The ethics of content theft in a digital world

Paul Raven @ 16-11-2010

Here’s a simultaneously wry and astute post from novelist Philip Palmer about the publishing industry’s new here-to-stay bugbear, digital piracy. What I like most about it is the blend of idealism and honesty; rather than simply stating that Piracy Is Wrong And Evil And Makes Jeebus Cry, he’s willing to objectively assess his own moral code as applied to evading cost on the media he wishes to consume.

Before we get to the meat, though, I’m going to call out one item for criticism, because it’s such a well-used semantic straw man that by this point that it gets repeated as a matter of fact:

… there are many thoughtful individuals out there, possessed of shitstorm-generating superpowers,  who do believe that EVERYTHING SHOULD BE FREE ON THE WEB.

I tend to think of this as The Doctorow Rejoinder, because it’s usually Cory that’s the target (implied or otherwise) of that complaint. But here’s the thing: it’s bollocks.

Sure, there are people out there who believe everything should be free on the web… and sure, those people are pretty stupid (or extremely idealistic and ignorant of the most basic tenets of economics). However, the “shitstorm-generators” that Palmer refers to – the ones with any real influence at all, rather than the lip-flapping skriptkiddiez who requote them out of context on their warez blogs – do not believe (or at least do not publicly claim) that “everything should be free on the web”.

People are always reminding me about how Cory Doctorow believes and preaches that; however, not one of them has yet been able to show me a citation where he does so. Doctorow happily and truthfully claims that free content has worked for him, and explained the potential benefits of such a business model to people in similar positions, but he’s never (to my knowledge) claimed free content as a) a panacea to the struggles of the obscure artist/creator or b) the road to an inevitable digital syndicalist utopia where everything necessarily costs nothing. (I’m quite willing to be proved wrong on this point, but I want citations from original source material, not flimsy op-eds from folk with axes to grind or political capital to reap.)

So, let’s be clear: no one worth arguing with has ever claimed that “everything should be free on the web”; until we get past this particularly tenacious straw man, we’re going to struggle to deal with the real issues. And so, it’s back to Philip Palmer’s otherwise sound essay. A few quotey bits:

I think it’s worth pointing out that there’s nothing new under the sun.  The digital age didn’t invent plagiarism; nor did it invent piracy.  The web changes many things; but not basic questions about right or wrong; it merely AMPLIFIES the problems that always existed

Book piracy, for instance,  was pioneered by the public library service.  For many years, until the advent of PLR, it was considered moral and normal to give away books for zero money on a rental basis to members of the public.  This is a great way to impoverish authors.  Because a book that’s been borrowed a hundred times has only been bought once!

Second hand bookshops!  They are the buccaneers of the book trade. A second hand book may be sold a dozen different times but again,  the author only gets paid once.  We authors notice these things.

So illegally downloading books is no different, in principle, than going to Hay-on-Wye.  Fact!

Yes, that’s a sophistic argument; that’s Palmer’s point, I think. Now, here’s where it gets interesting:

When I started getting published I stopped buying second hand science fiction novels from authors still alive or not-rich.  So I’ll buy second-hand Stephen King, though only occasionally,  but I’d never buy Al Reynolds’  latest in a second hand bookshop, because  he’s a real writer earning a living. I do though buy all my Edgar Rice Burroughs’ Barsoom novels (my current passion)  second hand via Amazon, mainly because the old Del Rey editions are so stunning, and I’m pretty sure they’re out of print.

So that’s my moral code, based on the opinion that borrowing books from a pal and illegally downloading books are pretty much the same thing, ethically speaking. In other words, it’s okay to get stuff free sometimes, as long as you OFTEN pay.

Palmer’s point is that (with very few exceptions) we don’t have unlimited funds for buying entertainment, but we have a close-to-unlimited hunger for the stuff, and so we all come to our own ethical compromise with the world; Palmer puts money in the pockets of living authors who he feels deserve it, but he doesn’t want to contribute to Stephen King’s retirement nest-egg, nor send money to middle-men reprinting the works of the long-dead if he has a cheaper option available to him. He’s obeying the spirit of the piracy laws, though not necessarily the letter of them.

I take a similar approach to music, as do many people I know; I’m – by my own admission – a somewhat skewed data-point (because as a reviewer I get sent a lot of legitimate freebies) but I download hard-to-find and/or costly albums without too many qualms because I attend dozens of live shows every year, buy merchandise, patronise live music venues, buy music equipment and use rehearsal spaces. I’m paying my way within that economic sphere, and doing so with a fairly significant portion of my disposable income.

There are those who don’t pay their way, certainly, but I suspect they’re a minority; digital music recordings are valueless unless you want to listen to them. I can’t imagine many folk bother downloading albums just to consume hard drive space and have a longer list in their media player library; you collect music because you’re passionate about it, and if you’re passionate about music you probably go and see it played live if you have the opportunity to do so.

Digital media is a non-rival good; to take it for free is not theft but evasion of cost, and evasion of cost is a fundamental tenet of economic behaviour (with the possible exception of those with more money than sense); economic behaviour is not rational but emotional, and basing your response to a change in the underpinnings of an industry’s economy on the hope that you can stop human beings behaving in the ways they always have done is to doom yourself to failure. Successful businesses work out ways to monetise desire, but business models do not last forever; if they did, there wouldn’t be an internet (or cars, or electricity, or, or, or). QED.

This is a point borne out in the music industry, where – in spite of the withering of the recording companies – overall profits are actually growing consistently: live show tickets, merchandise, new instruments and recording technology, all selling better than they ever have before. There are studies based on the industry’s own figures that show heavy downloaders of music torrents spend more on legitimate content purchases than those who buy a few albums every year. Illegal downloading is not “killing music” (just as home-taping didn’t “kill music”); it’s killing a business model, and the record labels really don’t have anyone other than themselves for failing to adapt to a changing landscape.

As I’ve mentioned before, the publishing industry appears to have wised up faster than the record labels did, but it’s interesting to note that – as with the music industry – the smaller more artist-centric outfits are the ones who seem to be most willing to try new options. The more profitable the old model was, the greater the inertia of those who profited from it. Evolve or die.

This is the point where I usually get accused of celebrating the fact that it’s getting harder and harder for artists of all stripes to make money from their work. To which I respond: pointing out the realities of the situation, and the fact that all the idealistic thinking in the world won’t stop consumers behaving as they do (namely getting something they want as cheaply and conveniently as possible), is not celebratory; it is a matter of pragmatism.

The genie will not go back in the bottle; it is more productive to work out ways to cope with the genie’s freedom than it is to build elaborate doomed-to-fail genie entrapment devices, or to repeat idealistic platitudes about how the bottle shouldn’t have been opened in the first place and look for someone to blame for it. Yes, it sucks that the business models of many creators whose work I adore and wish to support are under economic pressure; however, no amount of me (or anyone else) saying how much it sucks will make a damned bit of difference. Play the hand you’re dealt, or fold and get out of the game.

A harsh thing to say, perhaps, given I’m a friend of (and contractor to) a number of authors… but would you want your doctor to lie about a life-threatening illness? If you want to survive, you have to accept the reality of the situation, take the pills, endure the surgery; I can’t help but think that content creators as a demographic are moving slowly through the five stages of grief psychology with respect to the economics of infinite goods. It’s a painful and necessary process, but acceptance is the only end-point from which you can move on.

In an ideal world, we’d all be paid enough in return for doing something we loved to have everything we wanted. If anyone has directions on how to get to that ideal world, by all means please let me and everyone else know how to join you there; in the meantime, I think we’re best off concentrating on finding a way to make a living here in reality.

Content is a public good: the abundance economics of digital media

Paul Raven @ 15-04-2010

In the absence of Charlie Stross (who is out in Japan, the fortunate devil), guest posts are appearing on his blog… and today’s is a little something different, namely a 101 guide to the economics of digital media from one Milena Popova:

So, to recap, for pure private goods, the market is both a practical and efficient way of allocating resources, and that’s what we do most of the time. As soon as we move away from the pure private good paradigm, either because our good is non-rival or non-excludable or both, the market ceases to look like a good idea. In practice, what happens is that we try to use technical and/or legislative means to help us approximate private goods when dealing with any type of not purely private good. We can, for instance, make it a crime to overfish the seas, or put fences around our golf course to stop people from overrunning it without paying; we can make it a crime not to pay the tax that contributes to running the armed forces. (Oh and, incidentally, using a public-type good without paying your dues is called “free-riding”. It’s something economists are obsessed with stopping.)

Okay, enough with the theory. Let’s look at content in practice. Remember that little clip at the start of your legally purchased DVD that delays your enjoyment of the film you’ve paid to see to tell you about how you wouldn’t steal a handbag and thus should not steal a movie either? If you’ve been paying attention you should by now have spotted that these two things (the handbag and the movie) are not alike. If I steal a handbag it stops you from having it; if I download a movie from Piratebay, there is nothing that stops you from enjoying that same movie (either by getting it from Piratebay yourself or by forking out 20 quid at HMV or a fiver at Tesco’s). In other words, while handbags are rival, movies aren’t.

Go read the whole thing; valuable straight-talking information.

And while we’re talking economics and new paradigms of consumption and ownership, here’s a post that suggests (rather plausibly) that a whole new generation of lawyers will be needed in a world where sharing and cooperation among communities becomes a stronger economic force [via Chairman Bruce]:

The evolving nature of our transactions has created the need for a new area of law practice. We are entering an age of innovative transactions, collaborative transactions, crowd transactions, micro-transactions, sharing transactions – transactions that the legal field hasn’t caught up with, like: Bartering. Sharing. Cooperatives. Buying clubs. Community currencies. Time banks. Microlending. Crowdsourcing. Crowdfunding. Open source. Community supported agriculture. Fair trade. Consensus decision-making. Cohousing. Intentional Communities. Community Gardens. Copyleft.

At present, there is not much literature explaining the legal implications of these kinds of transactions. To those of us who have made this our area of practice, many of the legal questions in this new field sit unanswered on our giant to-do lists. One-by-one, client-by-client, we are making headway. As the ground swells with people adopting more sharing and cooperative work and lifestyles, we can look forward to a growing body of law and literature on the subject.

At the same time, the answers will never be clear cut, and lines we have grown accustomed to will be increasingly blurred.

Until we evolve a new set of legal definitions, we’ll dance uncertainly around the lines between “income” and “gifts,” between “own” and “rent,” between “employees” and “volunteers,” between “work” and “hobby,” between “nonprofit” and “for-profit,” between “invest” and “donate,” and so on. Our clients may have outside-the-box livelihoods and organizations, but it’ll still be the job of lawyers to help them fit into boxes that are traditional enough to comply with the law.

Well, there goes my naive hope for a future where there are no lawyers at all. Guess we really do take the lord of the flies with us everywhere we go, after all… 😉