By JoCo • January 21, 2012

Uh oh, he’s blogging. What happened?

I wrote this thing on Twitter this morning about the MegaUpload shutdown, and it’s gotten some crazy traction on the old internet. In addition, I’ve just done a couple of interviews for NPR on the subject, and I think I may have said some crazy, provocative things. There are many comments and questions out there already with more to come, and rather than have a bunch of separate discussions on a bunch of different social media platforms, I thought I would put some of my thoughts here.

First of all, I was being sarcastic. I did not see an uptick in sales because one piracy site got shut down, nor do I expect to.

Second, this was a tweet, so it was <=140 characters of ha ha, and not designed to be a thorough discussion of all the issues. I recognize these things are complicated. Obviously none of us knows the complete truth, but I'm guessing that the people who ran MegaUpload were knowingly profiting from the unauthorized download of other people's intellectual property (including mine). Probably they were making a lot of money that way. That's certainly illegal, and it doesn't exactly give them the moral high ground either. In fact, it's kind of a dick move. Essentially, they did bad things and they got in trouble for it. Here are the issues that, for me, make this complicated. Along with all the illegal stuff happening on MegaUpload was some amount of completely legal stuff. People used MegaUpload to send large files around. Some number of those files were personal files owned by the people sending them. I have no idea what the ratio was, and probably it would be impossible to figure that out with any certainty, but let's stipulate that it was a very large percentage of illegal activity, and only a very tiny percentage of the users were there for anything other than downloading content that they didn't buy. Still, today that tiny percentage had something taken away from them, without warning, maybe just a service they liked using, but maybe a piece of digital media that belonged to them - if they uploaded something and didn't keep a copy, that thing is now gone. Them's the breaks I guess, but in evaluating whether this shutdown was a net positive for us humans, you have to take that into account. Even some of the illegal usage was likely the kind of activity that approaches what I consider to be victimless piracy: people downloading stuff they already bought but lost, people downloading stuff they missed on TV and couldn't find on Netflix or iTunes, people downloading stuff they didn't like and regretted watching or hearing and never would have bought anyway, people downloading a Jonathan Coulton album (oh let's say, Artificial Heart, the new Jonathan Coulton album, which is an awesome Jonathan Coulton album called Artificial Heart) and loving it so much that in a year they decide to buy a ticket to a Jonathan Coulton show and walk up to the merch table and hand me $20. I know not everyone will think all of those things are victimless crimes, and even I can admit that some of them maybe kinda sorta have victims, but my point is that you can’t easily say that every illegal download is a lost sale, because it’s a lot more complicated than that. So when you evaluate the “damage” that a site like MegaUpload is causing, you have to think about these things too. The grand jury indictment against them says they’ve caused $500 million in damages to copyright owners. Given the complexity of actual usage on a site like MegaUpload, how can they possibly know that?

The real question in my mind these days, and what I was trying to get at with my little tweet, is: how much does piracy really hurt content creators (specifically, me)? Professional smart person Tim O’Reilly posted something that made me think about this question again in regards to SOPA/PIPA. He points out that any proponent of SOPA/PIPA starts with the assumption that all this piracy is causing great harm to lots of people and companies. Here’s his pull quote, taken from a recent statement about SOPA issued by the White House:

Let us be clear—online piracy is a real problem that harms the American economy, and threatens jobs for significant numbers of middle class workers and hurts some of our nation’s most creative and innovative companies and entrepreneurs. It harms everyone from struggling artists to production crews, and from startup social media companies to large movie studios. While we are strongly committed to the vigorous enforcement of intellectual property rights, existing tools are not strong enough to root out the worst online pirates beyond our borders.

Is it really as dire as all that? It’s an emergency is it? Tim points out that he and a lot of other content creators have been happily coexisting with piracy all this time, and I’m certainly one of them. Make good stuff, then make it easy for people to buy it. There’s your anti-piracy plan. The big content companies are TERRIBLE at doing both of these things, so it’s no wonder they’re not doing so well in the current environment. And right now everyone’s fighting to control distribution channels, which is why I can’t watch Star Wars on Netflix or iTunes. It’s fine if you want to have that fight, but don’t yell and scream about how you’re losing business to piracy when your stuff isn’t even available in the box I have on top of my TV. A lot of us have figured out how to do this.

So if you can stand me sounding a little crazy, listen: where is the proof that piracy causes economic harm to anyone? Looking at the music business, yes profits have gone down ever since Napster, but has anyone effectively demonstrated the causal link between that and piracy? There are many alternate theories (people buying songs and not whole albums, music sucking more, niches and indie acts becoming more viable, etc.). The Swiss government did a study and determined that unauthorized downloading (which 1/3 of their citizens do) does not create any loss in revenue for the entertainment industry. I remember but am now too lazy to find links to other studies that say the same thing. I can’t think of any study I’ve seen that demonstrates the opposite. If there is one, please point me to it. So I have a lot of trouble with the idea that the federal government is directing resources toward an ultimately ineffective game of piracy whack-a-mole (with some unknown amount of collateral damage to law-abiding citizens), when we are not even sure that piracy is a problem.

And if you can stand me sounding even crazier, here is this: making money from art is not a human right. It so happens that technological and societal blahbity bloos have conspired to create a situation where selling songs about monkeys and robots is a viable business, but for most of human history people have NOT paid for art. I don’t want this to happen again, and I would be very sad if this came to pass, but it’s not up to me to decide. We are constantly demonstrating through our actions what we believe to be the norms for acquiring and consuming content. Right now a lot of us think that it’s OK to download stuff through illegal sites under certain circumstances, and a lot of us think it’s totally fine to use those things to make videos and put them on YouTube even though YouTube profits from it. That’s not ME saying that, that’s US saying that – we’re a nation of pirates and infringers. Based on our behavior, you would not be wrong to deduce that some of us think funny videos on YouTube are more important than honoring intellectual property rights. This kind of thing has happened before. Entire industries rise and fall as the world changes and our priorities shift. Sorry.

I believe in copyright. I benefit from it. I don’t want it to go away. I love that we have laws and people to enforce them. But if I had to give up one thing, if I had to choose between copyright and the wild west, semi-lawless, innovation-fest that is the internet? I’ll take the internet every time.

Now you may comment. I’m going to watch this thread and respond when I can, and we’re going to have a nice discussion. We’re not going to have fights and call each other names, and if you’re a jerk, I’m going to delete the jerky things you say. (And if you infringe on my copyright I’m going to send federal agents to your home and throw your computers IN THE GARBAGE.)