We need to talk about piracy (but we must stop SOPA first)

Much to my happiness, the internets are in a frenzy about the “Stop Online Piracy Act” (aka SOPA). Congress is currently in recess, but the House announced a hearing on the potential impact to the Domain Name Service on January 18 and everyone expects the Senate to begin discussing a similar bill “PROTECT IP Act” when they return to DC on January 24. There’s a lot to these bills – and the surrounding furor – and I’m not going to go into it, but I recommend reading the actual bill and Open Congress info, the Wikipedia article, EFF’s blog, and the various links at Stop American Censorship. Tomorrow – January 18th – a bunch of geeks are planning a SOPA Blackout Day to voice their discontent.

I abhor SOPA for the same reasons as other geeks. I’m horrified that Congress has crafted a law that will screw with the architecture of the internet in ways that will undermine free speech. I love Josh Kopstein’s post “Dear Congress, It’s No Longer OK To Not Know How The Internet Works.” And I’m glad that geeks are getting vocal, even if – as Clay Johnson has pointed out – geeks don’t quite get how Congress works. I’m stoked that the White House has asked for a civil conversation around piracy (while also opposing SOPA’s key pieces). And I find it utterly hysterical that Rupert Murdoch has come to geeks’ turf (Twitter) to convey his pro-SOPA opinions, even as Obama steps in to state that he opposes SOPA.

In talking with non-geeks, I can’t help but be fascinated that the debate has somehow been framed in the public eye as “pro-piracy” vs. “anti-piracy.” Needless to say, that’s the frame that Murdoch is advocating, even as geeks are pushing for the “pro-internet” vs. “pro-censorship” frame. What’s especially intriguing to me is that the piracy conversation is getting convoluted even among politicos, revealing the ways in which piracy gets flattened to one concept. Teasing this issue out is especially important when we’re talking about regulations that are meant to help with piracy. There are many different aspects of piracy, but for simplicity sake, I want to focus on two aspects that feed into bills like SOPA and PROTECT IP: piracy as a competitive issue vs. piracy as a cultural issue. This can often be split as software piracy vs. media piracy, but not always.

There are actually reasons to not be in favor of all forms of piracy, even if you’re an unrepentant media pirate. Imagine that you are an appliance manufacturer in the United States. You make things like toasters. You are required to abide by American laws. You must pay your employees at least a minimum wage; you must follow American safety regulations. All of this raises the overhead of your production process. In addition, you must also do things like purchase your software legally. Your designers use some CAD software, which they pay for. Your accountants use accounting software, which they pay for. Sure, you’ve cut some costs by using “free” software but, by and large, you pay a decent amount of money to software companies to use the systems that they built.

You really want to get your toasters into Wal-Mart, but time and time again, you find yourself undercut by competitors in foreign countries where the safety laws are more lax, the minimum wage laws are nonexistent, and where companies aren’t punished for stealing software. Are you grouchy? Of course you are. Needless to say, you see this as an unfair competition issue. There aren’t legal ways of bending the market to create fair competition. You can’t innovate your way out of this dilemma and so you want Congress to step in and make sure that you can compete fairly.

Combating software piracy in the supply chain is a reasonable request and part of what makes bills like PROTECT IP messy is that there’s a kernel of this issue in these bills. Bills like this are also meant to go after counterfeit products. Most folks really want to know what’s in baby formula or what’s in the medicines they purchase. Unfortunately, though, these aspects of piracy quickly gets muddled with cultural facets of piracy, particularly once the media industries have gotten involved.

Since the rise of Napster, the media industry has been in a furor over media piracy. Not only do they get pissed when people rip and distribute media content on the internet, they throw a fit whenever teenagers make their own music videos based on their favorite song. Even though every child in America is asked to engage in remix in schools for educational purposes (“Write a 5-paragraph essay as though you were dropped into Lord of the Flies”), doing so for fun and sharing your output on the internet has been deemed criminal. Media piracy is messy, because access to content is access to social status and power in a networked era. Some people are simply “stealing” but others are actually just trying to participate in culture. It’s complicated. (See: “Access to Knowledge in the Age of Intellectual Property” and “Piracy: The Intellectual Property Wars from Gutenberg to Gates” to go deeper.)

Most in the media industry refuse to talk about media piracy beyond the economic components. But the weird thing about media piracy is that Apple highlighted that the media industry could actually innovate their way around this problem. Sure, it doesn’t force everyone to pay for consuming content, but when was that ever the case? When I was in high school, I went over to friends’ houses and watched their TV and movies without paying for them. Even though the media industry is making buckets of money – and even though people have been shown to be willing to pay for content online when it’s easy – the media industry is more interested in creating burdensome regulations than in developing innovative ways for consumers to get access to content. (Yo HBO! Why the hell can’t I access your content legally online if I don’t subscribe to cable!?!?) I guess I shouldn’t be surprised… It’s cheaper to lawyer up than hire geeks these days.

Of course, it’s not like there aren’t a bazillion laws on the books to curb media piracy. What frustrates the media industry is that they don’t have jurisdiction over foreign countries and foreign web servers. Bills like SOPA aren’t really meant to curb piracy; they’re meant to limit Americans’ access to information flows in foreign countries by censoring what kinds of information can flow across American companies’ servers. Eeek. I can’t help but think back to a point that Larry Lessig makes in “Republic, Lost” where he points out that there are more laws to curb media piracy on the books than there are to curb pollution. Le sigh.

Don’t get me wrong: there are definitely piracy practices out there that I’d like to see regulators help curb. For example, I’m actually quite in favor of making sure that companies can’t engage in unfair competition. I agree with the White House that certain kinds of piracy practices undermine American jobs. But I’m not in favor of using strong arm tactics to go after individuals’ cultural practices. Nor am I interested in seeing “solutions” that focus on turning America into more of a bubble. Shame on media companies for trying to silence and censor information flows in their efforts to strong arm consumers. This isn’t good for consumers and it’s certainly not good for citizens.

As we go deeper into an information age, I think that we need to have serious conversations about what is colloquially termed piracy. We need to distinguish media piracy from software piracy because they’re not the same thing. We need to seriously interrogate fairness and equality, creative production and cultural engagement. And we need to seriously take into consideration why people do what they do. I strongly believe that when people work en masse to route around a system, the system is most likely the thing that needs the fixing, not the people.

These issues are challenging and they require people to untangle a wide variety of different conflicting and interwoven practices. Unfortunately, challenging cultural conversations are really hard to have when the government chooses to fast track faulty legislation on the behalf of one industry and to the detriment of another. SOPA has turned into a gnarly battle between old and new media, but the implications of this battle extend far beyond the corporate actors. My hope is that SOPA goes away immediately. But I also hope that we can begin the harder work of actually interrogating how different aspects of piracy are affecting society, business, and cultural practices.

In the meantime, I ask you to stand with me to oppose SOPA. Learn what’s happening and voice your opinion. Legislative issues like this affect all of us.

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15 thoughts on “We need to talk about piracy (but we must stop SOPA first)

  1. Alex

    We do need to have a serious conversation about, as you put it, “what is colloquially termed piracy.” But doesn’t that, of necessity, mean we need to step back and take a look a the entire notion of intellectual property as it currently stands? There’s legitimacy on the parts of notoriously open-source projects like Wikipedia, but what about the rest of us? What about any creative types — artists, authors, programmers, musicians — who profess to oppose this or that piece of legislation but continue to align their works with the current copyright structure?

    The more draconian elements of SOPA, PIPA, the DMCA, et al. mask the fact that they’re not really surprising or perplexing. They’re the logical conclusion of an IP regime that insists that sole proprietorship of an idea or creative concept is ideal or, for that matter, philosophically rational. Perhaps it is, and perhaps it isn’t, but I can’t believe that everyone on Reddit or Slashdot is a programmer writing under the GPL or an artist using the Creative Commons. It’s hard for me not to be a bit unpersuaded by those who believe that defending exclusive rights to an intellectual object is theoretically grand but are shocked, shocked to find companies attempting to actually enforce those rights.

    Some elements of this conversation are certainly consumer-facing. Some will certainly rely on average, everyday people wondering why they can’t access certain content (I live in Germany, which means vast swathes of YouTube are inaccessible to me because of music licensing issues) or behave in certain ways. Some of it will rely on people asking who is purchasing their legislators (or at least reading their congressman’s EULA). But some of this is incumbent on understanding that patent trolls, SOPA, opposition to open journal access and predatory anti-filesharing lawsuits aren’t aberrations, they’re wrapped up in the exact same narrative as that little “tm” or “(c)” glyph.

    It’s not just that the music industry, the software industry, the publishing industry or any creative industry goes too far. It is that their philosophical underpinnings reflect — indeed, are predicated on — a world that is distinct from the one we are currently living in. Either that world, or those philosophical underpinnings, need to change. Perhaps, if the content industries and the SOPA supporters get their way, it will be the former.

    But perhaps it will be the latter instead. The lobbying arms of these industries get the bad rap, but the industries themselves are full of people who continue to make the conscious choice to align to traditional copyright institutions instead of more radical alternatives. If there’s blame to be had, they share some of it. I spend a lot of my time creating things; so do my friends. Indeed, despite being (and like many) open-source creatives we make a living at it.

    In this bohemian wing of my (young) generation perhaps there is such a conversation already happening, and I don’t mean to suggest that you neglected it. But from my perspective, it’s important to note that the conversation can’t just be about consumption and access; it must be about creation, as well.

  2. Gareth

    The first step is to stop using “piracy” to refer to both counterfeit goods and unauthorized file sharing. Words have meanings, and it’s not surprising that when we use the wrong word to refer to two completely different things, conflation results.

  3. Dan Miller

    @Alex–I don’t think it’s inconsistent to be in favor of the idea of a limited copyright and still oppose PIPA. I don’t support theft, but if Congress tried to introduce hand amputation as a punishment for pickpocketing I’d be up in arms. Instead, what we need is a realistic system of punishments for copyright infringement. For instance, reduce copyright terms to 20 years, and reduce the penalty for illegitimate copying to $1,000 (per offender per year, not per offense) or twice the revenue gained, whichever is greater. That way, it’s impossible to make serious money by selling ripped copies of Avatar, but getting caught using Kazaa won’t ruin your life.

    The real problem is that our political system is so broken that it’s nearly impossible to pass any bill, especially one that doesn’t directly advance the interests of some set of rich people. But that’s a different story…

  4. Mitch

    Oh man. I mostly love the stuff that you write, but working for Microsoft as you do means that you have a iron in this particular fire. So if you’re going to ask us to treat “software piracy” specially, then you have to at least acknowledge your own interest there.

    If a journalist writes about something related to their interests, they have to disclose those interests; omitting that disclosure makes them less trustworthy. That’s true regardless of whether or not those interests actually affect the writing; the perception is important.

    Of course, that’s assuming that you care about whether or not people trust what you write on your blog. If you do, you need to acknowledge those interests. Plus, truthfully, a person’s source of income always influences their thinking. They might not be conscious of it if they haven’t spent time examining it, but there’s got to be some influence. If you have spent time examining it, those thoughts belong alongside these.

  5. zephoria Post author

    There is no doubt that my experiences shape my beliefs. This is why I’m transparent about who I am and what I do. I don’t give a rundown of my affiliations and connections with every post because that’s just untenable. There’s no doubt that the arguments inside Microsoft about unfair competition have shaped and complicated my views, just like my experiences as part of the MacArthur-funded project on youth cultural remix practices helped me develop an understanding of media piracy and just like my experiences as a Berkman Fellow have driven me to get engaged in policy issues. My writings and views do not represent any of my employers or funders, but there’s no doubt that they’re shaped by all of the different experiences I have connected to those institutions.

    One of the things that I find challenging is that, whenever folks read my posts, they want to blame one of the institutions that I work for to explain why I’m for or against something in particular. I’m not naive enough to assume that my connections don’t play a role in my ideas, but I ask you to also recognize that it’s not just one affiliation or another. It’s all of my experiences and research and connections. All of the things that make me who I am. And to realize that I’ve worked for a lot of different companies and been funded by a lot of different institutions, all of which shape who I am.

    My point with this essay is that piracy is more complicated than good vs. bad. What I want is a public discussion on the issues involved. All of the issues. So I use software piracy as an example. But, first, I want to make sure that dumb laws don’t get passed.

  6. Mitch

    Thanks for responding; I do appreciate your transparency. And I do recognize that you’ve had a variety of connections. But the MacArthur foundation and the Berkman center aren’t aggressive commercial competitors the way Microsoft is (quite the opposite, I would imagine). So it’s easier to attribute a particular private interest to people associated with Microsoft. And if you write something that maps directly onto your employer’s interests (“Combating software piracy in the supply chain is a reasonable request”), it’s reasonable for you to address that fact, precisely because people have this tendency to explain away your point of view in terms of your funding. I’m sure that tendency can be frustrating, but you also have the opportunity to strengthen your argument by addressing it up front.

    Back on topic, I believe that the current cultural shift w.r.t. copyright infringement largely has to do with the fact that digital copies have zero marginal cost (they’re a “non-rivalrous good”). Even if they don’t think in those terms, people intuit at some level that copyright infringement is different in kind from “theft” in the strict sense, where if I take something from you, then you don’t have it anymore. With copyright infringement, by contast, if I have a copy, you still have your copy.

    The rise of the internet highlights the non-rivalrous nature of digital information; since it can be transferred without a physical substrate, having a copy doesn’t mean that you’ve taken someone else’s copy. That non-rivalrous-ness is an important commonality between media-related and software-related copyright infringement.

    Plus, remixing is central to the practice of software nowadays, although we don’t typically use that term. Combining software components created by other people to create something novel is exactly what most programmers spend their time doing.

    who mainly writes NIH-funded open-source software

  7. zephoria Post author

    Mitch – I appreciate your advice. I admit that it’s exhausting and I do my best and sometimes it’s easier to deal with than others. But seriously: why can’t people just get inside my head and understand where I’m coming from!?!? ::wink::

    I’m actually all in favor of remixing wrt software. My computer science training taught me that all code should be written from scratch. Yet, I’ve worked for enough companies at this point to know that’s not how the sausage is made, especially in the startup world. I regularly joke that Google’s search logs probably have most startup code in them because if folks didn’t grab their code from some webpage, they three it into search at some point when they ran into an error. Remix is part of cultural production, whether it be media remix or software remix or textual remix. The challenge is that we live in a world of individual metrics where we can’t acknowledge that cultural artifacts are made collectively. That’s a huge problem to me and one that I”d love to fix, both in academe and in industry. (It’s amazing to me how few people realize the importance of a good editor, for example.)

    The supply chain issue to me is different than the remix issue because it’s about accountability. This is an econ issue. If I pay for something and you don’t, you’re at an economic advantage. Is that fair? When is that fair? What are the implications of that?

    Personally, I have different levels of expectations for corporations than I do for everyday people. Power is a huge part of why. And, at the end of the day, I don’t believe that corporations are people.

  8. id

    One small point:
    Today, if software development companies’ copyryght was 100% enforced wordlwide, you would have as result a design and development monopoly by USA and some parts of EU.

    You’ve mentioned CAD software. I personally know some country-level leading design companies that have their innovation cut down with these countries’s EU accession. They have to use legal software now, so the use CAD products from 5 and/or more years ago. Despite being a leaders on their market, they cannot afford to upgrade their tools beacause this kind of money is simply not to be made in that countries, which by the way are by far not the poorest around.

    Where’s fair competition in that? 10000 USD per user seat is one thing in USA or UK. It’s a completely different thing in Slovakia or Turkey.

    I personally write programs, so money from programs it’s not an abstract issue for me. Still, in a world of technology and information, copyright and patent breaking is the only viable strategy for any poor and even middle-class country to achieve and/or sustain development. That’s in great part how China made it, and is the exactly the same way USA made it to the moon (german intellectiual property hijacking).

    In history we’ve been through many stages. At one time people were the resource, so there were slaves and slave owners. It’s mostly over now. Then it was trade and there were trade monopolies and trade monopolists. It’s mostly over now. Now we’re moving into times where technology and information are the resource. So there are copyrights, patents, patent holders and patent wars. It will be over also. Hopefully.

  9. zephoria Post author

    Id: I agree that this is completely messy. So what do you think that the fair solution should be? How do you enable fair competition, recognizing differences in global financial capabilities? Many software companies have different pricing structures for different countries. That’s one proposed solution, but probably not the best. What’s a better way of addressing the issue?

  10. jt

    @Dan Miller
    And another aspect of the proposed “punishment” isn’t just that it’s severe, but that it lacks due process. Imagine you drive, say, a Nissan Altima and it gets stolen and you can demand the cops impound *every* Nissan Altima in your neighborhood and the drivers have go down to the station to prove it isn’t yours. The MPAA and others want that sort of power over others, without due process.

  11. Id

    I obviosly don’t have a ready solution for a complex issue involving many centers of interest. etc… but I can add one thing:

    Copy right is not an innate human right as we are now often made to believe. I’ve studied it’s history a couple of years ago when ‘piracy’ started to become a public issue. It happens to be that it was a right created by precise people in a precise moment, specifically by printers’ guilds to protect their benefits. The issue of author benefits was added later as a sweetener – you would be a bad person if you would let your favorite author starve do death, wouldn’t you? Well, it was never about ye author.

    There was no copy right and that’s what took us form caves to where we are.

    A few years ago, there were jokes around a famous russian designer Art Lebedev, who tried to enforce patent rights to obvious solutions. Something similar to what Apple is trying to do today. The jokes were about him patenting the circle and the square next. They are a good illustration to the problem.

    Let’s say we have a hammer – a useful tool to everybody at some point of life. One thing is if anyone can use the hammer concept, use parts of it’s solutions to make new tools, etc… but I make better hammers. They look nice and they don’t break. That’s competition. Another thing is if no one can make anything similar in shape or use to a hammer, except me or people I licence the hammer technology to. That’s monopoly.

    It seems ridiculous at first sight when applied to the hammer, the wheel, the circle or the square shapes. That’s because they were mostly developed before the copy right expansion. Now imagine if it was patented… seems ridiculous again, but that’s where we are with information and technology development now.

    The problem is not with – let’s say – Autodesk making AutoCAD and charging what it charges for it. The problem is that no one else can use any of the solutions they’ve used to make their own competitive CAD programs. The end result is that good, optimal, efficient solutions to some tasks are hoarded by some, and what’s left available for the rest to compete is what was not interesting enough to hoard since it presents no competitive threat. That’s not fair competition to me.

    The right of copy, since it’s beginning a few centuries ago, at a large scale is blocking the advancment of whatever it touches. I’m perfectly aware that my examples are simplifications, and in a complex society there are more subtleties to the subject, but in any case I think that any effective solution to the similarly complex problems the right of copy generates, should tend towards removing all possibility of hoarding intelectual, cultural and technological resources, therefore removing right of patent, right of copy, etc… the way they exist today.

    The naive word play “information is free” happens to be backed up by some evidence 🙂 Otherwise, instead of a world where culture belongs to humanity (sic!), whe are more and more in a world where culture belongs to culture-hoarders.

  12. Brian O' Hanlon

    Walled Garden

    Did anyone here ever suffer the embarrassment of authorising your ebooks, to two different Adobe ID’s?

    I can’t believe, that I managed to do this. I searched all over my email inbox’s for something from Adobe, to say, I had an exist Adobe ID – and could find nothing. So I created one yesterday afternoon to authorise a new downloaded eBook. But it turns out now, that my existing collection of eBooks, which were on an older laptop system, were all authorised to a previous Adobe ID, which Adobe themselves had never emailed me about, to inform me that I had it!

    Big hint – it’s one thing to shoot yourself in the foot for your own stuff – but I would hate to suffer the embarrassment, of telling an important client of mine, I had done this to his purchased eBook collection! People have so many different digital reader devices now, that chances are, if they already have an eBook or two, they already have an Adobe ID. It would surely make live easier though, if Adobe would generate the odd response email, to the purchaser, to remind them.

    It’s really awesome how well connected are the ‘user-specific’ flash advertisments with google search and You Tube. I was shopping on line for a comb binding machine – a real nuts and bolts, physical piece of old world hardware – to bind my A4 reports. Then I visited one of my favourite YouTube channels this minute, and I noticed the flash advertisement in YouTube was selling me one of the same comb binding machines, I was shopping for on line, over the weekend. I guess, my major hang up at the moment, is the fact, that when I need to purchase a license for various items of software from Adobe, Microsoft etc, and what annoys me in a major way, is you have to track back and recall the Microsoft Store ID, or the Adobe ID – in order to take up where you left off, in buying your software online.

    I have described briefly the ‘linking up’ that Google Inc., can do between its Google Images search, and the YouTube channels I watch, and the ads present for a vendor called Euro Office. It’s sort of the same thing with Microsoft Store. They want to keep you inside some kind of ‘walled garden’ all of the time. When I purchased a full license for a Microsoft ware, in 2010, I had to create some kind of Microsoft Store ID, which I had forgotten I had. The rule that Microsoft have, is that your Microsoft Store ID, ties up to you Windows Live login. It so happens that the e-mail service at my college, Limerick Institute of Technology, is hosted by Microsoft, in some kind of LIT student hotmail web client.

    It followed, that when I purchased a full license for Microsoft wares – which had nothing at all to do with my university at Limerick in Ireland – and was purely for my own business usage, my Microsoft Store ID, I have now discovered is the same as my Limerick Institute of Technology student e-mail address! The worst thing about all of this effort by Adobe, Microsoft, Google and so on, to ‘lock you in’ to some walled garden online space, is that when you proceed to buy something like an eBook at some time in the future, and do not synchronise it up with your original eBook authorisation Adobe ID – then you can’t use two eBooks that you purchased at separate times, from the same book publisher, on the same computer system, because they are authorised to two different Adobe ID’s! This has happened to me recently also.

    The Limerick Institute of Technology e-mail address for my Microsoft Store ID, is the typical example. After a couple of years, when move away from that institution and no longer have access to that Windows Live ID! ! ! It’s all very strange, very cloud-like, clever like, and not at all satisfactory in my humble opinion.

  13. Brian O' Hanlon

    Executive summary: The main trust of what I was trying to, is that Danah sometimes talks about the deletion of on line identities, and extinction of personal spaces – but what I find even more annoying to me, is the opposite trend – that where, numerous identities and creations of on line spaces, which seemingly belong to me, are being made, without I even knowing.

  14. Brian O' Hanlon

    @ All,

    In reference, to my blog entry, on ‘Walled Gardens’. I received this recommendation, from one of my usual sources of computer technical advice this week:

    “Most companies who run these locked in [Adobe ID, Microsoft Store ID, etc] systems will allow, if you get angry enough at cust-serv, you to transfer titles between accounts.”

    I love this idea, of needing ‘tech support’ to put your split-apart digital identities back together again. All the kings horses, and all the kings men, . . .

  15. David Young

    While I generally agree with your points, and point of view, on this matter, I did find it curious that you cast Rupert Murdoch as the villain of the piece. Is this because you think your audience would be most sympathetic with a familiar whipping boy in the stocks? It seems to me that Chris Dodd and the MPAA would be more appropriate targets, to the extent that putting a famous brand on the controversy is even necessary at all.
    Still a big fan.

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