Tuesday, January 17, 2012

Piracy Destroys Free Speech

There's a big fuss going on in Internet circles about SOPA and PIPA, two bills now being debated in Congress that would allow the Justice Department to shut down websites involved in the piracy of intellectual property—movies, music, books.

To be specific, the Internet industry hates these bills.

The Internet industry is huge, but it makes it sound like they are the little guys, fighting rapacious capitalists. According to ABC News, Cory Doctorow of Boing Boing said, "If you want an Internet where human rights, free speech, and the rule of law are not subordinated to the entertainment industry's profits, I hope you'll join us."

As you might guess, I have a different view.

Let's be clear: I am not endorsing SOPA or PIPA. The bills are still being amended, and we don't really know what they will ultimately do. Personally, I think Congress should focus on stopping the flow of money to pirates, rather than shutting down websites. But the details of the bills don't matter to the Internet giants. They don't think piracy is a problem. They are trying to dupe you into thinking that any attempt to stop piracy is hostile to freedom of speech.

And that has it exactly backwards.

First, drop the demagoguery about the movie and music industry. Yes, they have by far the biggest amount of money in play, and sure, many of them are big businesses. I'm not here to defend them, but to shift the focus. My point is that they aren't the only ones hurt by piracy. Piracy actually damages the little guy, the individual author, more than anyone. Big movie studios can absorb some piracy. An author can't.

The fact is, piracy destroys freedom of speech. By stealing my work, distributing it for free, you make it impossible for me to profit by writing. Yes, to profit: If you can create a completely new economic system, under which I will have all my worldly needs taken care of so I can write without worrying about money, great! Give it to me. In the meantime, I have to make money from writing to keep writing.

I spent close to seven years working full-time on The First Tycoon. Amateurism wouldn't allow that kind of effort. If I was an academic, I would have taken at least twice as long to finish it, and it would have been a very different book, since it would have had to serve my scholarly career; it would have been written first and foremost for academics. I like to think my book has some value as it is—as the product of professional writing, not academic or amateur.

I will be the first to say that copyright has been distorted in recent years—yes, thanks to the lobbying of the entertainment industry. It should be for a limited period, not life of the author plus, what is it now? Seventy years? Fifty? But the excessive extension of copyright doesn't negate the need for copyright itself. It is specifically listed as a responsibility of Congress in Article 1 of the Constitution. The purpose, the Constitution says, is "to promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Internet millenarians—the Information Wants to be Free crowd—claim that making writing free is actually good for writers . . . somehow. I support the right of any author to publish his or her work for free. Go to it! But why should you impose your model on me? Why deny me the right to get paid for my work? Why are you allowed to strip away my "exclusive Right to [my] respective Writings and Discoveries"?

Look, there's never been any difficulty in giving away your work for free. In the Internet age, anyone can publish for the public with minimal cost. The problem is keeping it from being only free—to protect authors' rights to their work. It's a real dilemma. Unfortunately, it is in the business interests of Internet giants to promote piracy, and convince readers that it's a good thing. More traffic, less hassle. Google makes more money—but authors get crushed.

If you take away copyright protection, you silence me. You take away my freedom of speech. I write research-intensive projects that take years to complete. I try to create works of literary art that also add to our knowledge. I can only do that if my intellectual-property rights are protected, so I can make a living at it.

Freedom of speech does not include the theft of someone else's speech. What it means is that I have the right to speak as I wish, where I wish, when I wish. If I choose to charge a price for access to my work, that is part of my freedom of speech, and taking away that choice is denying me my liberty of expression.

SOPA and PIPA may well be the wrong way to protect copyright. I'm not speaking up for them specifically. What I am saying is something that has gotten lost in the furor: piracy destroys freedom of speech.


Stew said...

I too would rather see folks who make stuff be paid than not, but SOPA and PIPA are not going to solve the problem in any way while damaging the internet and giving support to the governments of countries like China, Burma, and Iran in their efforts to censor the internet.

(The practical way to end piracy is to make purchasing the product easier than stealing it, something the MPAA and RIAA have fought tooth and nail. But that is a different discussion.)

I hope you find some information on these horrid pieces of legislation, and remove your support.


Stew said...

Mr. The Oatmeal has a right handy gif that explains: http://theoatmeal.com/sopa

T.J. Stiles said...

Anyone who actually read my post would see that I don't endorse this specific legislation. However, I find the response to it ("giving support to the governments of countries like China . . . to censor the internet") to be hyperbole. And claims that the way to stop piracy is just to make products cheaper misses my point, besides being wrong. To restate what I've already said: Piracy is wrong, and it's a serious problem that hurts the individual author. It destroys freedom of speech. It needs to be addressed.

Stew said...

That China and Iran will point to SOPA/PIPA as (another) example of the hypocrisy of the US government is not hyperbole at all.

As far as preventing "piracy," these bills are as helpful as taking down street signs would be to combat car theft.

Electronic theft of copyrighted works is not good, but these bills are so much worse than the problem. They do nothing to solve the problem.

Lack of endorsement is quite different from the condemnation these bills deserve.

T.J. Stiles said...

No U.S. action regarding piracy will have the slightest effect on the censorship in authoritarian countries. Nor is every attempt to stop Internet piracy ipso facto equal to censorship in those countries, any more than our having police forces and prosecuting criminals equates us with China, which prosecutes political dissent. This equation with extreme examples is a red herring, pure hyperbole. Following this logic, it is impossible to do anything against Internet piracy without immediately becoming the worst kind of censor. That's not actually logic; that's demagoguery.

In any event, I am not advocating taking down websites. My point, again, is that, when you look past the protests over SOPA and PIPA, you find that the big companies who are drumming up all the furor over these bills don't take piracy seriously. They rather like content theft, because it's extremely profitable and trouble-free for them.

The question I raise, for all readers, is, "Do you believe piracy is a crime? If so, what do we do about it?" I am not asking for support specifically of SOPA and PIPA; therefore, trying to steer the conversation back to attacks on them, in the context of my point, is simply an unwillingness to engage the problem of piracy itself. It's a dodge.

Larry Cebula said...

"Do you believe piracy is a crime? If so, what do we do about it?"

Of course piracy is a crime, that is not disputed by any reasonable person. By using the "digital millenialists" as your foil in this post you commit the very same debating tactic that you criticized when opponents of SOPA/PIPA pretend that only folks backing the legislation are rapacious Hollywood types and the Red Chinese. Piracy is simple theft.

What to do about it? Your suggestion of going after the money is a good start. Second, new legislation should be based on compromise and a comprehensive overhaul of copyright. How about freeing up the vast numbers of orphan works (books out of print but still under copyright), shortening the time periods involved, restoring the educational exemptions that have been gutted, and fixing penalties to represent actual losses rather than some fantasy figure. Also industry has to support DRM systems that allow purchasers to sell or give away their digital objects when they are done with them and not to have to repurchase the same creative work in every new format.

With the above concessions, I would happily agree to greater policing of and penalties for online piracy.

T.J. Stiles said...

Larry, you make some good points, some I differ with.

I actually think "digital millenialists" is a pretty accurate description of a major group of public intellectuals, who actually do argue that piracy is a good thing for authors and that copyright is an outdated idea. I think "digital millenialists" is a pretty good description of that camp. Unfortunately, they wouldn't meet the "reasonable person" standard you've set.

On to your points:

• Stopping the money flow: I agree. This should be the starting point of any anti-piracy legislation, and I think it should be given a chance to work for a while before resorting to taking down sites, even those "dedicated to infringing activity," which are pretty obvious when you see them.

• Freeing up "vast numbers" of orphan works: Orphan works is something we talk about a lot at the Authors Guild. We've investigated it. It turns out that there is a wildly inflated idea out there of the number of "orphan works" in existence. Certainly not "vast numbers." Why? Because the overwhelming majority of works every published in America were published in the last couple of decades. Yes, that's right. The authors are eminently findable. Legislation regarding termination of copyright for "orphan works" turns on the tricky question of whether works really are orphans or not. The HathiTrust announced plans to publish orphan works, and made much of the fact that they had a process for determining which works were orphans. It turns out that process did not include Googling the names of the authors. The Authors Guild immediately found several authors whose works were about to be published without their consent by the HathiTrust, and the orphan work publication program was put on hold, presumably from embarrassment. The Authors Guild tried to find an equitable arrangement in the Google settlement, which would have established a fund for compensation of authors, should they surface. Judge Chin shot it down. This is too bad, because there really are orphan works, of course, and I wish they could be republished. But, in any event, "vast numbers" is an inaccurate description of the dimensions of this problem.

• Shortening the length of time for copyright protection: I agree with this also. As I've blogged before, I think Disney lobbied us into a ridiculous situation with copyright extension. As a nonfiction writer, I use books as well as write them, and think the balance has shifted much too far toward exclusive rights for the creator, hurting the creation of new art and knowledge.

I'll continue my response in another comment. I've reached my character limit.

T.J. Stiles said...

My response continued:

• Restoring educational exemptions that have been gutted: I'm not sure what exemptions you're talking about, so I can't speak to that. Though I have to wonder why that would that stop piracy. Surely you don't suggest the pirates are all frustrated professors? I do have a related thought, one that probably doesn't address your point: I suspect that there is a strong prejudice in academia against writing as a profession. Since academics receive payment for their publications in the form of prestige and career position, rather than royalty checks, money seems like a vulgar concern to many of them. Many scholars, I suspect, think it's only natural to impose the academic vision of a free flow of information, unhindered by the financial concerns of the information creators. I'm not trying to be insulting—I do think there is a failure among many academics to appreciate that we have a mixed economy in the world of letters, in which writing for money is one essential component. Literary and, yes, entertainment values can and should be woven into the creation of knowledge, at least in some segment of nonfiction publication; that occurs largely outside of the academy (though I grant there are some damned good academic writers). These works are created for sale, and universities have to buy them like everyone else.

• Fixing penalties to represent actual losses: I know of no one who has been penalized at all for pirating books, so I don't think this is particularly relevant to my particular discussion of an issue that obviously ranges far beyond book piracy. The Authors Guild, on whose board I sit, has never advocated pursuing individual downloaders; in fact, we sought an accommodation with the new freedom of access of information, through the Google Settlement, which, as I said, was shot down by a judge who was actually more hardcore on copyright than we were. But back to the point: How would reducing penalties end piracy? That's a logic question, since I'm not taking a side for any particular penalties, when it comes to individuals.

• The industry "has to support DRM systems that allow purchasers to sell or give away" digital publications. Why? Because it was could be done with physical books? I'm often told that e-books must be much cheaper than physical books, because they can be reproduced for free. That's an excellent argument against what you're calling for: It's an invitation to piracy. A second point: E-books are much cheaper than physical books, above and beyond the savings on printing and distribution, which typically run 12-20% of the list price for a commercial title. For an e-book you pay a lot less than 20% off the list price for the hardcover edition. Some reasonable limitations on resale, reproduction, and distribution are part of the deal.

I often hear the argument that the Internet has changed everything. This argument is usually made to say that copyright protection is obsolete. I would say that the advent of the Internet requires some changes to the law to make more of the greater accessibility of information—such as compensation set-asides for the republication of what appear, at first, to be orphan works—but also some greater protections. After all, the big problem now is not allowing stuff to go out for free, it's to protect intellectual property. So the changes the Internet rings in should include some new, more restricted notions of the liquidity of an e-book.

T.J. Stiles said...

And finally:
Please forgive the typos.
—T.J. Stiles