Digital Piracy

More than just a discussion about copyright, digital piracy has to be thought from an expanded perspective of individual freedoms, distribution models, universal access to information and artistic production and the very structure of the internet.

Some time ago I followed a discussion on digital piracy via Twitter. It started like this:

Doing a research here, it seems that the big TABOO THEME of the Brazilian technology press is to question the “piracy is ok and inevitable”

— Pedro Burgos (@Burgos) October 30, 2013

And it went on for an infinity of tweets, discussing the validity of the argument. Pedro Burgos’ post made me reconsider the issue of piracy of digital content, a topic that has lasted for decades. The argument seemed to me clearly valid – referring to the general tone of the publications – although I consider it biased in terms of locating the issue in the national media. I’ve read several articles on sites like Gizmodo and Lifehacker showing tutorials on how to download and catalog music, movies and series, that is, instead of merely discussing the topic of piracy in a theoretical scope, it shows how to commit a misdemeanor (regardless of the philosophical argument, piracy is a felony).

How did we get (or did I get) here

I have always found “piracy” a curious term when applied to digital content. The same can be said of the expression “to steal”, “to subtract”, “to rob”, etc. Unlike classic pirates, digital piracy is not about expropriating an asset, but about copying it. In this exchange, what the pirate (software company, musician, record company, studio) loses is not the good itself, but the possibility of profiting of the sale of the good. In the case of a copy for personal use, the producer loses a potential sale for that specific user. Why potential? Because of the premise that digital piracy does not involve costs for the user, the consideration of the validity or not of downloading certain content is much simpler. Get down in advance. If you don’t like what you downloaded, just delete the file and move on to the next one.

In the 80s, in my childhood, we had restricted options for consuming audio visual content. There were cinema, theater and musical shows. For domestic use, movies, series and music came through the air via radio waves, captured by TVs and radios. It was the famous broadcasting: limited information (in this case by the laws of physics) for a potentially unlimited audience. A few transmitting channels for many receivers.

You didn’t pay for the content, but for the object capable of displaying it: TV, radio, video games. The content concession model was based on a simple exchange: you received it freely and in return you watched (or used the time to go to the bathroom) paid commercials for companies, products or services. As there is little supply of channels and a huge supply of affected consumers, the organizations that own public concessions could charge A LOT for airing commercials (“they could” LOL).

The pay-for-content model was almost exclusive to music. It was possible to have a record player and buy an audio information package converted to analog tracks (grooves) on a disc. You would buy one of these in a “record store”, take it home and from there potentially listen to it ad infinitum. The physical media model was basically an industrial monopoly. There was no domestic equipment capable of duplicating discs. If I was invited to a classmate’s party and I particularly liked a record, I would have to convince my parents to buy one for me. Or, my friend could lend me the record. There was no DRM (Digital Rights Management). Those were simpler times.

The only culture shock, the only threat to the record model, was cassette tapes. They made it possible to copy the contents of discs and usually came embedded on sound equipment (together with radio, disc, cassette). But the cassette tapes copied the content at considerable expense. The sound quality was inferior and the recording logic was linear (that is, to advance from song 1 to 5, for example, it was necessary to wind and unwind the magnetic tape reel). But the cassette tape brought a benefit in return: portability thanks to the iconic Walkman’s.

I remember that in 85 or 86 a new device arrived at home. The VCR. It was he who gave me my first encounter with piracy. There was a small video store near my house. To look for a movie, there were a series of cards divided by genre, like in an old library. The particular thing about this video store was that the video tapes were pirated. The quality was terribly bad. “Jonathan Livingston Seagull” looked like a horror movie. A short time later, a new video store opened close to home, this one with original videos, tremendously superior in audio and video. We never went back to the old video store again.

Fast forward a few years, I had one of the most significant contacts of my life. After experimenting with computers with green screens and tape drives (the same cassette tapes), I had my first experience with an Intel 286, color screen, Windows… 3 maybe?

This is a curious point. I never thought of Windows as something separate from the machine. I didn’t think this was the intellectual work of a highly specialized team that needed to produce not only a complete operating system, but a set of device drivers to make sense of that jumble of parts. My mental model, fueled by the logic that what counts was the hardware (the part that you can kick) and not the software (the part that you curse) had been adapted by analogy with the previous model. In my experience, software was free. We exchanged floppy disks at school with games and programs. One of the central points of digital piracy is that it’s easy. Except for the occasional floppy disk that eventually failed on disk 10 of 12 of a given game, playback was flawless. I never felt like I was doing anything wrong, the tools were there, freely available. There were no DRMs to get around, there were no caveats.

Then the internet comes in. Despite being the most important part of the story, it is a story that everyone knows. The combination of MP3 compression technology with the development of peer-to-peer technologies such as Napster, Audiogalaxy, Limewire and others has created an unprecedented ease in downloading music via the Internet with high quality. Faster connections made it possible to download larger files in less time. What was good for music, was good for software and video. The .torrent files allied to sites like Piratebay took digital piracy to its maximum expression, to the point that today they represent around [30% of upstream internet traffic](http://news.softpedia.com/news/BitTorrent -Still-Makes-Up-35-Percent-of-US-Upstream-Internet-Traffic-353257.shtml).

The internet sharing revolution has other aspects that distance it from previous models: it is not necessary to know the subject who shares the content. Contrary to the school days where piracy took place point-to-point among a restricted circle of acquaintances, the circle is now the size of the world. Digital copying practically does not bring significant quality losses. Audio and video compressions get better and better. The software is strictly 1 to 1 copies.

Of course, the industry reacted violently to the new threats to copyright they represented. Software (like Napster), direct download sites (like Megaupload) and torrent sites (like Isohunt) are often taken down by court orders.

Whac-a-mole

The content industry was slow to realize that it was heading towards a new sharing universe, apparently with no return in the short or medium term. Giants change direction more slowly. Microsoft needed a shock to realize the potential of the internet and invest in its Internet Explorer. Major labels resisted as long as they could to realize the need to readapt their business models. Entire and once-powerful industries like Blockbuster didn’t realize their model was crumbling under a new technological paradigm. The structural logic of the internet prevented concrete actions to curb piracy. Taking down a program like Napster spawned 5 new ones. Sites like Piratebay, even if constantly hunted, always manage to re-establish themselves under another, looser jurisdiction. It’s an almost pathetic cat-and-mouse race. The mouse not only almost invariably escapes but reproduces with astonishing speed.

At this point, I would like to resume some assumptions:

1. Piracy is a crime because of copyright infringement;
2. The logic of digital sharing allows for “perfect” and infinite copies;
3. The possibility of controlling piracy is restricted or strictly non-existent.

What interests me most about piracy is not necessarily the local analysis of the phenomenon (individual X illegally downloads film Y). From this point of view, the scenario seems relatively simple. I would put some fundamental points, not necessarily in that order:

• It’s simple;
• It doesn’t look like a crime, or at least it looks like a victimless crime;
• Sometimes pirated material is superior to the original. Without having the DRM restrictions denounced by projects such as Defective by Design , copying makes reproduction possible on a wider variety of devices.
• The legal complexities of the licensing process in different territories or the producers’ choices often make content unavailable, even when the user is willing to pay for it ;
• “Free of charge”.

A strange bargain

On the producers’ side, things are much more complex. I talked about the broadcasting model, where audience fragmentation was minimal. Anytime a TV was on, the audience would be focused on 1 of the 7 possible channels. Strictly speaking, we know that the account is much more modest than that. Much of the audience would be focused on probably 1 of 3 channels.

And on that first computer of mine? The only option available for my old 386 was Windows. Macs were, strictly speaking, completely different beings, from the inside out. They used components completely alien to the PC universe (and this difference helped to restrict them to niches for a long time).

Options were few. The expansion of cultural phenomena was practically unrestricted. I dare to ask questions like “Would the Beatles be the Beatles in a long tail economy, where there is a huge dispersion of the audience?” or “Would Windows have achieved a virtual monopoly on desktops and consequently trained millions of users on their system if it weren’t for piracy? What would it cost the industry to train thousands or millions of users on its own to adapt to its corporate systems?”.

You see, the question about the Beatles and about Windows belong to different systems, culturally and technologically. But both are about phenomena where “critical mass” was formed thanks to popularization. The first by a broadcasting model, the second by a model that I will call “piratecasting”.

“Downloads have helped us in some way, of course, in terms of brand awareness… (Piracy) has led a lot of people who otherwise wouldn’t have watched the show to watch it” – Vince Gilligan, on the piracy of Breaking Bad

Instead of thinking about Windows, we can compare the Beatles with another cultural phenomenon, the one whose manifestation still echoes: the series Breaking Bad.

The series creator himself, Vince Gilligan, identified the importance of piracy in popularizing the show: “Somehow the downloads certainly helped us in terms of brand awareness” and “(Piracy) has led many people who would not otherwise have watched the series to watch it”. Of course he added: “The downside is that we would have made more money if all these downloads had been legal.”

The point that I’m trying to make is that these days this last premise is inconsistent. There would be no way for people to legally download the series from the start, especially the last season. There is no universal distribution channel for content that encompasses the audience of illegal downloads, even if the people who downloaded it illegally wanted to download it legally. Breaking Bad in particular was tremendously promoted by the success it had on Netflix, the most competent (legal) platform for distributing audio-visual content.

“Piratecasting” is a model, albeit an unwanted one, of digital cultural promotion. It is the by-product of a sensitive mismatch between the traditional cultural industry and the powerful new digital revolution.

Temporary mismatch?

It is undeniable that the gap was once much greater. Today, markets have a variety of platforms where it is possible to listen to music or watch movies and series on demand. Netflix is ​​one of the biggest exponents of this movement. More than that, it becomes an important platform for the production of quality exclusive content with series such as House of Cards and Orange is the New Black.

Even the software industry is looking for alternative models. Adobe’s Creative Cloud is an example. Google and Microsoft’s online software suites are another. As is the sale of Apps by Apple, Google and Microsoft. Even operating systems are becoming free. Apple’s new OSX systems are distributed for “free”. Linux distributions today are extremely competent and user-friendly.

My main thesis (phew) is that piracy is a potentially transitory phenomenon, which can be solved by creating or adapting existing distribution models. But for that, there are some gigantic problems to be solved:

1. Legislation: How to make it simpler to license copyrights in each country or territory or the problem of “content not available in your territory”?
2. Fragmentation: it’s great to be able to subscribe to Netflix and have the entire collection of movies at your disposal. But in practice this does not happen. The content is fragmented so that in order to be entitled to watch any movie, you must subscribe to Netflix, Hulu Plus, HBO Go, iTunes etc etc etc (only Netflix and iTunes are available in Brazil). The same goes for songs.
3. Old media vs new media: A short time ago, an interesting news emerged. Netflix tried to license content from Globo to make it accessible in its catalog. According to executive Ted Sarandos, Globo declined to open negotiations . In the US, there is also a curious case. HBO has its own digital distribution network, HBO Go, but [access to the network is restricted to subscribers of the conventional cable channel](http://bgr.com/2013/05/02/hbo-go-streaming -only-time-warner/). Apparently “traditional” HBO fears being cannibalized by its own digital branch.
4. Models of Content Use or Ownership: My generation’s cultural logic is that if you buy it, you own it. This logic has completely changed in the field of software. If you buy Windows (just to take the example I’ve already used) you don’t own the program, you own a license to use it. Digital distribution models follow this trend. You don’t own your books on Amazon. It only has a “license to use” them. In one particularly emblematic case, versions of 1984 by George Orwell were remotely removed from Kindle devices. The “Ministry of Truth”, cited in the same book, would not have to worry about alterations in files and paper journals. It would be enough to overwrite the facts digitally and remotely.

Like any really important cultural phenomenon, it is very difficult to imagine where piratecasting will go. Perhaps it’s won by a combination of offering, variety, aggressive DRM, and convenience.

I fear one day I will sigh thinking about the time when content on the internet was truly free, and flowed through unofficial channels. It seems to me that the definitive victory of copyright (especially in current models) is a notable threat to freedom of expression, reinterpretation and resistance to totalitarian visions.

PS – Looks like piracy isn’t killing the content industry, you see…