Irish Court Rocks My Anti-Piracy World

I have wondered aloud about the futility of fighting software piracy. Certainly, I’ve given up on any personal relief (ie. within the next 5-10 years.) But the recent ’3 Strikes’ ruling by the Irish High Court, has given me a possible new way to think about the issue that does offer some glimmer of hope.

I call it…

The Anti-Smoking Campaign

People don’t smoke nearly as much anymore—well, at least in ‘the west’. Like our use of fossil fuels we’ve pretty much had our fun and realised that there’s a price to pay. So most people don’t smoke anymore; or if they do? They wish they didn’t because of the obvious issues (death being one, expense another.) Only the nuttiest of libertarians still proffer ‘equal rights’ to smokers.

I’m pretty sure that framing piracy like smoking is the way to go;#8212;not only as personally damaging but also injurious to the society as a whole. Seen from that POV, it’s possible to envision a marketing campaign that could change hearts and minds over the course of decades.

I’m addressing this essay to the idea of ‘futility’. If you are of the mindset that simply doesn’t see piracy as any big deal then this post is obviously not for you. I’m only writing to those who’s main objection is that we should ‘save our breath to cool our porridge’ since the problem is intractable.

“Ah but wait!”, you say, “Smoking gives you horrible diseases. As far as I know, ‘file sharing’ doesn’t even give a guy zits. The analogy is crap! (And wishful thinking crap, which is the worst kind of crap.)” I hear ya. But I’m not certain that personal fear was/is the only big factor that drove everyone to give up smoking in the space of about 25 years. At a certain level, I think people just got sick of it (no pun intended.) And by that I mean, like all fads, after the initial fun wore off, people realised that it was more trouble than it was worth. I was at a hotel a few months ago and a person I was talking to complained about the smell of smoke in the older rooms; and this was a current smoker saying that. Even if you’re hooked, you probably realise that it’s a costly habit—no matter how cool it looked when Humphrey Bogart did it (well, before that LUNG CANCER did him in of course.) It’s costly to businesses and individuals and franky, the high it gives one is pretty lame compared with the legal buzz one can get these days simply by downing a Red Bull or one of those ‘herbal relaxing teas’. So at some point I think it would’ve gone the way of Beanie Babies Investments simply because there are so many other ways to be cool nowadays that don’t involve leaning against a lamppost and striking a pose with a Lucky Strike between yer fingers.

“Rubbish”, you further retort, “The Indians gave the gift of the pipe to First World Man hundreds of years ago.” Right, but ‘We Smokem Peace Pipe” is a looooong way from RJR and Phillip Morris. To me, tobacco use in the New World was a bit like ‘file sharing’ before the Internet. And Big Tobacco today is kind of like BitTorrent. Back in the day (circa 1700) tobacco was limited People didn’t light up whenever and wherever because it was expensive and the quality was so uneven. In fact, it was a bit like dope is now—and was recognised as such. Usage did not skyrocket until the twentieth century, when technology made what once was a luxury into a commodity. Then, until 1960 or so, tobacco was actively supported by the government and society because it made monster amounts of money and was a very cool thing amongst the youth who then got hooked on it until it became a social norm. Inadvertently, society has been supporting ‘file sharing’ because frankly, the things necessary to shut it down cost a lot and since the internet was originally ‘free’ (both meanings apply) everyone now feels entitled to everything on the internet as ‘free’. So kids have gotten used to it and over the past decade piracy has become almost normative both because of the ‘freedom’ and because of the ‘no charge.’

My guess is that eventually, software piracy will be seen similarly as costly to society. But more to the point, it will also be seen as a PITA for individuals. The convenience of having music ‘in the cloud’ will make the whole process of downloading anything seem quaint and tedious. I’m counting on the accelerating pace of intolerance of any effort towards obtaining entertainment to make even software piracy feel onerous. Don’t believe it? Look how fast movie rental stores are shutting down in the face of on-demand cable and NetFlix. People will stop stealing because they will be able to obtain a higher level of instant gratification without it. And it will be seen as much cooler to have that instant gratification so people will pay for it. And those who have to resort to piracy will be seen as ‘ghetto’ by comparison and will feel strongly compelled to get on the right side of the law in order to not appear so uncool.

The trick for people who create art will be to find a way to get paid for having their music in the cloud. Currently, this is not possible. Not enough people are yet willing to pay for this sort of access, but I’m fairly certain that the Comcasts and Verizons of the world—the people who have learned how to get people to pay for convenient entertainment will figure out how to do this in concert with all the politicians they have in their collective pockets.

In 60 or so BC, the Roman Navy squashed an epidemic of seemingly intractable piracy throughout the Mediterranean Sea using the most brutal tactics imaginable. Similarly I’m optimistic that the monopolist pricks that squeeze all of us every month to watch TV are up to the challenge of squashing these modern day slugs.

So between the new technologies that will make file sharing ‘so yesterday’ (and therefore uncool) and the might of the plutocratic matrix, I’m happy to report that the future of illegal downloads is about as dismal as that of smoking;#8212;at least in the west. What we’ll be left with, however, is a ‘pay to play’ entertainment world run almost exclusively by Comcast, Sony, Disney and The Baby Bells. I’d like to tell ya how we’re gonna fight the power against them, but I fear we must let them help us rid one evil before we fight the next battle. They’re sort of like Stalin and…. er…. we get into bed with them temporarily to eliminate Hitler and then….

Crap. I started out with a ‘smoking’ metaphor and ended with a WWII simile. That can’t be good.

But don’t worry. File sharing is coming to an end. But that doesn’t mean that artists will do any better than they are now. Sadly, artists are like the innocent townspeople who are continually getting run over by opposing armies during the Napol….

Never mind.

I Have A Confession

Confession? Get it? Catholic joke.

I was recently screamed at about my selective ethics. About intellectual property no less! For years I have been a subscriber to NetFlix. Love it. Sometimes, I can’t watch the videos when they send ‘em to me—I’m out of town or whatever. So I rip ‘em. Yep I do. And then, perhaps a month later, I watch ‘em. But then I toss ‘em. This is bad, if for no other reason that I’m contributing to the toxic waste problem. But more to the point, it’s also a violation of federal law that states that no copying at all is allowed. Tough, I say. It passes the JCHVSEST because at no time do I pass the content on and never do I watch more than once before giving the disc the boot.

And while I’m confessin’ the blues, I’ll tell ya another way I’m a total scofflaw. I got over 800 DVDs at last count. I purchased pretty much every last one of ‘em used for $6 or less so don’t think I’m made of money. The first one I bought was for my then, eight year old step-son. He ruined that DVD the associated player by first eating a peanut butter sandwich and sticking the DVD into the player. And back then? DVD’s cost real money. So I immediately began ripping those and making copies (makin’ copies as that guy on SNL used to say.) I have no issue with this either because I never let the copies out of me sight.

But wait a doggoned minute you say! You’re violating your own tenet. The seller did not tell you you could do that! It’s not in your licence, so you’re a total hypocrite. Well, yes and no. With a book or a CD or, in fact, every other type of intellectual property known to man, the courts have ruled that the purchaser has a right to Fair Use. And that means I get to make a copy for personal use only. It is only with the advent of the DVD that U.S. lawmakers have broken with accepted international law and decided that DVDs are somehow intrinsically different and not entitled to the same Fair Use standard. What? In my view, one should be entitled to the same consistent rights of fair use for all intellectual property; not just the types that got more lobbying money.

So am I a scofflaw? I suppose. I suppose that by absolutist standards I’m not following my own rule about contracts. But what if the contract itself is inconsistent with pre-existing case law and general practice?

The thing I’ve learned is that people will usually do what they do and rationalise it as ‘ethical’. So maybe I’m kidding myself with my unique combination of ‘rules’ and all too convenient ‘loopholes’ that just seem to fit my practice. But I don’t think so.

Of course; I would say that.

Is It A Crime?

…and I ain’t talkin’ about the Sade song which changed me life back in ’81. What I’m talkin’ ’bout is an article by ‘ethicist’ Randy Cohen of the New York Times.

http://www.nytimes.com/2010/04/04/magazine/04FOB-ethicist-t.html

I have problems with this article.

First, his conclusion is that it is somehow ethical to download an illegal copy of any software (aka ‘intellectual property’) if you already own a legal copy. That’s rubbish to me. To me, the problem with all such arguments is that they don’t pass JC’s Hardware v. Software Ethical Smell Test (JCHVSEST®) which, as you already know, says the following:

If it smells fishy for hardware, it’s probably just as ethically cod-like for softwares

Look. You buy a great looking pair of jeans that really make your butt look great. You go on holiday to some totally bitchin’ place. On the first night out you reach for those go-to trousers only to find (to your horror) that you forgot to pack them. Do you…
a) Go to the local shop and purchase another
b) Go to a local black marketeer and find another pair that recently ‘fell off a truck.’

In Randy’s example it’s the same deal! The person went on holiday and forgot the hardcover book she purchased. So, dis-chuffed at having to pay for the thing in the first place, she felt entitled to download a freebie. And Randy agreed because, hey, the publisher already got paid, right?

Randy makes the same mistake as the person in my example who chooses ‘b’ above. ‘Ethical’ doesn’t just depend on whether or not you already paid once. It depends on whether or not you agreed to the terms of the seller. If Stephen King’s publisher had previously agreed that when you bought the hardcover book you were entitled to a free download whenever you like? Groovy. But they didn’t. They sold you a book. Not the ‘soft content’ of the book; they sold you a book. A container with some words inside it. If you forgot to bring the container? You’re not entitled to get the stuff inside ad hoc. Similarly, if I forgot my fave jeans on the aforementioned trip, I ain’t entitled to another pair just because I was forgetful.

But, you angrily reply, ‘the jeans should be paid for because you can take them back with you!’ Well, you can take your illegal download home with you too. There’s no difference.

If the culture decides that licencing software should be more ‘cloud like’, then it should pressure record companies to go in that direction and they should be paid accordingly. But adding rights and entitlements to a contract after the fact just because there is a technology that permits it? In this case? It’s a crime.

Next time? I’m gonna tell ya about a similar situation that ain’t a crime. It’s my post-lenten confessional.