Proving claims of greed and gluttony in digital media
ABC Arts recently produced a short documentary The Golden Age of Piracy examining illegal downloads of films and television programmes Australia. As I've seen on The Conversation and elsewhere, those seeking to explain or defend copyright infringement in Australia emphasise the high prices and late releases of film and television programmes in Australia compared to the rest of the world.
Of course there's not much for film-goers to like about high prices and late releases, and those who think prices are too high or releases too late are free to express this opinion. In resorting to copyright infringement to cure this perceived ill, however, I wondered if the infringers and their apologists might actually be undermining the complainants' campaign for lower prices and earlier releases.
In resorting copyright infringement to satisfy their desires, infringers allow copyright owners to make a plausible claim that copyright owners are suffering from the lawlessness of copyright users, to which the logical remedy is to enforce the law. In order to prove that the real problem is unreasonable pricing and poor service, the complainants need to both refuse to pay the price and refuse to take the product, just as they would if they believed that the price of a cake, say, was too high, and the cake stale.
I suppose that infringement apologists could also challenge copyright owners to lower their prices. Critics of copyright enforcement assert that such an action would stop or at least significantly reduce infringement, as Mark Pesce does in another recent ABC article. If infringement were to continue under these conditions, therefore, copyright owners could disprove the apologists' case (except insofar as apologists could simply insist on even lower prices — but establishing such a moving target would render their claim unprovable).
I'm not holding my breath for either side to take up such a challenge. For their part, the media industry seems content to back its claims with absurd exaggerations of how much revenue is lost to infringement. Meanwhile, infringement apologists seem content to assert their claim without any evidence whatsoever. (Mark Pesce even goes so far as to cite a study arguing that infringement does reduce cinema revenues, just not enough for Pesce to care about.) And even if a few brave infringers gave up downloading in order to prove their point, could they convince other infringers to do the same?
Jane C. Ginsburg identified the problem in a single word: greed. Neither side wants a functioning market by which they might come to a reasonable price for the exchange of artistics works. Each side instead wants a system in which it can dictate prices to the other side, thereby accumulating all of the benefits to itself at everyone else's expense.
Who's greedy?
The Conversation's David Glance recently argued that copyright reform will drive innovation rather than attempts to stop copyright infringement. It's not clear to me why copyright reform and prosecution of copyright infringers should be the mutually exclusive exercise that the article's title implies — after all, why not just get rid of the law altogether if no enforcement of it is necessary? — but my main quibble with the article is its treatment of what Glance calls the "de facto application of copyright law", that is, the rules that people actually apply in practice irrespective what the Copyright Act might say.
Glance claims that "society is behaving collectively to determine what they consider fair and reasonable" in the making of recordings. His examples, however, refer only to the behaviour of copyright users, and it seems to me that he is really describing situations in which "copyright users are behaving collectively..." since the copyright-owning part of society is nowhere to be seen. Said examples include the claim that television viewers don't download infringing copies of television programmes (specifically, Game of Thrones) because they don't want to pay, but in order to circumvent time and place restrictions that they don't like.
Ed Hotan's comment contradicts this, though Hotan himself seems to support the downloaders: Game of Thrones was, in fact, available in Australia at the same time as it was in the US; its viewers just didn't want to pay the fee being asked by Foxtel. For Glance and Hotan, this seems to justify (or at least excuse) a television viewer who makes the unilateral determination that zero is a "fair" price according to some unspecified theory of fairness.
Now, the price being asked by Foxtel was pretty steep if all you wanted was Game of Thrones, since Foxtel's pricing is based on purchasing a whole year's worth of television. But the price being offered by downloaders was also pretty low, and doesn't appear to be justified by anything other than "I want it now". So who's being greedy here?
I've come to sense a certain loss of perspective in these debates, especially since the security of digital media ceased being my day-to-day concern at the conclusion of my last research contract. Hearing the howls of outrage at Australians' alleged inability to watch Game of Thrones at the same time as viewers in the US, one might take the watching of US television to be a human right. But jeez, guys, it's just a television programme, and not much more than an aimless compilation of sex and violence at that. George R. R. Martin himself seems to have lost interest in the original characters and plot by the time he got to Book 4.
If we don't want to pay the producer's price, we do have the choice to do without, just as most of us do without luxury yachts because we don't want to pay the prices being asked for them. So, if the media industry really is composed of greedy pigs not worthy of the fees that they want us to pay, why not really stick it to them by ignoring their output?
On content filtering and disingenuousness
After getting into a discussion about the degree to which Internet service providers can or should contribute to the enforcement of copyright law, I did some reading as to what means might be available for Internet service providers to make a contribution. In doing so, I discovered that deep packet inspection technology means that Internet service providers can and do monitor and manipulate the data that flows over their networks. This seems completely at odds with the protestations of Internet advocates like Suelette Dreyfus that filtering network traffic is onerous and expensive: it turns out that network providers find it perfectly practical and affordable if they have something to gain from it. Any doubt that network providers are willing and able to monitor and manipulate traffic might be dispelled by the recent hullabaloo concerning net neutrality, which would surely be a non-issue if network providers really did find content filtering uninteresting and/or uneconomic.
Of course network providers aren't interested in the same things about packets as the media industry or Government censors, and implementing filters for these things presumably incurs some cost over and above what network providers have already done for their own purposes. Nor does the technical feasibility of filtering necessarily imply that it's the best way to address the issues involved. Still, allegations of technical impossibility or economic infeasibility might not be sufficient reason to oppose filters, and might be particularly disingenuous if they come from network providers who'd like to do some filtering of their own.
Quite a few legal scholars, such as Landes and Lichtman, argue that some sort of filtering might indeed be the most cost-effective method of enforcing copyright law, since it is much easier to police the relatively small number of network providers than it is to police the extremely large number of network users. If those scholars are correct, the proposals of Dreyfus and others like her would have us pay less for Internet access in return for paying even more for the things that we download from it.
Of course Internet advocates don't see it this way. Assuming that they accept that copyright law ought to be enforced at all, they see it as a question of who has the moral responsibility for enforcing it. The logical conclusion of this approach seems to me to be for the media industry to either implement digital rights management technology, or to sue individual infringers, or a combination of the two. Yet I'm hard-pressed to think of an Internet advocate applauding the media industry's past efforts in these directions.
Selling digital media: someone else's problem
Some mis-communication of my views on Suelette Dreyfus' recent Conversation article about the effect of the Trans-Pacific Partnership on Internet server providers drew my attention to a false dichotomy that seems to exist in apportioning responsibility for combatting on-line copyright infringement. Dreyfus fears that the Trans-Pacific Partnership might make Internet service providers more or less completely responsible for the enforcement of copyright on-line. The proposed methods being draconian, she suggests that "the motion picture and music publishing industries should pay for and manage their own security." If Dreyfus' characterisation of the Trans-Pacific Partnership is correct, I suppose there are at least a few in the media industries who hold the view that the computer industry should pay for and manage the same security. As I discovered, an attempt to explore a middle view is prone being interpreted as a view from one of the poles.
Dreyfus goes on to trot out the hoary old suggestion that media industries "simply trial new models for making money." I suppose that the media industries could point out that monitoring network traffic for commercial material and charging for it is a new model for making money. But whatever merits such a model may or may not have, insisting on a dichotomy shuts down any innovation that requires the participation of both the computer and media insdustries.
I'm reminded of an interview in the film The Corporation (2003) in which the interviewee describes corporations as "externalising machines" that will take any opportunity to transfer the costs of their activity to someone else. (Economists call such costs "externalities"). In the context of on-line copyright enforcement, the computer industry would like to sell the Internet and have the media industries provide the wares that make the Internet desirable, while the media industries would like to distribute their wares across the Internet and have the computer industry pay for upholding the law that makes this financially rewarding. Bill Rosenblatt argues that some of the problems with digital rights management systems stem from the media industry's pursuit of exactly this kind of externalising, leading the computer industry to develop the cheapest protection technology that it can get away with.
Rosenblatt may have a point, but of course funding the development of copyright protection technology is only part of the process. Even if the media industries meet all the costs of developing and managing copyright protection technology, the computer industry controls the environment in which this technology must be deployed. Whoever funds the technology itself, it won't be of any use if the computer industry can't be convinced to deploy it in the appropriate places.
Anti-DRM commentators play to this dichotomy when they claim that they respect content creators' interests, but go on to reject any attempt to protect those interests because it interferes with users' sovereignty over their computers. Extreme proposals from the media industries are the other way around. Yet playing media on a computer necessarily intermingles media and computer, and on what basis could the media become owned by the computer, or the computer owned by the media?
Digital media and the choice of walls
I felt that I ought to have something supportive to say when I read Andrea Carson's article on paywalls for The Conversation a couple of weeks ago. I've tended to think of the word "paywall" as a kind of swear word used by free-content advocates to disparage those with the gumption to charge for their work, but authors like Carson seem to have taken it on-board as the standard technical term for enforcing a paid subscription. For Carson, a paywall is a legitimate business model by which quality journalism might be funded. (I still prefer to just say "subscription" myself, though.)
Free content and open source advocates, on the other hand, insist that the world can and should provide quality content for free. There are, indeed, cases in which such content is made available for free, for various reasons. Michael Brown's comment on Carson's article, however, points to one elephant in the room: significant amounts of free content is funded by the public. It is not ultimately free, but funded from tax revenue.
Carson mentions what seems to be another elephant in the room inhabited by free-content advocates, but I didn't think much about it until I read David Waller's more recent article on advertising. Waller reviews a recent book by Joseph Jaffe and Maarten Albarda claiming that organisations can reduce their advertising budget to zero by using charismatic mouthpieces, customer relationship management and social media. The last one bemused me since social media is itself typically supported by advertising, and I find it hard to get excited about ad-supported advertising. Yet advertising is the main, and maybe only, alternative for private content providers looking to meet their costs without the dreaded paywall. Would open content sound so noble if we re-badged it, truthfully, as "ad-enabled content" or its mechanism as an "adwall"?
In one section of The Happy Economist (2010), Ross Gittins points out that it is tremendously arrogant to insist that one's own interests or activities transcend economics. It sounds noble enough to say that one's work cannot be reduced to monetary terms, but economists know that the real question is not about money but about the distribution and use of resources. (Though many of economists' biggest fans do not seem to be very good at explaining this.) Getting back to paying for content, the real question is not whether or not it should free, but what is the most effective way of resourcing it? Do we resource it by public funding, by subscriptions, by advertising, by charity, or by something else? Or, do we not resource it at all and allow it to wither because we'd actually rather use our resources on something else?
