Yesterday's Pirate Bay decision was wrong

[imomus]

* As something of a pirate myself, I support Pirate Bay, the four Swedish file-sharing brigands (Frederik Neij, Gottfrid Svartholm Warg, Peter Sunde and Carl Lundstrom) who were yesterday sentenced to a year in prison and ordered to pay 30 million kronor (about $3.6 million) in damages to leading entertainment companies.

* Ironically, the four Swedes learned of their sentence before the official announcement: it was leaked on the internet.



* I've met the Pirate Bay people -- they drove their Pirate Bay bus to down to the Manifesta art biennial last summer via Berlin, and gave me and Hisae a guided tour of it. We later saw the bus installed as an anti-copyright artwork at Manifesta. "We see The Pirate Bay as some sort of ongoing art project/performance," said Peter Sunde.

* I've also met "the other side" in this dispute. John Kennedy, chief executive of the International Federation of the Phonographic Industry -- one of the groups that supported the case against Pirate Bay -- negotiated some of my early copyright contracts for me in the 1980s. His technique was to bump up the sums record and publishing companies were promising me enough to make me richer, even after I'd paid him his (substantial) fee. In the end, however, that money was something that I had to earn by selling more records. Increasingly, I preferred modest models in which small audiences could pay off small overheads.



* Kennedy said yesterday's decision “sent a strong message about the importance of copyright.” But the music and film industries in America (just like the pharmaceuticals industry) put their own models of monetization before the public interest, and try to assert outdated models instead of changing. The Swedish decision is the pyrrhic victory of a dying system, a system which over-monetizes everything instead of taking account of new digital technologies which make the production and distribution of culture virtually costless.

* Both sides are "wrong" in this case. It clearly costs a lot of money to make art, and people shouldn't expect to consume it free. That's why the pirates are "wrong". Nevertheless, it is costing less and less money to produce and distribute culture, and yet the established entertainment companies fail to reduce their prices. That's why they are wrong. Their determination to prosecute music consumers and distributors has been sickening.

* Beyond piracy (on the one hand) and bullying greed (on the other) there is a third way, a supple and inventive new way to distribute culture nearly-free. I personally applaud Apple for finding new ways to monetize culture via the iTunes store -- the future of the album may well be as an iTunes app.



* There are more similarities between the Pirate Bay people and the established entertainment producers than may meet the eye. Anyone who has worked in the film or music industries knows that the people behind making films and records are basically pirates too. They raise money in semi-legal ways, they bully and chivvy, they take risks, they create in a state of permanent chaos. The Pirate Bay people are clearly culture creators / distributors themselves. They should be edged towards legitimacy and monetization -- like all the software companies that started off semi-legal (Napster, YouTube etc) and free -- rather than fined and sent to prison.

* Copyright is endlessly extended in law because of the whims and lobbying of big companies like Disney. It's got to the stage where its protection has become injurious to cultural creation rather than supportive of it. There are companies out there trying to copyright colours and shapes and smells. They must be battled. They are preventing the free flow of ideas. Just because some judges are on their side does not mean they are right.

* Many of the things traded in P2P are old television, films and albums financed in the old centralized way, whose costs-of-making have already been recouped.

* Other things traded on P2P services are new digitally-created products whose costs of production and distribution are negligible.



* Free distribution does not diminish cultural value. It does, however, change the map of value and of monetization; shifting payday from the record store to the live concert hall, for instance.

* The last decade has seen the internet bring incredible -- I mean really incredible -- cultural riches to people who would never have had access to them. On the internet, as we all know, people expect everything free. Therefore you have to find new ways to make them pay (advertising, ancillary merchandising) for these new riches. This has to be done with creativity, generosity, flexibility, and with the recognition that things have changed, and that the new ways of doing things will filter up from the semi-legal grassroots, not trickle down from the established entertainment companies and their lawyers.

* Yesterday's decision did not reflect this reality. I believe it will be overturned, correctly, at the next stage, the Pirate Bay appeal.

Comments

[rhodri.livejournal.com]

Many of the things traded in P2P are old television, films and albums financed in the old centralized way, whose costs-of-making have already been recouped.

So should artists only be repaid for the cost of making something? If their work strikes a chord with a lot of people, and continues to do so over a number of years, shouldn't they be rewarded for that? By how much extra? When should be stop rewarding them? Who decides? How much more wealth should Belle and Sebastian earn than, I dunno, Mousefolk or The Haywains?

When I got hammered recently on Techdirt for daring to raise objections to people hammering the PRS (defending songwriters of varying levels of success) and instead throw their full support behind YouTube-Google, this idea came up a lot. The idea of "hey, why should I pay someone for something that took them a few weeks to knock out back in 1985?" Uh, because the music gives you pleasure? Of course, the fact that these people only see the discussion in terms of topping up Elton John's bank account rather than, say, paying for some sushi for Momus doesn't help to uncloud their woolly thinking. But they don't really need to uncloud their thinking, they can keep churning out the self-righteous rhetoric, cos the technology is on their side.

[imomus.livejournal.com]

Come on, you saw what happened with CD, Rhodri. The big record companies rereleased back catalogue at premium prices, despite the fact that costs for them had plummeted. They didn't pass those savings on to consumers. P2P and Web 2.0 represent reactions against that greed -- the exact same greed we've seen in banks recently. This greed does not come from a machine capable of correcting its own excesses. People need to step in, breaking the law in many cases, and correct it themselves.

[kumakouji.livejournal.com]

"It clearly costs a lot of money to make art, and people shouldn't expect to consume it free. That's why the pirates are "wrong"."

You dont agree with their current model, so how do you propose Pirate Bay remodels itself for the future?

Personally, I want to see the decision overturned. I'm happy with the model as it is, but I think for it to last there needs to be a moral consensus to buy any software/goods you download illegally if you would have bought it had it not been available to you illegally.

When I was a graphic design student, all of us owned pirated copies of Photoshop, illustrator and QuarkXpress. Even our tutors encouraged us to download it illegally. Photoshop, illustrator and quarkXpress are very expensive and out of the price range of a lot of students. A realistic option was to download it illegally so you can learn how to use it whilst you were studying. Most graphic design students then go on to become graphic designers who earn enough to then buy photoshop legally, but that's only because because they learnt how to use it when they owned it illegally.

If we were forced to use legal software, chances are we'd start off using freeware such as GIMP. With more people forced to use GIMP, more graphic design students would develop a preference for it because it's what they'd have learnt to use. This would then eat into Adobe's profits as they lost thier share of users.

It's a very complex issue. It's not as simple as "if you download it, you're stealing".

[imomus.livejournal.com]

how do you propose Pirate Bay remodels itself for the future?

This is just a matter of fine-tuning Pirate Bay in the direction of the law and monetization, fine-tuning the law in the direction of Pirate Bay, and fine-tuning consumers to pay a reasonable sum at some point. We're all nearly there, nearly in harmony. But harmony won't be achieved by handing victory to dinosaur media companies who just want everything to go back to how it was in the days of Jurassic Park.

[bugpowered.livejournal.com]

* Free distribution does not diminish cultural value. It does, however, change the map of value and of monetization; shifting payday from the record store to the live concert hall, for instance.

Yes, but for many artists --mainly the "studio as an instrument" type-- live concepts are a foreign concept. And a guy with a laptop does not a live show make.

Even for rock bands, live concerts was often seen as a loss leader for making up in record sales.

There's also the case of the global audience the internet provides. An artist with a worldwide following of 10,000 people, may very well get $30000-$40000 dollars a year via record and online music sales, enough to get by.

But 10,000 worldwide fans are difficult to form the basis for a live tour --because of their geographical distribution. For example, its entirely possible that said artist could not get even 200 people to show up for a live performance, even in a large city like New York or London.

And that is just for music.

A writer --since pdf versions of books are pirated too-- cannot perform a live show in a concert hall.

A games programmer (games are a new art form, remember?) only has his sales for income.

[rhodri.livejournal.com]

And a songwriter isn't a performer. And you don't want to buy a t-shirt with the name of a songwriter on it.

[krskrft.livejournal.com]

It's a little misguided to talk about what TPB is going to do, or what the various media industries are going to do. I think the big question is: what are the artists going to do?

Musical artists, for example, are going to have to start overseeing a lot more of their own business. Gone are the days when it actually made sense to let the label spend you into the ground with 6-figure recording and video budgets, only to use it as leverage against you in future negotiations.

I think what we're going to see are more artists who craft everything about their presentation, their recordings, their tours, etc, etc, etc. Getting on the radio won't matter anymore, because anybody can get on the internet, and honestly, more people are using the internet anyway.

One thing that hasn't quite changed yet is that people seem to prefer a "definitive product," when they have the reasonable option of obtaining one. If artists can find ways to build the illusion that they are providing a definitive product at a fair price, that will be the smartest marketing method, and I think it would actually do quite well against piracy. For example, by providing a slick interface with simple, integrated purchasing functionality, Apple has turned the iTunes Store into a large scale dispenser of definitive music products. In a lot of cases, it's much easier to just open iTunes, search for what you want, click once and download it, than it would be to search for torrents, or open up Soulseek and hope that somebody has the album you're looking for, and that they're sharing it at a good speed, and that they won't cut you off after you've only gotten 4.5 of 10 tracks. And the price, by most accounts, seems to be right. And people know it's legal.

Now, when are we going to do this for movies and digital books?

[imomus.livejournal.com]

Agree with all this, and the answer to the last question is "soon", but that the Pirate Bay decision is not a help in making it sooner. But I think this stage of the case is just to "send a signal", and the next stage will be more helpful.

[krskrft.livejournal.com]

Also, I think one of the most interesting corners of the piracy issue is the relatively widespread album sharing going on over a large network of Blogspot blogs. Much of it consists of obscure, out of print vinyl rips. The amazing thing is how, by this method, the piracy becomes infinitely more organic, how the anonymous blogger basically becomes a curator. And the ethics that emerge are pretty interesting as well. For example, it's understood that, while the albums are only being uploaded because they're out of print and basically unavailable to the general public, if the artist complains, it will be taken down. And then of course, there are defunct artists who actually write in to these blogs and are essentially like "Holy shit, I can't believe anybody wants to listen to this anymore, you can keep sharing this with my blessing."

Just type "artist/album blogspot" into Google, and you can find things pretty easily. And once you find some dependable mp3 blogs, it's just a matter of poring over the dozens, sometimes hundreds, of posts to find things that seem interesting.

What's really cool about it is that this is how I would seek out new music before I had regular access to the internet. I would read liner notes, interviews, anything I physically get my hands on, and seek out references to other artists so I could try them out. And then there were the hours spent browsing the racks at the music store, looking for wild album covers, or bands I had only heard of somewhere in off in the periphery. That organic experience is something I had missed for a long time, and these mp3 blogs bring that back to some extent.

[(Anonymous)]

Agreed. Something like Mutant Sounds is just a goldmine, and a community of enthuiasts. You can see by the comments they get to their postings. Not sure I would have discovered a lot of stuff I found via them this last year or so without their WORK! they also take the filesharing links down if the artist/copyright holder asks, as do many music sharing blogs. And Mutant sounds is just the tip of the iceberg. Again, what is the big difference between this and cassette culture?

Quick everyone - burgle Momus' apartment! He's okay with it!

[(Anonymous)]

I hope these wankers get raped in prison. Really. They would have turned into tomorrow's Richard Bransons, lets face it.

"They are preventing the free flow of ideas." This rubbish gets spouted by every street corner crook (including Google's own intellectual copyright lawyer) with his nasty DVDS, and by every Disney-swapping spiv who contributes nothing to culture. How many creators voluntarily shared their material via Pirate Bay? Exactly.

Pirate Bay is a car boot sale, run by crooks dressed as spliff-toking 'anti-capitalists' sane people want to batter with hammers.

Why do people love Apple but hate EMI?
Why do people love Google but hate Starbucks?
Beyond making the world cheaper and nastier, it's beyond me.

Re: Quick everyone - burgle Momus' apartment! He's okay with it!

[imomus.livejournal.com]

Thank you, caller, for that spirited defense of EMI, Starbucks, rape, hammer-assault and burglary.

[robotmummies.livejournal.com]

i'd rather everyone use creative commons licenses

your book of scotlands?

[(Anonymous)]

Nick would love to review this for some publication or other - can you get to me via email on www.theplayethic.com? Hope you're well, best, pat kane

Re: your book of scotlands?

[imomus.livejournal.com]

Done, Pat.

Pat's blog, by the way, has a thought-provoking post (http://www.theplayethic.com/2009/02/musicbizmodel.html) on this issue.

[krskrft.livejournal.com]

I think another important issue worth mention is that, in various media industries, it tends not to be the artists who exercise authority over copyrighted materials, but rather the corporations and their advocacy groups.

Too often, the arguments made by these organizations, like the RIAA and MPAA, are taken at face value as advocacy for artists. And that's the spirit in which the RIAA and MPAA would like you to believe their actions are undertaken, because it is the one with which we will most easily empathize.

Artists, however, are not a monolithic group, and many artists whose works are "protected" by these organizations (usually because the label, not the artist, is the owner of said works) disagree with the hardline, anti-innovation, anti-consumer stances they've taken.

The argument that the major media organizations are "looking out for the artists" is at least as disingenuous, likely moreso, than the "we're just trying to promote the free flow of information" spiel one often hears from the piracy advocates.

Just something to chew on, for the kneejerk industry supporters.

re libertarian

[kulicuu.livejournal.com]

I shall henceforth ramble thus:
Libertarian left. Different from libertarian right. I ought to define it, proprietarywise.

Agreed with Momus here, the activism of PirateBay(an extension of Napster etc) is not an end in itself but merely an instrument in breaking a particular cartel, the parasitic property collectors, who actually disrupt production as much as they can. Where you are right (and Momus addresses this) is in the necessity to find alternative/new compensation means/methods so that the producers can get paid and therefore afford to produce more. Not just music but all sorts of complex objects of some value, including engineering/architecture, scientific and technological developments etc.
Lawrence Lessig here somewhere? I hope he is celebrating the EU thing. That's big. Damn, Sweden is impressive. Wow.

Thanks Momus for the sanity and information.!

[lord-whimsy.livejournal.com]

Publishing has watched the music industry, and so has the advantage of foresight and is able to adjust their models accordingly (the kindle, etc). Whether or not they will be sane, flexible, cooperative models (I use the plural because that's what it will take) remains to be seen.

[(Anonymous)]

Publishing, as you say, has the advantage of foresight, but it also has the advantage that the book is a much better, sturdier piece of technology than the CD. In a decade or two, CDs will have disappeared, but the book as we currently know it will still be with us. Sure, it will have made room for the Kindle or its successors, but I'm confident that the book won't disappear, which means the publishing industry is on surer ground than the record/movie industries.

[vogdoid.livejournal.com]

additionally, a lot of media simply is not available to consumers otherwise. I would happily pay for Throw Away Your Books or a dozen other of my favorite films if they were available on DVD.

[georgesdelatour.livejournal.com]

I only download bittorrent pirated material where there is no legal, paying way to get access to the material.

Corporations want globalization for the producers - the ability to relocate factories to low-cost countries and such. But they obstruct globalization for the consumer, with region coding for DVDs, differential national pricing etc.

One thing that annoys me. I can only download iTunes material from the iTunes UK store, because that's where my bank account is. I can't buy from other national iTunes sites within the EU. This MUST be illegal under the Single European Act.

[oldermusiclover.livejournal.com]

as far as I can see Itunes and record stores don't exactly produce huge amounts for the artist. Doesn't Visa make more per download from itunes than the artist.
I tend to buy exclusively from the artist at gigs with the hope that they get more cash that way.
I also went to 115 gigs last year so I try to support the artist that way too, not to mention at smaller gigs buying them the occasional pint.
My hard drives are littered with ilegal mp3s of albums that either will be released in America next year or perhaps never.
Does all this mean I don't respect the artist?
The record labels raped us for years forcing us to buy expensive best of's to get one new track, there is a reason there is resentment out there.
I know a lot of folks that download illegally mostly they do it to hear it maybe months before they are released. They buy huge amounts of music even the seven inches that few folks do.
Patrick Wolf isnt doing so bad from his fans now- neither is Idlewild.
the whole landscape is changing.
Momus, look at the cash you got when you asked for the sponsorship of your album.
Seeing EMI and the other companies fail I REALLY REALLY hope I see it.
BUT I want to see labels like Transgressive, Dance To The Radio, Fierce Panda and Fat Cat and Rough Trade thrive.
Its time for a change and yes I think that TPB should get off.

[krskrft.livejournal.com]

News alert: most recording artists (at least those "protected" by the RIAA) don't make very much on each physical copy sold, either. Much of the time, even artists on major labels (excluding the huge artists of any given moment) basically just break even, after production, marketing, etc. costs are recouped by the label. If I remember correctly, the typical artist is lucky to take home 50 cents off a CD sale.

The only fair record deals are at the independent/small label level, where it's not uncommon for labels to do 50/50 splits and things of that nature.

[xchimx.livejournal.com]

I think it is largely irrelevant if either side is right or wrong. Online file transferring is cheap, easy, and so far has easily adapted itself technologically to legal attempts to block it as a model (take for example, the evolution of p2p from Napster to BitTorrent). Art costs money to create, but the burden is on the producer now to work within the constraints set by file sharers. I've seen a lot of ideas thrown out: selling advertising within their product, asking for donations, re-emphasizing live performance over the packaged music, etc.

It's nice to see the television/movie industry starting to slowly adapt to these problems. More and more networks are making their shows available for free streaming online and are funding it with commercial space. I know personally I have stopped pirating shows I want to see because now it is simply more convenient to stream a show from a networks website and watch a minute or two of ads with it.

[(Anonymous)]

Why is advertising seen as an obvious cure-all? If the analyst estimates quoted by Slate are accurate then a service like YouTube is not a viable business:

http://www.slate.com/id/2216162/?

[krskrft.livejournal.com]

Because Youtube is focused on user-generated content, as opposed to popular network-generated content. Advertisers, naturally, pay a whole lot less to advertise over user-generated content, the popularity of which has proven to be fickle and unpredictable, than they do to advertise over generally dependable/predictable network-generated content.

In other words, advertising isn't Youtube's problem. It's a problem with the content, and also the costs of hosting anything and everything users might decide to upload.

this is really unbelievable to me

[(Anonymous)]

http://www.youtube.com/watch?v=IAOrKQyp0WU

I actually really like what Paul says here, a really short and simple defense of the idea of file-sharing.

Re: this is really unbelievable to me

[(Anonymous)]

http://www.youtube.com/watch?v=cyAZr0QDbRI

this shows just how arbitrary prosecuting file-sharing is, how do you single out one person among millions of downloaders, and where the hell do you get $9250 per song from?

[(Anonymous)]

I want paid to listen to most of the drivel these major record company are releasing. That's what's killing music not file sharing. Drivel music and the artless plonkers without a clue who run these companies. I'm so glad they are on their knees. Now I can reek some revenge for all those years I was overcharged for the thousands of records and cd's i bought and I do mean thousands, but sadly as I said I wouldn't even take what they release for free. Most of my downloads are 98% old albums mostly obscure labels who's artists would probably never see any money owed to them even if i were to buy it.

n.p From hear on it got rough - Hidergard Knef
From "The In Kraut 66/74"
The last thing I Previewed for review purposes

Right & Left Hand of Art Industry

[me.jdcasten.info (from livejournal.com)]

I might disclose first that I offer all my works (and those I edit/produce) on the web for free—and I think this has increased what are admittedly low sales. I think the virtual content has a way of making the material products all the more valuable.

It might be noted that some indie labels are experimenting with using torrent sites like Mininova to get wider exposure for their acts:

Mininova Blog (http://blog.mininova.org/articles/2009/01/21/mininova-content-distribution-welcomes-1000th-participant/)

Also, how do all those albums, movies, etc. become available before their release dates? In some cases producers, etc. are dropping albums on the torrents for exposure and to create buzz. Their own sort of loss leader.

A problem I see with Pirate Bay, etc. is that they are making money—probably more than overhead costs, and are not sharing it with their content provider-artists (all though admittedly this would be diluted quickly).

Does iTunes still use DRM? I’ve used eMusic for their DRM free mp3s and low subscription prices for years (although I’d prefer to buy music in lossless FLAC form).

Re: Right & Left Hand of Art Industry

[krskrft.livejournal.com]

As I understand it, Apple is trying to push the iTunes store out of DRM land. And at the moment, DRM-less releases are indicated by a + sign. I've only used iTunes once though, oddly enough because I couldn't find the album I wanted (Silver Brainwaves by the odd Scottish pop group Emporium) on filesharing services.

[kineticfactory.livejournal.com]

I'm surprised that the sentence was so lenient. Given that The Pirate Bay was a weapon of mass destruction aimed at the entire intellectual-property-licensing business model, making it trivially easy for large numbers of people to avoid paying for content. Given the Jammie Thomas verdict ($222k for sharing a dozen songs; a verdict, incidentally, which Barack Obama has signed off on the rightness of), one would think that unlicensed use of intellectual property is more of an existential threat to the US economy (and, to a lesser extent, other Western economies) than Al-Qaeda, and you'd think that TPB's founders would get sentences in the high double digits at the very least.

I expect that the US State Department will be having a few robust words with the Swedish government about this.

[spanghew.wordpress.com (from livejournal.com)]

I think free distribution can increase the likelihood that someone pay for music, though. And that finding creative ways to supplement that music can help it. My experience with your music is a good example. Some years ago, I read a review of Little Red Songbook and, intrigued, picked it up. While I liked some of it, and found the lyrics fascinating, at the time it didn't quite click with me. But now I was aware of you, and after a while, started reading your website. For quite some time, I thought of you as being far more intriguing as a writer and thinker than as a musicmaker. Somewhere along the line, the music started to resonate more with me, and gradually I became a fan. But here's the thing: over the past few years, you've made many tracks available for free here. Many of them have been alternate versions and the like, but the very fact of your making them available made it likelier that I'd pay for the music (which I've done, with everything that's available, in fact) and not only because I could hear it and evaluate it before paying for it.

The very human gesture of sharing music established a sort of relationship in which I actually felt somewhat obligated (in a good way) to give something back. For me, then, Momus-music came not from some anonymous corporation but from a human being, one whose virtual self I'd come to know over the years. I think it's fairly well-established that people are likelier to steal from a huge, impersonal corporation than from a person, and less likely still to steal from a person they know than from someone they don't know.

So one way to monetize one's music is to make it part of a quasi-personal relationship. Online fora can do this; taking the time (as you do) to communicate with "fans" (whose relationship under such circumstances then makes that word a bit inadequate) is, among other things, a commercially savvy gesture.

Crap. I just convinced myself this whole thing's entirely mercenary. Maybe you really are a pirate...

[imomus.livejournal.com]

Well, I don't think I have a compulsive need to promote records. That wouldn't get me up in the morning. I think I have a compulsive need to communicate, and the records and the blog are both expressions of it.

I've never really looked into it, and I don't know how you'd quantify it, but I don't really think this blog is a particularly effective marketing tool for records. Not everyone feels the "good obligation" you do!

[stanleylieber.livejournal.com]

what is needed is a return to traditional pre- 20th century models of music distribution!

Totally Off Topic

[georgesdelatour.livejournal.com]

Hey Nick

I found this

http://www.sciencedaily.com/releases/2009/04/090414153538.htm

I'd love to have your take on it.

[cdaaah.livejournal.com]

Beautifully put. Over the years, I've wondered a number of times about your views regarding piracy. Your albums are some of the few--including David Byrne, Kid Koala, and Parliament Funkadelic--I've refused to pirate, although I've kept tabs on their availability through illicit channels (at least, public ones) and have often been surprised by the scant results of my searches.

I've only been listening to you since 2002, but in that time I've hardly ever had a positive result for a torrent of your work. I've wondered if this was because you were savvy enough to ask for the removal of said works from distribution, or if, perhaps, it was the result of a spontaneous decision not to share on the part of your fans (obviously, I also considered the possibility that a). (grudgingly) there weren't enough people who listened to your music to adequately fill the Listener/Computer-Literate/Pirate venn diagram, b). your audience might be SO computer-literate that your music is only distributed by the most arcane and untraceable means, or c). (granted the least credence) your music includes incredibly effective subliminal messages which actively discourage the piracy of your music, but somehow don't condemn piracy on the whole). Today, I feel I've come a little closer to answering these questions.

Oh! I friended you, by the way. I've been meaning to for some time.

[(Anonymous)]

Paying for music is like paying for sex.