right reformists.

Entertainment Fantasy 1: Piracy is a cancer that can be cured with DRM and Legislation.
Reality: Digital piracy is here to stay, and it will not regress to pre-digital levels. The internet is not only too big, but too mercurial to be comprehensively policed in a practical and humane way.  Even if it were possible to create legislation or DRM that could comprehensively prevent piracy, the terms of those systems would have to fundamentally subvert the rights and privacy of all those who use it; pirates and innocent alike. SOPA and PIPA did not provoke wide-spread condemnation due to a vocal minority of pirates; they threatened benign uses of the World Wide Web in ways that were obvious to the average, avid internet user.

To begin with, granting corporations the right to request government blockage of IPs carried a tremendous potential for abuse. SOPA and PIPA foisted the legal onus of defending content onto the internet sites. This is harmful at both the small and large scale.  Bloggers, and other small, hobbyist websites simply do not have the time, money or legal prowess to compete with an entertainment studio’s accusation of piracy and government mandated IP suspension. Even more damning, SOPA and PIPA would not require the government to obtain a warrant, or even provide a significant body of proof from the entertainment companies before issuing an IP blockage. Consequently, one can easily see how a news conglomerate, movie studio, record label, software publisher, or traditional publisher could abuse such a system.

The implications of such legislation are even more damaging when they are applied to larger entities. Sites like YouTube, Twitter, social networks, and wikis cannot keep track of all their users, let alone review all of the content that is submitted. Under SOPA and PIPA, those sites would not only be compelled to remove copy-righted content (as they already are under current law) but liable for damages stemming from said content. This would force the sites to review all content before making it available on the web. The spirit of spontaneity that has made these sites uniquely compelling would not only be compromised, but altogether prevented by that legislation. Furthermore, it is inevitable that some amount of copy-righted content would still slip through the cracks, and these sites will be fiscally punished for the misconduct of their users.

DRM is similarly undesirable and unviable, but for different reasons. From the perspective of an honest consumer, Digital Rights Management can (and often does) pose barriers to enjoyment and value to legitimate consumers. Worse yet, it does nothing to staunch pirates who inevitably circumvent those systems altogether. DRM does function as a limited deterrent by preventing less-tech-savvy consumers from pirating movies, music and games in obvious ways. But as the general population grows increasingly competent with the internet and digital media, the return on investment of developing new, increasingly draconian forms of DRM will shrink.

I am not suggesting that Hollywood give up or roll-over. But the studios and labels need to recognize that piracy has seeped into the groundwater and that it is here to stay. Instead of preventing potential piracy, the studios must look at how to monetize pirates, or reclaim customers from piratical practices. The most obvious way to combat piracy is to make spending money convenient. This includes digital distribution, but it also entails adding value to products that is difficult or impossible to obtain by simply copying computer code. Social interaction is one such type of value. Many people who stream copyrighted material do so for the social interaction rather than viewing the material itself. Watching a film streamed over the internet facilitates conversation and commentary in ways that are prohibited in theaters, and impossible through current television interfaces.

Entertainment Fantasy 2: Piracy is identical to physical theft.
Reality: Copying computer data is fundamentally different than illegally confiscating a physical object. To pretend otherwise, as per the “You wouldn’t steal a Car” ads of 2004, is both na├»ve and  deliberately misleading. To begin with, physical theft is often accompanied with or facilitated by physical violence. Downloading a music CD does not physically hurt anybody or threaten them with a physical weapon. Furthermore, physical theft deprives content publishers of material that was costly to produce. When a file is copied or streamed, the studio maintains possession of the digital file which can still be sold through digital of physical channels. These caveats do not justify acts of piracy, but it deals a different type of economic damage than traditional theft does.

Finally, many pirates claim to “sample” content before making actual purposes. This argument is usually something to the effect of “I bought this CD after pirating it, and I would not have bought it if I did not have the opportunity to try it for free.” Admittedly, this justification comes across as a convenient and over-used excuse. Subsequent claims that piracy can drive sales are even more suspect. But this “try before you buy” mentality does exist in digital piracy and it is far more prevalent than shoplifters returning to retailers to pay for boosted games, movies and music that they have enjoyed.

Entertainment Fantasy 3: Piracy is solely motivated by greed and is culturally bankrupt.
Reality: This fantasy makes it much easier for the entertainment industry to condemn practices that are ill-understood. Worse yet, it serves as a justification for continued, willful ignorance. Refusing to think about why and how people pirate not only results ineffective DRM and dangerous legislation, it makes Hollywood seem dumb and petulant. Greed is a not a negligible factor in the piracy equation, but it is only one piece of the puzzle.

Many people pirate movies and music because they are not released through legitimate channels in their country. Other times, people download illegally translated copies of movies because no official localization exists. Hollywood’s distribution channels are impressive and pervasive, but it has yet to cater to the entire world. Admittedly, this does not provide any justification for first-world piracy, but it is an element of the piracy equation that Hollywood systematically ignores. They have nothing to gain from acknowledging it.

The entire world over, pirates can also derive numerous benefits from the actual practice of piracy. To begin with, piracy provides learning experiences at the very least, and compelling puzzles at best. When I was younger, I pirated dozens of ROM files for the Super Nintendo and Game Boy Advance emulators. The time I spent finding the files and setting up emulators paled in comparison to the time I spent playing my pilfered titles. Tinkering with software and hunting down files taught me a lot about research, and how sprites, controls and technology work. I never tried to circumvent DRM but I have met people who have, and they describe the experience as solving a very specific type of puzzle. Again, being educational does not mean that piracy is right, or that it ought to be encouraged. But that quality is valuable enough that it warrant more careful consideration than open, unqualified contempt.
Finally, piracy can facilitate unique cultural and communal interactions. One such example is streaming movies. Conceptually, streaming a movie that has already left theatres is no more egregious than inviting a group of friends over to watch the same film on DVD. The internet has changed the way people socialize; agoraphobes, or even the socially anxious and awkward often feel more at home in an internet chat room than they would in another person’s home. There is a temptation to treat anonymous interaction as something inherently insidious, and it is admittedly risky. But it can also be benign. Again, this form of piracy is not driven by greed or even activism, but a desire for communal interaction that is not supported through existing channels of interaction.

Piracy Fantasy 1: Hollywood is solely motivated by greed and is culturally bankrupt.
Many piracy proponents, particularly members of the Swedish torrent site, The Pirate Bay, have spoken out against Hollywood, and demonized it as a greed-driven, creatively destitute manipulation machine. These proponents of radical copy-right reform frame writers, directors, actors, musicians, producers, as vampiric fat-cats that subsist off of royalties, rather than working to constantly innovate. They further vilify paying audiences as cud-chewing sheeple who must be freed from the matrix or done away with in violent revolution.

It’s difficult to comprehend where to begin. The most patently idiotic implication of this line of thinking is that creative control and ownership are equitable to greed. A person who downloads some data ought to be entitled to the same fiscal and creative rights as the people who spent months, or years of their lives creating the initial artifact. The further implication is that the truly creative people will be sufficiently rewarded by virtue of their reputation and public charity. Admittedly, such a business model can sustain certain creative practices. Several web-comic creators, most notably Jeph Jacques of Questionable Content, and Jerry Holkins and Mike Krahulik of Penny-Arcade, have proven that fans will eagerly support endeavors of sufficient quality. But when the costs of making a film like Inception are weighed against writing, drawing and uploading a three to five panel JPEG on the internet, the absurdity of this suggestion begins to become apparent.

The Pirate Bay would likely assert that we don’t need blockbusters in any medium. They might argue that the entertainment industry has lost its way, if they even acknowledge that it was ever a valuable institution to begin with. They would have us disregard the legacy of technological experimentation and advancement that movie making, audio production, and game development have yielded, or simply admit that the time of those giants have now passed and that they should be put to pasture. A new and glorious renaissance of independent art will resume once the corporate goliaths have been slain by the slings of piracy. Even if we are to buy into the dubious assertion that entertainment has lost its way, who is to say that the theoretical hacktivist auteurs that follow will produce more thought-provoking work? Is YouTube the new paradigm we are supposed to be embracing?

The second assertion is even harder to swallow. The millions of people who admire movie stars, writers and musicians, the passionate fans who line up for midnight releases for the latest sequel in a beloved franchises, the people who believe in paying a predetermined price for a meaningful artistic experience; these people are all wrong, or severely misled. Radical pirates believe that all information, and imagined information in particular, ought to be given away. The question this begs is who ought to be paid? At what point can a creative person expect to be compensated for their work? If you are allowed to completely “sample” my novel, or song, or movie and find it insufficient, am I supposed to thank you for your time and lack of patronage?

Piracy Fantasy 2: Piracy isn’t actually hurting the entertainment industry that much.
Pirates are quick to point out that the studios, record labels and game developers have largely remained in the black throughout the recession, or at the very least, suffered less red ink than many other industries. But the brick and mortar theaters and retailers that support these giants are going under at an alarming rate. Those that remain have to raise their prices, further diminishing their enduring audiences. Before we discuss how the entertainment conglomerates may adapt, I would like to look at the implications of brick and mortar death; a meaningful cultural change that radical pirates are willing to write off as an inevitability.

There is value in going to a location and purchasing a good, or service. Physical goods, and services like concerts and feature films, must reach a certain level of completion and quality before they are distributed. This practice may persist even if we completely switch to digital channels of distribution, but my suspicion is that incomplete, iterative, or serial narratives will become more prevalent. We may start to see ‘betas’ of movies, music and books as well as software and games. This notion introduces new opportunities from the perspective of participatory cultural, but it also discounts the value of craftsmanship in entertainment. There is a lot to be said for a cohesive, and decisive incarnation of a story, song or game. These artifacts must “work,” like a completed system.

Furthermore, there are other values to going to a physical location. Notions such as going to a specific place for a unique experience, leaving the house and risking random interpersonal interaction, and browsing the physical selection of a store may sound sentimental or antiquated. This does not dissolve their value. If we do away with physical stores, we truncate a huge variety of social experiences that have persisted throughout history. Pirates often argue that movie theaters and bookstores will still likely persist in some limited capacity. They will not only be limited in prevalence however, but in regard as well. Going out to see a movie will likely be seen as a curiosity or eccentricity. This diminished demand will likely yield increased prices. Consequently, activities that were once communal and popular, will be reserved for the affluent or backward.

Piracy Fantasy 3: The entertainment industry merely needs to adapt to digital distribution.
Reality: According to soft-ware pirates, superior service and digital delivery would supposedly staunch piracy enough for the entertainment industry to stay afloat. This is largely true for the game industry, which uses digital methods of production. It might also work for music production. But it is simply absurd to assume that television and movie industries that depend on expensive analog production methods can easily transition to digital methods and recoup the costs of production. Both of these mediums have a legacy of physicality that cannot be short-cut by digital distribution methods.

Let’s consider the costs associated with training an actor for a role in an action movie. For the sake of argument, we will assume that she is a no-name, and will not require the mammoth salary and manifold benefits currently afforded to stars like Johnny Depp and Halle Berry. First, the actress will need to get in shape for the role, necessitating a trainer and probably a nutritionist. Next she will need to learn martial arts, requiring another trainer. Next, she will need a stunt team, as you average actor will not be able to pick up enough skills in the time it takes to produce a film involving jumping out of buildings, dodging explosions, and participating in numerous hand-to-hand fights. These dangerous activities require medical personnel to be present on set, when something inevitably goes wrong. We also need make-up artists and costume designers, those these roles can admittedly be stretched across the rest of the cast as well as our star. These requirements are just the beginning, for a single star. Some of these effects might be exchanged with digital special effects, but this will likely have a meaningful (and not necessarily positive) effect on the film’s aesthetics.

Ten dollar digital downloads will not recoup the revenue lost from the dissolution of physical box offices and Blu-Ray sales. Furthermore, revenue from other physical merchandise will suffer from the lack of impulse buys associated with home media sales. Finally, to protect losses from continuing piracy, the studios will need to develop compelling digital assets to drive legitimate sales, incurring additional costs.

Hollywood cannot secure lasting economic stability from the threat of piracy until it earnestly seeks to understand the non-economic values and material conditions that motivate piratical practices. Conversely, pro-peer-to-peer and copyright reform movements cannot be endorsed or taken seriously until they move beyond superficial and trendy notions rebellion. The most pressing delusion that clouds both entities perception of each other is the preoccupation with content rather than the material realities that define their culture and practices.

No comments: