still searching for an IP reform movement made up of grown ups

Julian Sanchez becomes approximately the 9 millionth Internet denizen to point out that various IP frauds aren't "stealing" in the conventional sense. He's right, there.

If you feel like you've read it before, it's because you have, dozens of times. Unfortunately, you likely haven't learned much. There's just way too much focus on this petty semantic issue. No, downloading something you didn't pay for isn't the same thing as stealing a jacket. But that doesn't mean that it has no negative impact, or that a free society doesn't have a legitimate interest in regulating it. Two things can be different, and yet each can be problematic, wrong, or contrary to the public's interest. I think the focus on the semantic issue has a simple motive: because the "downloading an MP3=stealing a CD" argument is so easily dismissed, it is tempting to keep prosecuting it and acting like one has really achieved something. It's weak manning, something Sanchez knows about.

As for disliking the term "piracy"-- well, tough. That's language. Communities adopt terms, and they don't always make sense, they aren't always fair, and we don't always like them. The very fact that "stealing" is not a term conventionally used to refer to downloading and "pirating" is tells you something about organic etymology.

I would really like it if Sanchez would expand on the point that, yes, copyright fraud is problematic. I think that, rather than telling the same story that has been told over and over again, and always to the same sympathetic audience that accepts the premises in the first place, Sanchez could carve out something new and useful. I am someone who is temperamentally and intellectually predisposed to support reform of copyright and patent laws. I think that there are many problems with copyright, patents, and trademarks. But at times I feel almost physically ejected from solidarity with others who do, because the majority of people who argue against IP online do so in such a willfully immature and unrealistic way. I can't tell you how many people I meet who say that there should be in effect no check on digital copying at all-- that everyone should have unlimited rights to copy all media and distribute it to anyone, for free and without compensation or consequence. You might imagine that I'm exaggerating, but years of experience online tell me otherwise.

When I try to point out that this would swiftly mean the end of much of the media they enjoy, they have no real response; they are stuck in the present world and can't imagine how radical a change that would be. But with perfect digital copying and no impediment to that copying, there's no profit motive to be found in producing these expensive and resource-intensive works.

And, I'm sorry, but dedicated amateurs can't produce Call of Duty; they can't produce Lawrence of Arabia; they can't produce Sgt. Pepper. The dreams of people like Chris Andersen are utopian and false. As Doug Rushkoff has pointed out, they have a lot of schemes for content generators to be paid as public speakers or "personal brand builders," but no compelling mechanism for content generators to be paid as content generators when they give everything away for free. And there's lots of negative consequences from asking every writer or musician to not be a writer of musician but a "brand." Yes, Jay-Z can get by on selling Vitamin Water and t-shirts, but the guy who actually has a new sound and not much else can't survive on free.



Also from Rushkoff: it's never actually free. If you're using Google and your ISP and your power company and your HP laptop to get this content, they're all getting paid. The fact that the costs are so small isn't the same as free, and repeated across millions of users millions of times, that means lots and lots of money... just not for the person who actually created the content you enjoy. You can check out Jaron Lanier's You Are Not a Gadget, for necessary pessimism on Linux and Wikipedia; for a description of how music piracy has devastated the musical middle class; and for an analysis and a lament about the death of the artist as a profession.

So many of the grand and self-aggrandizing claims of the pro-piracy crowd have fallen away, I can't even recount all of them. I've often heard that people who pirate something and like it will later pay for it, out of a sense of gratitude and obligation. Does that seem like an accurate portrayal of reality to you? How many people, honestly, do this? I was told for years that people who stop pirating music when there were cheap and reliable ways to access music online. Well, there are now literally dozens of ways to get music online, legitimately, in a way that gives at least a little bit of money to the artist who created it, and usually quite cheaply. Hasn't stopped piracy. People insisted that people only pirate from faceless corporate behemoths. Here's someone involved with the creation of the Humble Indie Bundle, an independent game pack produced for charity and available at whatever price the purchaser determines, showing that 25% of the people who downloaded the pack did so by pirating.

You also get hit over the head with studies that show, or purport to show, the limited effects of piracy, but they are either of dubious methodology or are wielded illogically. For example, a notorious study showed that people who pirate also spend more money on music than people who don't. OK, cool. It does not logically follow that the same amount of money is being captured by the music industry to cover what is lost in piracy. Pirates can spend more on music than their non-pirating counterparts and piracy can still be a net loss for the industry. I don't doubt that many interested parties often oversell the dangers or damages of piracy, and as I said, I support some very broad reforms of intellectual property law. But the loudest voices seem to want it both ways; they make a prescriptive claim that it should be legal to take what you want for free, and then do an end run around it by making the descriptive claim, with dubious evidence, that in fact taking everything for free doesn't hurt the profit motive.

More than anything, I'm weary of the historionics and self-aggrandizement of the pro-piracy set. To read about IP online, everyone who ever downloaded "Who Let the Dogs Out?" from Limewire is a truth-telling revolutionary, smashing a decrepit corporate structure and ushering us into a golden age of free culture, where movies and games and albums descend from heaven in a celestial ball of light into the waiting arms of the IP warriors, who send the love out through the tubes to all who desire them. Any notion of a "pirates code," the old scene ideas about rules and codes that you follow in pirating, has not been disseminated to the broader groups that download media now, apart from that specific cultural moment. Here's what I think: lots of people just want the stuff for free, and don't care about the consequences.

Well, I'll come out and say it: I think that's wrong. I think that it's wrong to make a digital copy of a piece of media that someone else has made and has offered up for compensation under the explicit condition that he or she be paid for it. I don't think that this makes me (or Doug Rushkoff or Jaron Lanier or anybody) some retrograde corporate stooge. And the constant effort to wrap this discussion up in revolutionary terms is just a distraction. I also think that the constant extension of copyright lengths is shameful, that DRM is almost always a useless annoyance and waste, that patents and patent trolling are totally out of control, that there has to be considerable reworking of conventions and statutes regarding fair use and appropriation, and so on. And I think that efforts like Steam and Amazon Music offer reasons for hope. I just think if someone works hard to produce intellectual content that other people want to consume, that person is entitled to reasonable compensation for that content. Call me old-fashioned. That attitude is less broadly assumed than you might think.

In the admirably level-headed and fair post I linked above about the Humble Indie Bundle, the blogger points out that they aren't going to slap lots of annoying DRM on the games, which I fully support. But he also says this: "No -- we will just focus on making cool games, having great customer service, and hope for the best. It sure seems to be working right now!" That's great, and I'm glad. But the fact that it is largely working for them doesn't mean that it will always work out for every producer. At some point, there's going to be (and have been) content producers who run the math and find that continuing to produce a given piece of media no longer makes economic sense, due to the erosion of revenues from piracy. Then everybody loses the product that would have come next. What I want to challenge is the pleasant fiction that such a decision could never be reached, or that our broader feelings about intellectual property and piracy don't make a difference in that regard.

I'd love to see Sanchez attack this issue not from a stance of aggravation, but from a devil's advocate or self-examination position. Take the hardest line possible against his own thinking and his own preferences and see how things hold up. It doesn't hurt to kick the tires. The argument about stealing just doesn't need to be made again.

Update: The inevitable whinge, with bonus retweeting by other paid-up members of the DC politico koffee klatsch. I was unaware that saying "I wish this person would write a bit about this other facet of an issue" is beyond the pale, but as time goes on, the DC social circle only gets more dedicated to circling the wagons.

Honestly, at this point, I really consider the DC blogging corp a pathetic environment. They are so enormously sensitive to any criticism (and this wasn't even really criticism!) that doesn't come from members of their own coterie and that doesn't meet preapproved standards of ass-kissing. I genuinely cannot fathom the mind that wants to be a writer but is afraid of argument that doesn't come wrapped in praise. Then again, I'm not living it up in the DC-area fiefdom, secure in the knowledge that social connections to my purported political antagonists will blunt any criticism. The whole edifice is designed to protect its members and quiet dissent; that is its first and last purpose. What a pack of pearl-clutching cowards.

Update: Since this has come up: SOPA is total, unequivocal bullshit.