Friday, 2 December 2011

The State of Piracy


Delimiter’s Renai LeMay has been mentioned in this blog before. This second time he's invoked in these premises is due to him actually writing for this blog, so to speak.
Earlier this week LeMay published an opinion article on the state of the Australian debate on matters of Internet piracy. To show he’s serious, LeMay put a Creative Commons license on the article, urging people to share it.
I have found this article to probably be the best article on the piracy state of play I ever had the pleasure of reading. The inevitable conclusion, therefore, was that I should share the article here in its entirety. There is more to it, though: although most of the article’s ideas have been expressed in this blog before, I was never able to construct such a holistic vision as LeMay presents. I’ll put it this way: when I grow up I want to be able to write articles like the one below.

Self-interest is ruling Australia’s piracy debate

Over the past few months, I have alternately been appalled, disgusted, saddened and ultimately bored at the degree to which naked self-interest is ruling the ongoing debate about how Australia will deal with the issue of online copyright infringement (Internet piracy).
Now, there is no doubt that the debate has been a vibrant one. There have been strong opinions from multiple sides. There have been complicated legal, commercial and ethical arguments presented ad nauseum. There have been many speeches made, public discussion papers issued, off the cuff comments thrown into the ether and the overall entertainment factor has been extremely high; worthy, almost, of its own reality show on prime-time TV.
However, what has been lacking from the debate at its core has been any real consideration for the underlying factors underpinning the growth of Internet piracy and how they might be addressed. Unfortunately, but perhaps predictably, the major players in the debate — the ISP and content industries and the Government — appear to be almost purely engaging in this dialogue out of their own self-interests; nothing more, and nothing less.

Let’s take last week’s release of a discussion paper by a number of Australia’s major ISPs and representative group, the Communications Alliance, on the issue.
On the face of it, as many commenters agreed over the weekend, the paper sounds pretty good. It avoids unsavoury approaches to dealing with Internet piracy such as disconnecting users’ broadband connections, includes significant avenues for appeal and independent oversight and works within the boundaries of Australia’s existing law on a predominantly education-based approach to dealing with the issue. However, when you dig a bit deeper into the rationale underpinning the paper, it becomes clear it has broader aims.
Ask yourself: What does Australia’s ISP industry really think about the issue of Internet piracy? Well, the answer to this question is clear: It wants the issue to go away. Australia’s ISPs want their users to continue to funnel money into their revenue trough for broadband connections with big quotas, and they don’t want to be on the receiving end of lawsuits such as AFACT’s action against iiNet while they’re doing it. Australia’s ISPs primarily see the issue of online copyright infringement as being one between content producers and content consumers; they want no part of the whole shebang.
The discussion paper released last week reflects this belief. It positions ISPs as outside the cycle of online copyright infringement by having them passively pass on educational and warning notices to users whose activities will in turn be tracked by the content industry; then, when users don’t listen, the ISPs again step out of the way and pass their details back the other way. There’s also a limiting factor on how many notices they’ll pass on. It’s all quite neat and clean — and predictable.
The response from the content industry (film, TV, video game and music studios and distributors) has also been predictable.
Ask yourself: What does the content industry think about the issue of Internet piracy? Well, the answer to this question is also clear: It wants to hold onto existing business models. The content industry wants its consumers to continue to funnel money into its revenue trough, forking out for pay television, DVDs, sitting through ever-increasing amounts of advertisements on free to air TV, buying video games at full prices, buying whole albums of music and more. The content industry has a whole superstructure set up which has been custom-designed to part you from your money, and it doesn’t want to migrate to a new system.
Hence, the content industry primarily sees the issue of online copyright infringement as being one between users and ISPs. They can’t control what users download, but ISPs can, so they want ISPs to take responsibility for undercutting their existing business models. The content industry’s response to the ISPs’ discussion paper released last week reflects this belief. When the Australian Content Industry Group’s Vanessa Hutley says the proposal “falls short”, she means that there’s no responsibility in the ISPs’ model which would require them to take any enforcement action against their users.
Then there’s the Government.
Governments are a complex beast. Beset by a thousand different competing political and bureaucratic demands, Ministers such as Federal Attorney-General Robert McClelland are positioned at the heart of a huge spider web with a thousand different cords pulling on them simultaneously.
Consequently, they don’t pay attention to industry lobby groups such as the Internet Industry Association, Communications Alliance, Australian Information Industry Association, Australian Content Industry Group, Interactive Games & Entertainment Association and so on unless there is clearly an issue which the industry can’t resolve itself.
When this happens — as it clearly has in the case of online copyright infringement — the Government will normally order a public enquiry to get all sides of the story, and try to get the warring sides to sit down around a table to negotiate under its steely gaze. This is precisely what has occurred in this case as well. Closed door discussions about Internet piracy are being held by the Attorney-General’s Department, and a number of public consultations are under way about the issue of the Internet in general.
The Government primarily sees the issue of online copyright infringement as being one between ISPs and content owners. They want these two industries to sit down and work out the issue themselves. If this ultimately fails, the Government will be forced to devote resources to legislating on the matter — something which it wants to avoid.
Now, have you noticed something about all of these approaches? In all three cases, the prime actors (the ISPs, the content industry and the government) have avoided taking any personal responsibility for the issue. None of the major three sides of Australia’s Internet piracy debate fundamentally believe that the issue is theirs to resolve. They want someone else to do it for them.
What this has meant for the debate is that it has constantly gone around in circles, with each side of this odious tri-pointed star constantly evading responsibility and passing the buck. In addition, they have each avoided discussing the real issues underlying Internet piracy.

Now, there are two further parties in the debate which have remained largely silent on the issue of Internet piracy so far: Those who actually create the content — rather than distribute it — and those who consume it. I’m speaking, of course, about artists and the general public.
I was struck recently by a comment which Greens Senator and Communications Spokesperson Scott Ludlam made on this issue in a post on Delimiter. Ludlam wrote:
“This is a complex and opaque clash of commercial self-interest, with old media conglomerates seeking to retain their incumbency in a world which doesn’t need them as much as it used to. Amazing how little we hear from the artists and creative people themselves about how they’d like to be paid for their work.”
That’s right — real artists! What a shocking concept!
As Ludlam rightly points out, it is not film and TV directors, producers or actors, musicians, video game development houses or any other form of artist calling for the issue of Internet piracy to be resolved. These people — artists — do not really care about the issue. Their main concern is that they are allowed to produce their art without gross commercial interference, and that art gets distributed to consumers in a way which allows consumers to get access to it and at a reasonable enough rate of return to allow them to continue making it and even profit a little.
Art has other aims than just profit, although profit is usually mixed in there somewhere. Strange to hear this said out loud, isn’t it?
It is a similar situation with the general public. All Joe Citizen wants is to be able to get whatever content they want, at the same time as everyone else, on whatever device they want to be able to view it on, and at a reasonable price that they can afford to pay. Sounds pretty simple, doesn’t it? The average Australian couldn’t give two hoots about content industry groups, record labels, film and TV distribution networks, television stations (pay TV or otherwise) or video game retailers. What they want is the content, plain and simple.
I was struck by a comment by ABC managing director Mark Scott, who said (as reported by Mumbrella) in a recent speech that the ABC’s iView platform had demonstrated that there is a strong and growing online audience for “great content, well-curated and delivered in an accessible format”. “Our research suggests that when audiences discover iView, they love it — they use it, they keep coming back to it,” Scott added.
Precisely. When the barriers to consuming content are taken away (as they have been on the ABC’s stellar iView app), content consumption explodes. I personally use iView almost every day — on my PC, on my media centre, on my laptop, on my iPad, on my iPhone — anywhere. Sometimes the content isn’t great, but it’s so readily available that I consume it anyway.
Australia’s love affair with piracy is not an effort to gyp content creators of their rightful remuneration for that content — it’s a simple attempt to get at content which is too hard to consume otherwise. Once again, audiences want to be able to get whatever content they want, at the same time as everyone else, on whatever device they want to be able to view it on, and at a reasonable price.
Now the thing to understand about both artists and consumers is that they are absolutely the key stakeholders in this debate — everyone else are just middlemen. In addition, they don’t have many linkages with the other three groups who are driving the debate.
Content consumers primarily see their main relationship as being with artists directly — the film buff who follows a director’s career, the music fan who buys all of a band’s albums, the Gears of War fan who follows every comment Cliffy B makes in public. And on the flipside, the artists see their main relationship as being with their fans — talking to them, producing content for them, performing for them. Neither places ISPs, content industry groups or the Government as stakeholders of high importance in the way they consume content.
And yet it is these middlemen who are driving the debate about online copyright infringement in Australia, who are negotiating behind closed doors on the issue, suing each other in court, and threatening to legislate about it. For self-interested reasons.
When artists and consumers themselves get involved in the debate, a remarkable thing tends to happen: Self-interest largely disappears from the picture. Great art is never created from self-interest. It can only be created when an artist is driven by their creative impulse, and applies discipline to develop their talents. Great art is never consumed from a sense of self-advancement. It is consumed with wonder, for entertainment, to take oneself away from our normal lives. The commercial agenda is present but rarely the most important factor — it is usually the middlemen who tend to bring it into the picture — not the artists, nor the consumers of that art.
Other things happen as well, when artists and consumers take the online piracy debate back into their own hands. Video game developers create their own publishing platforms which users prefer to piracy. Artists call for their fans to pirate their albums rather than buy them from greedy music labels — and then start publishing them online themselves, without the assistance of intermediaries. Internet video platforms arise to stream content when, where and how consumers want. And more. A direct connection is made between artists and consumers without middlemen.
Now, I’m not saying every middleman in Australia’s online piracy debate is purely motivated by self-interest. Some ISP leaders, like iiNet’s Michael Malone and Internode’s Simon Hackett, also have altruistic motives and do care about their customers. And the same can be said of some figures within the Government and content industries.
But what I am saying is that we are letting middlemen rule a debate which should be rightly ruled by Australian consumers and artists themselves. Let’s set self-interest aside from the issue of online copyright infringement and ask consumers and artists what they want. Now that would be the real definition of an “industry solution”.

Image by ToobyDoo, Creative Commons license

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