The copyright standoff: Technology pits bad rules vs. no rules

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White is no monster. Music was already being distributed online by the time she started to listen to it, and she doesn't know from "albums," but she does believe that artists be fairly compensated, though she seems clueless as to how that could or should be done. She went too far in demanding that such compensation must conform to her need for "convenience." But Lowery downplayed the responsibility of the music business for its own destruction, and seemed to indicate that he wants to protect the music industry not only from piracy, but from inexorable technological change. Just as White has no "right" to convenience or low prices, the media business has no "right" to control the markets in which it operates. If technological change means that the industry loses its iron grip on distribution, and market prices for music sink (piracy aside), well, them's the breaks.

The music business has fought legitimate digital distribution and streaming almost as hard as it's fought piracy. It is reluctantly giving in only because it has no choice — indeed, it has made concessions largely in response to piracy. Consumers don't much care about the industry, of course, unless you remind them — as Lowery did — that it includes musicians, engineers, producers, and other actual humans, who don't get paid when people download music for free.

A recent cartoon by Matthew Inman, creator of The Oatmeal, has served as a Rorschach test on the copyright question. The cartoon depicted the thought process behind the average person's decision to illegally download copyrighted material. The subject couldn't find a place to buy or rent recent episodes of Game of Thrones online — unless he signed up for cable service, which he didn't want to do. So, after exhausting every legal avenue, he gave up and went to a pirate site, and later felt bad about it. People who think media companies are greedy and clueless saw the cartoon as supporting their point of view. People who think all downloaders of unauthorized material are amoral freeloaders saw it as a defense of the indefensible. But really, it was just an accurate depiction of the current technological reality, where the interests of media consumers and media distributors are impossible to reconcile and questions of ethics and morality are almost beside the point.

Tech journalist Tim Carmody, who now writes for The Verge, is one of those who saw the cartoon as an apologia for piracy. In a debate on Twitter, he complained that people were trying to turn the cartoon into a "normative principle." Some of them were. But he complained that those people "don't even know how the television industry works."

The point, however, isn't whether viewers have insider knowledge — it's that they know there's a show they want to watch, but can't without ponying up for an expensive cable package. That's one way the television industry works — forcing customers hungry for its products to buy a bunch of crap they don't want to get the programs they do.

Carmody doesn't disagree — he just thinks that it makes business sense to make new episodes of some shows, such as Game of Thrones, available only on cable.

"I think the basic value proposition of cable, especially bundling lots of cable channels together in a single subscription, is still pretty good," he said in an interview. "Piracy can't be stopped, infringement can't really be enforced. But that doesn't necessarily mean it makes good business sense to do everything you can to take away all the 'if only' arguments that people make" — such as, if only Game of Thrones were more easily available, it wouldn't be pirated so much. In May, the media measurement firm Big Champagne estimated that Game of Thrones was "the most pirated show of the year," with its second season having been downloaded at least 25 million times.

In an article for Wired in March titled "In Defense of Cable," Carmody wrote that "what the pro-piracy arguments come down to is: 'this is legally available, but not at a price I am willing to pay,' and/or 'this is legally available, but not for a time that I am willing to wait.'"

He's right, though his use of "pro-piracy" sort of misses the point of the Oatmeal cartoon. But he's also right that this shouldn't be seen as a practical question rather than a moral one. Fighting piracy through law enforcement and the courts will never solve the problem, nor will guilting people into refraining from downloading unauthorized material. To minimize the harm of piracy, the media industry must divert its resources away from draconian enforcement efforts and toward realigning its business strategies to comport with modern realities.

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Dan Mitchell
Contact: Dan Mitchell