Almost immediately after it became clear that SOPA and PIPA were going to be “shelved indefinitely” (read: put on hold until they’re brought back in another form so as not to attract so much attention), there came the news that the Department of Justice had shut down and seized assets from Megaupload.

I was thinking that the timing couldn’t have been better: here was proof that the government already had plenty of power to take down infringing sites outside of the US, and SOPA and PIPA were completely unnecessary. The reason I jumped so hard onto the anti-SOPA bandwagon was only partly being a joiner, and mostly because it’s just such a transparent abuse of power: the MPAA and RIAA had been going batshit crazy attacking individual litigants for years, and they wanted to be able to circumvent the system entirely and just go after sites themselves.

And after reading an article on Ars Technica called Why the Feds Smashed Megaupload, I thought it’d be clear to everyone that these were the “bad guys,” and here was a clear case of the system working as it should:

As for the site’s employees, they were paid lavishly and they spent lavishly. Even the graphic designer, 35-year-old Slovakian resident Julius Bencko, made more than $1 million in 2010 alone.

The indictment goes after six individuals, who between them owned 14 Mercedes-Benz automobiles with license plates such as “POLICE,” “MAFIA,” “V,” “STONED,” “CEO,” “HACKER,” GOOD,” “EVIL,” and—perhaps presciently—”GUILTY.” The group also had a 2010 Maserati, a 2008 Rolls-Royce, and a 1989 Lamborghini. They had not one but three Samsung 83″ TVs, and two Sharp 108″ TVs. Someone owned a “Predator statue.” Motor bikes, jet skis, artwork, and even 60 Dell servers could all be forfeit to the government if it can prove its case against the members of the “Mega Conspiracy.”
[…]
But the government asserts that Megaupload merely wanted the veneer of legitimacy, while its employees knew full well that the site’s main use was to distribute infringing content. Indeed, the government points to numerous internal e-mails and chat logs from employees showing that they were aware of copyrighted material on the site and even shared it with each other.

The internet joins together to protest heavy-handed legislation, and the “industry” works within the system to take down one of the most egregious offenders. Win-win, right?

Maybe not. Ars Technica also ran “Megaupload wasn’t just for pirates: angry users out of luck for now”, part of the emerging backlash against the takedown as an abuse of power. Apparently, individual creators’ losses due to piracy are statistically insignificant, but the number of people who are for some reason keeping their sole copies of their work on file sharing sites are a legitimate concern.

On Twitter and his blog, Jonathan Coulton wrote about the takedown of Megaupload and how it’s a complicated issue. Because sure, for the people running that site to be knowingly profiting off of copyright-infringing material is “kind of a dick move,” but what about the people using the site legally? (Instead of Dropbox, Box.net, iCloud, Amazon Web Services, Google Docs, RapidShare, a private FTP site, or any of thousands of other sites and services?) And more significantly, does piracy actually hurt anyone, really?

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

Well, for starters: the Swiss government’s study, as described by completely objective research site TorrentFreak.Com, concluded that piracy doesn’t necessarily create a loss in revenue for the industry, since the people in their study who downloaded copyrighted material still spent about the same amount of money on concerts (and concert souvenirs), videogames, movies, etc.

Which, if anything, says that the industry is large enough to write off the loss. But how many of us are paid by “The Entertainment Industry?” How is that anything other than ominous to anyone who believes in the value of independent artists and objects to the idea of entertainment corporations consolidating into ever-growing monolithic entities?

I can’t speak for anyone else (seriously, I don’t speak for anyone else, including companies I used to work for), but whenever I would google for “Sam & Max” and came up with dozens of torrent listings, I never thought, “Well, that’s kind of a drag, but at least people are still buying Madden, so no harm done.” Instead, I’d usually think about what would be possible if you had enough revenue to make a game with no limitations and without being reminded about dwindling sales and niche markets.

Coulton talks about Tim O’Reilly’s Google+ post piracy’s effect on “the industry”:

Tim points out that he and a lot of other content creators have been happily coexisting with piracy all this time, and I’m certainly one of them. Make good stuff, then make it easy for people to buy it. There’s your anti-piracy plan.

Sounds simple. Make good stuff, make it easy for people to buy it. Oh yeah, and one more thing: get lots of promotion from famous people.

I’ve got no doubt that a significant part of Coulton’s audience discovered his music via YouTube videos, remixes, word of mouth, and the like. That’s not how I heard of him, though. I first heard of him through John Hodgman’s books, published by a subsidiary of Penguin publishing. And I never would’ve heard of Hodgman if not for his Mac ads (paid for by Apple, Inc) and his appearances on The Daily Show (broadcast by Viacom). I’m sure lots more people have subsequently heard of Coulton via his work on the Portal series (developed and published by Valve and distributed by Electronic Arts).

I like Coulton, but I’ve got to say that it’s disingenuous bordering on arrogant to reduce it to “make good stuff” without acknowledging how much goes into promotion. (Not just distribution, promotion). I say arrogant because it perpetuates this myth that everything’s a meritocracy — if your work were just better, you’d have a bigger audience. And it makes it sound like greed if you want to protect your IP.

So: make good stuff, make it easy for people to buy it, and spend lots and lots of money on promotion to make people aware that your good stuff even exists in the first place. And, I’m assuming, cross your fingers and hope that you’re one of the lucky ones who gets paid for his work to guarantee no net loss for the industry as a whole, not one of the ones who’s repeatedly told — by people wealthier than you’ll ever be — that piracy isn’t an issue.

For me, the topic of piracy always comes down to the same issue: it’s about fairness. It’s always made out to be some big, complicated issue with lots of gray area, and no doubt in legal terms it really is. But it ultimately comes down to individual responsibility, and as I see it, that couldn’t be more simple. We know what genuine fair use is, even if the RIAA and MPAA don’t. We can distinguish between genuinely legitimate sites and ones that profit off the work of others, even if SOPA and PIPA can’t tell the difference. We want people to be paid for their work, even if we forget about the work of PR and marketing people. We want people to be free to make cool things, instead of having creative decisions determined by accountants.

People are going to pirate stuff for as long as they can get away with it, that’s a fact. But it’s not a justification; “people are going to do it anyway” is about the weakest possible defense of anything. “Make it easy for people to buy it” means you don’t load your stuff down with egregious DRM in an attempt to grab every last sale at the expense of your loyal customers.

But the concept of “happily coexisting with piracy” is just plain bullshit. Saying “it does no harm” turns into “it’s not really theft, actually” turns into entitlement and then you can’t make a living doing what you love unless you’re employed by a huge company. I just hope nobody has the gall to act surprised when we end up in an environment where it’s impossible for indies to make a living.

It’s not just some internet thing; the Stop Online Piracy Act and Protect-IP (SOPA and PIPA) legitimately suck. To the point that it’s almost insulting how transparently bad they are. It’s like if they tried to push through the Patriot Act again, but instead of using the WTC attacks as justification they used torrents of Avatar. This video making the rounds today explains it well enough even for me to understand:

One of the side effects of the attention that SOPA and PIPA have been getting: more outbreaks of discussions about piracy, copyright protection, and intellectual property. Which means more of the same comments that get me all riled up.

For the record, I’m firmly in the Yes, Piracy Is Indeed Theft camp. I’ve heard and considered all the counter-arguments, and haven’t heard any that are convincing:

• “It’s not theft when there’s no physical copy.” These days, the cost of distribution is almost insignificant when compared to the costs of production.
• “With digital media, you can make infinite copies.” That’d be great if there were an infinite market of consumers, but in actuality there’s a finite number of people and a finite number of opportunities to make a sale. Most digital media is consumable, so there’s little benefit to ownership, which means once a person has watched/played the torrent of a movie or game, there’s no incentive for them to buy a copy and pay the original creators.
• “Torrents and free copies act as word of mouth. They promote sales, not hurt them.” You know who really promote sales is marketing and PR firms. And they have the undeniable advantage of doing so with the creator’s consent, instead of assuming “I’ll just put this on YouTube and I’m sure they’ll thank me later.”
• “Copyright and ‘ownership’ of intellectual property are outdated notions in the internet age.” Unfortunately, buying food and paying rent are still very pressing concerns in the internet age. It’d be nice to still be able to make a living doing what you like instead of having to get a soulless job for any corporation large enough to be able to write off millions of dollars in lost sales.
• “The people who pirate it wouldn’t have bought it anyway.” There is, literally, no way to prove that. And even if you qualify that with “Most of the people,” that still means the creators and publishers are losing money.
• “It’s the responsibility of creators, publishers, and distributors to make their offering more appealing than piracy.” And here I thought it was the responsibility of individuals not to steal from people trying to make a living. I’m skeptical that the wide availability of YouTube videos invalidates millennia of philosophy and ethics.

And so on. Piracy is bad, SOPA and PIPA even worse. It’s especially disheartening to see it hit creators who aren’t quite “the little guy,” but are also far from being huge, multi-national media corporations:

CinematicTitanic.com will be going dark on Weds to protest SOPA/PIPA. We have been hammered by piracy, but ruining the web isn’t the answer.

— Josh Weinstein (@JElvisWeinstein) January 16, 2012

The Cinematic Titanic guys are doing exactly what the whole “internet age” is supposed to support: making something on their own, directly targeted at a very niche audience, without (to the best of my knowledge) a huge sponsor or corporate backing. To hear they’re getting “hammered” by piracy (and so are the Rifftrax guys, from what I’ve heard) just makes all the attempts to defend internet piracy seem even more hollow.

But instead of hearing about the creators who actually are affected, it’s a lot more common for us to hear the examples that work, with the spin of “hey this is the new way of doing things, the system works, and people are actually good at heart!” Radiohead, Nine Inch Nails, and I think Coldplay have put out “pay what you want” albums without DRM. Cory Doctorow’s constantly putting forward his DRM-free books as great examples of how free distribution increases exposure, and Wil Wheaton followed suit with at least two of his own works (maybe more).

And Louis CK sold his concert performance for $5 and made a profit! (That’s the one I would actually support, both because Louis CK’s kind of awesome, and because he’s been transparent and bullshit-free about the entire thing the whole way through. So buy it.)

What they all neglect to mention, though, is that all of them are already famous. Doctorow from a hugely popular zine turned blog turned bully pulpit, and the rest through years of exposure thanks to well-paid marketing juggernauts. It is specious bordering on insulting to claim that any of these artists’ work was successful based solely on the merits of the work itself and the electrifying potential of the try-before-you-buy internet.

It’s important to point out that I’m not saying that any of those are bad works, the success is undeserved, or their fame wasn’t the result of a lot of hard work on their part. I’m simply saying that you can’t build a career from the work of marketing, PR, and promotional people and the publishers who hire them, and then turn around and deny that they exist. It’d also be a mistake to neglect that none of those people are supporting themselves solely on sales of their DRM-free experiments.

There’s also the counterpoint in the form of “Mystery Science Theater 3000,” which was never a monster hit but did manage to build up a large and faithful audience (myself included), mostly thanks to the quality of the show but also due to the efforts (and investment) of the two networks who aired it and promoted it. The two spin-off groups Cinematic Titanic and Rifftrax should in a just universe be famous enough not to have to worry about piracy.

So the latest example of arguments that bug me came today from Tim O’Reilly of O’Reilly Media, in a post on Google+ called Before Solving a Problem, Make Sure You’ve Got the Right Problem.

O’Reilly makes what I think are a lot of good points in rejection of SOPA and PIPA, and how it’s fallacious to claim that they’ll in any way benefit job creation or the national economy. But he also says:

In the entire discussion, I’ve seen no discussion of credible evidence of this economic harm. There’s no question in my mind that piracy exists, that people around the world are enjoying creative content without paying for it, and even that some criminals are profiting by redistributing it. But is there actual economic harm?

In my experience at O’Reilly, the losses due to piracy are far outweighed by the benefits of the free flow of information, which makes the world richer, and develops new markets for legitimate content. Most of the people who are downloading unauthorized copies of O’Reilly books would never have paid us for them anyway; meanwhile, hundreds of thousands of others are buying content from us, many of them in countries that we were never able to do business with when our products were not available in digital form.

I see that as just another variant of the claims made by Doctorow, Wheaton, and anyone else diminishing the impact of piracy. They say, in effect, that piracy isn’t a problem because it’s not a problem for them. I don’t for one second believe that they’re lying. I don’t even doubt for a moment that they have the best of intentions.

But I do believe that they’re making a mistake by glossing over what’s unique about their own situations, and assuming that it’s the same for everyone. In O’Reilly’s case, I imagine it’s easier to extol the virtues of the free flow of information when the bulk of your business is selling paperbound reference books at hardback prices. That market has built-in anti-piracy; when you are in the market for a reference book, you want your own copy.

Again, that’s not intended as a slight against O’Reilly books or their publishing practices: the prices are competitive, I’ve bought plenty of their books, and I’ll continue to do so for as long as I use computers. I do believe, however, that it’s irresponsible for O’Reilly to be speaking in terms of national policy without considering his special situation. I have to wonder if the publishers of more consumable and disposable media, like paperback fiction, would be as quick to agree that there’s no actual economic harm from piracy.

Suing housewives for hundreds of thousands of dollars for allegedly using a file-sharing service obviously isn’t the solution. Neither is ridiculously restrictive digital rights management. Neither is pro-big-media legislation designed to shift the blame from the actual offenders to the businesses whose only fault or negligence is being visible enough to be sued but not profitable enough to defend themselves.

But taking the Randian “it’s not a problem for me, so it can’t possibly a problem for anyone else” tack isn’t the answer, either.

I’m hoping everybody’s seen the brilliant Thru You project by now. The editor/composer of that, Israeli musician Kutiman has put together a new project: a video for Craftsman tools: