Thursday, December 4, 2008

The Debate: Part 2 - Negation Opening

My response.
It's easy to imagine that the methods of dealing with Internet piracy should come down to villains and heroes, evil umbrella corporations and those that fight them. But it doesn't work out so simply; it's easy to call the RIAA an evil company, failing and backwards in both their methods and operational philosophy. To simply say that the RIAA should be bypassed as a way of dealing with music piracy isn't going to be effective; although their process of hunting down and prosecuting individual downloaders is clearly not working, the RIAA must have a direct hand in any new methods implementing – the record producers trust them and, according to their website,, 90% of all recorded American music is done through them. What must be done, instead, is a complete reworking of the functionality that the RIAA themselves have. As they represent the almost the entirety of the music industry legally, they simply can't be left out of any equation.

Instead of changing the terminology of laws – which is a dangerous idea that I will return to shortly – it would be better to provide incentive for consumers to not break laws. It's easy to say that because a law is difficult to enforce or police that it should be changed or renamed. However, the music industry – and the producers of IP, or intellectual property, the legal terminology for such things – deserves to have the integrity of their work preserved, just like a bread baker in a city.

Changing the laws so that they merely re-brand illegal downloading of music to something different is a poor idea. This is for two reasons;
1.The name that something or some person has, especially when it's a title, can have a powerful impact on a person. Take in example the words “freedom fighter” and “terrorist”. Although they technically mean the same thing, people will react dramatically differently to them when they encounter them – if a local citizen perceives a gun-toting young man as a freedom fighter, they are dramatically more likely to help them, as they have real gains to be made should the young man be successful. But what if they recognize them as a “terrorist”? This becomes much more gray, as the word “terrorist” implies the destruction of public, non-governmental structures and acts of violence, and most citizens would be far less likely to aid them. Unless, of course, they were scared for their lives, but we're speaking on motivations to make decisions freely.
2.It won't necessarily change anything. Changing the title of an action to disguise its criminality isn't going to make it have less of an impact on the music industry, or other individuals – like the artists themselves – that music theft can have. What will happen is that it will encourage more people to download illegally because, well, it doesn't sound like it's so bad – it's not piracy, after all. Currently, one of the focuses in the war on drugs is to create awareness among people that drugs are incredibly dangerous to take. So too with the anti-piracy campaign – it's trying to be demonstrated to the public that piracy does real damage and has real consequences. Rebranding piracy to something that makes it easier to handle on one's conscience is only going to make things worse.

I suggest instead that the shift on anti-piracy comes not from the consumers or the law, but instead from the producers of IP themselves. In order for the populace to stop downloading freely – which is something incredibly difficult to both track and police – they must be provided with not merely alternate, legal choices, but better alternate choices.

The example given of downloading a CD of an enclosed vinyl album after purchasing it is an interesting one, because this is exactly where the music industry should come in. The following is a series of proposals that, were they followed, would not only decrease piracy, but greatly increase profits.
1.Record companies ought to (and most of them do – services like iTunes demonstrate this) have the entirety of their music collection online and available, and given certain parameters, consumers should have free access to it.
2.When a customer purchases a CD or song, whether online or off, they should do so with a registration key of some sort – whether a username, unique ID or email address – and they should then be able to use this access to freely download another copy of the same song at any time, so long as the record company remains in business.
3.Record companies must work actively to develop products that are simply better than those that are pirated; Disney co-chair Anne Sweeney recently admitted to the website that “piracy is a business model” and that “it exists to serve a need in the market”. This is the exact sort of acknowledgment needed by the IP industry as a whole, as it allows for solutions such as 3. to function. In providing lifetime downloading access to previously paid-for tracks, (something iTunes does currently) providing higher quality audio than those found on pirated sites (325kbps vs 128kbps – a dramatic difference in quality), offering full, digital sleeve notes, interviews with the bands, etc for the same price – then they will have a product that is categorically better than that of the pirated version.

Will consumers spend more money for a better product? Twentieth Century Fox thinks so; in China, DVD piracy is a rampant issue, and although most companies have been attempting to force the law to do their bidding, Fox had a better idea; produce a series of high-quality official DVDs, and sell them for about 2$. They aren't making nearly as much money as they would be if those people were buying the 10-15$ DVDs, but they're still turning a profit from it. Even though the discs are double the street value of the pirated version, they're still being purchased by the consumer – as reported by the Wall Street Journal.

The primary difficulty with the suggestion that downloading copies of the same music after you've already purchased it should be legal – or rebranded alternatively – is that you're not downloading the same copy. If we're talking about analogue vinyl's, then, according to on July 15 2005, the bitrate – or audio quality – on a vinyl is around 650kbps, and that of a CD is 1378 kbps. Double the quality – how, if two things are exactly the same, can one of them be twice the quality of another?

You bought the vinyl, and the rights to that – you did not buy the 1378 kbps quality version that you got from the website, you did not purchase the rights to the CD cover art (which often accompany pirated music), and you did not purchase the rights to distribute it – which is probably what you're doing if you let your p2p client remain at default settings. When you purchased the vinyl, you had every right to use it for noncommercial use – but you didn't purchase the rights to every version of it every recorded. Although it's something of a slippery slope, I feel it should be considered: if you bought the rights to, say, Radiohead's “The Bends” (the single), should you receive rights to versions of it played live, old versions that didn't make the actual album? No, most people would correctly argue – and it's the same for what are perceived duplicates of the media on the internet.

The other massive difficulty with illegally downloading files that you may have already purchased is the method by which you're getting them – and yes, it does matter. Just because it was that drug dealer down the street that stole the television and sold it to you doesn't mean that you're not directly involved with the theft, and it's similar with music piracy. We'll even assume that you're not using a torrent site which are currently the fastest and most effective way to pirate music – but we won't assume this because they force the user to also upload their files (illegally). So we'll use the example of a standard p2p client, like Kazaa or Limewire, to preserve the relative legality of what we're doing. The trouble is .. if you load up any of these services, or go to their websites, then you're providing hits on their advertisements. Although you're not directly handing the pirates money, you're indirectly providing it for them – and by using their service, you're also endorsing their actions and those of everyone else using the service illegally, and are therefore becoming a part of it yourself.

How you get your music does matter, although it's a given that the methods by which you procure it should change. Again, if the record industries, instead of legal entities, presided over these events with profitability in mind and not the destruction of individuals, then this would not be nearly the problem that it is today. Providing money to a drug dealer for stolen goods, whether they are illegal or not, is still aiding and abetting theft – just like downloading a file that you might legally already own that was illegally produced is still, and should be still, considered illegal.

The Washington Times article cited suggests and directly states that, “ one cares about music downloads except the RIAA” simply is not true. Although the band Metallica were perhaps overzealous in their charges and rabid in the pursuit of .. justice, they nonetheless publicly spoke out against Napster, an early p2p file-sharing application, at the 1997 MTV Music Video Awards, arguing that they were directly losing money because of the theft of their music online – demonstrating that, regardless of the actual impact that the downloading was having financially on them, they were still upset. Most people would argue that Metallica isn't exactly a “no one” in the music industry.

Although putting an additional service access fee onto the ever-rising cost of high-speed internet is an interesting solution, it isn't a fair one, although it's exactly what Jim Griffin and Warner Music are going to attempt to do (as pulled from Why isn't it fair? Because not everyone will be using the service, or will want to have digital access to music. It also doesn't guarantee that the actual artists will receive the money any more than current contracts allow for. If this were an opt-in sort of tax that allowed you unlimited access to whatever music you wanted (provided your label had it online and the music you wanted was available and not something archaic and weird), then many people would simply choose to not opt-in and would continue pirating; why pay for a service that offers not only nothing better than the illegal market, but offers even less?

Again, the solution must come from the record companies themselves. Similar to how the only way to win the drug war is to convince people to not use narcotics of their own free will – instead of pouring billions of wasted dollars into South-American countries fruitlessly – the only way to win the war against piracy will be to convince consumers that it is in their best interest to actually pay for things. This means things like unlimited access to things you've already purchased, free updates and support for software, and extra features not available to pirated versions. Valve, the company behind the tremendously popular Half-Life series, already does this with games through a service called Steam. Steam is entirely free to download and use, and provides social networking and matchmaking for games. It also has the widest selection of digital games on the internet – and it sells a lot of them. If you ever move, or get a new computer, or have any number of things happen to your copy of a downloaded game, you can always simply re-download it. Irritating? Maybe. But not as much as having to either go to the store or deal with pirate sites to get a new copy if you don't want to pay for it again. They also offer patches, support, free multiplayer – and they're making money with it.

One of the other things that Valve does is force all of their games to communicate with the “home server” in order to be played – if you want to play the single-player version of Half-Life 2, you still must have an internet connection. Although frustrating on occasion, the otherwise convenience of the service more than makes up for it. This can happen with music and movies, too – with the ubiquity of wifi access, it will be a short few years before every music-capable device can access the internet at any time. Using services like these – called DRM, or Digital Rights Management – allows companies to track and secure their product at any given time.

Through a combination of non-intrusive DRM and high consumer viability, the IP industry can combat piracy by outright winning the war; because it's just so easy to download IP and so difficult to stop, alternate methods must be decided upon. Should they be new laws? Probably not – this is a problem that the free market is designed to handle, and it should be left in it's hands. Forcing it into the government – even if its a world-organization like the WTO – will simply slow things down and nobody will be happy. The laws won't be able to significantly change anything, people won't stop downloading things, and the record companies will continue to hemorrhage money because they spent money lobbying instead of focusing on upgrading their infrastructure – which is exactly how they've spent the last two decades, although the lobbying money has also been tied up with the RIAA.

The WTO is also a somewhat poor choice to implement changes like additional ISP charges; seeing as how these are currently handled on a national, regional-level, an international body of commerce isn't going to be able to affect much change on them – but the ISPs and record companies are specifically engineered to change and to adapt quickly.

Granted, increasing the use of Creative Commons licensing will go a good ways, and will help some people tremendously; since early 2008, has been hosting the serialized version of Joe Jutsko's The Deal under CC licensing. Although he has probably made more money as a result of this than he would have had he forced everyone to buy it, this isn't for everyone – some people, particularly those that have already served their time and spent decades developing their craft – already have a name out there, and just want to get paid. CC licensing is great for people that just want to develop a name for themselves, or believe in the cause that IP should be public – but there are those that just want to make money, and why shouldn't they? Forcing CC on them will greatly limit their potential income.

A final point of clarity: anything you download currently is not illegal. I can connect my iTunes PC music player to their store, and peruse millions of songs that are perfectly legal to download (provided I pay for them). They're very high quality, come with full record art, and the price is reasonable – and Apple and their iPods have sold tremendously well directly as a result for being so far ahead of the curve. Or I could go to the Zune Marketplace, where I can pay $14.99 for unlimited monthly downloads – although you lose access to the music if you stop paying, it's still a pretty damn good price for unlimited and legal music. This argument isn't so much one about getting fair access to things that have already been paid for, it's about justifying the illegality of something, morally and ethically – to ones self.

While legalizing file sharing entirely would provide for an interesting framework of new media developments, I'm not sure that this is at all an optimal idea – would companies like Microsoft really keep producing and updating Windows if nobody was paying for it? Would we have access to wonderful, modern pop music if there weren't billions of dollars to be made from it? I doubt it – consumers vote with their money, and allowing everything to essentially become free instead of addressing the issues would probably just make everything worse.

Carolyn's Response - Affirmative 2

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