The digital theft of copyrighted media and the sale of knockoff physical items are different issues and should be dealt with separately. They may seem on some level to be the same thing–taking profit away from copyright holders–but you can’t solve both problems the same way.
With physical items, it’s pretty easy to get evidence of the crime. A website selling knockoffs can generally be dealt with “old school”: find evidence of the counterfeit items, then, if it’s domestic, raid and make your arrests. If it’s outside the US, work with that country’s government to shut the perpetrators down.
When it comes to digital media, though, you run into many problems, not the least of which is the sheer amount of data. How do you target illegal activity without affecting legal activity?
The first important point is this: Who determines that copyrighted material has been illegally made available somewhere digitally, and how is this confirmed? “Because the copyright holder said so” is not good enough; there needs to be documented evidence that 1) the complainant does, in fact, hold the copyright; 2) that the item in question does exist on the website; and 3) that true copyright infringement has occurred, e.g. this is not a case of fair use. All of these items should be confirmed and documented before action is taken…or at least two out of three.
Second, how do we determine who is at fault–i.e., who to prosecute? Historically, site owners have not been not responsible for content posted by users. Forcing a site owner to moderate user-submitted content before it is posted to the site would effectively end user-submitted content; the workload would be unimaginable and impossible, even on smaller sites. The people’s voice would be silenced, not by the government directly, but by websites unwilling to be held liable for their users’ actions.
So, assuming we don’t put the onus of content vetting on the website owner, how is fault determined? Domestically, a site could be subpoenaed for information about the user/account involved in uploading the content. But abroad?
This is the line of thinking that went into SOPA/PIPA, which were targeted at foreign websites unreachable by US law. But those bills are hopelessly flawed. Rather than targeting copyright violators, they would simply close off foreign websites suspected of infringement from the US, effectively censoring parts of the world internet. A law that would allow this sort of blocking could be severely abused, and the average person wouldn’t even know it. Let’s be honest; we live in enough of a bubble already. Do we really need to be that much more out of touch with the rest of the world?
No; the only way to fight internet piracy via law enforcement is to target individual perpetrators. This may not be as exciting a solution as shutting down entire websites and raiding server rooms and offices, but it is the only governmental solution that doesn’t adversely affect unrelated individuals. The rights of people using the internet legally are just as important as the rights of copyright holders looking for justice; trampling one to bring victory to the other is to give one group undue priority and protection.
In fact, while individual users are being tried in court, their accounts and uploads and whatnot should be frozen, but not deleted, and the website itself certainly should not be shut down. It doesn’t matter if there’s one suspect or 50,000; unless you know for a fact that none of the content on a site is legal, you have no ethical right to shut it down. People rely on the internet more and more, and people’s needs are varied. What might seem to be nothing more than an illegal file-trading site to you might have some other legal purpose for someone else. Unless you can prove it doesn’t, no shutdown.
Any government shutdown of websites where users are suspected of engaging in illegal activities is a running start down a slippery slope of censorship. It could indeed lead to what some misguided SOPA/PIPA protesters feared–a shutdown of Facebook or YouTube. The point here is that the website is not on trial, unless it is the website’s owner herself offering the illegal material. To ensure a free and open internet, the utmost goal should always be to leave sites alone and go after individuals or groups.
Media executives don’t like this reality, of course. It’s slow. It takes a long time to amass proof. They actually have to go to court to get things done, instead of just having the government hatchet away the illegal activity for them with no due process. But ultimately, it’s the only solution that’s fair to all US citizens, not just media executives.
I believe the true solution to the digital piracy of media is not the government at all, but a radical change in media companies’ distribution paradigm.
The basic truth underlying all of this is that people want to enjoy the content being produced by the media company. Why not make it easy and legal for them to do so? Stream all video content online. Live stream TV shows and movies as they air, and include location-based commercials. Create a digital archive of content, or just use Hulu or Netflix or Amazon Prime. Post episodes online immediately after they air–don’t wait eight days like Fox so that it’s extraordinarily difficult to catch up in time for broadcast. Make sure all your video streams are playable on all devices.
Put your music on all the internet radio options. Put music videos on YouTube. Make tracks and albums downloadable on Amazon MP3 and iTunes.
Make every book, magazine, newspaper, or other printed material you offer available as an ebook.
Put everything online. Create different online directories to help people with differing interests find content relevant to them. Price everything low enough that people will find the cost and convenience just as good or better than getting the content free from some ad-filled, virus-infested download site.
Make everything so readily available that piracy would be ridiculous. And do this not just here in the US, but all across the world. And then watch online piracy dwindle. Oh, it’ll never die…but if people can easily enjoy the content they want legally, they’ll have far less of a reason to do it illegally.
One reason big media companies have been so ambivalent about online–trying things out but never fully committing–is that executives don’t believe online content will bring high profits. This is short-sighted, not to mention untrue. It’s their job to figure out how to make it profitable, not to pretend the world isn’t changing. The internet can’t just be put back in the box.
Another problem may be not having direction. Rather than deciding what exactly they want to do with their content online, companies might simply be looking around for existing widgets and solutions and services, or copying what someone else is doing. This is completely backwards; first the company should come up with a clear vision for online, and then they should set out to accomplish that vision with whatever tools they need.
I also believe media execs are afraid of how easy it is to distribute content online, and of people who choose not to use big companies for distribution. It reminds me of some news people’s initial reaction to bloggers. “That’s not real news. They can’t do what I do.” That bravado masked real fear, because the truth is, with the internet, anyone can do anything. Rather than denying the fact that alternative distribution methods exist, big media needs to commit to using them. Yes, these independent artists are competing for a slice of the pie. So compete with them.
Big Media, it’s time to weigh anchor and move forward. Things can’t stay the way they currently are. Think about it: How long has your current business model actually existed? Not really all that long, right?
Humans have a tendency to believe “the good old days” lasted forever, and anything new is scary and bad. But the truth is, there were no good old days. People have always made it up as they went along.
And that, Big Media, is what you need to do now.
Edit: Y Combinator has decided that the next startup they want to fund is one that would kill Hollywood. They’ve concluded that Big Media in its current form cannot continue to exist…a conclusion with which I obviously agree.