Mindless Diversions Extra!

(This blog post was originally intended for Mindless Diversions but, upon publishing it there, I immediately had visions of the political and/or religious comments that would follow. As such, I think that the Front Page would make a much better home for it. Without further ado, this is a guest post written by our very own A Teacher!)

When I pushed the eBook edition of Fantasti*con live I was faced with a very difficult choice: To DRM or Not to DRM. Was it nobler to face the slings and arrows of those who so hate having file use restricted or to accept such and deny them by placing a wall about their purchase? And this was made even more complicated given that my target audience is fairly tech savy and the kind of folk who probably would prefer to have a book they can move around from platform to platform freely. (Note to self: See if Amazon will let me list the book twice, once with DRM and once without)

Set that thought aside and let me point to something else, the actual inspiration for this post:

A friend linked to an Oatmeal comic related to the challenges of getting to watch Game of Thrones on the computer. It’s meant to be a lighthearted look at how many road blocks can exist to someone getting the content they want. Unfortunately I did not see the main character as someone I should feel sorry for because he was denied his television show.

He was a whiney prat.

To summarize to those who do not want to click through, a guy has just finished reading Game of Thrones and now wants to watch the HBO series that came out last year. He checks Netflix only to find it is not available. The show is listed on iTunes but the actual episodes are not available for two more weeks. In the mean time they offer free downloads of behind the scenes featurettes. He checks Amazon but it does not come up in the search there. (It does now, with a ship date of March 6) Finally he finds that he can watch it on the HBO website, if he would normally get HBO as a network through his cable provider. He does not get cable so he’s left Abosultely No Choice! He just has to download it illegally.

And this frustrates me on so many levels. Simply if he wanted to watch the show he has multiple ways he can do so. He can become a cable subscriber. He gives money for a service, specifically the freedom to watch some programs when they are first released. With the addition of a DVR, he can watch them whenever he likes once they’ve aired. Alternatively he can wait until they become available on iTunes and purchase them there. Or he order them on Amazon, provided he can wait a few weeks for them to become available. I even wager that Netflix DVD service will have them intially available about the same time.

Of course all of these options require that he either pay for a service or he wait for them to become available to him based on what he’s willing to pay for. This, to him and many others, is simply unacceptable. He wants, nay he deserves to be able to watch that program right now.

In other discussions I’ve seen it proposed that a movie be available across all platforms at once. When it hits theaters, it also hits DVDs, it hits internet streaming and it hits On Demand programming. Of course you pay more for the DVD on release date, with this program, than you would waiting the customary 9-18 months for the DVD release. Why? Because you’re getting a form of premium. You get to see the movie right away without going to the theater. Makes sense doesn’t it? That if you want to be among the first to get something that you pay for it?

But how is that different than what’s happened with GoT and HBO? I subscribe to HBO through my cable provider because, yes, we get cable. We keep getting cable because it’s a service we use; there are programs that are available in a timely fashion through cable that we like to watch and so we pay for it.

Artists, regardless of medium, deserve to get paid for their work.

Artists, regardless of medium, should not be forced to give their work away for free.

I’ve often seen the various trade organizations and legal teams make the case of the shoplifted DVD as a case against downloads. We all know it’s wrong to try to walk out of a store with a DVD under our coat, why do we think illegally downloading a movie is any different? And to be honest coming from someone who gets to fly to Washington on a private jet to talk about how he hates being stolen from makes my skin crawl.

And quite often the defense of torrents and illegal downloads is that “I can’t get it any other way”. It’s a show on a network that local cable won’t carry. It’s a movie that is banned in my country because of a repressive regime. It’s a movie that simply isn’t in production on DVD anymore.

But this case with the Oatmeal is even less sympathetic. It’s a show that did air in his country of origin (assuming the comic is American). It’s a show that will be available in a few weeks on multiple platforms from BR DVD through iTunes streaming. IT’s a show that is available right now if he signs up for a service that will provide it, though such a service is expensive comparatively speaking.

So we’re supposed to be sympathetic that he’s breaking the law because none of those solutions are acceptable.

It’s the kid that was offered a chance to earn money shoveling driveways to buy his favorite movie on DVD. But that’s too much work. So he was offered a chance to save his allowance for a month to buy the movie. But that’s going to take too long. He was offered to get the movie free as a birthday present, but he didn’t want it then. So, instead, he’s just going to put it in his pocket right now and walk out with it.

I won’t even try to say that it’s a costly crime. I won’t even say that any one involved with Game of Thrones knows or cares if a dozen, if a hundred, heck if a thousand DVD’s are stolen. The show is going to sell far more copies than that and I do believe that the vast majority of those involved were fairly compensated for their troubles.

But getting back to me, (and it is all about me, isn’t it, dear reader?) I started with my thoughts on why I DRM’d my humble little novel, one that will be lucky to sell 100 copies. For me every time someone forwards the unprotected file to a friend, it would be one less royalty. The eBook is priced at 3.99, less then a Starbuck’s coffee. However, the responses I’ve seen to that comic only make me even more sure I did the right thing putting DRM on it. The attitude seems to be ever-growing: I want what I want when I want it, and I deserve to have it, Right Now.

Which is an attitude I not only fail to understand but completely reject. Art is work. And those who produce it should decide how it is shared, no one else.

No one else.

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99 thoughts on “Mindless Diversions Extra!

  1. “I’ve got credit card in hand and I’m committed to buying this thing”  He was ready to buy it he wanted to buy it.  The problem is the entity that produced it is saying that they won’t sell you just that, that if you want to buy that you have to buy all this other stuff that you don’t want too. When you sell your book do you force people to buy other books that they don’t want? Now I agree he shouldn’t have downloaded it. He should have waited.  But he’s not the one being a prat here HBO is.  They don’t want to make their shows available in a timely manner at a reasonable  price they want you to subscribe to their channel.  That doesn’t justify stealing it but when you have people out there willing to pay for something but unable to you have to wonder if you shouldn’t be rethinking your approach.

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  2. This is also a huge problem with gaming culture.

    I pretty much only use consoles anymore because computer gaming DRM is so very *AWFUL*. I have to do so many things to play *MY* game that it’s easier for me to just use the 360 which plays the way that it feels like games ought to play.

    You put in the disk, you boot up, you play. You don’t need an internet connection or anything. It plays the way that games played last year, five years ago, ten years ago, twenty years ago.

    Now, when you buy a computer game, you have to REGISTER, no, pick a different user name, someone else already has that one. Why not Jaybi122? And on and on and on. I have been tempted (but never succumbed) to get a pirated version of a game I’ve purchased because the pirated version wouldn’t have any of those obnoxious requirements.

    As it is, it’s easier to switch to consoles. Most games are cross-platform anyway.

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      • I absolutely agree that Video Game DRM has been horribly handled and honestly there isn’t a lot of ways around it.  Either you make people keep track of those disks, or you require internet logins, or you assume that the game will be posted for people to download.  I’ll also admit that my routine for most of my games bought Pre-Steam was to install the game, and then go out and find the no CD Hack so that I could put the CD on a shelf and not worry about what disk was in the drive.  Plus it doubled the speed at which the game was loaded.

        What has me hot under the collar though is only indirectly related, that being someone insisting on downloading the game because he can’t wait the 2 weeks until it hits the market.  I can, kind of, wrap my head around a lot.  I can’t wrap my head around that.

         

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      • The only problem I have with steam is when I forget to “Go Off Line” before I, ya know, Go Offline.  So I fire up my laptop at the lake cottage (no internet) and Steam complains that it cant’ verify I’m allowed to play the games on it.

        Or it used to… maybe they fixed that…

        Otherwise, I haven’t bought a game at a store in 2 years now.  If it’s not on Steam, I don’t get it.

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  3. I have a related but different example, that for me at least makes this whole thing look slightly grayer.

    Back when Napster was up and running, I read about a five-CD recording  of a live acoustic performance by Elvis Costello and Steve Nieve.  I tried finding it everywhere, and even tried to get Borders to special order it for me.  No one could get it.

    It turned out that the Warner Brothers, believing the market for such an album would be severely limited, only released a very small number.  Those sold out quickly, and the demand for more from Costello fans was great.  Costello himself wanted to make more, but his relationship with Warner had soured so badly they were not renewing the recording contract.  Warner Brothers owned the rights to the recording, and refused to make more CDs or sell those rights to either Costello or his new label, Polygram.

    I found an article that listed all the tracts, and using that, “collected” the album over a three month period on Napster.  To this day, it remains the only album that I have downloaded on-line without paying for; it is one of my top 10 all time favorites.

    I always think of this album when this controversy comes up.  I remain deeply sympathetic to the argument that artists need to be paid for their work.  But I also know enough to know that when distribution companies essentially run a production industry, it’s not always that simple. In the case of this album, the artist wanted to sell me a recording of him playing songs that he wrote, and I wanted to buy it – was even willing to pay extra for it.  But a distributor would not allow us to do so.

    Sorry if the music part makes this too off topic, but I thought it was worth bringing up this anecdote.

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    • The above comment is why no one felt sorry for the RIAA when Napster came about. :)

      Seriously though, I think one of the reasons why even now (disregarding things such as file sizes and Internet speed), downloading music is accepted in culture opposed to movie/game/TV piracy. For over thirty years, we’ve been told in no certain terms, music industry executives are massive assholes that make Robert Evans and those over in the studios and production houses look like angels. Also, we know that at the end of the day, the writer/actor/etc. is getting something out of the movie or TV show via residuals. The musician likely earns more off touring or merc. As a result, it’s come down to a lot of people justifying it this way, “yeah, piracy is bad, but I’ll buy a ticket to x’s show when he comes around.”

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      • I also think that the radio has a lot to do with that. We can listen to free music all day long. Well, we have to sit through commercials for Wendy’s (a bowl of chili and a frosty does sound good, doesn’t it?) but then we can listen to some pretty sweet music.

        We’re used to hearing music, for free, 24/7. Legally.

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      • Of course, that’s all wrong. If the record companies were really just dead weight because the artists made all their money on touring, then the artists would just go straight to touring and bypass the record companies altogether. The investments made by the record companies–the advances, the production, the promotional work, etc.–are what makes it possible for artists to make money from touring, and for fans to get their hands on recordings. They also eat the losses on less successful acts. There’s real added value there.

        Granted, the Internet has done a lot to facilitate independent production, promotion, and distribution. But that wasn’t the case in Napster’s heyday.

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        • Plenty of bands around here don’t have a big label. They may have A label, but… that’s the guy in the back who sets things up. The fact that he can work for ten bands at once is merely a timeshare.

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  4. Yawn. I dunno about you, but I think Baen had it better — the more people read your book, the more people buy your book.

    Word of mouth sells shit. If you gave me a copy of your e-novel, and I liked it, I’d probably mention it to at least ten other people. Most of whom would probably also like it.

    The thing about piracy? It’s HARD. Nobody above the age of 30 does it, because… um, really? Like you aren’t going to get the DVD?

    I don’t think piracy costs nearly as much as people think it does. The person who says $30 — I’ll buy it, but $120 I won’t? That person will buy other things, if they’re a fan.

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    • Word of mouth sells shit. If you gave me a copy of your e-novel, and I liked it, I’d probably mention it to at least ten other people. Most of whom would probably also like it.

      But would any of them buy it?

      I mean I’m a math guy.  I get the numbers but if the only way they’ll read it is by given a free copy of it to read, then it doesn’t do much to help me pay for the cost of production and advertising.  I still measure my sales in single and hopefully soon double digits.

      I agree, having word of mouth is good.  It’d be great to get a ton of mentions on Facebook and the like, to get some buzz going about it and my next project.  But if I want to transition to more of my income being through my writing, that’s not going to happen if I give it all away for free to everyone who asks.

      At what point do you think I deserve to make money?

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      • R.K. Milholland makes a living by selling shit for free. So does Pete Abrams.

        Nova did the same thing with his/her novel — distributed for free online.

        At the end of the day, you get down to “if you like it, buy it.”

        And, for what it’s worth, I’m likely to mention books, without forwarding the whole book around.

        Libraries sell books – and a lot of them! Can’t tell you how many authors I’ve clued in on, just because I like something I found in the library.

         

        So, numbers. You’ve got three sets of people:

        1) People without an entertainment budget. These people would never buy your book, because they don’t allot anything towards entertainment (that’s me right now — new home, lotta troublesome stuff).

        2) People with a small entertainment budget. These are the people you’re worrying about — the ones who might buy your book (assuming they heard about it), but if given it for free — might not buy your book. While everyone’s got a limited entertainment budget (well MOST people), $5 is a small chunk out of most people’s budget — we’re assuming at least a $60 (basic cable) budget per month.

        3) People with more money than time. These people, even if given a book for free, are likely to buy it. Piracy’s not worth it to them — they don’t do it because a virus is a megabig pain in the ass.

        1)’s a total loss — at least for now. Thing is? If you’re going to continue creating, that person may move into 3). Probably will, in fact.

        Producing shit for free and making a living off of it is an interesting model. it’s not for everyone. But it basically runs off the principle “If enough people read, I’ve got enough 3)’s that I can afford the 1)’s.”

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        • I’m sure that a smart person like you could come up with a generic noun other than “shit”.

          Just sayin’.

          PS “giving stuff away for free” is synonymous with “marketing budget”.

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          • depends. if you give away ideas, it’s synonymous with “I’m too lazy to manage that company too…”

            (note: I know logistics guys. They write up a letter and it says “you should carry this”, complete with specs. Often people take ’em up on it.)

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            • And, actually, I have to budget for the books I plan to give away specifically as part of promotions.  The website “Good Reads” has a really neat model for this where you get people to sign up for a free book, which a) gets your book out there and b) creates demand for it that can translate into sales among those who do not “win” a free book.

              Well.. free to them.  I still have to pay for said book.

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    • I didn’t read it that way at all.

      While I disagree, I need to keep in mind that I come from it from the perspective of a consumer rather than a producer.

      I, personally, think that the dynamic that needs to be addressed is one where the producers are doing their thing in a society that, every day, cares less and less about remunerating the very artists that are creating the things that consumers feel entitled to (and by “entitled”, I mean “for free”).

      If the producers decide “you know what? It is not worth it to me, financially or psychically, to create this art and then be told that it is not worth what I am asking for it, be told “I have stolen a copy of it”, and then be told that I am “whiny” for objecting”, you know what will happen next?

      They’ll go off and do something else.

      This will make us all poorer.

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      • Has made us poorer. We are poorer by a substantial number of authors, because our society does not believe in keeping them healthy.

        …consumers have relatively little to do with the problems inherent in authorship.

        And I haven’t even mentioned Anachronox yet! (the thieves aren’t always the consumers yet. And martin has a post up about Ghost Rider…)

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      • Jaybird–how many words have you written for the League? I assume you aren’t exactly raking it in yet you produce nonetheless.

        Yes, there’s a difference between a blog and a tv show. But ultimately, there’s no dearth of either one right now. And to complain about piracy on behalf of a very profitable show doesn’t make the problem seem any more urgent. Given a choice between caring about this vs caring about never-ending copyright and enforcement breaking the internet, i will be concerned about the latter every time. And caring about the former empowers those who make the latter problem worse.

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        • The obvious difference between the two you mention, Dan, is the cost to produce.  JB (and I) write for Erik’s Empire for a whole variety of reasons, not least of which is enjoyment and community.  On the other hand, except for a nebulous “opportunity cost” writing here is something that we do not have to pay to do.  Producing a TV show, on the other hand, requires quite a lot of money up front.  Would I be willing to invest that money in my own TV show if I thought that people would find a way to access it without my being remunerated?  It probably depends on how much that “free access” ate into my remuneration.

          In other words, if it cost me $10,000 to blog here and there was no way to make money off of it, I would absolutely stop blogging.

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          • Sure.  But as I said earlier, HBO is a profitable network and Game of Thrones should do very well (at least judging by the ratings).  So solving the problem of “Game of Thrones creators not being compensated well enough” isn’t a high priority for me.  In a perfect world, yes, I’d admit piracy is a problem.  But even admitting it’s a problem, and complaining about it, lends credence to the arguments of some really bad actors (Chris Dodd et al).  So in terms of ensuring the best possible copyright regime, the OP is actively counterproductive.

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            • I think that I agree with you.

              I find that I do think of TV shows slightly differently than either books or music albums in the big picture.  With a TV show, the distributor is asked to be involved with the actual creation of the product.  A book publisher or a recording company, for the most part, has little to do with the creation of product.  (They might provide some tangential packaged services, such as editing or use of a recording studio, but generally these are deducted from payment to the producers in one way or another down the road.)  Because of this I tend to have more sympathy for HBO controlling product than I do, from my example above, Warner Brothers Music.

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          • I also write because I like it.

            However I’m hoping to take Mrs. Teacher out for dinner too.

            That’s not true… I want to be able to attend DragonCon on the proceeds of the book.  Sadly, the cost of going to a major convention (air fare/ hotel and food) requires more than optimistic amount of sales….

             

             

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            • This is going to come across as snarky, but it is not meant that way.

              I make a good game master. In fact, I’d go so far as to say I make a good enough game master that if there was a market for people to professionally game master, I’d at least be able to play as a benchwarmer in the big leagues. Maybe not an All-Star, but certainly better than AA ball.

              There is, unfortunately, no way for me to make even AA ball money as a game master. And yet there are tons of game players out there, in the darkness, who cry out for high quality game masters and thus their gaming experience is diminished by their inability to ever have a chance to pay me to master their games.

              I’m not sure that this is a problem space that requires acknowledgement by the explicit social contract. So this may be a bad thing.

              On the other hand, there were probably quite a few storytelling geniuses who never got to be storytellers in the time of Shakespeare who might possibly now have access to be storytellers in the age where people are assigned some commercial value to their work. This is a good thing.

              On the gripping hand, I’m pretty sure that there is no redeemable justice equation that balances out (in my brain anyway) for an individual to sell the rights to something to an entity that cannot perish who can maintain the ownership of that thing for 140 years. I’m pretty sure that this is a bad thing.

              But more on this later.

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  5. Ooh, that all reminds me of something.

    You should go to your local libraries and see if they have kindles that they loan out (some do). See who you can talk to in order to donate your e-book to the kindles being handed out by the library.

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    • Interesting idea.  I already plan to donate a few copies of the Dead Tree edition to the local library (coupled with an offer to do some talks on the writing process, and how to self publish), I’ll mention the eBook when I go in for that.

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  6. Gabe Newell (cofounder and head of Valve software) had an interesting take:

    “In general, we think there is a fundamental misconception about piracy. Piracy is almost always a service problem and not a pricing problem. For example, if a pirate offers a product anywhere in the world, 24 x 7, purchasable from the convenience of your personal computer, and the legal provider says the product is region-locked, will come to your country 3 months after the US release, and can only be purchased at a brick and mortar store, then the pirate’s service is more valuable. Most DRM solutions diminish the value of the product by either directly restricting a customers use or by creating uncertainty.”

    The Oatmeal comic seems to be a reflection of that idea.

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    • And I think he’s right to a degree.  But morally speaking I have an issue with it becoming acceptable to say that “any wait is justification to pirate”.  Sometimes there are some reasons for holding back availability and it’s not just corporate douche-baggery.  I would, personally, prefer a system where something is available across all platforms concurrently, but I fear the moral steps that come with saying that it’s becoming acceptable with a torrent download rather than a few week wait.

      If anything it certainly creates the ~temptation~ to pirate.  It makes it feel less like stealing when the problem isn’t general availability, but location or platform specific availability.  Though to carry it the other direction:  The book is available for purchase on Amazon as an eBook (one platform) or you can break into my house and take the print edition (another platform).  Does that make it morally right to come take the print edition because I haven’t made that platform available yet?  :)

      I know it happens, and I don’t believe Kimmi is wrong to support the “give it away to make buzz” model.  I just strongly dislike other people dictating what I do because it’s what ~they~ feel is right.  At the end of the day it really should be up to me to decide how to make it avialable, or not.

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        • Well and this raises the question:   How do you feed your family if you’re an inventor/ writer/ artist?  Honestly I love to share my writing.  When I wrote FantastiCon I had a blog running where I posted my writing as I wrote.  And honestly nothing is more valuable to me than the feedback from people who liked it.

          However… good feelings don’t feed babies, and Kaylee likes to eat.  A lot.  Usually at 3am (thank GOD for Netflix streaming).  I know I’m a long way from giving up my day job to feed my family with my writing but it creates a challenging point.

          And sadly I don’t think our culture could support an artist’s Feed Fund where writers, painters and inventors just get paid to create.  At the end of the day, capitalism requires us to treat intellectual properties as protectable properies.  And from there request (demand?) compensation for them.

          Though I also believe that the tech-patent wars are getting out of hand.  The idea of a Patent on a “Like” button is laughable to me….

           

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          • My suggestion?

            Have a tip jar. A button that says “Like my stuff?” and lets people give you a couple of bucks might see movement. Mention that the money goes directly to you and not to Giant Corporation and some people who “merely” act as middlemen (“middlemen” is an essay (a complicated one!) in itself), and you might get someone who pirated to say “Well, I should drop a $5.”

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          • Bill in Portland Maine does get paid a living wage to blog. People like his sense of humor. It kinda helps if you can get frontpaged on dkos, of course…

            but he didn’t have to do terribly much shilling to get a yearly wage.

            Most people (like Milholland and Abrams) wind up doing a lot of advertising (both to get new page views, and to get people to pony up cash). In a way, it’s like advertising on TV — you come to expect it (“how the comic got made” commentary at the bottom is also good for shilling for cash. This comic is late because my computer had a sad. Or because the ghostbusters music Won’t Stop Playing).

            Our culture is working on a Feed Fund — ping websnark, I’ve forgotten the name of whatever the hell they were calling it, but someone’s trying to do it — the libertarian/free market way.

            Pete makes money off bun-bun plushies. Bought by tons of people who wouldn’t otherwise buy stuffed animals.

            There’s plenty of place in this world for people who want “dead-tree” copies of things available for free on the internet. Or for giving out “stuff” for donations (Alexandra Erin’s concept of “sponsoring a chapter” or “putting your name/chosen name in the story itself” seem interesting).

            I see it like this: With enough pageviews, you get enough people who will buy your stuff to make a living off of it.

            The alternate system is a closed system, where substantially fewer people actually get to read your work.

            That guy with the glasses is managing to make a living reviewing movies, for goodness sakes!

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      • “morally speaking I have an issue with it becoming acceptable to say that “any wait is justification to pirate”. ”

        See, I used to be pretty hard-core “ANY piracy for ANY reason is BAD because PIRACY is BAD”.  I’ve pretty much come around to the “buy it legit, if it’s not available legit then go for it” viewpoint.  Because, y’know, my life is not long enough for me to wait six years until someone decides that there’s enough potential revenue in something to go through the negotiation process of securing the rights so they can produce it.

        The industry is indeed clinging to a dead business model–but that dead model is not “selling music”.  The dead model is “negotiating the rights to music takes tens of thousands of dollars and at least two professional contract lawyers”.

        In a way, for all that we look at the iPhone, it may be that iTunes was Steve Jobs’s really game-changing thing.  I can’t imagine how he managed to convince the music labels to let him sell music as digital files–at the same time as you’ve got Napster and mp3.com!

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        • DD-

          I’m still pretty hardcore opposed to piracy.  What right do you have to a product that the creator does not want to hell?  I understand the notion of these industries clinging tightly to dead or dying business models.  But that is there decision to make.  I don’t get to order a 20-piece McNuggets from McDonalds, pay them for 75% of it, and return 5 nuggets; I mean, to me, offering only a 6-, 9-, and 20- piece option doesn’t make sense, but offering a 15-piece is a clearly superior model so I will help them implement, whether they want to or not.

          We have no right to the products of another’s labor without their consent.

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          • Dude, don’t get me started with the whole “confusing a sense of entitlement with a right” thing. There is *SO* much of that going around.

            In any case, I do understand that if there is a market for a product and if the supply of the product is insufficient for the demand, that there will, very likely, be a black market created. Bringing the hammer down on the demand side will work about as well as it has always done… which is to say, intermittently if at all.

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            • The realities of the world remain the realities of the world.  The black market will amost always exist.  Just don’t pretend that you are exercising a right and REALLY don’t pretend that you are some sort of piracy Robin Hood.  Yes, piracy may serve as a force to shift the market or the industry models, but that doesn’t justify it.

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            • That is for them to decide.  They are the creators.

              And, for what it is worth, if an artist chooses to sell or authorize the products of his labor to a corporation, than that corporation has every right to use that product as it sees fit, so long as it abides by the terms of the contract signed with the artist.

              This is an area where I am generally very libertarian and a strong believer in contract law.  If you sell or give the rights to your music to Sony, you can’t then complain about what they do with it, again assuming they again within the contract.  Additionally, if you buy a CD which almost always has language included about use, you can’t insist you are not bound by the terms of that sale.

              No one has a right to pirate.  I don’t care how much something is needed or wanted and how douchey someone is being about it.

              The extreme example is always thus: a man discovers a cure for cancer.  There is no doubt of the cure’s effectiveness.  The only recipe for the cure is one he has memorized.  There are no samples to reverse engineer, no notes, no nothing… just what he knows.  He opts not to manufacture or distribute the drug.  Leaving aside the morality of his own actions, does anyone have a right to compel him to give the formula?  Is torture justified?  I say no and no, emphatically.

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              • Leaving aside the morality of his own actions, does anyone have a right to compel him to give the formula?  Is torture justified?  I say no and no, emphatically.

                Bad reduction.

                Once you agree to establish official ownership of the idea, you’re outside that model.  If you keep it in your head, that’s fine.  It’s “yours” as much as anything inside your head is “yours”.

                Once you want to establish public ownership of the idea (as in, “this idea is *mine* and does not belong to anyone else”) you have to encode that in either a patent or a copyright.  At that point, it’s yours to the extent that the patent and copyright law says it is yours.  You gain exclusive access to it in return for your acknowledgement that it’s not yours in the way that real property is yours.

                Now, we can argue all the particulars about that, but that’s the way it is, currently.

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                • Well, we are back to contract law.  Apply for a patent and you abide by the rules of the patent.  If that means you terminate exclusive rights after a period of time, you either accept that condition or you don’t get the patent.  Now, there is abuse of the patent and copyright system, particularly how corporations extend patents/copyrights essentially indefinitely through lobbying.  That is problematic.

                  But I do feel the larger thought experiment still stands, especially since many feel more than justified compelling that person to share.

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                    • PC-

                      I am far from an expert on these laws.  Generally speaking, I am a firm believer in contract law and view many of the issues of piracy to often have more to do with this than with IP law (though the two are intertwined to a great deal, as the latter permits the former in this regard).  I look forward to reading your posts, with the caveat being that I struggle with longer pieces and might not digest all of them or each of them in entirety.

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              • BSK,

                so you are okay with buying unusable products, as per the Blueray spec? Without being notified of their unusability beforehand?

                I’m sorry, but when DRM gets to the point where they can literally ban you from any future releases… of anything by the company.

                As for the last, I’d opt against torturing him myself. But I’d use the research if someone else tortured him for me. Even if I’d try to stop them if I caught them — I wouldn’t try to preempt them from torturing him (by protecting him).

                Nuance. I can has it.

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                • I’m not fully versed on the BlueRay spec.  If the companies violate their own terms of service, they should be held accountable.  And there should be greater clarity on the terms of service, but I don’t know how to legislate that.  Can you illuminate me on that which you speak of?

                  Where would you draw the line for what torture you’d tolerate.  Cancer is in.  AIDS?  MS?  Autism?  The flu?  Malaria?

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      • “Sometimes there are some reasons for holding back availability and it’s not just corporate douche-baggery.”

        Even if it is corporate douche-baggery, such is there right as the owners of the content.

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  7. Piracy will diminish as soon at the point at which the customer feesl that the “legitimate” pricing is fair.    With physical media (CDs, DVDs, dead-tree books), people will pay a price they resent–and much data modeling has been undertaken to determine the price of “maximum revenues.”

    Take a look at Kindle books.   Amazon tried to set a benchmark price of $9.99 for Kindle e-books, and threw their weight behind it, until Apple’s iPad bookstore let the publishers have free reign in setting their own prices.   And the price of an eBook is now, typically, 25% – 30% higher than that of the same paperback, despite that the eBook is less than a paper book in just about every way.   The publisher is relieved of the burden of manufacturing books, distributing them, and accepting returns from retailers.   The user assumes an element of risk (what if Amazon folds, or drops eBooks, 10 years in the future), and the books cannot be resold to loaned, except on fairly onerous, limited and changeable terms.

    This kind of “piracy” exists whenever the technology allows it.   When I was a kid, my and my friends would make copies of eachothers’ albums.   Or, if we were really budget-constricted, we’d record songs off the radio, or videotape movies off of HBO.    The problem now is that the copies are “perfect” — there’s no generational loss in digital copies.

    I’ve worked in the record industry, and the motion picture industry, and the pricing models are more “extractive” that “value-oriented.”     When you buy an $18 CD from your favorite band, only about $1 goes to the band.    The rest goes to packaging ($1.20), distribution ($2), and monopoly rent (the remainder).     The reason that Hollywood movies cost $90 million to make is there are a million people with enough leverage to extract that much, rather than anything intrinsic in the process of making a movie.

    I’m not trying to justify the theft of intellectual property–far from it, I’m in the business of creating IP myself.   But the ubiquity of the internet, combined with the nature of digital copying perhaps means that the business model underlying this kind of intellectual property will have to change.    As pricing experiments by Louis C.K., Nine-inch Nails, and Radiohead seem to demonstrate, people are willing to pony up when they feel the pricing is fair.   Perhaps if the supply could be more rigidly controlled total revenues for each of these “experiments” could have been increased.   But the shift, I think, is cultural, generational, and irreversible.    And it goes to an aspect of human psychology that the market has not (yet) addressed.

    DRM just makes it worse:   it imposes a set of restrictions on IP  that have no parallel in the physical world.   Downloaded (or on-demand) movies may be viewed, say, no more than twice, in a two-week span, and on no more than two devices.    These restrictions are, of course, arrived at as a way maximize revenue.   And if there were no alternative channels for getting the movie, it might work in exactly this way.    But it is my modest prediction that  IP owners will have to adapt to the new reality, or perish.   If people don’t feel that the value proposition is “fair,” and they have alternatives, they will exercise them.

    The real problem is that the sellers of intellectual property did not look to new technologies to provide better, or cheaper, or more flexible ways of selling their product;  only more restricted ones.    They are trying to sell much more limited products for higher prices,  perhaps forgetting that only effect monopoly allowed them to set up the business model that prevailed in the previous generation.   Well, that monopoly has been broken,  and I think that they will ultimately have to come up with a new business model that is a little more cognizant of human nature.

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          • “Piracy will diminish as soon at the point at which the customer feesl that the “legitimate” pricing is fair. ”

            i disagree – there’s a fundamental cultural change that’s already underway – kids who grew up with hearing it/having it on demand don’t see an mp3 the way that jaybird outlines above.

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            • That was kind of my point.

              We understand ownership. When we buy something that we can place in our hands, or stick in our pocket, it makes intuitive, instinctive sense to us. But digital media is non-ownership of non-property. And we value it less, because it’s abstract, and conditional, and perishable in a way that solid goods are not. And when we “steal” it, we are not depriving another party of it.

              I think exchange and reciprocity are built into our DNA. We *want* to provide reciprocal value to someone who gives us something. But the prices that the purveyors are so far from what seems subjectively “fair” to most people that–of the two options–stealing is subjectively closer to “fair” than buying.

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              • ” But the prices that the purveyors are so far from what seems subjectively “fair” to most people that–of the two options–stealing is subjectively closer to “fair” than buying.”

                 

                maybe on the level of the majors, but as far as small market indie music is concerned, you can get high quality flac versions of albums for 5 dollars or less on bandcamp.

                recent example: the new burial ep is 2.50 USD from bleep.com for the flac version (one of the best things of 2012 by far, simply stunning) and i’d be willing to bet the illegal download to legal download ratio is at least 100:1. it’s very possible that maybe only 1 of those 100 would have bought it pre-‘net days, but seeing as the dude doesn’t tour, etc…

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  8. I hope I have time to get to this post more fully today, but I wanted to second a couple of things.

    Tod said: “But I also know enough to know that when distribution companies essentially run a production industry, it’s not always that simple.”

    +1 to that

    Balthan dropped the Valve quote

    ““In general, we think there is a fundamental misconception about piracy. Piracy is almost always a service problem and not a pricing problem. For example, if a pirate offers a product anywhere in the world, 24 x 7, purchasable from the convenience of your personal computer, and the legal provider says the product is region-locked, will come to your country 3 months after the US release, and can only be purchased at a brick and mortar store, then the pirate’s service is more valuable. Most DRM solutions diminish the value of the product by either directly restricting a customers use or by creating uncertainty.””

    +1 to that, too.

     

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    • The notion that piracy is a service issue – or a pricing issue – is belied, at least somewhat, by the experience of the music industry. They have done almost everything that the motion picture industry is currently being asked to do. If music piracy has plummeted, I haven’t really heard about it.

      This is, in my mind, a rather complicated issue. So don’t take what I am saying above as a lobbying for the music/book/record industry.

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          • Music piracy isn’t quite like theft.  If I can sell my work to 100,000 people, because 100,000 people want to buy it… but 500,000 people will get copies of it, because 500,000 people just want to check it out… this isn’t quite the same thing as saying “hey, 400,000 people just stole my music”.

            Because those 400,000 would never be buying my stuff anyway.  I haven’t lost a sale.  I’ve sold the 100,000 copies I was going to be able to sell.

            Now, maybe I haven’t made enough off those 100,000 copies to make it worth it, but that doesn’t mean I can confuse those other 400,000 instances as instances of theft, because I haven’t lost anything, if all I have is the right to the sale.  Compensation for one’s work is different from property rights.

            So part of the conversation is… what’s the right way to talk about my legal rights as an IP holder?  Is it in terms of protecting my *ownership*, or is it about protecting my *revenue stream*, or is it about protecting something else entirely?  Or is it not about protection, per se, but instead about recognition and that’s it?  Or is it about natural law?

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            • Patrick,

              I’m not taking a position on whether it qualifies as theft or not. I am focusing on a narrow political point: It’s become a rallying cry among anti-anti-piracy people that the content producers harbor some of the blame by failing to provide reasonable services and pricing. There is an argument to be made for this as it pertains to ebooks and movies, and I would totally agree with it… except for music.

              You can buy music DRM-free, you can have a montlhy paid subscription to services that provide you with almost all the music you could want. You have a free monthly service with ads and some reasonable limitations. There are cheap MP3s available through eMusic, if you think the prices are too high. The music world has, by my lights, done absolutely everything it can to make purchasing music. Yet piracy seems to persist.

              Whether we should care is debatable, I suppose, and I do think that the studios need to rethink things, but it’s far from clear that convenience is actually a good combat against privacy, and that cheap and legitimate is competitive with free and illegitimate.

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  9. “It’s the kid that was offered a chance to earn money shoveling driveways to buy his favorite movie on DVD.”

    No, it’s the kid who asked if he could buy the DVD, and was told that the prerequisite for buying a DVD of that movie was to sign up to a Yard Work Agreement that requires him to do every outside chore the owners can think of for the next year, and he can only watch the DVD when the owners choose to show it to him.  And if he misses his chance to watch the DVD then that’s just too darn bad.  And he can only watch it on their TV in the living room, where he has to sit up straight and can’t have snacks; no putting it in his computer so he can watch it in his own room and be comfortable. 

    (Oh, and he actually had to sign up for the Yard Work Agreement two months ago in order to be able to watch the DVD today.)

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        • I do think the burden ought to be on the rights holder to prove that A) rights are being used without authorization and B) that it is being done knowingly.  If the owner of that pic emailed me and told me to stop using it, I would.  If I didn’t, they could seek further action, provided they can prove their exclusive rights to it.

          So, it is more nuanced in terms of how the process ought to play out.  I think the RIAA going after people who didn’t realize they were sharing music was wrong.  Send a cease-and-desist letter first.

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          • So… wait.

            By this measure, I can download all the music I want, and unless/until the RIAA catches me at it and tells me to stop, I can say, “Well, they aren’t talking about me when they say that they want to stop piracy”?

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      • …. actually you do have a right to watch it. the people writing the specs are pro-piracy. Ergo, all that work is acceptable to pirate. Unless you’re really going to start parsing how much of the creative team is propiracy…

        css

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        • Maribou used to work at a used bookstore downtown and the owners were a couple of… let’s be generous… “counter-culture” types.

          We’d get into discussions about various iconic works from that era and, one day, I asked about Abbie Hoffman’s “Steal This Book”. The owner lady told me “Oh, I’d keep that thing behind glass.”

          For some reason, that seems relevant here.

           

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        • But they gave up the freedom to allow their work to be pirated when they signed the rights over to Corporation X.  I can’t sell you my car and then lend it out to friends.

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    • Current digital IP licenses are so complex that they–and their repercussions–are beyond the comprehension of those that “click to accept.”

      We understand ownership of a “thing,” and have a kind of intuitive understanding of what that entails.   But IP licensing is–intentionally–obtuse, and hard to understand and weigh.   So, if I’m downloading a song from Itunes, I could certainly take the hour or so it takes to read the contract, then four or five hours of research it would take to understand it, then weigh my options against the desire to own the song.  Then, and only then will I commit to a mouseclick.

      Books existed for many years before the concept of copyright, fair use, and all the rest evolved.   We need a similar regime–a set of legal and social norms–for ownership of pure (digital) intellectual property.    But we’re not wired for the concepts of non-ownership of non-property.   Piracy is not exactly the same thing as theft, particularly on a gut, genetic level.

      But this won’t be resolved by having every purchase (or license) of intellectual property be an ad hoc contract, that is essentially opaque and incomprehensible to the consumer.

       

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  10. HBO makes more money trying to force cable subscriptions than it would from selling individual episodes. Their only hook is original programming, so selling their best content piecemeal in a timely manner just isn’t going to happen. HBO is a premium service for rich guys, deal with it.

    But don’t imagine Game of Thrones is going to be streaming on Netflix, Hulu or Amazon Prime Free to Watch. HBO.com is HBO’s streaming service and that’s where you can stream their content…if you subscribe to HBO.

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