The Internet and Illegal Downloading: A Generation of Thieves, or a New Way of Sharing Culture?

Robert Grant

When you make an illegal copy, you’re stealing from the artist. It’s that simple. Every single day we’re out here pouring our hearts and souls into making music for everyone to enjoy. What if you didn’t get paid for your job? Put yourself in our shoes!.

– Sean ‘P. Diddy’ Combs (Net worth: $500 million)

There is a good chance that most people who read this are, technically, criminals: thieves, to be specific. Especially if you have a computer, know how the internet works, and enjoy music, T.V. shows or films. Most likely, in some way or another – by downloading a song, watching an unauthorized music video, using an unauthorized clip in a presentation, etc. – you have infringed on someone’s copyright and robbed them of their property.

In the last 20 years or so, it seems millions of normally law-abiding, socially conscious citizens have suddenly become “rabid kleptomaniacs” (Fintan O’Toole, The Irish Times): all because of the internet and how it allows us to copy and share music, and film.

At least this is the situation as presented by P.Diddy, as well as all of the major record labels and movie studios – Sony, Universal, EMI, Warner Music, Walt Disney, NewsCorp etc. Not all, but many politicians, journalists and artists are in agreement.

Mark Knopfler, of Dire Straits fame has said when you download something illegally, “you might as well just walk into a record store, put the CD’s in your pocket and walk out without paying for them”.

It is an issue, they say, of ethics and morality. Our generation, with its blatant disregard for property rights, is in danger of not being able to distinguish between right and wrong. The MPAA (Motion Picture Association of America) has warned governments that “if it doesn’t make it clear that file-sharing of copyrighted content is illegal, it will become the harbinger of more kinds of online unauthorized activity.” What activity exactly, is not clear; but it is a gateway drug, they argue.

And like the war of prohibition waged against drugs, the entertainment industry is waging its own war according to MPAA chairman Jack Valenti. And in the name of battle they have not spared cost: millions have been spent on lawsuits filed against thousands of file sharers.

Further millions have been spent on political campaign contributions and intensely lobbying governments, in Europe and America, to enact legislation to curb the freedom of the internet and block certain sites. All in the hopes of putting a stop to the illegal downloading of music and film. SOPA, PIPA, and ACTA are their most recent efforts.

So, the question is: is all this talk of stealing really accurate? Have we become a new generation of criminals? Are we de-incentivising new artists to create? Are we really destroying the entertainment industry?

The short answer is no. But it is not that simple. Copyright and intellectual property, are extremely complex concepts, with a vast variation of application: from music, images and film, to open-source software, patents and e-books, each one deserving of its own discussion.

It is the issue surrounding music and film that has captured public attention to the most significant degree. This is on the back of a massive offensive by the ‘industry’ to stop illegal downloading in its tracks.

What we are being presented with in much mainstream media, however, is a distorted and manipulative campaign, propagated and financed by a small few very large and powerful media corporations.

These corporations have long been the dominant gatekeepers for the production and distribution of human culture; and the internet is threatening their grip of control.

In truth, the question surrounding the role of the internet in the creation and spread of music and film is far more complicated and subtle than some would have you believe. There has always been a special relationship between our notion of copyright and the technologies we rely on to spread culture. The internet is the latest in a long line of such technologies that we must try to understand and appreciate.

Essentially, the public debate is in drastic need of reframing.

Instead of decimating our entertainment industry, there is reason to believe the internet will exponentially expand the potential opportunities for more people to create, share, remix and produce culture.

This is, of course, as long as we do not hinder this potential with the harmful criminalization of a generation and impatient legislation.

 

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History and Hypocrisy

A first point to note is that accusations of piracy are by no means new; and they certainly did not begin with iPod’s and Mp3’s. Right back since the time Gutenberg invented the printing press – an invention which allowed more than just a small few professionals to publish books – people have been accused of piracy.

The introduction of the Gramophone in the early 1900’s led John Philip Sousa, the leading composer of the time, to claim: “Because of the laxity of your laws and because of the perseverance of your music pirates, my royalties have gone a-glimmering”.

And so on with every new form of technology designed to spread and share culture: FM Radio, the VCR, the cassette-tape, right up to now, with the internet. Each of these new technologies, it was predicted, would destroy the worlds of literature, film and music. But, alas, they didn’t. And in fact, each new innovation massively expanded the reach of the industry and provided new ways to produce, distribute and even monetize creative works.

Hollywood itself – leader in the war against piracy – was founded by ‘pirates’. A group of rogue film makers fled New York in the early 1900’s to avoid paying license fees to Thomas Edison, inventor of the first film-making machine. They set up in California, free of federal enforcement and gave birth to a new industry.

As Larry Lessig, a prominent copyright law scholar put it: “The usual story has been last generations pirates join this generation’s country club” (Free Culture). But this time, last generations pirates are doing everything they can to avoid accepting new members.

Intellectual Property

The reason, however, that piracy has been such an ever-present issue in human society since we began recording thoughts and ideas, is because intellectual property is just simply not the same as other, tangible forms of property. As much as P. Diddy, Rupert Murdoch, Dr. Dre, Metallica and others would like you to believe that downloading a song is the same as stealing a handbag, it isn’t.

Firstly, when you steal a handbag, the shop has one less handbag to sell. In contrast, when you download an album from a computer network, the network does not have one less to sell. There is only a loss if you would have purchased the album legally otherwise. But this is hardly always the case. The industry relies on this false equivocation in order to make their losses seem far worse than they are.

This is certainly not to say that it is ok to take someone else’s work for free, or that piracy should be ignored, or that artists don’t deserve to be paid. There is a definite property right here, absolutely.

But it is not as simple as it is being made out to be. Copyright governs a unique and complex form of property that plays, and has always played, a significant, yet nuanced role in human culture.

Sharing ideas or ‘intellectual property’, and taking inspiration from the thought and creativity of others are inherently natural human instincts; it is the foundation of human progress in the arts and sciences. Thomas Jefferson once said: “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.” So while there is a property right, it is of a special kind.

This unique nature of intellectual property is also evident from the fact that when Copyright was first introduced in 1710 (Statute of Anne), it came withterm limits. Originally, the term was 14 years, so that after that period the work would be free for all to use, adapt, share or publish: all for the sake of the public good. The law does not set such limits on someone’s ownership of physical property; when you buy a car you own it forever, not for a limited time.

The reason for term limits was because the law was aware of the unique nature of creative property and its role in society. Also, they feared too much power in the hands of a few publishers would mean a small few would control what ideas get shared, what works deserve publishing and what price to charge for knowledge.

Term limits balanced the rights of the creator, the public good and the unique nature of intellectual property. Today, however, after successive lobbying from the entertainment industry, term limits are on average 95 years for (Sonny Bono Act).

The Internet

So, along comes the Internet: arguably the greatest human invention, in terms of communicative and cultural potential, since the written language, or at least the printing press. We can now, not only record music, write blogs, make movies, put together slideshows, create memes, author political critiques, and so on, at the click of a button, but we can share these creations with millions of people, around the world, instantaneously.

The internet represents the peak of our ability to communicate and share with each other; and it is this notion of ‘sharing’ that is central to the copyright debates. People feel, when they download, that they are participating in the sharing of interests in music, and T.V shows.

 It is like if, 20 years ago, you called around to a friend to watch a new film or listen to a new album. But nowadays we don’t need to call around. We can meet online. Someone in some part of the world uploads their copy of some song and allows anyone to download it, i.e. make a copy.

'Sharing’ with this new technology has become the same as copying. This is a problem for those who are used to the old ways of distributing culture, when it was far more difficult to copy creative works (taping from the radio was the closest they got).

It is a problem caused by the architecture of the internet: to share, we must copy. But it is a problem that can be solved without harming the potential the internet has to spread ideas and creativity.

This is what the big media corporations have failed to understand: the majority of people have not suddenly become immoral crooks and thieves. A new technology – the internet – allows a very natural human act – sharing culture – to happen in an extremely efficient manner. This has vastly changed the entertainment industry, yes; but, for the better.

If we can take advantage of this efficiency, then more people can participate in creating music, writing journalism, editing film, etc. We can be exposed to more influences from a wider range of styles, and take inspiration from many different cultures.

Competing Against Free

Many businesses have already realised this potential and instead of treating people like thieves, and using lawyers and politicians to try to control the internet, they have come up with ways to compete in this new market.

Convenience is the key.

Businesses who want to compete in this industry need to make it just as easy, if not easier, to legally download music and films, as it is to do so illegally; and,importantly, at a fair and reasonable cost. CD’s, DVD’s and cinema tickets have traditionally been way overpriced.

If they do this, people will pay. As Paul Tassi of Forbes Magazine said, “‘Easy’ can beat, or at least compete with ‘free’”. If you think that sounds naive, look at bottled water. We buy it because it’s convenient, easy and not that expensive, even though it’s freely available in our homes.

Netflix is a great example of a business model that is succeeding, right in the face of the illegal downloading market. By ‘subscribing’ for a nominal monthly fee, you get access to thousands of movies. You simply hook it up to your TV and that’s it: movies on demand, to watch on your schedule. It’s reasonable and convenient, so it works.

As our internet connection becomes more and more universal, it is possible that this ‘subscription’ model will point the way forward. If we are always connected, through phones and laptops, we won’t need to download copies of songs and store them; we can stream content from websites to which we pay a monthly subscription. Spotify, Pandora, Novaplanet.com, Fipradio.fr are great examples currently making this work.

There are ways to compete in this new market. It is true that some traditional players will lose out as this transition is made, but maybe that is not such a bad thing. It is not like the entertainment industry never wasted any money.

Maybe we can do without mega-pop stars, supported by massive marketing campaigns, earning multi-million dollar deals every year. Maybe A-list actors can survive without earning over 70 million dollars in a single season. Maybe Hollywood will be a bit more cautious about throwing 300 million at a film – John Carter –, which lost 170 million. Imagine if some of that money was spread around to more independent artists: that is what the internet can do.

The ‘entertainment industry’ is by no means dying. Some would even say it is expanding. A recent report by Techdirt.com, titled The Sky Is Rising, argues that the industry is indeed growing. According to their figures, there are more creators producing more content than ever before, and more content for consumers to choose from than ever before.

The ‘business’ is just bypassing traditional routes, i.e. going around the gatekeepers. For example, a website called Kickstarter allows artists to fundraise for new projects by directly connecting with the public. It is known as ‘crowd funding’ and has proved extremely popular. If people are interested in some artists work, they can contribute towards their project.

Many artists are keenly aware of this shift in the balance of power. As Graham Linehan, creator of Father Ted and The IT Crowd recently said: “These people aren’t pirates, they’re fans”, and some artists are starting to treat them as such.

An American comedian, Louis C.K. experimented with the release of his latest DVD. He went to online forums and communities, such as Twitter and Reddit and engaged directly with fans. He acknowledged his DVD was freely available to download illegally, but asked fans to spend 5 dollars on the DVD if they liked it.

He was open and honest, and purchasing his work was cheap and easy. It worked. He made over a million dollars in 12 days and forged a great relationship with his fan base. Radiohead did something similar with their pay-what-you-want model for their album In Rainbows. Most people contributed something. (Of course it doesn’t hurt to be a funny comedian or make great music).

Also, there is evidence to suggest that releasing stuff for free encourages a more dedicated fan base, who are more likely to attend concerts, buy merchandise and support artists in other ways.

Conclusion

The internet and ‘illegal downloading’ have vastly changed the entertainment industry, there is no doubt, and we do need an honest discussion about how to protect and incentivise artists. However, gaining a historical perspective on how we have always shared culture shows you that this is not a change to be feared. Public discussion needs this historical perspective so that we can appreciate the relationship that has always existed between new technology and intellectual property and so that we can write law that acknowledges this relationship.

We now communicate digitally; it is our language, and more so for the younger generations. Larry Lessig put it like this: “You could send an e-mail telling someone about a joke you saw on TV, or you could send the clip. You could write an essay about the inconsistencies in the arguments of some politician, or you could make a short film that puts statement against statement” and so on in lots of different ways (memes, slideshows, gifs, etc.). The problem with all of this seemingly normal behaviour is that it is all presumptively illegal, and this makes it difficult to live both normally and legally today. This needs to be readjusted so that we allow the internet to flourish while making sure artists and creators are protected and paid for their work.

The resistance which this new form of sharing and distribution is facing is based on the assumption that record companies and major studios are essential cogs in the wheels of culture production. They are the financial motors behind the attempts to regulate and stifle the internet, yet, it is merely their own interests that they are serving while they attempt to retain their privileged position as gatekeepers. It has never been the government’s job to legislate against new technologies in order to protect old ways of doing business, nor should it be now. If we get this right, it could lead to a more open, democratic and cost effective configuration, which may yet herald humanity’s most fruitful era of cultural expression and collaboration.