Yesterday's Pirate Bay decision was wrong
Apr. 18th, 2009 11:32 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
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like the pharmaceuticals industry) put their own models of monetization before the public interest, and try to assert outdated models instead of changing.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.
* 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.
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(no subject)
Date: 2009-04-18 11:18 am (UTC)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?
(no subject)
Date: 2009-04-18 11:23 am (UTC)(no subject)
Date: 2009-04-18 11:38 am (UTC)I agree with the TPB guys in spirit, but I think they perhaps didn't run a tight enough ship, as far as how the website is set up, designed, etc. to avoid appearing as though they facilitate piracy. After all, the site is called "The Pirate Bay" and there is an entire page dedicated to copyright complaints they've received and their snide (and usually hilarious) responses. If I were a prosecutor, I don't think it would be terribly difficult for me to argue on the basis of these two details that TPB was knowingly facilitating copyright infringement.
As far as TPB is concerned, I don't think their fate is really at all tied to longterm future of media distribution. All it represents is a big setback for innovation in this area, because now the media advocacy organizations are going to go hog wild, assuming that because their position has been vindicated in this huge case, their entire model must be right. We're probably setting progress back a few years, but it will come eventually.
(no subject)
Date: 2009-04-18 11:33 am (UTC)But it's even easier to open Spotify, search for what you want, click once and listen to it, because it costs you nothing. When people see it, jaws drop. You can see their whole attitude towards music changing in an instant, because they don't have to own anything anymore, but can still listen to a colossal library of stuff.
I find Spotify way more interesting, culturally, than TPB. Spotify makes torrenting seem like old, old news.
(no subject)
Date: 2009-04-18 11:45 am (UTC)Spotify seems interesting, but what about portability? I guess it could take on a sort of satellite radio form as well, but then again, the big satellite radio companies (in America, anyway) are tanking. They just aren't profitable. It costs a lot of money to run satellites.
Anyway, I think there's room for all sorts of innovation. But I stick to my main point, which is that the people who find ways to distribute "definitive products" in the new era will be the ones who can best monetize their creative products.
(no subject)
Date: 2009-04-18 12:31 pm (UTC)The problem with spotify though is that the major labels still have the knife against their throat and can just withdraw their license anytime. Which they already have done with geographical restrictions and so on.
Without being too much of a conspiracist I think the labels mostsly see spotify as a way of killing peoples mp3-collections. When everyone is used to have giving up the control of their music to a centralized archive they can easily kill spotify by not renewing the deals and come up with their on horrible services. This is quite honestly spelled out in the IFPI digital music report that came soem months ago where the "bundled services" they want to stuff down peoples internet connections and mobile phones are seen as the future of music distribution.
/Magnus, Piratbyrån