Col. Rhett and the Pirate Stede Bonnet. Howard Pyle, 1901.
You can tell the copyleftists and the pirates are on the run, as they are getting more and more desperate and aggressive.
Prosecution of piracy goes forward, even if it has reversals, and even if the US loses extradition requests, it's not going away. Kim Dotcom is not going anywhere; his next hearing is in August, and he's flamboyantly flouting all the rules, but the chickens are roosting. Aaron Swartz committed suicide rather than face trial, now we will never know many things. But Prof. Abelson of MIT, the copyleftist and Creative Commons founder entrusted to research MIT's response, is not going to emerge saying that it's okay to "take too many books out of the library," nor will he bless hacking into systems with deception and physical obstructions and taking 4 million files with a circumvention script as "mere inconvenience" or "okay". He may agitate for the results of technocommunism, but as an established professor, he will not be trumpeting the means. More on this later, but because there's one terribly aggressive but not very bright copyleftist constantly haranguing me this days on this blog and Twitter, I think it's worth going over the basics again.
Web 2.0 claimed that web 1.0 was wrong about walled gardens and paid content, and ushered in the era of "sharing" which was really coerced loss of privacy, loss of revenue, destruction of content industries, and not so innovative at the end of the day. The tekkies constantly sneered that walled gardens couldn't possibly succeed, because the defeat of AOL in the first iteration of the Internet, and Netscape and others, meant that they couldn't win, everything had to be "open". I realize the issues of open standards, walled gardens, copyright, and piracy are all separate issues, but the mindset and theology all comes from the same self-serving place.I can't count how many times we were witheringly told in Second Life that it "couldn't" be proprietary and "had" to be opened up and we "couldn't" have DRM and paid content because "the web" had "decided" that walled gardens were "dead".
Then we all sat back and watched not only Second Life succeed -- yes, succeed, because there isn't any other community like it with $450 million of user-generated revenue for people, not just the "game company" or platform provider like it. Anywhere. Per capita, it is greater than Facebook. And then we also sat back and watched Facebook, that quintessential walled garden, get a billion users and start selling digital content. Then Twitter also stayed a walled garden and began to block others.
Then we saw the Wall Street Journal and the New York Times begin pay walls that worked and succeeded.
The copyleftists always claimed they were sincere and just wanted to help, and that there proposition was honest: free all the content, they said with a straight face, don't put on DRM, and we promise, pinky promise, that we will buy the content. Well, sometimes. Or maybe tip people. Well, sometimes. They claimed that if you "make it easier to pay" people will pay, and that that's all it's about.
Of course, all of this is the Big Lie, because copyleftists aren't interested in actual rights or artists' revenue, even if they pretend they are and pretend they are for the little guy against the big evil record company that exploits him. They're actually interested in smashing the commodification of digital content -- the ability to sell it in any fashion -- and make it only shareable -- because the Commons is more important than the Creative for technocommunists. It's an ideology of how to move the failed communism of real life online where it might succeed, not really about artists. The people who founded Creative Commons aren't artists, aren't musicians, aren't writers. They are ideologues and computer programmers. Lessig teaches political science. Doctorow is a writer but a minor secondary one whose main fame comes from his lecturing on copyleftism and his tech blog Boing Boing. His main revenue comes from those sources, too. The others in Creative Commons are radical coders, lawyers, professors of communications, etc. -- not artists. They're the last people you want to ask about how to enhance the creative profession to enable artists to make a living -- they only want to enable a living for themselves, and not others.
The debate has heated up again with the plan to put DRM into HTML5, which the tech blogs and copyleftists are now all braying can't be done, shouldn't be done, will kill the Internet, blah blah. Meanwhile, Google and Apple and other companies are actually in talks about how it can be done.
Google has changed everything, after lots of lawsuits, some of them still ongoing, by going into the paid content business with Google Play. Obviously it has to buy the rights to those things it sells there. Sergey Brin tried his best to reproduce the communist ideal of Maxim Gorky and HG Wells for a vast information library for the masses by "liberating" as many books as he could, facilitating Wikipedia's high placement with his algorithms, and fighting copyright laws like SOPA. But he has a backup plan, and so should you: he's started Google Play.
That lets you know Google sees the writing on the wall.
So the false premises go like this and I'll answer them briefly here:
1. "DRM doesn't work".
Of course it works. Millions of people encounter a block on their right-clicking or a payment page for an i-tune and they don't break it, they buy it. Or if they are viewing it on Youtube on some ripper's page, they don't use some software to squeeze it into their i-pod queue or i-phone. When Pinterest came out, what did Facebook and Flickr to? They made it impossible to use the Pinterest code on their site to automatically "pin" an image. Oh, sure, you could right click and save to hard drive then upload, duh, or you could use "print screen". But they *didn't make it easy". In Second Life, the DRM of "copy/mod/transfer" is not defeated most of the time, either through using rogue viewers or various scripts that can capture parameters of texture or even print screen. Most people encounter a DRM, and they don't seek to crack it; their game CD doesn't copy -- they don't copy it. They don't have some burning need to have more copies of Spore. It's just that simple. It works for most people, and that's enough.
Everybody gets it about how you "can't" engineer copyright. Except...you can. It's done all over the place. It's done by game manufacturers and MMORPG managers with obfuscation all the time. When it wears out because the script kiddies defeat it, they scramble it again. As many times as the hackers want to hack and make exploits in World of Warcraft, the manufacturers come back and defeat it, one way or another, sometimes by simply arbitrarily changing game mechanics to make some quest or object no longer relevant or valueable. Every day, while thousands of geeks are busy hacking and jailbreaking and cracking, thousands of other geeks are busy defeating it, and that's the way it goes. Pretending that "DRM" doesn't work when it just worked to save Flickr from Pinterest, by and large, is silly. BTW, you also can't so easily just right click an "all rights reserved" picture in Flickr, either unless you work at defeating the system.
Copyleftists constantly babble on about how "the industry itself" has gotten rid of DRM or that "not everybody has to crack it, they can torrent it," but the industry has put in notices threatening prosecution when they catch torrenting and if they ditch DRM in some cases it's not a blanket decision, it's only an experiment or a tactical maneuver while they keep it in other settings.
2. "Piracy is not theft".
I dealt with that silly, juvenile alibi here with my own graphic. Of course it's theft. It doesn't matter if you "leave the original" and "only take a copy" (did these children think this is some kind of genius discovery). What you steal with piracy is the inherent capacity of a digital item to be commodified. You steal its commerce juice. It's okay for a digital object to have inherent sellability. If you deprive the intellectual property holder of that inherent property of his object -- if he puts a price tag on it, it will sell -- then you are stealing. You are not just "infringing," i.e. usurping his rights and reselling it as if you had those rights yourself. You are *stealing* by destroying the inherent capacity of the item.
This is very easy to visualize and see in the round in Second Life, where each piece of digital code has a 3-d visual manifestation as a table or chair or whatever. Its harder to concede when the eye can't see it and it is imagined then only as a string of code that some people possess as authors and others might "borrow". But it is stealing. This is why the prosecutor in the Swartz case, Carmen Ortiz, said "Stealing is stealing, whether you do it with a computer command or a crowbar." Absolutely. A right-click is a command just as much as "keepgrabbing.py" or something more sophisticated. It doesn't matter if you "can"; by doing so you *steal*.
3. "DRM has to work 100% or it isn't viable"
Nonsense. Nothing is more idiotic than binary 010101 geek thinking in this regard. DRM can work 60-40 or even 90-10 for God's sake; the point is, that if it works to deter enough people, it is still sales for that company or artist.
The incessant nattering about how you are either infringing or not infringing or either there is infringement or not infringement is just nonsensical. Even if there is piracy and "infringement" (a word that is misused to try to avoid responsibility for theft) and the DRM is defeated, as long as it still works as a deterrent to encourage most people to be honest and pay, it's a success. It need not be perfect to be a success.
People who claim this all or nothing proposition can't then also cite statistics to show there is a "lot" of infringement/theft that also show us...that people still pay. The "all or nothing" proposition is common to geeks who code and manage systems that they believe are defeated if even one percent of the code goes wrong. This is hard-wired into their thinking and they can't see reason on this. Fortunately, the rest of the world uses organic common sense in the real world where nothing has to be perfect to be viable. The flu shot doesn't work 100% to prevent the flu. It has even a certain percent of those will get bad side effects. Yet millions will still get the flu shot because it will prevent the flu for many people.
4. "Take away DRM and you still get sales"
This is one of the hustles that one set of Silicon Valley geeks has tried most strenuously to impose on another set of geeks in Hollywood. And because geekdom is one tribe, they make their argument to some extent especially as the first set of geeks are willing to thunderously pat on the head the second set of geeks and give them kudos and tribal approval if they "agree". But it's still highway robbery.
And it's not true. The theory is that if a consumer gets to an i-tunes page and sees a pay wall that he can't defeat or a Youtube that he can't copy easily, he will be frustrated and then go to a torrent site using handy Google searches. Sure, some percentage of the kids do that. But not everybody. Some people come to a pay wall and...they pay. And they don't mind paying. If 60% of adults pay and 30% of youth pay, that's payment. That's how the industry survives.
5. "Sales come to you even when you give away content and you should give away more to get more sales or tips."
This is one of the most idiotic shills of the copyleftists and one they never submit to scrutiny or transparency. Cory Doctorow makes this claim, but he never publishes his spreadsheets of income showing how many book sales he really makes. Little Brother has an Amazon ranking of 10,040. Not exactly a barn-stormer. When Cory Doctorow presents us the spread-sheet of his income, or allows some credible, impartial authority to examine his books, we might see if this works even for him, but I bet it doesn't.
David Pogue, the gadget-writer of the New York Times, famously took on a bet from Kevin Kelly of Wired, who is happy to describe the Internet as communism all on his own, that if he gave away his book for free, he would sell more copies of other books plus even that one. Pogue then never came back to report what happened. I suspect it didn't work.
This shill works for a few high-profile writers who make their living just as much from lecture fees and consulting, like Seth Godin, as they do from their free book shills -- even as they get $25 in a train station book store for their glorified magazine articles in the business section.
It certainly can't work for musicians. A.J. Keen, in Cult of the Amateur, followed through on some of the MySpace and other social media bands and found that they couldn't keep themselves in pizza money. Lesser-known musicians who do concerts for fees, even in bars, and sell their CDs to enthusiastic fans who want to support them will still see some of those fans drain them of revenue with copying -- and can't survive unless they take on a punishing concert schedule that not everyone could sustain because of competition.
6. "Putting out free content with Creative Commons licenses enables people with custom orders to find you and you can make a living".
I had a poll on my Second Life site at secondthoughts.typepad.com asking people whether they used Creative Commons "licenses" and whether they thought it helped them get business. Given the high level of fanaticism that "openness" *does* perform these miracles, you would expect I would get a huge number of people -- a majority -- who claimed that CC worked, because they would be motivated to answer the poll.
But in fact, it was roughly one third that found that to be true, and one third that didn't care and would let regular copyright law protect them, and one third that specifically said it did not help them to make sales. Unfortunately, Vizu discontinued their free polls (not surprisingly) and they aren't archived anywhere so I will have to start them over again. I ran that poll for years and the numbers were pretty much the same.
The silly thing about that idea is that a system of payments and especially micropayments would accomplish the same thing. If I see an item that is available for purchase and I buy it and display it, that person who wants a custom order sees it just as much as if I copied it. Buying displays things, too. If I see a photo under copyright with a message that I can go to Getty to purchase the image, I go to Getty. In fact, I think Getty should make payment more automatic on site rather than making you go have a separate relationship and transaction with them, usually not automatic but by email, and that if they don't do that, eventually the business that figures out how to get payments and photos merged on social media sites and mobile aps will put them out of business. And that is coming soon.
Sales distribute the news of your quality just as much as free copies. To be sure, free copies might distribute *more* news. But that distribution on more amateur sites on a very long tale isn't necessarily going to come to the attention of that big buyer with the jingle order or that customizing customer. You don't need Creative Commons to put the news that your item can be copied for attribution or paid for if used commercially on your site. That's what Internet linkage is for. Internet linking should make Creative Commons completely irrelevant and obsolete.
And it's also intellectual dishonesty to go on assuming people will support the entire collective farm of Creative Communism -- the remaining oligarchs and wealthy people not destroyed by communism yet! What a plan, hoping for your rap video that you give away for free will pay your bills because some rich guy might be willing to pay you for a TV ad jingle. Like TV isn't undermined by the freeness of the Internet? Like that advertising with that jingle reaches less and less people on TV? It's just not a plan for the industry and it's really disingenuous -- expecting some oligarch somewhere will remain to bail out your communism even as you make it impossible for his industry to exist with your piracy.
7. "Streaming with licensing is now the way to go, many people will pay the low-cost premium subscriptions".
For one, streaming that people are willing to pay for, even if only $3 or $7 a month or whatever, gives the lie to the idea that "information wants to be free," because information wants to be paid for, and services that need to get their own bills paid are willing to charge for it -- and get for it.
The copylefists thought, when they began shattering the inherency of commodification in digital property, that they had achieved a forcible "business model" for the content industry: give away everything for free or die. Give away everything for free *to us* or we will kill you. Give away everything for free, and then hope...for concert fees or t-shirt sales or 360 deals with merchandising of t-shirts and coffee cups at Duane Reade.
But instead, streaming services came along, which confounded the copyleftists because people paid for them OR they put up with the ads in the free version.
But, once again it's A.J. Keen who has explained to us that for artists, the streaming solution isn't paying them a living wage. And the reality now is that people like Taylor Swift hold their hits back from the streamers for a period while they make their first millions because giving it to the streamers means they don't make sales. Do the math, as they say, don't engage in wishful thinking about how stone soup will magically make the vegetables appear from people who are only good at stealing them and not growing them.
8. "You can't stop copying so you should just find a new business model."
The "new business model" snark is particularly silly because the industry has in fact already tried various things for their "new business model". They've tried removing DRM in some places; they've tried making payment easier; they've tried streaming; they've tried licensing and with Youtube and letting the masses view for free, like on the old radio station model. But none of this helps their falling revenues and none of it is enough -- piracy still harms them when it could be reduced and mitigated.
The real people who need to get a "new business model" are pirates. They hijack content and sell ads on other people's IP. That's not only despicable, because the rate of clicking and conversion is not so great for these types of sites with their cheapy spammy ads, they have to get more and more intrusive and cheap and spamming and people just stop going to those sites, they're so annoying. Only the most persistent little script kiddie with the time to keep trying to get rid of all the malware and browser hijackers and adware that come from visiting torrent sites will keep using them.
History shows again and again that piracy is not a business model. Piracy invades every new form of transportation for a time and seems inevitable and incurable. And each new form of transportation has eventually shaken loose pirates by introducing better forms of security, inventory control, payments. When was the last time you heard of a train robbery or piracy anywhere but Somalia, really? Don't edge-case. Piracy forms are beaten back in every age by increased security and inventory control and better forms of payment, and they will be on the Internet as well.
9. "Because I can, it must be okay."
This argument doesn't fly in real life -- you can open up an unlocked door and steal somebody's belongings, or steal a car where the key was left in the ignition "because you can". You would still get arrested and go to jail for doing this.
But because the technology of the Internet enables you to copy easily -- indeed, this was hard-wired into it deliberately by Tim Berners-Lee and other pioneers -- pirates think that they are exonerated.
10. "Copyright and anti-piracy laws are poorly written."
No, they just prosecute copyright violation and piracy so copyleftists and pirates will never, ever like them.
Every person who keeps nattering this, even after heavily revised bills like SOPA that in fact had the benefit of every technological input in the country, including from Eric Schmidt, CEO of Google, has to be confronted if they refuse to put up their own draft of a bill they *would* accept. At least the copyleftist congressmen serving Silicon Valley have gone through the fake motions of doing that.
11. "Any copyright/anti-piracy law will chill free speech and wield too large an axe against the innocent or the casual users and not reach the real culprits."
Nonsense. The reason why you have adversarial lawyers, judges, and juries in the independent judiciary we have in this liberal democratic state of America is to prevent just that sort of thing. The shrill hysteria around SOPA and claims it would "chill speech" amounted to claiming that publication of links to piracy sites is speech, and not accessory to a crime. The claims that it chilled legitimate jazz reviews on a site like dajaz1 are pretty lame when we go look at the site and see it filled with youtubes that were swiped from their owners.
Nobody has ever successfully pointed to a copyright lawsuit or piracy case that actually chilled free speech. That would not be Kim Dotcom or a half dozen other famous ones I've covered here. None of these people were Martin Luther King or Gandhi let alone Michael Moore. No one's political or cultural speech was hampered by the fact that they were stopped from selling ads on other people's content.
The notion that a link is an artifact of free speech and not a crime accessory is one of those fictions that the Electronic Frontier Foundation has worked very hard to create to hang their entire argumentation upon. No one has ever shown us convincingly that political or personal speech is harmed by the inability to torrent.
12. "People who download illegally are the biggest buyers of content as well, therefore, don't worry about illegal downloads and stop putting in DRM".
This is one of the dumbest arguments I've heard lately -- but its proponents very slyly but ultimately stupidly think that the listener will be wowed by this "seemingly contradictory" factoid and shut up.
But pirate-buyers who also pirate are not the sole source of income from the music industry. If they were, they might make a case. But they aren't. The 60% of adults and 30% of youths who don't steal are holding up the music industry, not the 2% or 10% or whatever the power curve numbers are for the pirate buyers. Notice the much-vaunted studies at Columbia University don't give us the numbers of that spread -- what percentage of overall sales over time those pirates make up.
The proposition then, if these "cunning" but stupid types would admit it, is this: "give away music and we'll pay you sometimes when we feel like it if we're in a good mood". That's not a model to sustain the music industry, and the content producers have to go on using a variety of strategies, from DRM to streaming to pay walls to prosecution to stay in business. And that's all okay.
Columbia University is a home of leftist studies like many other universities these days -- Tim Wu, one of the biggest proponents of the "open Internet" is there as are others with the same copyleftist views. The studies are based on *self-reporting*. We're to believe the self-reports of pirates?
Industry could put markers -- it could just be a serial number of UUID on the digital content -- and track it around the Internet. See where it ends up on pirate sites. On Youtube. On people's blogs or sites. And how many sales it generates. They can just take the next generation and track those particular new numbers they want to track. Can crackers alter the numbers even of digital labelling not meant to serve as a DRM? Oh, I don't know. Sure, hackers get at anything. But it can be an experiment that would be devised to test that "self-reporting" of the people you can't trust -- the pirates. So it's like blood diamonds. You don't attempt to search for and stop the ones being smuggled. You do another thing -- you try to stamp the good ones with a marker to trace them.
Ultimately, all the argumentations here that we're still hearing in this day and age from copyleftists are bankrupt and intellectually dishonest. None of the supposed "business model changes" are viable. None of them are going to work exclusively. The content industries have to use a variety of strategies -- and will go on doing so. One of those strategies has to be prosecution and that means effective legislation as the DMCA takedown is a burden on artists and laughed at by Google, trying to undermine it with its "Transparency" reports.
There are rumours of the SOPA drafters coming back. Good! In my next post I will write a list of strategies they should use this time to prevail.
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