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like the pharmaceuticals industry) put their own models of monetization before the public interest, and try to assert outdated models instead of changing.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".

[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.

[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.

[imomus.livejournal.com]

a guy with a laptop does not a live show make.

Totally disagree -- some of the best shows I've ever seen have been a guy with a laptop. But he's got to be a guy with a laptop determined to make an interesting show.

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

Yes, but come on, it isn't 1985 any more. This equation has been completely reversed. The record labels -- and records themselves -- have been removed from the picture, by and large. It's called disintermediation, and unless you think culture is and ought to be owned by the likes of BMG and WEA and Sony, you have to see this as an excellent development.

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.

But seriously, why keep implying that songwriters will die without the music industry as it was until about 2000? Come on, did you get served and treated well by that structure? Routing music (or any other form of culture) through five enormous global companies utlimately serves neither creators nor consumers. I'm completely puzzled by your attitude to a system which did you no favours at all.

[rhodri.livejournal.com]

Uh, I wasn't slamming TPB, or supporting greedy rec cos.

I just asked a question which I really hoped you'd answer: I wondered how success or talent is supposed to be rewarded when people view the production of "art" (i.e. stuff that they respond to emotionally) as equivalent to manufacturing a kettle. If people really fucking like a kettle, tens of thousands of them, they'll all go out and buy the kettle, and the kettle manufacturer gets rewarded, cos he's cleverly built in a profit margin on his kettle. But if people really, really like a song, tens of thousands of them, suddenly the producer of that song is being deemed only worthy of being paid for the cost of producing the song once – because copying is easy – despite the fact that people might well be more attached to the song than their new kettle.

Which isn't a particularly profound or indeed interesting way of putting it, but we have a generation of people growing up who are putting a smaller and smaller cash value on creativity and aren't willing to pay for it. Which is fine, there's not a lot that can be done about it - but I'm just interested as to why you, as an artist, hint above that you think it's fine for people to give away your music once you've recouped the cost of producing it. It's usually the line peddled by dribbling twats on online forums whose argument starts and stops with "PIRACY4evah, fuck the system".

[rhodri.livejournal.com]

You honestly think we're "nearly there"?

I was round at a friend of Jenny's last night. I wouldn't class them as music fans, but they've stuck all their CDs in storage and hooked up their PC running Spotify to the stereo. That's a kind of tipping point, for me. End of ownership, end of willingness to pay for music, end of artists being rewarded for their efforts save for a dribble of advertising revenue which is barely enough for a pint of milk.

Which sounds like a whine, it's not, I've never made any money out of making music, but consumers will not "pay a reasonable sum of money at some point". I'd be interested to see the stats from Spotify of number of free users versus number of paid users, but I suspect that the paid-up ones are a fraction of a percentage point.

[mr-tom.livejournal.com]

So should artists only be repaid for the cost of making something?

Yes. You don't pay every time you look at a painting, or sit at a table, or re-read a book.

[kumakouji.livejournal.com]

You're basically arguing for drastically reduced profits for the media companies. For example, you'd pay a subscription to Pirate Bay and then based on he download data profits could be shared out accordingly. Something like that.

A lot of people would argue "thousands of jobs would be lost, artists would cease to produce, etc". Frankly, I don't much give a shit -- all the artists I really admire would produce music and art even if they were paid peanuts. They do it for themselves, for their own love of the art.

Look at the freeware crowd who make software for nothing. Look at you - you produce these LJ updates expecting nothing in return. for all the artists who dropped out of it because of lost profits, other artists would fill the void and make art regardless of the financial set up.

[imomus.livejournal.com]

It's ironic that you've turned against Spotify, since you were the first person I heard touting it and handing out free invitations, Rhodri!

consumers will not "pay a reasonable sum of money at some point"

They will. They do. They pay for live shows, they pay (as I discovered in 1999) for innovative concepts like personalised song portraits, they pay for iTunes apps, they pay for games. It's no good crying over spilt milk, ie the music industry as it was in the 20th century. It's particularly strange to cry over spilt milk you were never even given a decent sip of. We have to be creative, not just in the culture we create, but in the way we make that pay. It's even fine if it doesn't pay -- everything worth doing is worth doing for nothing.

[imomus.livejournal.com]

We cross-posted exactly the same thought, Kuma!

[rhodri.livejournal.com]

Jesus.

[imomus.livejournal.com]

if people really, really like a song, tens of thousands of them, suddenly the producer of that song is being deemed only worthy of being paid for the cost of producing the song once

You're assuming the ultimate destiny of a song is to be on a piece of plastic. Why leave out live shows? Every time I play a song live, I get paid again for it. People pay to get in. You're leaving that out.

But live music is not the only alternative to the record. It's our business to be creative -- to come up with new ways to monetize things, if we even want them monetized at all. These new ways are out there, and they may well benefit music-makers and music-lovers much more than the old ways did.

[krskrft.livejournal.com]

I think where you've got it wrong is in assuming that, before the advent of widespread online piracy, this wonderland of valuing "talent" and "creativity" existed. You forget to mention that, in this bygone era, consumer formats made it easy for the record companies (movie studios, etc) to control how we viewed content and what we did with it. Cassettes and VHS complicated this, but even then, it wasn't exactly easy to come up with a dub of an album or a movie on demand (you'd have to know somebody, and they'd have to have the time/inclination to make it for you).

As usual, people were not valuing talent and creativity, but rather they were comforming to the constraints of the time. As soon as VHS and tape cassettes hit big, people were using them in order to "pirate" stuff. There was no such thing as the disappearance of this mythical value system.

[kumakouji.livejournal.com]

In fact, I would even go one step further and go as far as to say that even though you don't get paid financially to produce these entries, you get rewarded in other ways. And that's true of nearly all artists/producers who make stuff for "free".

For every entry you write, you attract and maintain a network of global contributors with a wide range of artistic interests, political convictions and worldviews. Hopefully you won't take this the wrong way but this blog would be a shadow of its former self without its community of commenters. You write the entries but in return the entry evolves into something much more interesting and wide reaching because other people get involved, which must be interesting and rewarding for you. It's reciprocating.

You've also said that this journal has helped you land jobs. It's fantastic PR for you. People need to get out of the mindset that money is the be all and end all as far as rewards for work are concerned.

[rhodri.livejournal.com]

You've received money from the PRS for performing live? Man. I dunno how many of those bloody forms I've filled out in my life, I've never seen anything come back :)

Clearly something irks me about all this. It's not the death of the music industry, it's not the flourishing of TPB – god knows I've used it myself – it's the growing idea of not even wanting to reward someone for entertaining you. I like giving people money for glorious acts of creativity. Maybe that's unspeakably vulgar. But those who vehemently oppose the idea of giving anything in exchange for art are generally so smug in their arguments that it makes my fucking blood boil. I don't know why. Maybe it's because they don't even seem pre-disposed to saying "thank you".

[imomus.livejournal.com]

Yeah, it's interesting that the Pirate Bay bus is painted with the Home Taping Is Killing Music logo, which dates from 1981.

[rhodri.livejournal.com]

I think where you've got it wrong is in assuming that, before the advent of widespread online piracy, this wonderland of valuing "talent" and "creativity" existed.

Of course you're right. I dunno. Maybe it's just me. If I'm given something that I feel is valuable, I want to give something back. I guess I just don't understand those that don't want to.

[imomus.livejournal.com]

You've received money from the PRS for performing live?

No, no, from punters at the door. People! Come on, Rhodri, concentrate!

[kumakouji.livejournal.com]

[rhodri.livejournal.com]

I've not "turned against Spotify", I'm just pointing out that its widespread adoption marks a tipping point away from paying for music – way more than torrenting, which has always been a bit of a faff.

[rhodri.livejournal.com]

Punters? I don't remember them. I must have been doing something wrong.

[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?