1709 Blog: for all the copyright community

Wednesday, 7 September 2011

Quick question for the pirates

The Pirate Party’s manifesto states:
‘Copyright should give artists the first chance to make money from their work…. We will legalise use of copyright works where no money changes hands, which will return to the people various rights including … a right to share files between friends and peers…. Counterfeiting and profiting directly from other people’s work without paying them will remain illegal.’
What would there be to stop one person buying a song, film or book legally and then sharing it with everyone else in the world legally, leaving the original artist with only one sale?

Pirate Party UK 2011 Manifesto here

19 comments:

Carolyn said...

Not that I have an answer, but isn't this what at least some pirates are already doing?

Technically, if I really wanted to, right now this minute I could never buy another book or mp3 again. I'd just wait for a pirated version and voila. Free entertainment.

But I don't do that. A lot of other people don't either. I buy my eBooks and mp3s from the places that make it easiest (Amz and Apple, though not exclusively there)

I'm honestly not making an argument one way or the other. I'm just pointing out what is to me a contradictory state of affairs.

The existence of free ought to kill paid, but it hasn't, and if those who offer the paid choice were more consumer friendly, I do think even more people would buy. But a lot of them can't.

I wish there was more than one statistically valid study on the subject.

Joanna said...

Is this a serious question?

Crosbie Fitch said...

Hugo, imagine there is an artist with digital art they would sell at $10,000. They have a fan-base of a thousand enthusiastically clamouring to purchase the art, offering to contribute $10 each.

The artist will accept the $10k and then release the art.

Once the fans have the art they can then copy it until the cows come home and sell any copies they make, e.g. printed on nice paper/acetate.

Yes, one rich guy like Bill Gates could say "Hey, I'll buy it for $20k!" and then he could sell copies without limit, leaving the artist with only one sale.

There is a free market without copyright and it is up to the artist and fans to haggle.

The Pirate Party hasn't got a very coherent or principled manifesto, so I can't speak for them. Note the difference between a pirate qua copyright infringing file-sharer and the copyright reformist party that happens to use 'pirate' in its name.

Andrew Robinson said...

A quick answer to a quick question: Legally, nothing. Socially and practically, quite a few factors.

I hope that I'll be forgiven for also giving a much more verbose answer, that I'll have to split up to avoid this blog's 4096 character comment limit...

Obviously, differences in national jurisdictions would come into play (perhaps it's already legal for a Spaniard who lives in a jurisdiction where it's only the uploader who is breaking the law to download from a Canadian server on which their blank media tax has been paid?), but let's assume for the sake of a more intelligible reply that every country has legalised not for profit sharing.

Let's first consider what would change. The reality is that there is currently practically no enforcement of the law that prohibits file sharing. This country operates what is effectively a reverse National Lottery – millions of people have a vanishingly small chance of suddenly owing a monumental amount of money. So far in this country, only Anne Muir's number has come up, but I'm sure the RIAA would like to see some Jammie Thomas-Rasset style numbers being thrown around over on this side of the Atlantic too. The reason I mention this is to emphasise the fact that what us Pirates are proposing is just a legalistion of the status quo, where people who want to share do share, rather than anything radically different. The main thing we want to do with this proposal is remove the spectre of disproportionate punishments.

At this point, I'll admit I'm hamstrung by a lack of hard research to back up my arguments. The Pirates have yet to see the sort of generosity that saw Universal Music donate £80,000 to the Conservatives, so all I can really do is repeat the sentiments of The Hargreaves Review, and call for more unbiased evidence on which to build an evidence based policy.

Back to the question. There are a number of social factors that would stop one person sharing to the whole world. Firstly, the whole world isn't going to be interested in and particular song, film or book. One thing the music and film industries has been remarkably good at researching is the lowest common denominator (and I mean that as a compliment on their business acumen!), and they can't get near 100% penetration of any product. In the real world, at most 10% of the population would download any particular file. As a species, we don't all share the same interests – an observation I'll come back to later on.

The next factor is convenience. As Carolyn hinted at in her reply, getting a file from 'WarezD00d69' means placing a certain amount of faith in that person, that they will not send you a virus, the wrong file, or a low quality file, it also requires a certain level of technical experience and of course ownership of a computer and broadband connection. Apple, Amazon et al would continue under the Pirate regime providing the same service they do now - exchanging money for files with a guarantee of quality and a level of convenience that the free options do not possess. For the increasing number of people who have an iPad instead of a computer, legitimate services are the only option, so there are both hardware factors, matters of personal taste, and economic factors stopping one sale spreading to the whole population.

Andrew Robinson said...

(continued)

At this point I can't resist the old political trick of tweaking the question a bit and throwing it back: 'What is there to stop The British Library buying a song, film or book legally and then sharing it with everyone else in the world legally, leaving the original artist with only one sale (and a public lending right payment capped well below a living wage).' Answer: Nothing, that's exactly what they do, and the Government pays them to do it (a quick political tip... If you ever want to make a coalition politician's head spin, suggest outsourcing the public library system to the Pirate Bay - they will be against it of course, but they will in my experience, be unable to form any coherent objection to it). There are many reasons that books still sell although they are all available for free through libraries, and all the positive reasons for the existence of libraries also apply the legalisation of file sharing. If a library can share a copyrighted work, and does so for the benefit of society, why should they have a state-granted monopoly on doing so?

Let's move on to consider the physical product. File sharing doesn't give you a book to hold in your hand, a CD to put on your shelves, or a 100ft 3-D cinema screen and overpriced popcorn. Some (not all, but some) people want these things, and are willing to pay for them.

This brings me to the strongest point in favour of the Pirate position on copyright. The artist would never actually be left with only one sale. Their work will inevitably find fans who want to pay for the physical version, or the convenience and quality guaranteed by a paid transaction, or simply fans who like the work enough to give the artist money to fund their next work. If an artist's work work isn't of sufficient quality to achieve any of these things, then it certainly won't be of sufficient quality for everyone in the world to download it!

Lastly we should consider the benefits of file sharing in exposing work to potential fans. When I was young, the main way I experienced the work of interesting bands was to listen to the John Peel show, or take a chance on something with an interesting cover in the 10p second hand vinyl bin at the record shop. I'd argue that if I was allowed to try before I bought (as I could do if file sharing was legalised), I'd have spent a lot more on brand new vinyl that I loved, and a lot less on second hand vinyl that I played once and discarded, and that this would have been of benefit the musicians.

Allowing try-before you buy strengthens the effect of the capitalist's favourite mechanism: market forces. I believe it would be a good thing if the book and record industries got rid of the middlemen, and bands and books succeeded on the basis of merit, not on the basis that the A&R department thought they would make a few bob if they pumped a lot of marketing money into them. Record companies are great at maximising profit, but that does not equate to maximising quality (as a quick glance at the top 40 will show!).

Allowing and encouraging file sharing has the potential to provide a much better mechanism for connecting fans and artists, and the potential to turn the music business into a meritocracy, which I believe would be good for us both culturally and financially. If, by encouraging people to try new music by lowering the cost of doing so, we get rid of the very high marketing spend that acts as a barrier to entry to the music or book publishing world, then we naturally encourage diversity (as I said before, we don't all like the same things) and quality, in a way that the current industries geared up to achieving high unit sales numbers for a few products cannot.

Andrew Robinson said...

@Crosbie Fitch

The driving principle behind our copyright and patent policies is simply: State awarded monopolies are a necessary evil, and should be minimised. I'll leave it to the readers to decide if this is coherent or not!

Susan Snedden said...

As regards the British Library analogy, libraries, of course, simply lend books to patrons for a fixed period of time, rather than giving each patron a copy of the book to keep in perpetuity- unlike most file-sharing sites.

Crosbie Fitch said...

Andrew, that you believe evil is necessary is why I suggest that the Pirate Party is unprincipled.

Your manifesto is consequently incoherent because to maximise membership it is populist, and thus reflects the incoherence of the indoctrinated populace, e.g. their cherished myth that copyright and patent are necessary to spur artists and inventors to be productive.

How can you both believe that state granted monopolies are necessary and believe that people should be free to render them ineffective?

How about a Pirate's Code that doesn't lack the courage to abandon the doublethink that monopolies are both necessary and evil? Not popular enough for you?

The Pirate Party currently discredits the term 'pirate' by corrupting it to mean "A two-faced, lily livered land-lubber who supports state granted monopolies when ingratiating themselves with their favourite musicians, but decries them to their friends when they share MP3s with them".

I suggest reform is something best applied to the Pirate Party, not copyright, which should be abolished.

Hopefully, with those such as Rick Falkvinge within it, the Pirate Party may yet be salvaged from the doublethink of copyright reform (as much doublethink as slavery reform).

Hugo said...

@ Joanna – yes, this is a serious question. Illegal file-sharing is, in my view, by far the most serious issue in the copyright arena. The Pirate Party happen to have a clear policy on it and I am grateful to Andrew Robinson, the leader of the UK Pirate Party, for engaging in debate.

@ Andrew Robinson – thank you very much for your response. To me the heart of it is this:

‘The artist would never actually be left with only one sale. Their work will inevitably find fans who want to pay for the physical version, or the convenience and quality guaranteed by a paid transaction, or simply fans who like the work enough to give the artist money to fund their next work.’

I see a number of difficulties with this argument:

1. More and more people buy music, film and books in digital format. CD, DVD or hardcopy book sales may diminish to a point at which they do not provide creators with enough remuneration.
2. If illegal file-sharing was legalized, numerous websites would inevitably come into existence that would be easily accessible, safe and high-quality in a way that illegal file-sharing sites are not. Sites like Wikipedia demonstrate that there are plenty of people who like giving material on the internet for free and are prepared to devote considerable amounts of time to ensure that the quality is high.
3. The idea that fans could give money in order to fund a creator’s next work might work where artists already have followers. But who is going to stump up the cash for new artists who have no track record? A few might, but could they collectively pool, say, the millions of pounds required to make a film? The mechanics of this seem extremely difficult at best and impossible at worst.

Andrew Robinson said...

Just a quick reply to correct a factual error: I am actually the former leader of the Pirate Party UK, that post is currently held by composer and educator Laurence 'Loz' Kaye (not to be confused with the legal blogger Laurence Kaye).

I'll write a detailed reply to the above posts when I get a chance.

David said...

Andrew Robinson seems to take it as uncontroversial that free public libraries are a Good Thing.

In fact, matters are more complicated. Authors have long argued for Public Lending Right, which in effect gives them a royalty on each lending, and in the UK and some other countries this has now been granted.

Going back to the origins of free public libraries, there was much debate at the time (the second half of the 19th century). A number of interests were affected: authors, publishers, booksellers, and private fee-paying libraries among them. One of the consequences of the spread of free public libraries was that private lending libraries like Mudies went out of business. No doubt Andrew Robinson would have advised them to find a 'new business model', but if your primary business consists in lending books and charging for it, it is difficult to compete with those who are doing the same thing for free.

Publishers, on the other hand, found that free libraries were on balance usually to their advantage. The key point was that libraries buy a lot of books, while (at that time) most of the population could not afford to buy them. The wealthy classes continued to buy books for their own libraries. So sales overall increased.

In the present day there are other considerations. For example, publishers wish to impose tight restrictions on library 'lending' of ebooks.

In any event, the analogy between library book lending and online piracy is a feeble one. Books can only be lent to one person at a time, for a limited period, whereas a download or file-sharing site makes it permanently available to the whole world. No-one can compete with that.

Andrew Robinson said...

Apologies for taking a while to reply, things have been rather busy recently, and I felt this thread deserved another reply that breaks the 4096 character limit.

@Susan Snedden do libraries lend for a fixed time for statutory reasons? Given that's currently possible to borrow in perpetuity if you pick a book that nobody else wants, and remember to apply for renewals regularly. I would contend that the reason they don't usually lend in perpetuity is actually that it would be prohibitively expensive for them to but sufficient copies of books in order to do so. Digital distribution removes this barrier, leaving libraries in an interesting position. Should they demand that a borrower deletes 'loaned' e-book files after a certain time, and arbitrarily refuse renewal requests despite a lack of scarcity?

@Crosbie Fitch if we wanted to maximise membership we'd have included some tax cuts in out manifesto! When it comes to writing and approving our manifesto, we are not'populist', but democratic - and there is an important difference between the two. We believe that copyright should be one of the many laws that applies to businesses, but not individuals. In the same way that I can offer a friend a lift without a taxi licence, or make a friend a sandwich without a hygiene certificate, we believe that I should be able to copy a file, but not sell it.

@Hugo you make some excellent points. To take them in order…

1. You're unwittingly making a huge assumption - that artists are only in it for the money. There are a great many content creators for whom 'zero' is sufficient remuneration, and a great many more who currently receive trivial revenue from their work. Taking some figures from Billboard (not a pro-pirate source by any stretch of the imagination), 75,000 albums were released the US in 2010, of which the 60,000 lowest sellers averaged sales of less than 14 units (source: http://www.billboard.biz/bbbiz/industry/record-labels/business-matters-75-000-albums-released-1005042392.story ). I've not found any good statistics for free music, but if you assume that a large number of Jamendo's 40,000 free albums were released in 2010, then you'll see that the non-profit making music industry is already many times more prolific than the profit-making one.

This leads to an interesting question… are we culturally better off in a system where success is based on merit, through word of mouth recommendation of artists who are not just in it for the money, or a system where success is based on attracting large marketing budgets from companies who are bound by responsibility to their shareholders to value quick profits over longevity or artistic integrity?

Andrew Robinson said...

(continued)

2. This isn't possible, in some cases because systems like the iPad are closed, and can only get new music installed through fixed suppliers, and in others because one key service provided to users by fee-paying sites is the knowledge that the artist is benefiting financially. Free can't compete with that!

3. It's already the case that artists have to invest a lot of time and money before anyone will consider signing them. Nowadays, labels want to see that artists are capable of drawing crowds and shifting units before they will consider investing. You may find this article (again from a non pirate friendly source) quite enlightening: http://www.musicthinktank.com/blog/so-you-want-a-label-contract.html

For films, voodoo.net shows that this model can work, but personally I also think it unlikely that film funding will default to working in this way. I expect that the film industry will continue to sell on spectacle, as they currently do. Watching a film on a small screen in 2-D isn't the same as watching it in 3-D on a big one, so there will always be a demand for big screen movies, and film companies will meet that demand.

@David if you feel that hatred of free public Libraries is a widely held and popular position, I look forward to you forming a political party that aims to stamp them out, and we can debate this on the hustings!

While it's true that physical books can only be lent to one person at a time, that's not the case with e-books. Society needs, somehow, to come to terms with the end of scarcity in the entertainment industry.

Andrew Robinson said...

Aargh! The curse of the spellchecker strikes again... the link above for legal free movies should be vodo.net nor voodoo.net

Hugo said...

@ Andrew Robinson – thanks for your response but the Pirate Party still doesn’t get my vote!

1. That was not my point. I was not making the assumption that ‘artists are only in it for the money’. Rather, many artists need (and in my view have a right to) a certain level of remuneration.

Although some creative people are prepared to accept little or no remuneration for their work, that is their choice and it is not something that can (or should) be forced upon everyone. Many artists and authors either need a certain amount of remuneration to continue working at the level at which they are working, or are incentivized by that level of remuneration. Many exceptionally talented creative people work full-time, day in day out and only just break even. If it became possible to obtain legal digital copies of their work, then physical copy sales would not be enough for many to continue at the same level/quality of productivity. In some cases, a small drop in sales would bring creative activities to an abrupt halt.

Not only are physical sales a diminishing fraction of overall sales but they would also dwindle further under the Pirate Party’s proposed law because whereas a consumer might currently choose a physical copy over a digital one at the same price, if the legal digital copy became free he might very well then choose that over the physical copy that is not free.

Some of the bands you mention that have limited sales may not actually be happy with this state of affairs – they may in fact be driven partly by the hope that one day they will break through and be able to devote themselves full-time to music.

In regard to your question – I think we are better off in a system where people are free to recommend material on its merits and companies are free to carry out the often laborious, difficult and expert work of identifying, cultivating and presenting talent.


2. If non-commercial sharing were legalized, some media device manufacturers would obviously wish to get ahead in the market by not limiting access to free legal content.

You seem to be saying that consumers would choose fee-paying sites over free sites because they want to know that the artist is being paid. This seems highly idealistic. I use free anti-virus software because it is legal and does the job. I could choose to pay for anti-virus software on the grounds that I want some software engineers to be able to take their children on holiday but, somehow, that altruistic thought does not cross my mind!


3. I see your point that new bands may already be providing the public with material that would help them decide whether they would like to fund future work. Again, however, I think the idea of fan-funding is overly optimistic about human nature. Given that in your model non-commercial sharing is legal, those who don’t donate to artists get the same content as those who do. It is not plausible, in my view, that such donations would match the level of today’s sales, nor do I see why the people who create content that people value so highly should be reduced to begging. Charitable fundraising would be an unnecessary waste of creative people’s time and it would be tiresome for audiences to keep hearing pleas for cash. Those who have a talent for fundraising may not be the best artists.

You might be right about cinema profits being protected in your model – though what happens if a local community decides to pool its resources and build a non-commercial venue? This box-office argument has no application to TV.

Andrew Robinson said...

@Hugo well, I wasn't really expecting your vote, but it's immensely gratifying that you're willing to enter into a discussion with us, rather than just dismiss the Pirates as cranks!

"many artists need (and in my view have a right to) a certain level of remuneration." Well, here is a point where I might actually stray from the party line, as I tend to come at things from a capitalist, libertarian angle. State funding of the arts (either directly through government grants, or indirectly through the granting of copyright) is a thorny issue. We could spin off this debate into questions like 'should Pink Floyd have more money than they know what to do with, while the royal opera is still struggling?*' or 'is it morally right that a talented rapper makes more money than an equally talented zither player?', however, in the interests of keeping the debate manageable, I'll go along with the broad principle that we should subsidise artists in some way, and throw one simple question back at you… 'is the granting of long copyrights a successful way of rewarding talented artists?'. I would argue that it isn't - it tends to reward middlemen more than artists, it tends to reward physical beauty more than artistic talent, it tends to favour the lowest common denominator, it tends to favour artists who are bad at negotiating contracts, and (unlike conventional subsidies) it sends a lot of money offshore. If we are to have a system of funding the arts, shouldn't it be targeted towards the artists, not discriminate based on looks, and reward UK-based artists? I agree with your point that "Those who have a talent for fundraising may not be the best artists.", but counter it by saying those who have a talent for getting teenagers to put their posters up may not be the best artists either. We're not comparing a system that requires fundraising with one that does not, we're comparing one way of raising funds with another, direct fan funding versus speculative record company funding.

Reagrding low-selling artists, I would encourage you (and other readers) to read what successful author Cory Doctorow has to say about giving his books away for free http://www.mediabistro.com/galleycat/cory-doctorow-it-is-impossible-to-monetize-obscurity_b11775 - In my experience low selling artists (like myself, when I have my music-making hat on) quite often do an about-turn on sharing when confronted with the argument that'the problem… isn’t piracy, it’s obscurity. It may be hard to monetize fame, but it is impossible to monetize obscurity.' It's very hard to argue against that logic (although I expect replies that do!).

Andrew Robinson said...

(continued)

"Not only are physical sales a diminishing fraction of overall sales but they would also dwindle further under the Pirate Party’s proposed law…" there is plenty of evidence that shows that individuals who pirate more, spend more. The effect of free advertising and 'try before you buy' downloads outweighs the losses through individuals who download instead of buying. As I said in my first Radio interview as a Pirate candidate, there always have been people who won't pay a penny for music. In the past we called them 'radio listeners'. There is no revenue loss to the industry if people were not going to spend any money in the first place download things. There is, however, a chance they will discover music they love enough to pay for (either to have the physical product, or to support the artist). As an aside, observing the behaviour of young students at my University, people who were once casual radio listeners actually tend to do something different nowadays. They don't download, they simply listen to the audio from Youtube, with the window sent to the back, so they are not distracted by adverts or the video itself. I find it odd that the industry is amazingly keen to stamp out free downloads, while blithely accepting that people can stream the content at will in return for an advertising revenue that is to all intents and purposes, zero. Anyway…

"I think we are better off in a system where people are free to recommend material on its merits…" me too, that's why I believe I should have the right to say to the whole world 'this CD I just bought is great, have a listen to it'. Copyright law prevents me from letting you hear it, and denies you the chance to make an informed decision to buy or not.

"…companies are free to carry out the often laborious, difficult and expert work of identifying, cultivating and presenting talent." I'm not suggesting that companies should be prevented from doing this, in fact I'm trying to encourage it by levelling the playing field, and crowdsourcing the identifying of talent, so we have a meritocracy. At this point, as this is a legal blog, I would like to introduce exhibit A: http://www.bbc.co.uk/radio1/chart/singles - I put it to you, sir, that this exhibit shows no evidence of success in picking out the most talented artists, and rather a lot of evidence of picking out sexual fantasy figures for 15 year olds, and that copyright does not successfully incentivise identifying, cultivating and presenting talent.

Andrew Robinson said...

(continued again)

Your choice of anti-virus software as an example does rule out the usual options, since you are unlikely to buy a concert ticket or t-shirt to see a software developer… but I would argue that the very existence of high quality free anti-virus software shows that the 'relying on people giving away content for free' model does work. If we are to prop up the business model of record companies by taking things out of the public domain, shouldn't we also introduce legislation to prop up the failing business models of paid anti-virus software writers?

I find it fascinating (and very odd) that you happily embrace the free model for anti-virus software, yet for music you object to "people who create content that people value so highly .. be[ing] reduced to begging" - this isn't a criticism, by the way, I really would be very interested to know why you don't treat the two cases in the same way?

"what happens if a local community decides to pool its resources and build a non-commercial venue?". I would expect that they would be unable to source high quality, up to date feature films to show for free. As cinemas move to digital 3D projection, which requires massive amounts of data to do properly, I expect studios will simply reply on good old fashioned contract law and trade secrets to keep their digital data exclusive. Such a community cinema could reply on charity and films over 10 years old, but would that really pose a threat to the local multiplex?

"This box-office argument has no application to TV." A TV station isn't something that can be done well, cheaply (as any Sky customer who has every ventured beyond about the 5th page of challis will know). What would we get if the production and purchasing budget for a TV network was limited to zero? Well, we don't need to speculate about that, it already exists, it's called Youtube. As I said before, a lot of what the Pirates are proposing isn't a radical change, it's simply a legalisation of what already happens.


* A quick bonus question: A large number of people would love to see Pink Floyd reform. Which system would incentivise this more effectively, keeping on paying them a fortune for reissues of 'dark side of the moon' as now, or having that revenue stream dry up after 10 years as the Pirates suggest?

Hugo said...

@ Andrew Robinson

You initially suggested that Pirate Policy policy would leave artists with enough remuneration because consumers would want the physical version, the convenience/quality of the paid transaction and would fund their next work. I presented a number of criticisms of this argument but you seem to have changed the subject. There are a number of questions that have been debated concerning copyright and illegal file-sharing. A recurring problem with debate in this area is that these questions get unhelpfully confused, the debate goes round in circles, people get frustrated and nothing is achieved. That’s why I would prefer to stick to the question.

My question is about whether effectively cutting off digital sales from artists leaves them with enough money. You have replied by asking me ‘is the granting of long copyrights a successful way of rewarding talented artists?’ Since the Pirate Party advocates copyright, your question seems to be about whether ‘long’ copyright terms are a good idea. That is an interesting question but not the one I was asking.

It seems likely that sometimes those who copy content illegally are ultimately inspired to spend more on legal content than they would have done otherwise. However, the statistics in this area is rather sketchy so far as I know. It goes without saying that if illegal copying were made impossible (rather than just illegal), legal sales would not automatically jump to the same figures as the astronomical level of today’s illegal file-sharing. However, I personally find it hard to believe that legal sales would not increase at all. However, this debate is again not what I was getting at. Let’s say someone who pirates music today ultimately goes off to buy some legal music. In your scenario, they have no need to go off and buy it because it will be freely and legally available online.

Anti-virus software: sometimes freemium is a good business model; sometimes it is not. The point of freemium models is you give something away and that leads to you subsequently being able to make a sale of another product. If artists give away their best stuff, they may not have anything else to sell.