The Internet has devalued content to the point where it is often offered at no charge -- newspapers, for instance -- or widely misappropriated, as with music and movies. Either way, many people expect much of their content to be free. Why is this, how did it happen, and, focusing on music and movies, what can be done about it?
I've previously written about the why, in Huffington Post and the Vanderbilt Journal of Entertainment and Technology Law articles, and identified six factors. Let's focus on two: the culture of piracy, and the rise of ad-supported business models. Underlying both is the belief that content on the Internet should be free (a notion reinforced by the other four factors).
How did this attitude arise? The answer lies in the origin of the Internet. At first glance, this is paradoxical: the Internet began in the late 1960's as the ARPANET, a project of the Department of Defense Advanced Research Projects Agency, or ARPA. The DoD, of course, seldom fosters self-gratification, a trait that underlies the "free content" culture of the Internet.
However, take a second look. The ARPANET was developed not in-house by ARPA, but primarily by defense contractors orbiting Harvard, MIT and Stanford and by universities. Their faculty and staff used the ARPANET for social purposes as well as research, for instance by setting up news groups encompassing a variety of recreational interests. No one charged for participation in those groups, or anything else on the ARPANET, and there was little regulation of content -- or of file transfers via the network. Those files were primarily documents, data and software, since digitized music and video were effectively non-existent. Still, the precedent was set: file sharing was virtually unfettered.
The predominance of researchers on the ARPANET fostered an academic ethos that includes the concept that information, i.e., content, should be free, since only by openly sharing research can science and other disciplines advance. As the ARPANET grew, the DoD installations on the network were split off in 1983 into a separate MILNET, leaving the ARPANET as primarily an academic facility. The transformation to a free-oriented environment was complete. Significantly, though, the network was primarily used by students and faculty in the computer science field. Its evolution towards the Internet occurred with little public notice until the early 1990's. By then, its norms were set.
At the same time, an "information should be free" movement was growing, initially focused mainly on the software arena rather than networking. This coincided with the rise of personal computers, and was a reaction to the concurrent rise of consumer software, which of course was generally offered for sale, not for free. As the movement grew to encompass other forms of content, it reinforced and made latent the norms that had developed on the ARPANET.
In contrast to these trends, pre-Internet commercial timesharing systems were being deployed in the late 1970's and early 1980's, offering consumers email, information and entertainment, but on a paid basis, as befits a commercial offering. Thus, these systems had different cultural norms than the ARPANET -- different histories, expectations, rules and practices. Ultimately, though, these systems were overshadowed by -- and their commercially grounded norms had little effect on -- the Internet.
During the same period, copyright law began to have meaning for the public in a digital context, but at first only for the limited population who traded in pirated software and games. Prior to this time, the only infringement committed by significant segments of the public involved physical media: mix tapes, concert bootlegs, and album copies on cassette made for friends. Although relatively common among young people, these forms of music (let alone any form of video) weren't distributed digitally, because personal computers and networks at the time couldn't process the large files involved. Thus, creation and distribution of these analog tapes was a time-consuming, manual process that didn't imperil the music industry.
That began to change with the availability of the compressed MP3 audio format in 1995. The format exploded in popularity in 1997 with the release of the free, computer-based Winamp player software and even more so in 1998, with the introduction of the Rio portable MP3 player, a forerunner of today's iPod. Accelerating these trends, modems were becoming faster, personal computers more powerful, and the Internet more pervasive. People began to rip CDs -- that is, copy them to personal computers in MP3 format -- and share the MP3 files over the Internet. (Ripping was possible because the audio CD standard, developed in 1980, omits copy protection, perhaps due to a failure to anticipate the capabilities that developed 25 years later.)
The above history, cultural trends, and technical factors appear to be what led to widespread copying and distribution of music and, later, motion pictures. Although educational campaigns have informed and reminded the public that such conduct is infringement, the underlying norms have proved difficult to dislodge, an effect that scholars refer to generally as the "sticky norms" problem. Thus, many people continue to violate the law.
But why? Or, to turn the question on its head, why do people ever obey laws (criminal or civil), even when it may be in their self-interest not to do so? This question has been studied by scholars such as Prof. Tom Tyler of NYU, who lays out several reasons that researchers have examined: (a) people consider the "tangible, immediate incentives and penalties ... [i.e.,] personal gains and losses" resulting from obeying or disobeying a law (alternatively, the certainty, swiftness and severity of punishment); (b) people decide whether a particular law is moral (i.e., just); and (c) they decide whether a law is legitimate (i.e., promulgated by an authority that has the right to do so).
Evaluated against these metrics, copyright law as applied to content on the Internet falls woefully short. The immediate incentives to infringe copyright are clear: free music and movies. The penalties, in contrast, though severe, are neither swift nor certain, since only a small percentage of infringers are sued (and usually only uploaders of content, not downloaders). In addition, the prevalence of legitimately free content on the Internet -- whether user generated content or ad-supported commercial works such as newspapers -- probably undermines the perception of copyright law as just; after all, if some content is free, why not all of it? Finally, the perception that content companies are driving the copyright laws (and, of course the fact that they are filing the lawsuits), and a widespread disdain for music labels in particular, delegitimizes those laws.
Two other factors that drain perceived morality and legitimacy from copyright law are the fact that the targets of demand letters and lawsuits were often young people or their sometimes unknowing parents; and that the damages sought or obtained were sometimes grossly disproportionate to the offense. As scholars have discussed, these factors may have precipitated a backlash that actually decreased rather than increased compliance. In any case, ineffectiveness and negative public perception appear to have put a halt to copyright lawsuits against consumers.
What next? When noncompliance is widespread, sometimes the laws change (as in the elimination of prohibition and of sodomy laws) and sometimes behavior changes, as in the case of drunk driving, which was reduced significantly by a combination of stricter laws and broader education. In the case of copyright, though, the laws are strict already, but neither that nor education have been effective.
Perhaps what's needed is penalties that are less strict -- in the scholarly terminology, "gentle nudges" rather than "hard shoves" -- but more widely enforced. If demand letters and infringement lawsuits targeting "first offenders" sought significantly lower damages (assuming litigation costs permit this approach), but such letters and lawsuits were issued much more often, public perception might change. Setting the damages at a level that young people or their parents would find affordable but quite unpleasant could reduce the perception of unfairness, but still have sufficient bite. Coupled with widespread enforcement, such damages might change people's cost-benefit analysis while avoiding backlash. Something has to be done to reduce misappropriation of music and movies, at least until ad-supported business models (or other alternatives) become sustainable, if they ever do. Maybe this is the way.
This article benefited from discussion with Prof. John Tehranian of Chapman University.
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For some reason the "piracy" of the end users is justified by the very fact that the record companies "give away" their music on the radio. It does not take a lot of brain power to understand that artists and record companies NEED the public to know about the music before they go out and buy it. Research points to downloading promotes the song and thus greater sales.
Some artist claim that downloading music is not a crime. "Musicians including Robbie Williams, Annie Lennox, Billy Bragg, Blur's David Rowntree and Radiohead's Ed O'Brien said that the public should not be prosecuted for downloading illegal music from the internet." The Featured Artists Coalition, which consists of 140 of Britain's biggest rock and pop stars claims that if anyone is to be prosecuted it should be YouTube.
On a side note, the precursor of the internet, ARPA and ARPANET, were developed by DOD using very generous helpings of public tax dollars. If recording companies do not want piracy then they should lobby for global laws that enact the same controls they wish to exact on Americans. Go after the Chinese and Europeans, not just their biggest market.
I mean to admit explicitly that such file sharing violates the letter of the law, but then ask as follow-up, "so what?" which I think requires no further clarification.
It just fails miserably. I'm not sure what the solution is, I kind of liked the ISP applying say a $5 per month surcharge on all subscriber bills that allow you to legally download all the music/video you like. For $60 a year I'd go for it.
Or how about charging only $0.25 to $0.50 for tracks on iTunes and the like?
Once pricing comes to a realistic level maybe people will stop pirating.
>>Once pricing comes to a realistic level maybe people will stop pirating
Would that same logic apply to shoplifters--if only the lipstick were $2 instead of $12, I would stop shoplifting?
A few questions:
- Which one of the biggest multi-national music and movie copyright holders was/is also one of the biggest manufacturers and profiteers of consumer CD burning mechanisms found in the home PC over the last decade?
- Which same company is a market leader in cheap and widely distributed blank CD media?
- The same company was also a market leader led the way and sold the following over the last 30+ years:
- blank audio and VHS tapes(a fair use tax is applied to these to allow consumers to copy content for fair use, BTW) and this company generated huge profits from this
- audio and video hardware that had dual player and duplication features and functionality built-in
Why are people buying blank audio & video media in bulk at there local drugstore, electronics store, grocery store, etc? Why is is being marketed and the process made simple?
Why was it ok for 25 years to pay a tax on blank tapes, buy them and a deck that copies them and then copy the new cassette I bought and give it to some friends as a gift to turn them onto a band or a song? Why can't I do that today with a CD or MP3 I own? Why can't I share my music, books or movies with my circle of friends as I did for 20 years "pre-internet P2P"?
Somebody makes $ and pays for:
- install your internet
- your ISP connection
- your hardware
- your software
- the blank media
- the portable device players/readers
now, if all of these entities each took a small fee or tax associated to allow the use of the content that they all need to function there would be a revenue model that may make sense - because no matter how you cut it, the person paying for all of the above is going to want and find content to use them.
"where does the idea of free content come from"? do you have to ASK? it has nothing to do with the internet.
broadcast TV. radio. for the general public, these things are perceived as free.
you guys fd it up a looooooooong time ago by making these rights issues nonsensical to begin with. it's illegal to copy a record or a videotape but it's fine to tape things off the air with radio and tv and EVEN CABLE where you can get full movies uninterrupted.
the ludicrous amount of LEGAL MINUTIA that surrounds copyright and "intellectual property" is so TECHNICAL that for almost everyone except the rights holders and lawyers, it is PREPOSTEROUS to even consider NOT JUST IGNORING ALL OF IT for the average joe.
and kids have ALWAYS considered music to be "fair game" with their mix tapes and band "bootlegs". i mean come on, some bands hit it big BECAUSE of such phenomena and you've never made a tape for a girl?
and with regards to that mixed tape example, the law is completely faulty and lacking because it does not and cannot account for such legitimately HARMLESS usage. and if you DO say a romantic mixed tape for your girlfriend is a FEDERAL OFFENSE - honestly, how can ANYONE TAKE THAT SERIOUSLY?
copyright law contains the seeds to its own destruction.
jin
Commercial software piracy costs us a trillion dollars a year in the U.S., but lord knows we do not want to step on any flip-flops.
For example, Anatoly Volynets suggests copyright law be adjusted so that everyone choose to pay for original source, or accept something less. If Sue creates an original work, Alan can either arrange payment with Sue to reproduce her work, and as a part of that arrangement, receive a certificate to display, or simply reproduce it without the certificate, knowing that those who find it on the Internet realize it is something less than the original. You can learn more about this elegant solution by visiting http://www.culturedialogue.org/drupal/en/node/527.
[I see an irony here. Those who pay for product placement in copyrighted work benefit whether the copyright is honored or infringed. Just saying.}
"Copyright in the US has grown from reasonable to draconian, thanks mostly to Disney and its fear that Mickey Mouse might enter the public domain"
I have heard these types of statements and arguments for years. And though I do understand the frustration of consumers in this regard, I think these mindsets are extremely one-sided, and fail to take into consideration the reality of copyright, at-large.
A. US copyright law tends to follow the constructs of copyright provisions from other countries, much more succinctly than the recommendations by individuals and entities resident to the US, Disney or otherwise. The "Mickey Mouse" theory, though entertaining and interesting, just doesn't hold water in my opinion.
(continued in the next post...)
B. I don't know that "draconian" is the best word to describe Copyright law. It is very one-sided, by design. But then again, so are many other laws, and Constitutional provisions. The nature of Copyright law is very noble. Such that, if you create something, you own it. And you have the right to protect it and regulate its usage. And if you are secure in this notion, you will in turn continue to provide society with your works...
An overwhelming majority of people would agree that if a poor man, sitting in his basement, created a work (software, music, etc), that man should be able to feed his family and pay his rent with the proceeds from that work.
However, when that man succeeds and prospers into a large, powerful corporation... the opinion of some shifts to "screw 'em... they don't deserve to be paid."
C. Hollywood, RIAA, software companies, etc... can all be extremely heavy-handed when it comes to copyright. No question in this regard. Some of their methods are "questionable," at best.
But lets take all of that out of the equation for moment and just look at the issue from a lay, fundamental perspective.
"What gives an entity the right, to take, use and enjoy something that someone else spent time, money, labor and resources to create, without that creator's permission?"
There's no "right or wrong" answer there. Just something to academically ponder.
G.C. Hutson
http://www.sadien.com
Copyrights weren't always this way. It was an agreement. You create, we will give you a chance to earn money. It didn't mean, you create, and it is yours forever. It was encouraging creation, but wanting to get those creations into the public domain. That is why it wasn't forever when it was created. Patents are not forever, could you imagine the problems that would create. But then, why shouldn't those creators be rewarded forever?
The history Mr. Handel recaps of the Internet and the "free movement" is spot-on, and I hope many people read and absorb the true foundation of modern electronic media distribution.
As I am limited to the number of characters in my comment, I will limit my post to one specific issue…
Mr. Handel (the author of the article) said:
"Perhaps what's needed is penalties that are less strict..."
I disagree. I believe 17 USC 101+ is appropriate and suited to digital media, just fine (with a few minor exceptions... that's a different discussion for a different day)
However, Mr. Handel is absolutely headed down the right path with his analysis...
What is needed are gentler approaches by content providers.
Specifically, Alternative Dispute Resolution practices. And by that, I mean Copyright ADR, Software License ADR and Media ADR.
Leave the statutes alone... the laws as they exist right now can, and should, bring BOTH parties to the negotiation table, and incentivize amicable and reasonable settlement solutions, without incurring drawn-out, expensive litigation proceedings.
Again, wonderful article.
G.C. Hutson
Sadien, Inc.
http://www.sadien.com