The struggle for the open web is going to be a big issue in 2012. Given the importance of the internet to creative producers, its something we should be paying a lot of attention to. And that means, first up, thinking about the implications of the Stop Online Piracy Act (SOPA) currently before the US Congress.
Commenting on issues surrounding creative content, copyright and piracy on the web is fraught with danger. All too often the battle lines are starkly drawn, issues are cast in black and white terms, and people fight their corner with passion. I’m always trying to question such simplistic frames, but my sympathies clearly lie with those favouring openness. If you’ve followed earlier posts (see them via the ‘media economy’ tag) you will appreciate that. At the same time, a fair reader of those writings over the last couple of years will know that I want creative producers to be paid for their work, and for that work to be protected by a system of copyright that works in the digital age. Which is hardly surprising, because as a writer and producer working largely freelance, I too need to pay the bills through my labour.
So what is SOPA? There is good background on the provisions on Wikipedia, in a Guardian explainer or CNET’s excellent FAQ. In many ways it recalls aspects of the UK’s 2010 Digital Economy Act, which I questioned at its inception. The essence of SOPA is that piracy is killing America’s creative industries, and foreign “rogue” web sites that allow or encourage illegal downloading would be targeted with a court order, which US internet service providers would have to enforce by preventing their US subscribers from accessing such sites. According to CNET, this “could require Internet providers to monitor customers’ traffic and block Web sites suspected of copyright infringement,” something that could involve deep packet inspection or DNS blocking. Given that these are the means authoritarian regimes use to censor the web, this has led to the provocative claim that SOPA will install the “Great American Firewall.” Whether or not that is fair, some consequences are deeply worrying. Harvard law professor Lawrence Tribe has argued the act is unconstitutional because of its vague and sweeping provisions: “Conceivably, an entire website containing tens of thousands of pages could be targeted if only a single page were accused of infringement.” If enacted, that provision would mean the blocking of Wikileaks and other currently legal sharing sites.
One of the things that troubles me about the drive for legislation like SOPA is the focus on piracy. I don’t doubt that unauthorised file sharing is a real issue and that we should find ways to limit it. What I doubt is that such downloading is “killing” the creative economy and that criminalising behaviour and restricting web access are the best means to combat it.
The language of the debate is part of the problem. In a fascinating doctoral study of legal metaphors and legacy mindsets, Stefan Lund has argued that even notions of “copy” and “theft” are ill-suited to the realities of the digital age. But if we don’t want to go that far, then consider the frame of a book such as Robert Levine’s Free Ride, which I’ve read over the holidays.[nbnote ]Robert Levine, Free Ride: How the Internet is Destroying the Culture Business and How the Culture Business can Fight Back (London: The Bodley Head, 2011).[/nbnote] Levine writes of “the internet” as an agent that has “ransacked” traditional media. He believes the fight between creators and copyright infringers is one of the main reasons for the culture business’s problems. Indeed he claims that “the illegal availability of all kinds of content has undermined the legal market for it.”[nbnote ]These quotes are from the “About” and “Introduction” sections, but as I read the Kindle version of his book, there are no page numbers to reference. [/nbnote]
Really? The legal market for all creative content has been totally undermined? While illegal download charts show millions of copies of movies are being ‘pirated’, the most downloaded movies are often those doing best at the box office. And with box office revenues totalling $10 billion per year in America, there isn’t much evidence for the idea the legal market for films is gone for good. Add to that – to repeat a link provided in my previous post on leveraging the web - the TorrentFreak experiment that demonstrated the switch of all US BitTorrent users to Netflix would generate $60 million/year, far short of the billions said to be lost to piracy, and I think we need to put the apocalyptic claims about morally reprehensible individuals destroying the creative economy in perspective.
For a final thought, listen to the award-winning, best-selling author Neil Gaiman speak of how the open web benefited his sales, and turned him from a “grumpy” hater of ‘pirates’ to an advocate of sharing:
Gaiman asks his audiences how they found out about their favourite authors – the authors they now buy regularly – and 90% or more reveal it was through books being lent to them. In its logic, the sharing of books amongst friends and through book clubs is similar to the unauthorised downloading of digital files. But we never think of this long established form of off-line sharing as an activity that should be criminalised (imagine Congress proposing book club members face up to five years in prison for passing on a novel!). Far from being a reason for lost sales, Gaiman sees sharing as the precondition of increasing sales. “Nobody who would have bought your book is not buying it because they can find it for free,” he states.
I think Gaiman’s experience is worth more than Levine’s argument. Of course, someone will now pop up and try to limit the implications of Gaiman’s story by saying something like ‘it’s fine for an established author to say this, but what about emerging writers without his reputation?’ They might be right in so far as they are talking about scale – that Gaiman’s return from openness will be higher because of his prior reputation.
But they will be wrong in so far as they are talking about the logic. As Gaiman says, his experience revealed to him “what the web was doing.” That function applies to all of us regardless of previously established reputations, and can be used to help create that reputation. So, for me, the best approach is one that works with the inherent logic of the open web to achieve the desired outcome, rather than fighting against its feared consequences. Too often an over-reaching focus on ‘piracy’ makes the latter the priority, which means we don’t get on with the developing the former.
Featured photo: NASA Goddard Photo and Video/Flickr