Straw men

Late last year, I wrote a post about Dan Gillmor's claim that "2012 will be the year of the content-controller oligopoly". At the time, a debate about the "Stop Online Piracy Act" (SOPA) was already in full swing. In his piece, Gillmor expressed a hope that journalists would start to more vigorously examine the implications of initiatives like SOPA.

Of course, most journalists work for companies "composed largely of copyright-based businesses", which is the endnote to a Fortune article, "Megaupload and the twilight of copyright". From headline to endnote, senior editor Roger Parloff leaves little doubt where Fortune stands.

In my writing about Megaupload, I've distinguished between the case against the company, which may be valid, and the value that accrues to all of us in preserving things like due process. Describing "the hive's" opposition to SOPA, Parloff pays lip service to those concerns:

"Legitimate questions were raised about cybersecurity, efficacy, the First Amendment, and due process. Those were interlaced with histrionics and falsehoods."

So much for journalists starting to "more vigorously examine the legal implications of initiatives like SOPA."

According to Parloff, the government alleges that Megaupload facilitated "the illegal distribution of at least $500 million worth of copyrighted movies, music, television shows, books, images, videogames and software." In the spirit of eliminating histrionics and falsehoods, I ask: How do we know that?

Piracy math has always been a bit elusive, something the U.S. Government Accountability Office (GAO) noted when it said all of the piracy estimates it studied were, in effect, bogus. As I noted in 2010, the GAO concluded that each of the estimates relied heavily on assumptions about the substitution rate (how much of the infringing activity can be counted as a lost sale), a number that has yet to be independently proven.

If you still want to go with the idea that we can tally the downloads, multiply them by the commercial value and measure every instance as a lost sale, I'd ask you this: where did the downloads or streaming take place? Was the product or service available in that market at that time? And if not, how do you see it as a lost sale?

Even people who disagree with the GAO's conclusions call for us to work collaboratively to gather the data we need to understand the impact of piracy, not just its instance. Unfortunately, some of the people we most need to do that assessment have walked away from the opportunity.

In the Fortune article, Parloff describes how Marybeth Peters, Register of Copyrights at the time that the length of copyright was extended by 20 years, decided to endorse the change because "the U.S. was a large net exporter of copyrighted works and the extension would help America's balance of trade."

I would love to see the U.S. have a better balance of trade, but that's not why copyright protection was included in the U.S. Constitution. Dating back to the Statute of Anne, copyright was developed as "an act for the encouragement of learning".

In the plainest terms, copyright is not a business model. It is supposed to balance the private incentive to create new work against the public good that comes from unfettered access to knowledge and creative effort.

As Bill Patry notes, the question for the government to ask is not whether businesses are making money or our balance of trade is improving. We should be asking if changes to the law are required to encourage the creation of new works.

A simple count of the number of new movies, music, television shows, books, images, videogames and software programs published each year might be a good place to start.

Existing laws allow companies to pursue cases of infringement, and I'm not making the argument that they shouldn't try. I have said that, as they enforce copyright, publishers should also pursue new business models that deliver products and services in ways and at price points that supplant piracy. That's what NBC is trying to do in streaming coverage of the Olympics.

For reporters and senior editors covering issues like copyright and piracy, I offer one overarching piece of advice: seek more primary data. Collecting points of view to set up a straw-man argument makes for good headlines and even some book sales, but it doesn't advance our understanding of what to do going forward.

And if you have a chance, read what Stewart Brand said after he said "Information wants to be free."

About Brian O'Leary

Founder and principal of Magellan Media Consulting, Brian O’Leary helps enterprises with media and publishing components capitalize on the power of content. A veteran of more than 30 years in the publishing industry and a prolific content producer himself, Brian leverages the breadth and depth of his experience to deliver innovative content solutions.