The government should not prop up failing business models

One thing that really stuck out to me during the SOPA/PIPA debate, and is now resurfacing in my mind with CISPA, is the sheer nerve of the entertainment industry, to essentially ask the government to be volunteer copyright enforcers on the taxpayers’ dime.

Digital piracy is not an indicator of masses of criminals who delight in stealing copyrighted works. It’s an indicator that people want content, and they have no easy, legal way to get it.

The makers of television programs who do not offer any way for people to purchase the programs online or watch them stream with ads are essentially saying they don’t want people to watch their content. I get that what they think they’re saying is people should watch it on TV when it airs, or maybe on their DVR…but many people have moved away from these costly entertainment streams in favor of Netflix, Hulu, Amazon, and iTunes, and companies need to catch up. And even if a person does typically watch a show live on TV, what if she misses an episode? Most shows build on the happenings of previous episodes these days, so just skipping one would be jarring. You’ve got to give people a way to catch up to the story.

But instead of seeing the profit potential in online streaming and digital downloads, many big content creators are just opting out, or only providing a limited offering. They’re ignoring a whole new revenue stream and then wondering why profits aren’t quite as fantastic as they used to be.

The decision-makers are so blind to their own failing business model that they’re grasping at the piracy straw and holding it out to the government in desperate entreaty. “I don’t want to let people consume my content legally. Just arrest and prosecute a bunch of people for me so I can make up some profit!”

Please note that I am not arguing that piracy is in any way right or good. I am, however, arguing that it is an understandable behavior under these conditions. Humans who want things tend to get them, regardless of the risks involved. (Illegal drugs are a good example of this.) If companies want to curb piracy, they should change their approach.

Rather than treating all potential customers like criminals, companies should make it so easy and convenient to get their content that it would be absurd to pirate it.

We are already on a slippery slope of creative control. Copyrights have been extended to a ridiculous degree, and fewer and fewer modern works are entering public domain. The original notion of copyright, to protect a person’s creation during his or her life, has become lost in corporate greed. And what people seem to be missing is that draconian copyright laws are nothing more than government handouts in the form of law enforcement muscle and court time.

Government is there to ensure opportunity for all, not to blindly throw money at problems. If the government gets involved in a company’s profits at all, it should be only in a time of desperate need. Even then, I disapprove of just giving them money or law enforcement assistance. They should come in with a business plan.

Entertainment companies should not expect huge profits in a bad economy. They should create strategies for their own survival. If and only if they still need help, and if and only if their loss would significantly impact society, government could help. But this should not be entered into lightly. Congress should not make the decision based on numbers the media company brings in themselves, for example. There should always be independent confirmation.

And when these companies ask for help, it should be publicly…not through the legislators whose campaigns they’ve funded.

Ultimately, it should not be the government’s job to funnel money into big companies. Bailouts that get paid back are one thing, but copyright enforcement would occur at the cost of the government–lost time and money. That’s not sustainable, and ultimately it’s not going to fix the entertainment industry’s lack of vision.

ACTA and TPP: The new(?) threat

Shortly after the SOPA blackout, I became aware of ACTA–the Anti-Counterfeiting Trade Agreement. This is a treaty, negotiated in secret among various nations, whose ostensible purpose is to protect copyright. I then started hearing about the Trans-Pacific Partnership, or TPP, purported to be even worse.

Despite the fact that many people are only now hearing about ACTA and TPP, these treaties have been around for awhile.

In a move that completely flouts the open style of government he claims to support, President Obama signed ACTA back in October, without getting public or legislative approval. Australia, Canada, Japan, South Korea, Morocco, New Zealand, and Singapore also signed at that time. Many countries in the EU signed the agreement in Tokyo two days ago, but EU countries can still fight the ratification procedure. Here in the US, it’s currently unclear if what Obama did is constitutional, or whether the treaty must be approved by Congress.

Meanwhile, there’s the TPP, whose purpose, among myriad other things, seems to be to cover all the digital copyright stuff that was negotiated out of ACTA. Here is more information on the TPP from TechDirt, which has been following its evolution as best as you can follow the evolution of something being developed in near-absolute secrecy. Here’s a slightly dated rundown by the EFF. Most terrifying, given that like ACTA this treaty is being negotiated by people who are not our elected representatives, is this:

All signatory countries will be required to conform their domestic laws and policies to the provisions of the Agreement.

So basically these people, with no transparency, no input from citizens or democratically-elected officials, are rewriting global laws?

Just whose purposes are being served here?

E.D. Kain at Forbes has a discussion of how ACTA has evolved and how TPP continues to be developed in secret. Here’s a line that struck home with me–it’s an obvious allusion to the 2012 National Defense Authorization Act.

If lawmakers start baking restrictive IP laws into larger bills – maybe stitching them into defense funding bills, for instance – it may become increasingly difficult to see what’s happening.

The NDAA included a rider authorizing the indefinite detainment of US citizens by the military without trial. Attaching this egregious infringement of Constitutional rights as a rider on the military budget essentially held all military personnel and employees hostage; unsigned, it would have left them without any money as the new year started. The choice ended up being “unpaid soldiers” or “loss of liberty, with a note saying we promise never to actually do this”. The latter was chosen. (The author of this piece would say I’m being too generous to the president. Maybe I am. Time will tell.)

Obviously, riders are one effective way to get something passed that wouldn’t normally pass, and as Kain points out, this will surely be a tactic used in future intellectual property fights. But ACTA and the TPP bypass legislation completely, and they are shrouded in secrecy. We barely even know what’s going on before it’s happening to us.

If you’re interested in taking action on these issues, here are a few links that might help.

One thing that seems evident is that these treaties, developed in secret and intended to alter intellectual property law across the globe, are being backed by major copyright holders. Big corporations. The entertainment industry, to be blunt. I’ve already written on what I think they should be doing rather than trying to change the law to protect their dying business practices, but perhaps I was being too charitable. That they have wormed their way this far into not only our government, but governments around the world, is unconscionable.

I’ve heard that some are planning a complete media boycott for the month of March, to hit the proponents of this sort of legislation where it really hurts. Honestly, I’m not sure a month-long mass boycott is as plausible as a day-long internet blackout, but it certainly seems like the right strategy against executives who seem to only understand money.

Could you go a whole month without buying entertainment from big companies? No cable, no Netflix, no movie dates, no iTunes…heck, maybe a month off might prove which services you actually need and which ones you don’t even miss. And you could take the opportunity to discover some independent creators, people who just make good stuff and make it easy for people to buy it.

It could work. You could save some money. You could directly benefit actual content creators instead of middlemen. And you might help get big entertainment companies out of our government.

What do you think?

Weigh anchor, Big Media

boatThe 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.

Fax your people in Congress about SOPA/PIPA

I used this website to send a free fax to my Senators and Representatives about SOPA/PIPA. The fax started out with a generic blurb, but there was a section where I could add my own thoughts. Here’s what I wrote:

Copyright holders already have ways to deal with infringing content, through the courts. Their real problem is their refusal to eschew their dated business practices and their insistence upon running to the government for help rather than finding better ways to market and distribute their content. Please don’t reward this backwards thinking by using taxpayer money on even more big government.