Writing On Your Palm

Digital Prohibition

21 July 2003

Here's why the proposed laws against file sharing won't work.

Your congressweasels are hard at work again. A new bill proposed last week would make uploading a copyrighted file to a peer to peer network a federal offense punishable by five years in prison and a $125,000 fine. In other words, they want to make file sharing as bad a crime as robbery. This is necessary, apparently, because the penalties for copyright infringement already on the books (the Digital Millenium Copyright Act, for example), are just too cute and fuzzy for people to take seriously.

In the words of Dr. Evil, "Riiiiiiight."

This is an act of desperation, the RIAA, MPAA and AAP using their pet congresscritters to strongarm a business model that just doesn't work anymore. They want the taxpayers to build their own gallows and tie their own nooses, and the irony of it is that the media companies will probably win in the short term, getting the current corporate-friendly administration to make things just that much harder for consumers.

In the long run, however, this blatantly obvious failure to adapt will doom the media companies.

See, here's the thing. The current attacks on file sharing are a lot like prohibition last century here in the US. The government is trying to prevent citizens from getting access to a product the government considers contraband while -- and this is the important part -- the average citizen is convinced that the same product should be available and is generally okay to use. Digital media is everywhere, and telling people now that, "Oh, wait, you can't have that. Yes, I know you already have it, but you're not supposed to. So drop it, get with the program and pony up the dough to get access to what you already have for free anyway." just isn't going to work. Any attempt to do so will just create bootleggers and a black market, as it always has in the past.

Hence why the laws are ultimately irrelevant. Bootleggers are always one step ahead of the police. They have the initiative, and they always will. Law enforcement can't predict where the next attack will happen. Close down Napster, and give rise to Gnutella, Morpheus, Kazaa and WinMX. Put pressure on those, and new services arise that don't trade complete files, like Bit Torrent. Try to monitor those, and people will move to WiFi networks, which the RIAA has so far been unable to monitor. It's a digital arms race that the content owners will lose, every time.

Why? Because of the economics of capitalism. It's supply and demand, pure and simple. There is a demand for digital content: books, music and movies. There are advantages to accessing content in digital form that make people want content available in that form rather than via more traditional means of distribution¹.

Content owners have a choice to make. They can make their content legitimately available in digital form, or they can choose not to do this. It is, legally, their right as content owners to decide not to make digital versions available if that's what they really want.

But practically speaking, digital versions will be available if the work is popular enough. In an ideal world, works that the owner decided not to release digitally would not be released digitally. This is not an ideal world. In the real world, supply and demand rules. In the real world, nature abhors a vacuum. In the real world, if you choose not to produce something that people want, someone else will do it for you.

Right now the poster woman for digital bootlegging is J.K. Rowling. The author of the phenomenally popular Harry Potter series², Rowling decided not to release Harry Potter and the Order of the Phoenix as an ebook. Online Pottermaniacs took the decision out of Rowling's hands, and divided up the work of scanning and proofreading the massive tome. Within hours of the book's release in hardcover, a scanned, proofed and reassembled electronic version was available for download off the Internet. Who was at fault here? The bootleggers for meeting a demand the creator chose to ignore? Or Rowling, for rejecting the opportunity to sell her book to such a devoted audience?

Does bootlegging really hurt content owners? There's two debating schools of thought on this. The RIAA, MPAA and AAP, along with writers I usually respect like Harlan Ellison and J. Michael Straczynski, say yes. Ellison has gone as far as starting his "Kick Internet Piracy" movement, an effort to find and punish copyright infringers. Those that claim bootlegging hurts them point to statistics of lost sales that all have the same fundamental flaw. They assume that everyone that downloads a work would have paid for it otherwise.

Sorry, Harlan, Joe, etc., but that just ain't true.

I've downloaded songs to see if I like a band. If I like the song, I'll consider buying the CD³. I've downloaded ebooks that I might read someday, or might not. I certainly wouldn't have bought them, but given the ephemeral nature of bootleg content online, it's best to snag it while it's available and decide whether or not to do anything with it later. If I actually read the book, and enjoy it, I'll probably buy a legit copy, assuming it's available as a legitimate ebook. Bootleg content isn't known for accuracy or high-quality presentation, and as far as ebooks go, I'd rather have a professionally proofed copy with real titles and page breaks over an uncorrected ASCII scan. If I like the book, I'll pay for a good copy. If I don't like the book, well, I wouldn't have bought it anyway, so what's really changed?

Marvel stated recently that the reason "Hulk" only did 60 million instead of 90 million its opening week was that people were downloading the movie on the Internet. While I don't discount that people were indeed downloading the movie and watching it on their PCs before it landed in theaters, I have to ask, why should this equate to a drop in ticket sales? The same thing happened to "Matrix Reloaded" and it still opened huge. Watching a movie on a PC monitor is not the same as watching it on a big screen, and having seen "Hulk" myself, it's definitely the kind of movie that benefits from a big screen presentation. So why didn't seeing the movie on the PC just whet people's appetites for seeing it in the theater?⁴

Let's face it. Copyright is a good thing, but right now it's going head to head against basic economics. We learned (or should have learned) with liquor prohibition last century that supply and demand work largely indifferent to the law. If you don't fill the need yourself, someone else will do it for you.

Jeff Kirvin
Jeff@writingonyourpalm.net
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