Wednesday, March 23, 2011

who's failing whom?

Last week, crusading tech journalist Jesse Brown published a column with Toronto Life magazine in which he boasted about being a "thief." Brown accesses creative content (television shows and movies) by doing an end run around the copyright holders of that content, despite the fact that much of what he wants to see is perfectly available to him in Canada -- 30 Rock, one of the examples he uses in his article is even available free at the CityTV website.

What cheap, piratical satisfaction Brown gets from stealing copyrighted material is a mystery to me, but his column helped to refocus the debate about whether or not copyright infringement is theft. I think most reasonable people would say it is theft (and sleep well at night knowing Margaret Atwood agrees with us); free culture folks say it, technically, isn't theft... except one of free culture's most vocal defenders, Jesse Brown, proudly calls it theft and vows to keep doing it.

Crusading free culture academic, Michael Geist, joined the twitter conversation around Brown's article only to accuse Brown's detractors of being corporate astroturfers. I made a direct appeal to the good doctor to spell out how he feels about Brown's illegal downloading behaviours. Geist declined to answer despite numerous prompts. Does the Canada Research Chair in Internet and E-commerce Law agree with his friend Jesse Brown that what he boasts of doing is theft, and does he approve of it? We may never know.

But today we did learn that - theft or not - Dr. Geist does not believe Brown's behaviour is particularly Brown's fault. According to Geist, piracy is not a legal failure; it's a market failure. We shouldn't blame Brown for stealing 30 Rock. We should blame 30 Rock for not creating a market that would make itself more available to Brown (let's just ignore that whole free-at-the-CityTV-website detail).

If we follow Geist's argument, any time the market does provide the content in a simple and affordable and convenient way, there will be no large-scale pirating of that material. The folks at the New York Times better hope so, because the tech world has already cracked their paywall (even before the official launch) and is gleefully letting everyone else know how to get Times content without paying for it.

Sure, the Times is the newspaper of record for much of the English speaking world, it has some of the best writers on staff and in print, it's maybe the most recognizable and valuable media brand on the planet, and it's been providing hassle-free online content as long as most folks have been reading news online. Sure, their paywall design is relatively unobstructive, inviting, sharing, and affordable. Sure, their product is, without question, worth the price of a couple pints of beer per month. All that being true and undisputed, I think we can still expect the New York Times to be blamed by Geist and his free culture followers for failing to provide a reasonable market to media consumers and therefore causing its own piracy headaches.

(logo courtesy The New York Times)

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Jason Chesworth said...

I think you've done a great job of arguing in favour of free on-line content. Your post makes me want Hulu available up here in Canada even more. I could buy the NYT, but why would I when everyone (including you), point to the free stuff?

You're right. Why call yourself a "pirate" when it's free anyway?

Jason Chesworth said...

And... wow... John... I just read Jesse's article and I'm a bit stunned at how you've revised what he was actually saying. I guess you skimmed over the part where he said "I do pirate the things I watch, but I also pay for them. I just pay the wrong people." or "One thing I can be sure of: Giganews doesn’t share my money with the people who make the things I watch.

If they did, I’d be willing to pay more. In fact, I’d pay double. Maybe even triple, just so that if I ever met Tina Fey in person, I could look her in the eye with a clear conscience. But no legitimate service offers what Giganews offers—for any price. If I signed up for the best cable TV package Rogers provides, which costs $169.84 a month, I would get access to less content, and I would wait longer to get it—no more watching a movie at home while it’s still in theatres. The only way to get the largest selection, the highest resolution, the fastest downloads and the newest releases is to steal."

Pieter Hulshoff said...

Dear John,

free culture folks say it, technically, isn't theft...

Who cares about technically. Legally it isn't theft, and considering the penalties for copyright infringement are generally higher than for theft I wouldn't complain too much about that if I were you.

According to Geist, piracy is not a legal failure; it's a market failure.

No! According to a new global study on piracy, backed by Canada's International Development Research Centre, and reported on by professor Geist, piracy is mostly caused by market failure. Now I know you off-hand dismiss practically anything written by professor Geist, but I think you'll need to do a bit deeper analysis to debunk the results of this global study.

As for the Times: they put up the weakest paywall ever to be written in javascript, that's even automatically bypassed by many javascript blockers that have been on the market for legal reasons for many years. Now I agree that this does not give people the right to read these articles for free, but also shame on the Times for blaming people to use the Times' own API to read the articles.

Kind regards,

Pieter Hulshoff

Joe Clark said...

A phenomenally tendentious post even by your standards. As legitimate and informed commentators have noted, the pricing scheme for the Times paywall makes no sense whatsoever and is well beyond the cost of a beer every now and then.

It doesn’t actually matter whether or not legally uninformed civilians consider copyright infringement theft. As a matter of settled law, it isn’t. Santa Claus didn’t give your daughter a present, either.

Gruesome said...

I haven't felt the euphoria you must experience in having Margaret Atwood's agreement, but you know what they say
"What ever helps you sleep at night"

Crockett said...

Thanks for pointing out the city TV site, I was not aware of it. As you may be aware it is exceedingly easy to bypass the geoblocks so one can watch shows on the American network site. The downside with this is the advertising is focused on American products and services. Now it seems Canadian advertisers are able to take advantage of this new medium as the Canadian broadcasting industry is catching up ... Bravo!

As to Brown, I do think his opinions were somewhat over the top and inflammatory. But then I also think he doesn't have the sole copyright on such behavior (gentle nudge).

And now a somewhat bitter farewell to Bill C-32. According to news reports it is all but certain a federal election is looming meaning C-32 will die a premature death.

There were obvious flaws, the foremost being the digital lock trumping and the need for greater clarity in some fair use exemptions. Both of these were addressable, and the rest of the bill mostly acceptable.

My hope is the next time around a more holistic approach to our whole digital economy will be considered.

Crockett said...

And on the issue of 'piracy' ..

It seems now that less than 10% of internet users are using P2P, and of those that are still ... they are downloading half the amount they used to. It is not realistic to think some of those haven't moved to other methods but it is also showing a growing trend of less infringement. Right along with those new access systems John has so helpfully pointed out.

Cool .. everyone wins!

Gruesome said...

Well looks like c32 is officailly dead, too bad, alot of time and energy went into it.
Hopefully we'll see a better version the next time with some of what was learned in the new bill.
Some of the things I've learned
1 Many people don't understand copyright even those that benefit from it every day
Next Bill hoping for more simplicity and clarity
2 Had no idea Notice & Notice was so effective, would have thought everyone would ignore a notice.
Next Bill hoping that effectiveness recognized, solution for small group of remaining infringers
3. Wide support for the breaking of TPM's when it is for non infringing behavior
Next Bill, hope recognition of fair dealing not hindered by tpm

Again it's too bad I thought this bill was damn close to giving something to everyone.