Category Archives: Copyright

Slashdot and Piracy

by | Copyfight, Copyright, Piracy
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Wow, the past few days Slashdot has been putting up quite a few pro-piracy articles. I think it’s been one a day for the past few days. It’s generally dismal to read some of the comments there.

First, there was “Slashdot: The Pirates Will Always Win, Says UK ISP” / The Guardian: The pirates will always win, says Carphone’s Dunstone

Slashdot summary:

“The head of UK ISP TalkTalk, Charles Dunstone, has made the comment ahead of the communications minister’s Digital Britain report that illegal downloading cannot be stopped. He said ‘If you try speed humps or disconnections for peer-to-peer, people will simply either disguise their traffic or share the content another way. It is a game of Tom and Jerry and you will never catch the mouse. The mouse always wins in this battle and we need to be careful that politicians do not get talked into putting legislation in place that, in the end, ends up looking stupid.’ Instead he advocates allowing users ‘to get content easily and cheaply.'”

First of all – he’s right in saying that it’s impossible at the ISP level to stop pirates for any length of time. As far as I can tell from the article, that’s what Dunstone’s argument was. Unfortunately, most people have generalized this correct observation into the incorrect claim (in the Slashdot summary) that “illegal downloading cannot be stopped”. Even the Guardian gets their headline wrong (“The pirates will always win, says Carphone’s Dunstone”), which again misrepresents what Dunstone said. I agree with Dunstone that legal downloading services are part of the fight against piracy – although, most of those are already in place. ITunes, Netflix Download service, Amazon Video-on-demand, etc are already there. Additionally, with sufficient legal pressure – we could also drive piracy down. The most obvious method is to go after filesharing hubs – like Pirate Bay. That’s a different method of attack than sifting internet traffic for illegal filesharing. What would happen then, is that piracy is marginalized. People don’t want to jump from one website to another every few months – so most people will just stop trying to skirt the law, and do it the legal way. Only the die-hard pirates will stick with it. The fact of the matter is that you don’t have to stop 100% of piracy. This isn’t a war that has one of two outcomes: you “win” or you “lose”. A world with 95% or 100% piracy is a very different world than one with 10% or 20% piracy. In both cases, piracy exists, but in the first case, creativity gets smothered.

What’s odd is the number of people who buy-in to the false dichotomy. They wouldn’t buy-in to similar dichotomies like: “shoplifting cannot be stopped” or “littering cannot be stopped”. We can do the same thing to piracy that we do to shoplifting or littering: minimize it so that its damage is minimized.

I read an article by Clay Shirky recently that seemed to imply that piracy cannot be eliminated because, if they have to, pirates will resort to the “sneakernet” – i.e. manually sending a hard-drive from one location to the other for duplication. The whole thing takes place without the internet involved. I couldn’t help but think, “well, duh – if pirates have to resort to those kinds of actions to pirate stuff, then piracy rates will be extremely low because it’s just too inconvenient for a large majority of people. That means it won’t be very threatening”.

Slashdot, of course, leaves out the fact that Charles Dunstone doesn’t call for the elimination of copyright or surrender to pirates, but, rather:

Charles Dunstone said, the solution is education about the benefits of respecting copyright coupled with services that allow consumers “to get content easily and cheaply”.

Obviously, his comment about “getting content easily and cheaply” means legal download services – like iTunes.

Then, Ben Goldacre’s article in the Guardian got posted: (Slashdot: Lies, Damned Lies, and the UK Copyright Industry, “Illegal downloads and dodgy figures”, BadScience: Home taping didn’t kill music). I generally like Ben Goldacre. He’s probably most famous for combating the anti-vaccination groups. Most of his article dealt with unrealistic numbers of lost sales due to piracy. I think it’s perfectly fine to raise issues about bad numbers. Unfortunately, he makes some jabs at the whole copyright system, implying that piracy isn’t a bad thing. He seem to buy-in to the questionable results of the Norwegian “pirate” study. And the title of his article is rather odd (“Home taping didn’t kill music”) since his article has nothing to do with home taping. The problem, of course with the “Home taping didn’t kill music” argument is that home-taping is really inconvenient. It’s like the “sneakernet”. Internet piracy gives you free copies of digital media (read: perfect copying) and everything is there (often hours after its release). Home-taping on the other hand, gives you a degraded copy, you have to get a physical copy to duplicate in the first place, and you have to borrow that copy from someone else who has it. This means you probably can’t get what you want because your friend doesn’t have it either, and if he does have it, you feel like a leech when you ask to borrow lots of music.

Then comes the article saying that the Pirate Party has won a seat in the EU Parliament. (Link to my article examining the Pirate Party’s arguments) At least it’s only one seat out of 736. They’re hoping to make the most of it though, by being a one-issue party. They’re also hoping that other political parties chase votes by taking up their cause. It’s rather sad. The Pirate Party / Pirate Bay always remind me of the “killing the golden goose” story. They’re sharpening up their knives without understanding the economic issues going on with digital media. For a real treat, and to raise your blood pressure, just read some of the Slashdot comments. I feel frequently insulted by slashdot comments whenever the issue of piracy comes up. A few favorites:

All works intellectual creativity of should be given away free. We should only have to pay for retail services, and stuff that China and the rest of the world manufactures… not for what America does best. (Source)

Copyright is the antithesis of free speech. (Source)

Everyone who applies copyright restrictions, deep inside, knows doing so is wrong and screws all humanity over.

If you don’t want something copied, don’t release it. (Source)

Sigh. I never would’ve guess that working hard to make great software and earn a living would’ve provoked these kinds of reactions, just because I won’t give away years of work.

Rick Falkvinge: Copyright Regime vs. Civil Liberties

by | Copyfight, Copyright, Piracy, Video
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I always like to know what other people think, even if I disagree with them, so I recently watched a video by Pirate Party founder Rick Falkvinge titled “Copyright Regime vs. Civil Liberties”. The Pirate Party is dedicated to copyright and patent “reform”, and by “reform”, they mean that they advocate elimination of almost all copyright, patent, and intellectual property laws. The only vestige of copyright that they support is to prevent commercial selling of copyrighted material for 5-10 years, and works would have to be attributed to their authors. Under the Pirate Party, filesharing would be legal, and all patents would be eliminated. They also support trademarks, because trademarks help society distinguish one creator from another.

Here’s the video, and (below) I’ve detailed what’s wrong with it:

Falkvinge’ main argument is this:

5:33-8:05
Copyright is at it’s heart a commercial monopoly. When it was created, it was created to distribute books to bookstores by horse and cart. And, the key thing there is that if you found an infraction of copyright, you can find a copied book in a bookstore, you can see an unauthorized concert (not paying license money). The key thing here is that you found them in public places – with the naked eye. Today, however, copyright has crept into my private communications. It is illegal for me to send a piece of music in email to you guys. It is illegal if we are in a chat channel, to drop a video clip there. And if copyright is to be enforced in this new environment, then that means all private communications must be monitored for copyright infractions. That means out goes the postal secret. That means law enforcement and corporate interest groups must monitor every 1 and 0 that leaves my computer. That includes looking at letters to my lawyer and doctor and wife. I’m frankly not prepared to give them that right… So, our poor lady justice has a problem: on one side of the scale, you have one income source for one entertainment industry – essentially a luxury consumption in our society. On the other side of the scale, you have two foundations of our democracy. Hmmmm.

Over the few minutes, Falkvinge goes into the consequences of monitoring all internet communications: whistleblowers no longer have protection, damage to freedom of the press, how this influences people to self-censorship, how your identity is formed by private communications with other people, etc.

11:00-11:30
So, the copyright industry would like you to believe that it is about somehow about right to profits. That the filesharing debate it is about percentages, about graphs on a piece of paper. It is not. It is about vital civil liberties that need to be eroded or abolished in order to maintain their old crumbling monopolies. And this is the message that we’ve started to get out in Sweden.

The whole situation sounds awful – like something out of 1984. Here’s the problem: Falkvinge’ argument is completely wrong. Everything Falkvinge says is correct if our goal is to stop every single instance of copyright infringement. However, the legal system has always recognized limits on law enforcement’s ability to pursue crimes. We can quickly see how flawed Falkvinge’ argument is if we simply insert a different crime in place of “copyright infringement” and repeat his argument. For example:

“And if [laws against child pornography] are to be enforced in this new environment, then that means all private communications must be monitored for [child pornography].”
“And if [laws against libel and slander] are to be enforced in this new environment, then that means all private communications must be monitored for [libel and slander].”
“And if [laws against false medical claims] are to be enforced in this new environment, then that means all private communications must be monitored for [false medical claims].”

If you believe that Falkvinge’ argument is valid for copyright, then you must advocate the elimination of lots of other laws. Further, if law enforcement’s goal is to eliminate all instances of any particular crime, without regard for people’s rights, then we might as well throw out all laws. Laws against burglary should be abolished because the only way to eliminate burglary is to put video cameras everywhere – and we can’t have that, therefore, we must abolish burglary laws. Laws against drugs should be abolished because the only way to eliminate the drug trade is to monitor everyone’s actions at every time, completely control all trade, and insert a device inside everyone’s body to monitor drug-levels at every moment. We can’t allow that, therefore, we must abolish drug laws.

So, the whole argument is just plain wrong. It’s true that copyright can be infringed through email-to-email communication, but, let’s face the facts here: that’s not how the vast majority of it happens, and second, even if 100% of copyright infringement happened through email, that’s not an argument that copyright laws should be abolished – it’s simply an argument that we will not be able to enforce copyright laws in particular cases. Falkvinge’ argument is that copyright cannot be enforced on private communications, therefore the laws should be abolished. Abolishing copyright means we can no longer prosecute public violations of copyright. In short: he’s arguing that we shouldn’t be able to prosecute public violations of copyright because sometimes copyright is privately violated.

Alternatively, we could simply enforce copyright whenever someone sticks out their neck and violates copyright in public. In fact, this is where the vast majority of copyright infringement happens anyway. Combating piracy is a very open-ended problem; there are numerous possible ways to combat it. It is disingenuous of Falkvinge to pretend that the one and only way to combat copyright violations is through monitoring all internet communication.

I’ve actually seen this quite a few times from the anti-copyright crowd: this attempt to connection copyright elimination with “saving human culture” or “protecting our fundamental freedoms”. It gives them the opportunity to twist-around “not paying the creator for their work” into a saintly “I’m fighting for our freedom against greedy corporations”.

Besides, if Falkvinge’ argument was true, then there’s a major problem for him. The stance of the Pirate Party is that copyrights should last for 5-10 years, and they only restrict what you can buy and sell. This means, for example, that Walmart cannot print-up their own copies of books and sell them during that 5-10 year window. But, I can go online right now and purchase a pirated copy of software. I’ve seen the websites. So, the question is this: if I buy copyrighted material from some illegal vendor over the internet (maybe through email, maybe through a website), then that is “private communication”. By Falkvinge own argument, we HAVE to allow this type of activity because the only way to stop it is by monitoring all internet communication. Therefore, the 5-10 year restriction on selling copyrighted material is unenforceable, and should be abolished. The Pirate Party’s stance is internally inconsistent.

Now, the Pirate Party might argue that a website selling pirated material on the internet is “public”, but how is that any more public than filesharing websites?

So, the major argument of Falkvinge’ “Copyright Regime vs Civil Liberties” talk is 100% wrong.

7:00-7:40
And it gets worse. The copyright is now lobbying for ISPs to be liable for what their users do on the net. And there goes another very important principle called the “common carrier principle” which ways that the messenger is never responsible for the contents of the message. Imagine if the US postal service would be held liable for what you send in letters. This is what the copyright industry is lobbying for. And they’re taking advantage of the fact that politicians are clueless about what new technology means.

There is a grain of truth in Falkvinge’ argument here, but it’s not nearly as bad as he wants us to believe. He wants us to believe that the ISP can be held guilty for the crime committed over the internet connection. For example, it sounds like an ISP can be held responsible for a death-threat send via email by one of their users. This is not actually what “holding the ISP responsible” means. Falkvinge’ statement is actually vague on this issue – which makes people assume the worst. (You can read more about this issue here.)

It’s currently two years after he gave his talk, and it’s true that copyright groups have started working with ISPs to cut-off internet service to pirates. I have actually heard about people receiving warning letters from their ISPs about pirating material over the internet. In one case, an internet user received a letter about a specific movie they had pirated on a specific day. They didn’t cut off his service, but it’s possible that they would after the third infraction. There are already some parallels with the policy of cutting-off pirates. For example, ISPs are sometimes contacted about cutting off customers who send spam, or who are involved in port scanning (which is typically associated with computer hacking). I’m sure that, if there is a grain of truth in Falkvinge’ argument, it might be true that the copyright industry is lobbying to get the right to sue ISPs who ignore piracy by specific users even after the ISP has been repeatedly notified about those users. In that sense, the ISP would be liable for failing to act on specific complaints about infractions by specific users. Falkvinge could then twist that into ISPs are going “to be liable for what their users do on the net”, which is true or false depending on how you interpret it.

I completely agree that ISPs should not have to monitor their users, or be held responsible for first-time infractions of their users. However, if an ISP repeatedly ignores notifications about a particular user, then it’s reasonable that their liability should increase. There is similar to how copyrighted material is treated on the web. If the copyright holder finds their material on the internet, they can send a cease-and-desist letter. You can then remove the offending material with no consequences. However, if you ignore the letter, your liability increases. This is why YouTube doesn’t get sued into bankruptcy – they don’t have to police every video uploaded onto YouTube for copyright violations, but they can be held liable if they ignore cease-and-desist letters about specific videos. In effect, ignoring cease-and-desist letters is tantamount to providing safe-harbor for copyright violators. I suppose someone could (just as truthfully) make the statement that “YouTube is being held liable for the actions of its users” – which is also true or false, depending on how you interpret it. (This is what gets a lot of piracy websites into trouble: they ignore cease and desist letters.)

11:40-18:00
Falkvinge gives his history of copyright and why it exists. His basic narrative is that the Catholic Church “was one source of culture and knowledge”. It was a top-down, one-source to “the masses” type of communication. Then, the printing press came along. The English monarchy established a single group of printers who could print books for authors, but censor and burn books not wanted by the crown. Later, when England allowed more freedom of the press, they also allowed more people to print books. The printers then pushed to establish “copyright” so that they could control printing of works by authors. He claims that it was always about protecting the distributor’s profits, never about protecting the author. I think the main point he is trying to make here is to establish a pattern: the Catholic Church controlled everything (bad), but then the printing presses came along (more distributors=good). But, the monarchy locked down the printing presses with censorship and ‘authorized printers’ (bad). Eventually, freedom of the press was established and more printers were allowed (good), but the ‘old system’ didn’t like that. He seems to be trying to create the pattern in the listener’s mind of the ‘old system’ trying to control things, but the ‘new way’ was always better and more democratic. While his point was muddled, he seems to trying to argue that ‘filesharing’ is the new democratic distributor which is opposed to the ‘old system’ of copyright.

This isn’t so much an actual argument as it is an attempt to get the listener’s mind thinking along a particular pattern and then insert filesharing into the sequence to guide the listener to a predefined conclusion. This type of argument is just “patterning”, and while it might confuse people into believing your pet theory, it has some big logical flaws. It’s easy to setup a pattern and then fit your own pet theory into it. For example, you could argue that the “old system” has always resisted the “new system”, but the new system was always better. Monarchy resisted democracy, but democracy was better. The Ptolemaic astronomers resisted Galileo, but Galileo was right. Governments resisted free speech, but free speech was better. Then, once you’ve established a pattern to get the listener to think in a particular direction, throw in your pet theory that superficially fits the pattern: and capitalism (the old system) will resist communism (the new system), but communism is better. Of course, that’s nonsense. I mostly see “patterning” arguments used with pseudoscience. Some crackpot will say that the establishment resisted Galileo and laughed at Einstein, and then imply that he fits the same pattern. Of course, he conveniently ignores the fact that 99 out of 100 theories turn out to be completely wrong. In the end, “patterning” is just rhetoric – a way to convince people you’re right without actually putting forward reasoned arguments.

17:18-18:00
So, the key here is that copyright, while written into law that it’s supposed to be for the benefit of the author, never was. It was for the benefit of the distributors. It was lobbied by the old monopoly as a way for that monopoly to remain even after the authors has supposedly gotten it instead…

Falkvinge is trying to setup the idea that authors/creators (the people we like) don’t benefit from copyright but (faceless, greedy) distributors make loads of cash from copyright. I’m sure most authors and creators see this as nonsense, but Falkvinge can probably pull the wool over the public’s eyes on this one. Heck, it’s almost an argument that you should pirate because (according to him) buying only helps greedy distributors and never the author.

19:43-20:15
What we’re saying is that, okay, there might be some business models that require a time-limited monopoly. Like, I can imagine a $200 zillion dollar movie out of Hollywood might want some sort of time-limited monopoly in order to get all of that venture capital. But, that monopoly must really now stretch into my private communication. I’m sorry, but the buck stops there… Non-commercial usage must be let free.

This is his argument about why filesharing should be legal, but they’re going to allow a 5-year monopoly on commercial trade. (Nevermind the fact that filesharing will drop the bottom out of any commercial trade.)

20:55-21:40
We have as vision a society where every citizen has 24/7 access to all of humanity’s collected knowledge and culture anywhere. That is a huge leap-forward. It is not a bad thing that the copyright industry has to take a step back. This is a much larger leap ahead than when public libraries arrives 150 years ago. And it is now enabled by today’s technology.

Actually, society already has that access. What Falkvinge wants is free access, and free access at the expense of the creator who produced it. Our copyright system enables the continued creation of new work. Economists know there is no such thing as a free lunch, but Falkvinge hasn’t figured that out yet. And the comparison to libraries is faulty. Libraries support authors by buying books. He might have a point if libraries printed up their own copies of books (without paying the author), and also printed up free, permanent copies for anyone.

I also hate the “knowledge and culture” phrase that anti-copyright advocates use because they want to make “entertainment” sound lofty and legitimize making it free. Anyway, more and more information is freely available on the web. Dictionaries and encyclopedias, for example. More and more TV and movies are available online – with only a few advertisements. There is so much information available on the internet for free, more than anyone could ever read. We have more free “knowledge and culture” available at our fingertips than anyone at any other period of history. All of this actually makes it clear that the Pirate Party isn’t really interested in spreading knowledge. They want free access to all the movies, music, and software that they can get. It’s about free entertainment, about never having to pay for anything digital. (A quick look at the top downloads at piracy websites will quickly reveal that entertainment is the primary goal of pirates.)

He sums up the Pirate Party positions:

The only items where I really agree with his ideas are shortening copyright lengths (but not as extreme as lowering it to 5-years) and also reducing patents (to cut out all the frivolous, defensive patents, but not to eliminate all patents).

29:00-29:15
What’s important about this is that every single business model that makes money today will make money with these changes implemented. The only difference is that millions of people will not be criminals.

It’s hard to interpret exactly what he means by this statement. It could have two possible meanings:
(1) He’s claiming that the business models will bring in the same levels of revenue as they did under a copyright system, and therefore, creators will continue to create.
(2) He’s claiming that those business models will “make money” without copyright, but avoids saying that they make a lot less money. This obviously true – no businesses will bring in zero dollars in revenue, but it’s irrelevant since a company that makes 20% of its original revenue is probably a bankrupt company.

So, I’ll address the first interpretation, which is the only relevant question here. Because companies and creators have a variety of costs and variable profitability, Falkvinge essentially has to argue that people will continue to pay as much money to creators if copyright is eliminated. Presumably, he thinks that people will simply donate money – and they’ll donate just as much money to support creators as they currently spend to buy copyrighted material, or purchase copies (even though they already have the media). This sounds like complete nonsense. I’m sure that if you compared the amount of money donated to OpenOffice versus the amount of money paid to Microsoft for MS Office, you’d find a huge disparity. (And I say that not because I’m crying for big-companies or their potential loss, but simply to point-out that people do not donate nearly enough to match what they were paying for copyrighted material.) Similarly, wikipedia has never earned nearly as much money in donations as Encyclopedia companies were earning back in the 1980s. More specifically, wikipedia was trying to raise $6 million in donations in 2008. In comparison, the Encyclopedia Britannica brought-in $800 million in 1989. It’s great that there’s a free encyclopedia for everyone, but my point is simply that people are clearly not donating at levels that replace revenue compared to copyright systems.

Now, I know that people argue that pirates purchase a lot of digital after they pirate it. (I don’t actually believe that most pirates continue to buy at levels near their pre-piracy rates.) I also doubt that a good comparison can be made between the behavior of pirates and the behavior of the general public in a society without copyright over a long period of time. Sometimes, I think pirates purchase copies of material they pirate because they’re still in the habit of buying digital media from their pre-piracy days (thanks to copyright). I think that companies will see revenues fall to a small fraction of their current earnings if copyright is eliminated. That may not be a problem for the survival of a few extremely profitable products, but it will bankrupt almost everyone else.

I think the Pirate Party’s ideas are bad economics, and has quite a bit in common with other bad economic systems that got people excited, but were fundamentally flawed (like communism and the dot-com bubble). Unfortunately, “free entertainment” is a pretty good way to draw-in votes, especially among younger people – who are cash-strapped and very interested in entertainment.

Update: From an 19 October 2009 BBC article –

[Falkvinge] takes a long pause when asked whether he agrees with the principle that artists should be allowed to make a living from their creations, if they are popular enough.

“In economic terms, there is an enormous oversupply of people wanting to live off creativity,” he replies.

“So there isn’t enough demand to pay everybody. In such an occasion, market forces dictate that there will only be so many successful creators.”

First of all, he actually dodged the question. It reminds me of that adage politicians follow: don’t answer the question that was asked, answer the question that you wish they asked.

Second, the reality is that all economic systems require laws to function well. If you own a store, you need laws against shoplifting, embezzlement, and laws involved in contracts (so that, for example, you can require that your suppliers hold-up their end of the bargain). If the government suddenly decided that shoplifting was okay, you’d see stores taking drastic action to stop theft (e.g. guns) and lots of stores going bankrupt. The fact that they go bankrupt is not a symptom of “market forces dictating that there will only be so many successful [stores]”. That would misattribute the reason for the failure, and would be an attempt to dodge the blame for setting up a bad economic system.

The Pirate Party wants to change the economic system and make it much harder for creators to recoup the value that they have produced for society. Then, under this biased economic system, when creators fail, they point to “the market” as the reason that the creator failed. In reality, when a customer buys a product for $10, what they are saying is that “this product is worth more to me than the $10 I have in my pocket”. The Pirate Party, by eliminating copyright, would be opening the doors for everyone to get it all for free – which would eliminate ability to make a mutually-beneficial trade, just as legalizing shoplifting would eliminate the ability to make mutually-beneficial trade between the store and the customer. Customers get this valuable product for free, the creator goes bankrupt and stops producing for society. It’s not because “the market” decided that the creator wasn’t producing value for society, but rather, because the economic system was changed so that the value that the creator produced would no longer be repaid by society to the creator. So, what Falkvinge is doing here is revealing how badly he would bungle the economic system that encourages production, and how poorly he understands the economic and legal underpinnings of society.

In economic terms, eliminating copyright is a loss for society. It’s a “tragedy of the commons” situation. When everyone pursues their own self-interest (by pirating and not paying) it leads to a collapse of the economic system that enables creators to continue their work:

The tragedy of the commons refers to a dilemma described in an influential article first published in the journal Science in 1968. The article describes a situation in which multiple individuals, acting independently, and solely and rationally consulting their own self-interest, will ultimately destroy a shared limited resource even when it is clear that it is not in anyone’s long-term interest for this to happen.

Copyright as Collaboration

by | Copyfight, Copyright
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A group of people wants a survey of disease in a population. They calculate that it will cost $100,000 to do this survey properly. They sit down and think about whether their they need the results badly enough to pay $100,000. They decide that, even though the survey would be valuable, they can’t justify the cost. They begin to notice that lots of other groups want the same survey data. They decide that they will do they survey and then sell copies of the results for $5,000, to help pay the costs. Other groups like that idea a lot because they were considering doing the same survey for $100,000. Now, they can get it for $5,000, instead of $100,000. So, they do the survey, sell the results (reducing their own costs), other groups buy it if they think it’s worth the money (reducing their costs from $100,000 of doing the survey themselves to $5,000), and everyone wins.

Then, along comes one group of people saying that “information wants to be free”. Another group says that they “shouldn’t have to pay for it, because they aren’t taking anything away from anybody by getting a copy.” They say the “cost of duplication” is the only relevant cost, and they can use their own photocopier. Soon, everyone follows suit. Nobody pays. The whole system falls apart, leading everyone back to the original situation the next time: each group must pay $100,000 to do this survey themselves, or simply go without the results. The entire world ends up poorer as a result, because collaborative payment falls apart. What copyright does is enable collaborative action, by stopping people from giving away free copies. Piracy allows each group to anonymously opt-out of paying, ultimately undermining the whole system, making the world a much poorer place in the long-run.

We can think of copyright as enabling society to collaboratively fund creative development.

An Odd Anti-Copyright / Pro-Piracy Argument

by | Copyfight, Copyright, Piracy
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I admit that I sometimes the read comments on articles about piracy. I often feel like I must be a masochist to do so. (At the same time, refusal to read what people are saying makes me feel like I’m sticking my head in the sand.)

I think the copyright-based industries (music, movies, TV, software, photography, etc) are shooting themselves in the foot by not talking about copyright more often. The only time I seem to see companies defending copyright is when the RIAA or MPAA speak up – and they’re so universally hated that they are effectively ‘the big evil corporation’ in most people eyes. By keeping silent, we’ve conceded too much ground to the anti-copyright / pro-filesharing activists, who are taking control of the entire conversation. Heck, Cory Doctorow (pro-filesharing, anti-copyright activist) is out there writing books for teens – trying to convert them to his way of thinking while they’re young. (Most people’s views of the world most changeable while they are young; when they get older, their ideas solidify and are difficult to change.) We can’t really expect to win people over if we leave the public dialog to the anti-copyright activists.

But, I’m digressing. My main point in writing this post was to talk about a weird anti-copyright argument I’ve seen on several occasions. Here it is (actually a combination of two different people making the same argument):

I mean, in my job, I have to actually do something to get paid. I can’t do my job on thursday and then continue to get paid for it next week. I have to keep doing my job.
…
If [someone] builds a house, he gets paid for it ONCE.

If he works at McDonalds, he gets paid once that burger he put together.

What content providers do is they make one house or one burger and constantly get paid for it for the rest of their lives.
(Source: cnet)

Essentially, the argument boils down to “I do work and get paid for it once, copyright industries do work once and get paid over and over – sitting around collecting money”. He would have a point if the copyright industries were charging the full development costs to each user. The problem with this argument is that the copyright industries aren’t getting paid in full each time. Just think about it: a company spends X millions of dollars creating a piece of software (or a movie, a recording, etc). Then earn Y dollars in revenue from each sale, and make Z sales. Hopefully, they get enough sales to pay-back their costs (i.e. hopefully, X < Y*Z). We're spreading out our costs over all our users - not charging our full development costs to each of our users. In fact, the market pretty much forces us to do this. If I'm making a ton of money making software - earning 10x or 100x what I actually invested, then other people are going to try to enter that same market and compete with me. They force me to drop my prices. Pretty soon, we're operating close to the lowest level of profit we can. (Yeah, I know monopolies can mess-up that situation.) The guy seems to think that copyright industries are making money hand-over-fist, and while that's true in some cases, it’s certainly not true in most cases. I’ve worked for software companies that were going bankrupt. I’ve seem plenty of software companies go bankrupt. (Is this guy is completely mystified by the fact that a software company could go bankrupt?)

I did a calculation once figuring out how much money each user pays for my software compared to how many hours I spent creating that software. It turns out that each of my users are paying something like 1/4th of a penny per hour of my work. Where else can someone get an 8-hour day’s worth of work for 2 cents? That’s less money than sweatshops pay in third-world countries. The fact that we can spread-out our costs over all our users means that everyone benefits with lower prices – everyone gets the benefit of thousands of hours worth of work for super cheap. I’m not even sure how this guy thinks the software industry should work. Does he think that a company who invests millions in creating some software needs to either sell it exactly once, or should they give it away (i.e. not earning back their development costs)? Those seem like the only alternatives to selling copies. That would cut the bottom out of the entire consumer-software industry. How exactly would the creators of “Starcraft 2” or “Killzone 2” possibly pay their development costs ($60 million for Killzone 2), if not by charging their users (i.e. ‘getting paid multiple times for the same work’). Are they supposed to find one gamer who will pay $60 million dollars, and then give-away copies for free to everyone else? The whole argument is just bizarrely disconnected from economics, and this isn’t the first time I’ve seen someone make this argument. Ironically, he ends his argument with “Not everyone can think for themselves I guess.”

No doubt, this guy thinks he’s completely justified in pirating because paying the content companies “multiple times” means they’re automatically swimming in cash. (And, I still can’t figure out why he thinks it’s okay for musicians to get paid ‘multiple times’ when they perform one concert for thousands of fans.)

Pirate Bay Goes To Court

by | Business, Copyright, Piracy
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Well, it’s about time, Sweden. The enemies of software development are finally in court. According to articles I’ve seen, the movie, music and software industries are claiming that they made millions of dollars on ads. I don’t know if that’s true or not, but it doesn’t much matter to me whether they got rich (just like it doesn’t matter to me whether or not someone made money when they slashed the tires of my car – they’re still guilty of causing harm). I suppose that’s the justification for the fines, though – the Pirate Bay faces $13 million in fines and up to 2 years in jail.

What’s disturbing, however, is the fact that some popular websites have become “no go” areas for anyone arguing that copyright should be respected. Both Digg and Slashdot are strongholds of the pro-piracy / we-ignore-copyright crowd. Here’s two popular comments and one unpopular comment that recently appeared on Digg. Note the vote-up/vote-down counts. Over three hundred people voted these comments up, while 10 voted them down — that’s a 97% vote-up.

For artists, creators, and software developers, it’s a frightening sight.

Digital Survival in the Age of Piracy

by | Business, Copyfight, Copyright, Piracy
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“If I want it, I take it because I can.” – Peter Sunde, co-founder of PirateBay

It seems that piracy is on the rise in the US. Earlier this year, I was at the coffee-shop when a man at the next table asked me if he could borrow a flash drive or something to transfer a file between computers. He needed to give a file to the girl he was sitting with. Being helpful, I let him use my flash drive. A few months later, while looking through the drive, I discovered what he had transferred: a cracked copy of Adobe CS3 (price: over $2000). I was kind of irked that I was inadvertently involved in software piracy.

More recently, one of my neighbors had a problem with his computer, so I took a look at it. He thinks it was messed up by filesharing software that he installed. He had heard from another neighbor of ours that this filesharing program was a great way to get lots of music for free. In another case, I told a friend of mine about how Amazon was selling their top 50 albums of 2008 for $5 each. She immediately responded with, “that’s still $5 more than downloading it”.

I know another guy from the local coffeeshop who does web development. He recently discovered how to pirate software off the internet. Now, without fail, if I mention some software product or another, he offers to download it for me off the internet. I told him how I’ve been using Corel Photopaint for the past 10 years. I’d like to move up to Photoshop, but I’m not willing to pay the $600 for it. Of course, he offered to download it for me. Another time, I heard him talking to a guy who bought some music-production software. He said, “Did you pay for it?” The other guy responded, “Yeah.” “Oh, that’s too bad. I could’ve grabbed you a copy for free!” He told me that he bought Adobe CS2 a few years ago for $2100. I was surprised by the fact that he actually bought it, so I asked him about it. Unsurprisingly, he told me that he didn’t know how to pirate software back then, and he’ll never pay for another copy of Adobe CS. I’ve been unjudgmental about the whole thing, even though I hate the idea of software piracy. I create software for a living, so the idea of losing lots of sales or going bankrupt due to piracy makes me cringe. My fear is that this kind of attitude and tech-savy will become widespread. Part of the reason I haven’t been judgmental is because he’s only one person in a larger trend, because I know him personally, and because I see him as an opportunity to examine the motivation of a software pirate. While I won’t assume his motivations are representative of all pirates, but it’s clear that he’s not downloading software in order to decide whether or not it’s worth paying for. And he’s not downloading software that wasn’t going to buy anyway. He pirates software because it’s cool software and it’s absolutely free. It’s like he’s in a giant shopping mall that’s open 24/7, has all the world’s digital media, and everything is free.

To make matters worse, I related this story to my girlfriend. Before I had explained my position against piracy, she asked me if this guy could get her a copy of Photoshop. (Ah, not you, too.) She’s a poor grad student, and she needs it for school, she explains. Adobe is rich – they won’t need the extra money, she says. I refuse, explaining that it’s wrong to pirate software. (I’m typically the more permissive/liberal one when it comes to social issues, so this was an odd role reversal.) Besides, I’d be a big hypocrite if I pirated software but told people not to pirate mine. This puts me in the weird position where I’m apparently doing something bad to her (depriving her of software, forcing her to pay for it) unless I do the unethical thing and pirate it for her. It’s unfortunate that otherwise good people often see nothing wrong with software piracy.

Such is the reality of software piracy today, and I only see it getting worse. The downloader programs will become more user-friendly. Users will become more tech-savy. PirateBay is working to make their system more secure – so pirates can’t get caught. “All the free software you can download” is the kind of offer that will spread well from person to person. The perfect storm would involve an easy-to-use software downloader, widespread knowledge about using the software (similar to knowledge of say, using google), a culture where piracy is socially, morally, and legally acceptable, and superior to buying software (“why pay for it if you can get it for free?”). In parts of Southeast Asia, more than 90% of all software is pirated. Some misguided people are even trying to make piracy legal.

How will the digital industries of the 21st century cope and survive? In general, I think piracy will devalue both the companies involved in digital-content creation, and devalue the skills, intellect, and education behind it. It will also devalue the economies of the first-world (which is skewed towards intellectual work), and favor manual labor based economies of the third world. No doubt some of the trade imbalance between the West and China is due to widespread piracy of digital products. We pay for their work, they don’t pay for ours. On the positive side, more and more people around the world will have access to computers, so the new consumers will partially offset the losses caused by piracy – assuming their entrance into the marketplace isn’t outstripped by the growth of a pro-piracy culture. Not all digital work will get hit hard with piracy. In general, we can think of the digital-media world as a forest – lots of plants, animals, and biodiversity. Piracy strips away the rain (money) turning the forest into a desert. But, things live in the desert, too – the spiders, snakes, scrub-brush, and cactus. Things will get more difficult as piracy chokes out the life of the forest, but it won’t die entirely.

Part 1: What industries are getting hit the hardest?

Some digital-content industries will get hit harder than others. So, what business models will get hit by piracy, and what can they do?

Server-based software, including: Cloud Computing (i.e. applications delivered through a web-browser), Server-Farm Based Software (e.g. social networking software, such as Facebook), Server-Farm Based Games (e.g. World of Warcraft, other massively-multiplayer games). By keeping some critical part of the software out of users hands, this software is pretty safe from piracy.

Server-based games also offer an interesting test of the damage of caused by piracy. In January 2007, it was reported that there were 3.5 million World of Warcraft players in China (nearly half of the world’s WOW players). It’s a big business there. But, companies trying to sell traditional single-player games can’t make a profit. Why not? Because single-player games can be easily pirated. As a result, (non-piratable) massively-multiplayer games make a profit, while (piratable) single-player games can’t. It’s not that the Chinese aren’t willing to pay for games (otherwise, there would be no WOW players). It illustrates the fact that when provided with two options: (1) don’t pay + don’t play (2) pay + play, the Chinese are willing to pick option 2. But, when provided with the third option: (3) pirate the game, the Chinese largely choose the third option over the second one. If piracy didn’t exist, single-player games could actually turn a profit.

Multiplayer Games played online, but not on company servers (Team Fortress 2, etc)

In this model, the game isn’t played on company servers (people setup their own computers to act as servers), but company servers are used for matchmaking, game updates, and new game content. This model is relatively safe from piracy because the online portion of the game requires talking to company servers to find other players, and this allows them to kick-out anyone running pirated copies of the game. Of course, with a fair amount of work, it’s always possible for pirates to setup pirate-servers for matchmaking.

Games with Some Online Content (Halo, Spore, Galactic Civilizations, Starcraft, etc)

This includes games that can be played online or offline (in single-player mode), games that have some content on company servers (e.g. Spore), or have frequent game updates/patches. These games have some protection against piracy in that players must have a legitimate copy in order to access online content. Many pirates will chose to simply play the single-player campaign, but at least the presence of online content provides some incentive to upgrade to a legitimately purchased copy. The size of the incentive depends on the value of the online content. If the only online content is upgrades and patches, it’s not much of an incentive, since there will be pirated versions of the software that has the latest patches. When selling software with some online content, keep in mind that – for pirates – you’re actually selling the difference between the non-internet connected copy (which they already have for free) and the internet connected copy. Software developers need to ask, “Are the online benefits *alone* worth the full cost of the $50 product?”

Games with no Online Content (Doom 3, Civilization, etc)

These games are in the most trouble. At best, they can try to buttress their profitability with some non-intrusive DRM – although even DRM gets broken. Games with little or moderate popularity are in the best position because there are fewer people trying to crack the software. This gives them a small window of weeks or months where there are no cracked copies available. Big-budget games (Halo, Half-Life, Spore, etc) attract so many hackers that they get cracked within a day – often before they are officially released.

Software that is Free, but acts as a Portal to Sell Something (e.g. iTunes)

This software will be pretty secure, because it’s not necessary to control the client software. In fact, the more people that have the client software, the better. The software merely acts as a conduit to something you are selling. Unfortunately, the market for this is very, very narrow since web-browsers can fulfill this role.

(Non-Game) Software

Software follows much the same pattern as games – if there’s a need for frequent updates (e.g. Operating Systems, Virus-Protection), then there’s some incentive to buy a legitimate copy. Unfortunately, most software is far less connected than games are. There isn’t much need for your wordprocessor or paint program to connect with other users. This means a pirated copy works just as well as a legitimately purchased copy.

Expensive Software (Photoshop, 3D Studio, Autocad, Dreamweaver, Visual Studio, etc)

This software takes a big hit due to piracy. In fact, this is probably the hardest-hit software. A lot of this software is used in business (meaning people must have it). In many cases, the software is expensive because it is complex (lots of development), is extremely beneficial for users, and/or there is a small pool of people who need it (so development costs fall on relatively few customers). The high expense of this software makes it very attractive for pirating. I think companies tend to be more willing to buy this software than individual people are. When software costs $3500 (3d Studio), $600 (Photoshop), Visual Studio ($800), people find lots of ways to justify getting a copy without paying for it. Large companies (like Disney, Pixar, movie studios, etc) probably do a lot to keep these companies in business because they seem to be risk-adverse to lawsuits due to software piracy, and they want tech support.

Also, “expensive” is a relative term. $100 in the first world is a moderate expense, but $100 in the third world is a month’s pay. This is part of the reason the third-world has rampant piracy, while it’s much lower in the first world.

Cheap Software / Free Software / Podcasts / Websites

The difference between buying a copy and pirating it becomes negligible as the price of software (or music, movies, electronic books, etc) declines towards zero. As a result, people are more willing to purchase a copy instead of pirating it. Also, if software, podcast, or website is supported by advertisements, then pirating is a non-issue since the content is already free and convenient. Unfortunately, ad-based revenue models only work for the cheapest products, and products with very high volume – products where “pennies per user” supports your work.

Complex Software with Repeat Releases (Windows, Microsoft Office, Visual Studio)

Some software that gets pirated has the effect of training users to use it. They get used to it, comfortable with it. In the case of Operating Systems, they get locked into it because they buy software to run on top of the OS. When new versions come out, that software company is in a better position to make a sale – because some pirates might decide to purchase a copy this time around. Microsoft has gained some long-term benefit by the fact that people in Asia pirated its OS and Office software so widely. Now that the users are becoming more affluent, Microsoft is in a better position to make a sale. The problem with this is that most companies can’t take advantage of this trend. This trend requires: creating updated versions of earlier software, selling the updated versions (rather than free upgrades), the software has a significant learning curve or “lock-in”, and that the company is around for a long time. A company that makes one product and then goes bankrupt cannot take advantage of this trend.

Music

With musicians and record labels getting hit with piracy (causing a dent, but not a collapse of recorded music), musicians can retreat to other sources of revenue:
– concerts
– royalties when their music is used in movies, television, advertisements, re-sampled in other music
– band-related shirts, posters, etc.
Musicians also might benefit from piracy in the sense that a heavily pirated first album can lead to better sales on later releases.

Movies

Since movies are (often) released first in theaters and the theater experience isn’t reproduced with pirated copies, movies have some defense against piracy. Also, theaters are a social activity (“let’s go out to a movie!”), and that is not reproduced with pirated movies. Some older movies have moved towards the advertisement model of television. For example, the Monty Python group recently placed high-quality versions all of their movies on YouTube – with advertisements, of course. This allows them to make a little money from advertisements (compared to no money with piracy), plus their presence can potentially spur sales of DVDs. And since this work is old, anyway, it’s not high value content like new releases are.

Television

Television companies have taken advantage of the internet by placing their episodes online. Comedy Central, Saturday Night Live, South Park have all done this. Hulu.com hosts lots of TV programs, and movies, too. In order to generate revenue, they place ads. This model largely mirrors television revenue models, and has reduced the incentive for piracy.

Books

A number of publishers and authors have released their books online in digital format. Tor Books, for example, released electronic versions of some books and saw physical sales of those same books increase by 0-30% (but not decline). This isn’t terribly surprising since people prefer physical copies of books over digital ones. It’s conceivable that some people read the first chapter or two of the book, got hooked, and bought the physical book to save themselves the irritation of reading the rest of the book on a computer monitor. This positive effect on sales could lessen or become negative if e-paper becomes the preferred/widespread method for reading books. Further, books aren’t an expensive item (unlike some software which costs thousands of dollars) so people don’t need to think too much about the cost of buying.

In fact, we can do a little comparison within the world of books: stories versus encyclopedias. Fiction is usually pretty cheap. Further, you want to read it cover to cover (and you don’t want to do that on a computer monitor). On the other hand, encyclopedias are expensive, cumbersome, and are used for reference. The fact that encyclopedias are used as reference means you don’t read them cover to cover (so you don’t mind reading it on a computer monitor), and the digital version’s search and hyperlinking are very valuable (you can do that will digital versions, but not physical versions). This means digital versions of encyclopedias are better than physical versions (exactly the opposite of stories). So, what has been the effect of digital encyclopedias on the sales of physical encyclopedias? The encyclopedia companies are watching their revenue collapse – first, they preferred to sell physical encyclopedias over CD-ROM versions (which hurt them), then they got hit by online versions of encyclopedias. If Tor Books was trying to sell copies of encyclopedias by giving away digital versions, they’d be pulling the rug out from their own feet.

So, while some books might benefit from electronic versions being freely available (because it can drive sales of physical copies – which is the preferred format for fiction), it’s highly suspect that this pattern can be generalized to other digital media (or even other types of books). This is especially true when you consider that the “book reading” demographic or the “Tor Book newsletter subscriber” demographic might differ substantially from consumers of other digital media.

It’s also worth pointing out that Tor Books discontinued their free e-book program. Why? Well, they never released any figures, but it seems unlikely that a program that was increasing sales would be stopped. One possibility is that the free book program was hurting sales of their other books — i.e. readers were less likely to order a book if they had an e-book that they were planning to read. Or maybe the free e-book giveaway would cause a short spike in book sales, but harmed book sales in the long run. It’s also worth pointing out that Tor’s book program was introducing readers to authors they’ve probably never read before. This contrasts with the normal pattern of piracy where a pirate knows about a product, then goes and finds it online. We would predict that the second pattern would be much more damaging to product sales than the first.

Part 2: Strategies for dealing with the damage of piracy

Most pirates would claim that piracy doesn’t cause any damage because getting a copy of some software doesn’t cost the software company anything (in contrast, for example, to stealing a truck owned by the company – which is a material loss). The problem is that companies have revenue and they have costs. If a company loses half of it’s sales to piracy, it’s revenue is cut in half. This can quickly change a company where revenue is larger than costs (i.e. a profitable company) into the reverse – a company slowly sliding into bankruptcy. So, how can companies limit the damage of piracy?

Three Strategies that (only) work for complex, business-targetted software:

1. Provide Support – People can pirate your software, but you can incentivize a purchase by providing tech support. Unfortunately, this strategy works poorly for most software. If your software is highly complex (like a database or enterprise-level Operating System), then you can get away with it. In general, companies are more willing to pay for support than individuals are because companies are risk-adverse. A CEO doesn’t want any surprises, so for them, “paying for support” is kind of like paying for insurance. It’s generally much harder to get individual users to pay for support. The downside is that there are far fewer companies in the world than there are individual consumers, and companies are only going to pay for business-related software. Additionally, most software shouldn’t require any support. It happens to be my design philosophy that software *just works*. If you’re making video games that require a lot of support, then you’re doing something very wrong. Trying to incentivize legitimate game sales with a promise of “tech support” is downright bizarre, but it will work for a few (complex, enterprise-level) software products.

2. Sell Customization – Even if you give the software away for free, you can charge for customization. If you’re the software developer, you’re the best person to do the customization. This is a strategy that only works if you’re selling to a corporation, and you’re selling complex software. Something along the lines of an airline reservation system, maintaining hospital patient records, etc. There’s virtually no market for this if you’re selling to individuals or gamers. The downside to this is that this market might have limited longevity. If you’re doing customization, then you’re not doing new development (so the software gets dated). Also, someone can come along and scoop your market by producing more user friendly software. (I wonder how many custom-software companies took a hit when Microsoft Office came along with macros, automated calculations, and a simple database.) Some people have made careers out of doing custom software, but most of the off-the-shelf software out there isn’t going to survive using a software-customization business-model.

Note: There are a few games that sell customization, upgrades, or in-game items (RuneScape, Battlefield Heros, Maplestory). But, these games are already pirate-proof since they are run on server-farms. Customization is just their way to get some revenue (since the games are already free).

3. Sell Training – Some software is extremely complex (e.g. Autocad), and companies can get involved in selling expensive training to their users. This has limited value because: 99% of all software requires no expensive training, and third-party companies can crop up to sell training (effectively stealing away your trainees, and they don’t have the development costs you do). You could also sell expensive training to the third-party guys who go and do the training. This only works in the thin sliver of software products that are highly complex, are being sold to large (cash-rich) companies, and where the company CEO is risk-adverse enough that he wants training from the guys who wrote the software, not the third-party offering training for discounted rates.

Avoid creating software that can be easily pirated. Easily pirated software includes most single-user software and single-player video games (which is, in my opinion, the majority of the software industry). Piracy will drive changes in the marketplace where companies produce less of this type of software (which will harm consumers in the sense that less software diversity will exist). Essentially, piracy is going to cause a “flight to safety” – rendering vibrant portions of the software industry less profitable or unprofitable. Piracy will drive companies to the safety of interconnected, validated software which is dependent on company servers in some way. (This will have negative effects on consumers, since the servers will be shut-down if the company ever goes bankrupt.)

Write Software with Significant Online Content – Unfortunately, this limits companies to producing a particular type of software. It might be useful to create games with both single-player (off-line) content and online content. If 10%-50% of the game is available in off-line / single-player / pirated form, then it can act as a demo for the full purchased version of the game. The pirate may, then, pay to access the other 50%-90% of the game. This is an interesting strategy because it attempts to use piracy as a hook to drive sales up. It essentially uses the single-player functionality as a free demo.

Demo – Gamers want to know if your software will work well on their system (good framerates, memory, etc), and want to try it out to get a feel for whether they actually like the game. Further, the demo should be representative of gameplay (if there’s a section of the game that slows the animation to 2 fps, the demo shouldn’t stick to the easy scenes that always run at 30fps). When companies don’t put-out a demo, people might be tempted to download a pirated version to see how it runs on their system. But, once they’ve pirated it, even if they like it enough to pay for it, they may not feel motivated to actually make the purchase. Companies should work to insure that their customers don’t get home with a new game only to have their excitement drain after seeing it run horribly on their machine. We should work to make sure pirates don’t have the “chance to see if a game runs well / is a good game before paying money” advantage over the paying customer.

High Volume Sales – If you make software that *lots* of people want, then even if half of your users pirated the software, the other half of your users will provide enough revenue to support your company’s survival. In that case, you have to attract twice as many users to be profitable as compared to a world where piracy didn’t exist. Basically: make great software, and try not to dwell on the lost revenue. Despite the unwillingness of half your users to pay, you still cross the threshold of profitability.

Make Stuff People Love – If people love your stuff (good design, bug-free software, fun, powerful, responsive customer service, …), they’ll be more willing to pay you for it. Some of your pirates might even go out of their way to buy a legitimate copy. Some companies (Apple computers) have done very well building up a love for their company. It not only builds brand loyalty (they’ll buy later products), but they’ll want to pay for the current one, too. (Personally, I don’t think most pirates can be converted into buyers, but anything you can do to convert any of them is a good thing.)

Be Nice – People will often take out their anger on a company by pirating digital media, rather than buying it. If you’re well-liked, they’re more apt to want to support you. Stardock has largely used this strategy to gain publicity (along with “make software that lots of people want”). They championed gamer’s rights, ignored DRM, didn’t dwell on their piracy problems, and gamers wanted to support them. The RIAA and record labels, on the other hand, have provoked enough animosity that some music listeners want to punish them by pirating instead of buying their products. If people don’t like you or your company, they won’t want to pay you – which gives them one more reason to pirate your stuff.

DRM – While there’s campaigns aimed against digital rights management, I don’t have any kind of philosophical problem with it. A lot of DRM ends up getting cracked, but I think DRM for software can still be effective. In the long-run, I’m more optimistic about the possibility of DRM being effective in software than I am for other types of media (music, video). Popular software products probably benefit less from DRM than smaller software products, because larger projects attract more crackers. Small software products might fly under the radar of software crackers – giving them months or years of exclusive sales. According to my publisher, the DRM we’re using hasn’t been cracked in years. I do think developers should avoid onerous DRM, though. That can drive-down sales, even if it prevents piracy. And if a pirated version does exist, then onerous DRM will give them one more reason to get a pirated version. (Additionally, it might be a useful idea for companies to release non-DRM versions of software after a few years. DRM is most useful during the first few years of a product’s release – when most of the sales happen. Companies can follow-up a few years later with a non-DRM version as a favor to their existing customers – it’s a way of saying “no matter what happens, you can still run this software 10 or 20 years from now”. Working to help the customer will make them happier with you.)

Avoid the Pirate Demographic – Write software for people who aren’t tech-savy enough to pirate software. Unfortunately, the percentage of computer users who know how to pirate is growing, but there will always be people who are too busy with other things to know or remember how to do it. These are largely casual computer users and casual gamers. My guess is that “Big Game Hunter” and “Barbie’s Playhouse” isn’t heavily pirated. Why not? Because blue-collar hunters and little girls aren’t up on their piracy know-how. I’d guess that “ground zero” for software piracy involves males between the ages of 15 and 30.

Convenience – Make it easy for users to buy your software. If it’s easier to get a pirated version than a legitimate version, then you will lose some customers. If you can sell digital copies off of a website, rather than forcing users to drive to a store, that’s useful. Unfortunately, selling software has two inherent disadvantages over pirated copies: (1) people have to pay money, and (2) they have to go through the process of giving you their credit-card information. Pirates are working to make it easier for people to pirate software, and they won’t ever have those disadvantages.

There are a couple things the software industry (as a whole) could do to preserve their survival:

Keep Piracy Illegal – Unfortunately, there are people trying to legalize filesharing. Legalizing filesharing would have the effect of telling everyone that getting it for free is perfectly okay, which could drive up piracy rates, make piracy morally acceptable, and everyone who resists piracy on moral grounds would be viewed as suckers. For example, even if my parent were tech-savy enough, I know that they wouldn’t install filesharing software in order to pirate software – if for no other reason than the fact that it’s illegal. On the other hand, if piracy were legal, there would be a big reversal. I’m sure my parents would resent it if I *didn’t* tell them that the software they just bought could be grabbed off the internet for free. No doubt, filesharing programs would spread from person to person more quickly than Firefox or OpenOffice, and legal filesharing would transform “paying for software” from “something you’re supposed to do” into having a status of “this software is free, but our suggested donation is…”, which would hugely affect revenue. Computer manufacturers would pre-install filesharing programs on their machines to help hardware sales. The Linspire company (formerly Lindows) already includes a software downloader, and prominently advertises it. I assume they only include free/open-source software, but if filesharing were legalized, it would include all software. If computer manufacturers did this, then users would assume that they already paid for the software via some kind of package deal, which would cut revenues even deeper. I’m sure Firefox would include filesharing capabilities. Legal filesharing would create a middle-man industry devoted to helping users freely get digital content produced by unpaid third-party digital-media workers. We could also expect companies to create TV-set boxes that would give viewers access to all movies (say goodbye to Netflix and pay-per-view). Viewers would not be opening up their checkbooks to write checks to the people who created those movies. All of these things would cause a huge collapse in sales – easily bankrupting lots of digital content creators.

On several occasions, I’ve heard people tell stories about being a poor college student who pirates software, but that (after getting a job and money) they changed to buying software. Apparently, they had a change of heart about the legitimacy of pirating. If software piracy were legalized, it could have negative effects on that transformation from pirate to customer.

Fortunately, I don’t foresee the United States or most lawful nations legalizing filesharing, but the side-effect of the “legalize filesharing” arguments is that it supports the idea that people should be allowed to pirate – allowing pirates to feel justified in their actions. This has the effect of driving up piracy.

Keep Piracy Stigmatized – In the long-term, maintaining the culturally-based stigma of piracy is critical. Many people (like me) don’t pirate because we feel it is morally wrong. It will be very bad if there is a shift towards the social/moral accepability of piracy. The critical question is not “are there a lot of people who think piracy is acceptable?”, but rather “what percentage of people think piracy is morally acceptable?” If half of the public refuses to pirate, then those people can support the existence of the software industry – even if piracy cuts revenue in half. We can withstand lots of freeriders if there are enough people paying. It would be devastating to the software industry if piracy in the first world matched piracy rates in Southeast Asia. On the flip-side, if over 90% of users rejected piracy on moral grounds, it would be a great boon to everyone: we could stop putting DRM into our software – saving us time and money, and users wouldn’t have to deal with DRM. Unfortunately, I don’t ever think society will ever reach that level of consensus – and certainly not when there are people advocating and legitimizing piracy.

Bad Strategies for dealing with Piracy

Open Source your Software – Admittedly, this can work in a few narrow areas. If you are writing complicated business-related software, you might be able to use the three strategies (Provide Support, Sell Customization, Sell Training). Open-source can also work to reduce costs – if you open-source a component of your own software, and then sell a product built on top of it. Open-Sourcing won’t work for the majority of the software industry. Some people point to the success of open-source software to argue that it can work as a business model. But there are numerous problems with that idea: (1) A lot of successful open-source software was originally proprietary software (OpenOffice, Blender 3D, Firefox, NSIS, etc). This means some of the development was paid for back when it was proprietary. When they failed as proprietary products, they were changed to open-source — not as a strategy, but as charity. The failed proprietary software was pretty-much worthless to their parent companies, anyway. (2) Open-source is often byproduct of the proprietary software industries. Many products (Blender 3D, NSIS) were created as internal tools by companies and then released into the world as open-source. In these cases, the software wasn’t originally being sold as a product, it was being used internally by the company. I also know of companies who have open-sourced some part of their product (e.g. a 3D engine), and then they sold a product built on top of that open-source component (e.g. a game). IBM has also done this. But, if the proprietary software didn’t exist (or is undermined by piracy), then those companies couldn’t act as sponsors of open-source products, either. (3) Software Developers aren’t getting paid for their open-source work, they’re doing it because it’s interesting and it’s charity work. Open-source isn’t really a business-model, it’s a charity staffed by volunteers. It’s obvious that the OpenOffice project will never earn 1% of the money that Microsoft Office earned. This lack of money means most people working on the project can’t be paid. Most of these people have day-jobs writing software, and if you take-away their (proprietary software) day-job, most will move to other careers and they won’t stick around to write open-source software for free. (4) If the whole software-industry open-sourced, there would not be enough programmers to actually handle the projects. Most of the people who want to write open-source software are already doing it, so increasing the number of open-source products by 10x will result in the average project having 1/10th as many programmers. (5) While open-source has produced some good products, it is notably lacking in diversity and time-to-market. Open-source products usually come along late to the game, duplicating what proprietary software has already done. Open-Source typically aims at high-volume products, leaving nitch products under-served (except by the proprietary market). The reason for this is obvious: open-source is terribly underfunded, and that’s because it is a bad business model. Compare, for example, the variety and quality of open-source video games to the variety and quality of proprietary video games. There is simply no comparison in terms of the number or quality of these games. In many cases, the open-source games simply duplicated the gameplay of previously-released proprietary games.

Use piracy as a demo version of your software – Unfortunately, many gamers prefer to try the full-version of the software (i.e. pirated) rather than try a game demo. If some percentage of pirates end-up paying for the software as a result of piracy, then piracy can drive-up legitimate sales. There are a couple complications to this. First, pirated versions can canabalize legitimate sales. In other words, the extra sales you get because people tried a pirated version and then bought a legitimate version is probably outnumbered by the number of people who would’ve bought a legitimate version but grabbed a pirated version for free instead. This is especially true for big-budget games (Halo, Half-Life 2, etc). With less advertized games, the piracy can act as a kind of “lesser ad campaign” — someone pirates your software, likes it, doesn’t pay, but recommends it to someone else. Personally, I don’t believe very many people who pirate software end up buying a legitimate version. Like they say: “Why buy the cow, when you get the milk for free?” Even if people intend to pay the game creator, it’s just too easy to forget to pay for a legitimate copy, procrastinate, etc. They play the game, beat the final boss, and suddenly they aren’t thinking about the game anymore – which includes not thinking about paying for it. My guestimate is that only around 1% of pirates end up buying. You’d lose a lot of sales due to piracy – because people who would’ve paid, suddenly don’t need to anymore. At the same time, 10,000 pirated copies could result in 100 extra sales. In some ways, this reminds me of the shareware strategy for selling software. People put software out on the internet for free, and (sometimes) nag users to pay for it. In the software industry, shareware is generally viewed as a way for people to make a couple extra bucks, but almost never enough to let them leave their day-job or support a team of programmers. Admittedly, most shareware is also of inferior quality, which might play into the low returns. My opinion is that this strategy has already been tried with shareware, and seems to be quite a bit inferior to regular software business models. Sure, piracy could lead to some sales, but the sales numbers will probably be so weak that it’s not worth the time spent creating the software.

Use piracy to build fame, use other revenue streams to earn money – This one might work for certain types of creators. Musicians, for example, could release albums for free, and charge for concerts. The Beastie Boys did this. Nine Inch Nails did this with The Slip. (Actually, the strategy of releasing free digital music isn’t “piracy” – it’s just a strategy of releasing your work into the public domain in order to enhance other revenue streams. It’s not piracy if the creator intends for it to be free.) There are some piracy-advocates who claim that piracy can help artists, and say things like, “The problem for most artists isn’t piracy, its obscurity”. The problem with this is that piracy knocks-out the ability to make-money. Isn’t that the big gripe people have about the recording industry — that the recording industry gets musicians into recording contracts, makes them famous, but gives none of the CD sales money back to the artist? The recording industry is doing the same thing to the artist that piracy is, except that programmers can’t make-back their money doing concerts. The “free copies for fame” thing doesn’t really work for software because it’s a totally different business with much more limited revenue streams. We don’t give concerts, and software isn’t used as a soundtrack in movies and commercials. Most software companies have one and only one revenue stream: sales of their software, and you can’t pay your mortgage or your employees with fame. Maybe if you were charging for technical support, customization, or something else, this could work. But for 95% of software companies or game companies, this one falls flat.

Build 1000 “True Fans” – A while back, Kevin Kelly provided some ideas for turning a profit with digital content. I actually find many of his ideas to be unworkable and naive. In one article, Kelly argues that you should attempt to appeal to a niche, and get a thousand rabid fans who buy everything you create, and sell $100 worth of merchandise each year to each of them (that’s $100,000, but once you add-in costs, it’s significantly smaller – maybe half that amout in profit). There are numerous problems with this. First of all, it’s extremely difficult to build “true fans”. Second, it should take at least five to ten years to build that kind of a fan base – and during that time, you’re probably a starving artist. Third, his model assumes you maintain those “true fans” for long durations of time – perhaps several years per fan. Fourth, it’s difficult to produce $100 worth of content per year. I certainly can’t produce $100 worth of content as a game developer (I’ve been working on one game for the past four years!). Heck, most bands don’t produce $100 worth of content every year (and that’s four band members plus manager plus other associated workers). Rather than trying for “1000 True Fans”, creators should just acknowledge that “good fans” and “fairweather fans” will be far more numerous, and they aren’t mutually exclusive to “true fans” (who will be few and far between). Kevin Kelly’s “1000 True Fans” idea is the kind of thing that looks good on paper, but seems virtually impossible from a practical standpoint. I’d compare it to someone saying, “If I can sell my $1 trinket to 1% of the world’s 700 million Catholics, then I’ll make $7 million!” Yeah, the “1%” makes the idea seem like a conservative estimate, but in reality, I don’t think that’s going to ever work out, even if it sounds good on paper. It’s just plain unrealistic. The one positive thing I can say about it is this: it is a good idea to be attentive to your customers (which is similar to my earlier strategy of “be nice” and “make stuff people love”).
John Scalzi also has a similar critique of Kevin Kelly’s idea.
And Musician, Robert Rich, talks about the sysiphean task of building 1,000 true fans.

On a related note, in his essay “Better than Free”, Kevin Kelly had a few other ideas about making money from digital-content, but many of them are either limited or unworkable for the games/software industry.

(The image of the forest is creative commons via flickr user wildxplorer. The image of the desert is creative commons media via flickr user CS Clark.)