The 401st Blow :: Thoughts On Media

We Shoot Pirates, Don’t We?

Posted in Law, Policy by Noah Harlan on April 21, 2009

I have a bone to pick. I am really tired of people claiming that it’s ok to steal something if it’s not available fast enough. Since when is convenience a reasonable defense in a court of law?

“Your honor, I do realize that I stole those diamond earrings from Tiffany but if I had had to earn that money it would have taken years!”

For me, it started with a conversation I had with someone at brunch a few months ago telling me that he liked using torrents because the download speed was faster than iTunes. He made the argument that it was an issue of convenience and if only the world provided him a legal means to get the same level of service he would pay for it.  After discussing the ethics of it (and largely not agreeing) I then posed the question: “Well, if you could pay to get that service, would you?”

He paused and we both knew what he was thinking. Then he admitted:

“Probably not. Why should I?”

And this is what concerns me. It’s a slow, inexorable move towards a culture that believes they are entitled to steal media or, more problematically, they believe that media is not something that is worth paying for.  If we do not pay for content then the creators of that content cannot continue to create and the content will dry up. Our society’s creative output will be starved due to our laziness and our thievery. People argue that it’s because they don’t feel bad stealing from “the big media companies” but in fact, by allowing this we are digging our own grave. Every filmmaker who is going to get their work out there on the DIY circuit, who is going to do VOD, and DVD (or blu-ray, or whatever), and try to make a living, or at least be compensated for people’s viewing their art, is going to be out of luck.  After all, they are now indistinguishable from the “big media companies”.  Do you think the torrent-freak stops to think whether a given title came from Fox, or from you?

If you think they do, then you’re kidding yourself.

The latest outrage for me is this absurd article in Slate magazine by the dopey Farhad Manjoo (I assert his dopiness based on the fact that he is a ‘technology columnist’ and has a blog that doesn’t lay out properly in a state of the art browser like Safari 4).

We have to take a stand against this people.  Here is a journalist, in a major magazine, telling everyone that it’s ok to steal if you can’t get just what you want, the way you want it (and if that way is ‘free’, then you should be entitled). It’s arrogant. It’s illegal. It’s amoral.

Write him and tell him so, ok?

Here is the note that I sent him:

Farhad,

I just read your piece in slate about your desire to see a more inclusive streaming video service (http://www.slate.com/id/2216328/pagenum/all/#p2).  I think you wrote a wildly irresponsible piece. How do you justify, in a reputable journal like Slate, discussing how you break the law because you find the law annoying?  I quote:
“I sometimes feel bad about my plundering ways. Like many scofflaws, though, I blame the system. I wouldn’t have to steal if Hollywood would only give me a decent online movie-streaming service.”
So, by this reasoning I should be entitled to break into Tiffany’s and steal jewelry because they don’t make it easier for me to obtain?  The law is the law.  If you don’t like it, vote to change it.  But ignore it simply because it’s inconvenient and you should be punished.
Furthermore, by doing what you do, you are stealing from good and hard working men & women who are trying to make a living providing you the entertainment you desire.  If you are unwilling to pay for your media then what will allow them to keep making that media. You claim it is “the system” that is at fault, and yes, there should be better services out there, and there will be, but because there isn’t does not entitle you to hurt the people who work to make this material.  I do hope when your next book comes out that you will not object if google offers it for free and amazon places it on the kindle without compensating you.
Frankly, I think you owe a public apology to the thousands of artists and craftsman from whom you have invited your readers to steal.
Sincerely,
Noah

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5 Responses

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  1. ffelix said, on June 4, 2009 at 1:53 pm

    This is an interesting issue.

    On the one hand, you’re absolutely right, artists need to be compensated for their efforts. On the other, the pendulum has swung pretty far & it’s time for a correction.

    To illustrate, imagine we’re talking about ditchdiggers instead of filmmakers. A guy digs a ditch that protects thousands of people from disease, mess & inconvenience. He gets paid [badly] for the labor, but receives no compensation for the ongoing benefits of this thing he’s created that everyone enjoys & takes for granted into the foreseeable future. Fair? Not really, no.

    Artists used to be in this position, but they organized & now receive residuals. But is it honestly reasonable to expect to continue to receive compensation for life on work you did decades ago? Actually, if it continues to be useful I think so, but I think everyone else [like a ditchdigger] who produces lasting value also deserves the same.

    So let’s say we expand this residual compensation concept to everyone. The ditchdigger’s manager decides not to finish the last segment of pipe that connects everything together. Then he screams & yells about his rights & a crew has to carry the effluvia in buckets between the segments, paying him for every load.

    This is clearly stupid, but that’s essentially where we’re at with media distribution. You sabotage yourself in your argument that end-users should just put up with it. Either art is important or it’s not.

    I happen to think art is critical. It’s the way we update our culture & it’s mythologies, tying people together as societies. It makes no sense to hamper the use & free flow, manipulation & exchange of something so alive & germane. Especially when the hampering is [oddly] not coming from an ideological faction, but from a bunch of bean-counters.

    The only way to leverage a ridiculous, if proven, money-making scheme out of corporate hands is to make it unenforceable through broad exploitation. The music industry experience proved the eternal truth that “legal” positions may be “moral”, but a legal system only works when & if it is enforceable. If it isn’t, then morality counts for bumpkis–things simply are going to change whether everyone likes it or not. It’s commensurate to the drug issue–we just haven’t figured out yet that emptying the wallet at it isn’t going to ever solve the problem.

    In this case, I don’t think the artists will suffer much in the long run. I think we will simply strip away some superfluous, expensive middlemen who no longer have a role in the age of digital distribution. It’s just kind of a painful transition.

  2. Noah said, on June 4, 2009 at 8:04 pm

    ffelix:

    First, thanks for offering such a complete commentary on the post. Now, if you’ll permit me, let’s take your points one by one.

    1) The ditchdigger analogy: I think the mistake here is that the ditchdigger has entered an agreement to provide a service and his compensation has been negotiated prior to the results of the service being reaped. He knows that and the town knows that. The ditchdigger has decided that it is better to dig that ditch for the amount offered than to pursue other ditchdigging opportunities that are more lucrative (if they are available). But more importantly, the town did not secretly take the ditchdigger’s shovel and spade and dig the ditch themselves in the night without compensating him for the equipment. Simply because benefit is reaped at a later time does not mean that the initial value placed on a service was incorrect.

    2) Residuals: I am not talking about residuals. I am talking about the primary transaction. Residuals is an entirely different issue and one which I have enormous problems with. What is being addressed in my piece is the question of the FIRST sale of a given product. Furthermore, I specifically make the point that this is of greater concern to artists now than ever. Since artists are closer and closer to the point of sale – whether through music bands put themselves onto iTunes or craftspeople selling objects on Etsy) they are removing the middle man and entitled to the primary transaction income.

    3) I must admit that I’m a little confused by your statement of my self-sabotage and would love you to clarify it. Art is valuable intrinsically but it is also valuable in a quantifiable way, so long as consumers are paying. It’s just like the diamond at Tiffany’s – it is beautiful on it’s own and it’s beauty has value but it also has quantifiable worth and the miners and craftsmen who made the piece of jewelry are reasonable in asking for compensation. If you extend your reasoning here then why should anyone be paid for anything? Why is “art” a reserved category less deserving of compensation? If there is no system of remuneration then artists will not be able to sustain their lives and their families and the millions of painters, writers, filmmakers, musicians et al will be hacked away at until only those with enough personal wealth to not care about remuneration will be left creating. What would this system of art-by-the-bourgeoisie look like?

    4) I take objection to the idea that the hampering is from bean counters. I make iPhone apps as well as films. I discovered the other day that one of my apps, which has been downloaded thousands of times by people who enjoy it for a mere $3 has been “cracked” and is now being offered for free. Am I a bean counter to be frustrated that people are stealing my intellectual property? Perhaps, but I am also the creator of this property and, for a reasonable period of time, entitled to ask that people pay for the object I’ve created.

    5) The argument that the only way to destroy the “corporate hands” is to steal the content is completely absurd. Music was wrestled from the labels less by piracy than by iTunes. Bands learned that they could put the music for sale on their own and reap 100% of what they sowed (or 70% as it were). The system was clean, easy for the user, and direct for the creators. The “corporate hands” were sidelined because of the poor service they offered to the talent, not because of the piracy of their controlled content. I do not believe that people are buying on iTunes because they are supporting artists. I believe it is because they are being offered a good value proposition. I still maintain that piracy is piracy, whether it is pirating from big companies or individuals and that the pirate will not distinguish between the two. The artist who CHOOSES to sell their music has a right to do so and you, as the consumer, cannot tell them that they are wrong. If you don’t like it, move along and only listen to music that is offered for free next time.

    6) I think the points I make above make the case that it is EXACTLY the artists who will suffer in the long run. Since DIY is on the rise but piracy is too and thus the artists are losing.

    Finally, what I don’t see in your piece is an explanation of how artists, especially filmmakers, are to be compensated? What is the system you propose if the consumer shouldn’t be paying?

  3. ffelix said, on June 15, 2009 at 7:17 pm

    You’re pretty angry & it’s clouding your judgment & your manners.

    “Art is valuable” argument clarification: you suggest, unrealistically, that if people don’t like the current distribution arrangements, they should simply not buy media. Either art is important or it isn’t: your suggestion says that it isn’t, since apparently you feel it’s optional. I think it’s more like water or air. The reason it has value–monetary or otherwise–is that it is the brick we use to build our cultures. Our emotions knit those pieces into the fabric that becomes our lives & ties us to others. They come to belong to us in a very real way. Should they be paid for? Yep. Should distributors be allowed to hold everyone hostage because they prefer the particular way they’ve been paid in the past? Nope. That’s what the ditchdigger metaphor was about. Don’t be so literal.

    Seems to me you’re being awfully self-righteous for a guy who’s apparently trying to build a business around a distribution model that really doesn’t cost you anything & simply never worked for information. Internet is essentially free for you [compared to previous distribution models], but you’re somehow shocked! shocked! to find that others also treat it like it’s free.

    If you put it out there, it’s going to get copied, period. Deal. I’m not advocating it, that’s just how it is & always has been [remember mix tapes? VCRs?]. Yeah, yeah, the scale is different now. Save it.

    So the problem becomes, as always, one of how to compensate producers for their contributions, which shouldn’t be free. I am arguing that a good first step would be to remove the current middlemen who are fighting really hard to hang on to their lucrative prior arrangements. And the only way to do that is to stop letting them make money doing business as usual. Right or wrong [wrong], piracy certainly does that. I can’t think of anything else that could, actually. Can you? Lawsuits are hopeless, as the recording industry discovered. Things can only be designated “illegal” if they are enforceable, otherwise the laws will change, ethics & morals be damned. If nothing else, the music industry recently taught us that.

    If you are a small guy, distributing your own material, then I’m afraid you’re a bit stuffed at the moment, since it will likely be big-bucks interests that sort this new model out. When they do, then the little fish & artists will benefit as well, since no one is going to invest in a system where no one gets paid. There are interesting experiments underway in the music industry–like Spotify, NIN–that basically give the music away on line as a lost leader to build sales in other areas like live shows, branded goods, etc. Sort of like radio gave music away [& Google gives information away] in exchange for advertising. Or like licensing organizations like ASCAP & BMI held up public businesses for playing music to the public for free. Some clever indy filmmakers are cutting costs & making payroll through social media, self-distribution & new technology outlets like cell phone deals.

    And I disagree with your take on apple. i-Tunes came along well after piracy began: remember Napster? I would argue i-Tunes was a response to what this piracy wrought. Why would the industry have played ball otherwise, if their old model still worked? They wouldn’t [clear because they hadn’t, despite attempts].

    How these new models may benefit you, I don’t know. It’s really too early to tell how things will shake out. Asking me to solve this problem for you is pretty petulant, though.

    I do promise you that the solution to this problem isn’t going to come because you shout at the rain & at Farhad Manjoo about what people woulda/shoulda/coulda been doing differently.

  4. Noah said, on June 15, 2009 at 10:27 pm

    I definitely recommend your checking out the conversation Nina Paley and I are having elsewhere on this blog as it may interest you.

    Also, I stand by my assertion that supporting theft is irresponsible. The notion that those who steal because it is too hard to get what they want legitimately is undercut by the ample evidence with iPhone apps. Crackers have argued that they only crack to “demo” apps because Apple won’t let them and they will support the good apps. The problem is that the data tracking on cracked apps shows they are used just as long as legitimate ones. The takeaway? Once a thief has made off with the goods, they don’t go back later to pay the owner.

    You and I are in plenty of agreement about the end state, one where creators are compensated more directly for their content. The difference is in the route to that end state. I believe that innovation and ingenuity is the best path. I fear that once you have established a robust ‘thief’ economy that those content creators will ultimately not see any benefit.

  5. ffelix said, on June 16, 2009 at 2:44 pm

    Thanks for the thread referral, I’ll check it out.

    I’ll just finish by saying that in a perfect world, you’re right: people shouldn’t steal. But it’s not a perfect world & never has been, so complaining about it is worse than useless since it’s impossible to correct. The trick is to figure out a way to make money by giving people what they want, how they want it, not by forcing them to change their behavior.

    Also, piracy may not be the real problem, according to this guy:
    http://www.guardian.co.uk/news/datablog/2009/jun/09/games-dvd-music-downloads-piracy


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