Friday, 3 May 2013

Another response to Mr. Bleich: The Game of Piracy and Digital Distribution

Dear Jeffrey Bleich,
So good to see you're still writing. It's a great way to keep this discourse going. I'm going to do a line by line reading of your latest sampling of work to see if we can't continue it even further.

"My blog entry on internet piracy, 'Stopping the Game of Clones,' attracted far more comment than I normally get.  Perez Hilton loved it, but many other people took exception to my call for folks to comply with copyright laws.  Criticisms ranged from asking why diplomats should get involved in this issue, to complaints about how movies and music are distributed from the U.S. to Australia, to some legalistic arguments about the definition of “stealing,” as well as just some old-fashioned verbal abuse.   I think this frank exchange is a good thing (except for the abuse).  I took in these comments with an open mind, and I hope you will do the same with my own  response to the feedback I received."

I firstly, apologise to those who slung abuse at you because hey, that's not helpful. It's great to discuss your opinions and especially with opinions backed up with facts, but mostly if those opinions contain a bit of verbose or scatological verbage, then it can be down-right troublesome. I'm sure the people who did verbally abuse would rather say otherwise and so be it; they have that choice.

You could say they have...a Freedom of Choice

"“Don’t Ambassadors Have Anything Better To Do?”  Several people wondered why a U.S. Ambassador would bother to complain about the pirating of “Game of Thrones” when there are so many bigger issues."

I'm assuming this would include things such as trade agreements, tourism, nuclear mining, etc., but sure, copyright is a big issue because America thinks it's a big issue and you represent them.  However- 

"Actually, given the overwhelming response to the topic, maybe I haven't talked about internet piracy enough."

Oh trust me, you have. I think the reaction both on your Facebook page and on news websites have promoted enough discussion to call into question about why we continue to listen. But hey, maybe the hundreds of thousands of downloaders aren't listening and you could sway them.

"The point is, this isn’t just about 'Game of Thrones' and it isn’t a small issue."

You're incredibly right. It isn't a small issue. It's a global issue regarding many complicated factors, including international trade laws, internet service providers, government lobbyists, copyright and content holders and plenty more stakeholders. But I am curious who else you represent and why you're pushing for this issue so much? Is it a case of just representing international interests, or is it something else? 

It could just be...AFACT that you don't like piracy. Eh...see what I did there.

"As the Washington Post noted: “The pay-TV industry estimates losses of $1 billion in Asia alone.  Intellectual property is getting tougher and tougher to protect in the digital age, which is a big deal for U.S. economic interests.  Imagine if Americans were stealing $1 billion worth of Japanese cars and Japan thought the U.S. government was being lax about finding and punishing the carjackers.”  

Ironically enough, this quote was from an article about your last blog post. That Washington Post article actually used two sites to sling that claim. The first was one from TorrentFreak, a site largely devoted to news relating to internet piracy and advances in the world of internet distribution. Another source was from a two year old AFP article posted on Google News that talked about copyright infringement costing American jobs. Now, I personally think that actual "losses in piracy" only happen when there are physical copies of the work made, such as knock-off products, DVDs and Blu-Ray copies.

I also believe that statistics on piracy loss are completely aggregious after reading studies in the video game industry, but then again I used a fairly old study as well. That being said I am against physical piracy, that is something I want to be clear about that. However, personal piracy or pirating films or in this case, TV shows, is a whole secondary matter. Also that second article also points to a greater issue of the trade practices of that country, something that your country is already working towards. Not only is the article outdated but it's statistics would have changed in the past two years, but I digress. 

"The U.S. International Trade Commission estimated that American business lost $48 billion to copyright infringements in China in 2011 alone.  Australia, moreover, has as much to lose from lax intellectual property protection since it is an exporter of movies, music, literature, and other works." 

That's kinda true. The issue is that we don't have as much of that stuff to actually import. Our film industry is incredibly lacking. Our music culture is very independent based and most of our radio play is music from your country. In fact, the last time we had an Australian hit on our hands, we had to get one of your most talented, but least respected hip-hop artists to sing on it. Our literature culture is heavily eBook focused, in fact so much so, our government is getting in on this. Our best TV import is our actors and Chris Lilley and even then, I doubt he's phased, even with the help of ABC and HBO. That being said, I have asked him via Twitter for his direct opinion. 

It'll be better than this. I promise

"It’s a global problem which is why the United Nations established UN World Book and Copyright Day.  So copyright infringement is a big deal for both of our nations.  Fortunately, working on this topic doesn’t mean I’ll stop working on other big issues too." 

I understand you probably have some serious time management going on and I respect that, but with the  World Book and Copyright Day. It was to honour a particular set of men, namely Don Quixote writer, Miguel de Cervantes and famous playwright William Shakespeare. Men who were incredibly open about sharing their works,  performing them in public, employing new types of technologies for sharing and getting it out there. Also another thing is that the day was initially started in Spain and then shared with the rest of the world, which I believe is incredibly important. Imagine in Spain tried to claim the day just for themselves and nobody else could have used it. Would it have stopped the UNESCO? Would it have stopped the US from having their own Book Day? Doubt it. I just have to ask, why add copyright? You already have World Intellectual Property Day anyway.

"“Isn’t This Just About the Money?”  Some people suggested copyright protection was just about helping corporations increase their profits.  It isn’t – in fact, copyright has never been just about money."

That's incredibly true. The original Statute of Anne clearly stated to create a balance between creators, writer and inventors and the public. Also the original law was called the "the Encouragement of Learning, Arts, and Industry," doesn't that sound lovely? And let's not forget that "the original length of copyright in the United States was 14 years, and it had to be explicitly applied for." That being said, if the author wanted to, they could apply for a second 14‑year monopoly grant, but after that expired, the work would then enter into the public domain, so it could be used and built upon by others." But American changed all that in the middle of the 20th century, didn't it? 

Thanks to this guy.

The fourteen years were extended pretty far and became the fairly indefinite, life of the author + 70 years. Why do I consider it indefinite? Because that lifetime is extended even further if that work is bought up by a corporation who renews the copyright and holds onto the copyright indefinitely or until something ridiculous happens, like a law change or a nuclear holocaust. Again, I digress.

"Our access to the arts depends upon paying for creative works.   For example, the actors, writers, cinematographers, make-up artists, designers, sound engineers, etc. who make “Game of Thrones” depend on HBO subscribers to cover the $6 million per episode it costs to create each episode."

Also incredibly true. All of those incredibly amazing and fundamentally talented people do rely on money. They work for money. But that money doesn't just come from cable subscription (as you point out in the area below), it also comes in the form of DVD sales and season passes. But what about other forms of marketing, such as exclusive online clips and fan-made remixes? Licensing deals? Syndication? With a larger global audience, which would have been impossible without the piracy or online word-of-mouth, these things would be considered useless. Even on YouTube, if you use a song, Google makes a notice of it and gives a piece of the revenue to the artist and the uploader, if they have monetisation activated. This way, people are financially compensated regardless of the intention, even if it was being used under fair use.  Even then, companies can still commission takedowns or country blocks.

 "People have to pay for the program through a cable subscription (in the U.S. as well as everywhere else), or through licensing agreements or by purchasing season passes or DVDs, and it is those people who made it possible for there to be a third season."

Yes, it was crucial to be a financial success for it to warrant a third season, but other factors needed to be added as well. Actors contracts, ratings, schedules, FCC regulations, financial deals, international air travel, government discussions on tourism and filming in the country. It does not entirely hinge on piracy. I think HBO are intelligent enough to greenlight extra seasons, let alone multi-million dollar shows, regardless of the "possible" pirate outcome. If this was the case, shows such as Dexter, True Blood, How I Met Your Mother and Big Bang Theory would not continue to be worldwide pirating sensations. They know there is an audience there that they can already market to in the commercials, let alone sell DVD's to later on. 

"Some people think that “Game of Thrones” has made so much money that they don’t have to worry about the artists losing their jobs or going unpaid."

Trust me, no one really thinks that. As someone who has not been paid for a single line of writing here and has been unemployed for months now, I know the importance having a job and people being paid for a good job. No one thinks that just because someone has a tonne of money, does it mean they continue to do things creatively for that tonne of money. They do it because they're talented and because they have the skills to do so. Money is just compensation for their time and effort from a larger group of stakeholders. We all work in one way or another and we know they deserve the big bucks because of it. Have you even seen Tumblr and the amount of praise they give them? For Free? On a free platform? Every Single Day?

"This misses the point.  Publishers are able to meet our desire for a wide range of artistic works because of the success of just a handful of them.  Record labels survive based on the small number of performers who are big hits.  The Taylor Swifts, Justin Biebers, and One Directions make it possible for these labels to also support and publicize work by jazz trumpeters, blues singers, folk musicians, punk, metal, opera, classical music, and other forms of music with much smaller audiences that aren’t commercially viable alone." 

That's also incredibly true and those artists are key in the label's stable. However, those niche artists are usually handled by subsections or different companies bought up by the label. They are usually handled independently and are given a budget to deal with, the same thing goes with Game of Thrones. Other shows in HBO's amazing line-up, such as the dynamic Girls and the electrifying Veep, are given a budget and it's up to HBO on how much that is. They make that decision independently and through cost-benefit analysis. These are not niche shows and HBO knows that, regardless of piracy. They have subscribers for that. They are quantified and are known very well to HBO, or otherwise they wouldn't make the decisions they do.

Seriously, this show is incredible.
"When the labels aren’t fully compensated for the big acts (or HBO doesn’t get receipts for “Game of Thrones”) that means other artists won’t get a chance at all.  This applies as much, or even more, to Australian artists because their market is generally smaller.  Their livelihood, and Australia’s own entertainment industry, depend upon content producers being fully remunerated for their creative work."

Sure, but as I stated before, we are a bit more independent in our entertainment industry, mainly because we have to be. We find our own way, in the same way that torrenters found the  HBO series and the TV shows they like.  The difference now is that there are more and cost-effective ways to find out what you like. For example, subscription services such as Pandora and Spotify, listen to your music choices and keep help you find more artists that are similar. QuickFlix and Netflix have the same idea with recommendations, and of course, sites like IMDB, and Rotten Tomatoes have their own personalised aggregators for when you sign in to their sites. The cultural dynamic has changed so much that we can personalise our content like no other. While I think there are negative sides to this, it is showing how easy and swiftly culture changes and spreads. 

“Even if Copyright Infringement Isn’t Legal, You Shouldn’t Call It Stealing.”  Several people took issue with my reference to illegal downloading of shows and movies as "stealing."  Their point was that, unlike stealing a book, a copyright owner still has their work, and there is even a U.S. Supreme Court case that says copyright infringement does not “easily equate” with theft for that reason (the court found that “it fits, but awkwardly”).  

Now here is where I take a bit more issue, Mr. Bleich. You reference the case of Paul Edward Dowling vs. the United States from 1985. Again, a resource from a fairly outdated source, but let's go with it. I think what Mr. Dowling did was wrong in one sense. For those unaware or simply TL;DR on the case of Mr. Paul Dowling, Mr. Dowling ran a bootleg music business to produce bootleg copies of Elvis concerts and TV specials. These were the work of the artist and the Presley estate, however, had not ever been released in an audio form. The judge at the time ruled - as you said - that Mr. Dowling's work did not "easily equate"  to piracy but "it fits, but awkwardly." 
He was also convicted of having a haircut too big for 1985.

The issue I have is that the Presley estate simply did not know there was a market for this work and did not put it out there. Rather than suing the pants off Dowling, they could have made a business deal and could have cut out all the middle-man work for creating, distributing and selling the Elvis bootlegs as official works from the classic rock artst. But they didn't, they sued him and then Dowling was picked up by the company RCA, the company that owned Elvis and they gave him a job, which he has to this day. Why not turn to some of these piraters to create different forms of digital content and editing? Why not talk to them about digital distribution and how they feel about what they do? If they're completely antagonistic about it, then good riddance to them, but maybe they actually want to talk about what they do, why they do it and why they continue to do it for no money? Is it a service? Is it a philosophy? Ask them, talk to them, discuss things with them.

"The point these comments ignore is that dozens of cases confirm that whatever you call it, this conduct -- making use of someone’s property without permission -- is against the law, and for the same reason as stealing.  Think of it this way: no one would argue that it’s legal (or moral) to slip into a movie theater and watch a movie without paying for your ticket (even if a seat was empty and the theater still had the movie afterward)."

No, your argument doesn't exactly hold up there. There are multiple costs between an actual theatre being in existence and a single file being transferred. For a company to have a digital file to sell it, there are four things they need. A financial distribution network (albeit PayPal, Amazon Checkout, Google Wallet, Credit card, etc.), a website to advertise the form of media, a server to host the files and website and someone to handle the distribution and any issues regarding the content. That is all you need. Maybe hire a few administrative people here and there but that's about it. 

For a movie theatre you need: employees for the projector, box office and maybe snack bar. Security guards or ushers to stop those kids slipping into a movie theatre.  Cleaners for the bathrooms, lobby and main entrance. Distributors for the food at the snack bar or soap, urinal cakes and toilet paper in the bathroom.  Manager to handle financers. Building permits or leases on the property itself. Health checks. Safety checks. Distribution agreements with different film companies. There are thousands upon thousands of dollars that are needed to run a movie theatre compared to the sharing and distribution of a file, even from a legitimate source, such as companies like Ultraviolet or even independent artists like Louis C.K. A man so steadfast on getting content to the people he told ticket companies to "go fuck themselves".

Yes, this is an issue that is constantly arisen when it comes to movie piracy and people losing jobs, but when you start charging >$15 for a ticket, people start to rethink their priorities. QuickFlix in Australia is $15 a month. A good steak lunch in Sydney is $15. The cost of two average goon sacks is about $15. These fans understand that it's cheaper and more efficient to torrent and then they can put more money back into the Australian hospitality and wine industry.


"That’s basically what you do when you illegally download a video.  Stealing is the word that comes to most people’s minds when you use something that's not yours without permission and without paying for it.  So if folks want to call it something else, that’s fine, but my point here is that it is both wrong and illegal."

I could get into a whole semantics argument here about "wrong", "illegal" and "stealing", but I think I've spent too much time today writing about these type of things already. 

“But an HBO Executive Reportedly Said Stealing “Game of Thrones” Is a Sort of Compliment.” Seriously.  Illegal immigration is a sort of compliment, too (it means people would rather live in your country than theirs) and so is having someone hit on your partner (because it means they find him/her attractive)."

There are so many things to unpack here. Firstly, yes a HBO executive did say that it is a compliment and are hoping to offer an "a la carte" style HBO GO package in the future, which is brilliant and please bring it to Australia. They have noticed that there is a shift in the marketing, including the fact that there are a large group of bloggers who just talk about HBO shows. They are doing the intelligent thing, even with HBO Go, to facilitate that need and make sure they go around it in a formal manner. That's called a business strategy and  I definitely think it could work. It could give a lot more jobs to US citizens in the IT sector and keep you from having to deal with the people at FOXTEL. Just sayin'.
I wonder if HBO have to wait 4-10 days for a guy to come out and make a deal with them.

To bring up the immigration thing is mental and I'm really not sure why you brought it up, unless you're hoping to make good with the possible next government. Also if piracy was such a big issue, why not talk to other countries such as the UK (with the US, mind you) higher in torrenting than our own sunburnt country. Get on the phone to whoever's in charge over there, because I know they've just had a shift in power, and ask them to plead with their countrymen to stop torrenting Game of Thrones as well. Talk to Louis Susman or Dr. Barbara J. Stephenson.

"The fact that something is a perverse form of compliment doesn’t mean that it is acceptable or desirable.  No one seriously thinks that illegal immigration or someone seducing your partner is a good thing." 

That's true. Like saying you're the best American ambassador we've ever had, but only because I don't know any other US ambassadors that we've had. The best compliment I can give is that you look a bit like my future father-in-law, and he's an alright guy.

 Likewise, the idea that people who download illegally may generate “more buzz” or might decide to do the right thing and buy the next season may be true, but it doesn’t make up for the fact that you are taking something that is not yours when you illegally download content.  If businesses really thought that the way to stay in business was to give shows away for free on the internet to generate buzz and provoke a form of guilt where people buy the series later, they would do that – just give them away."

True, but they understand already that there are people who do that an adapt to that change. For example, that's a large part of why some TV shows have integrated marketing. This provides advertisers with a way to show off their product, as well as get it on television. Just ask Apple and the large range of products they show on NBC's programming line-up.

"In fact, studies done at Carnegie Mellon University confirm that free downloads do not increase media sales, they reduce them.  It isn’t fair or reasonable to pretend otherwise."

I looked up those studies and skimmed through them and you are incredibly correct, sir that the studies you are referencing from CMU do mention that there is no correlation between the two. However, I did find this nifty little quote: 

" Jeuland and Shugan (1983) show that coordination between distribution channels lead to higher profits. Extending this finding,  Chiang et al. (2002), Chu et al. (2007), and Webb (2002) develop strategies for firms to manage multiple distribution channels effectively. In the context of direct distribution channels, 
Balasubramanian (1998) uses analytic models to show that the presence of direct distribution 
channels, including Internet channels, yields higher returns when the product is well adapted to the channel." 

There is an even larger discussion on how different media companies can help themselves by actually changing their marketing strategies and adapt to an online environment. Also, in the same Game of Thrones article, HBO said that piracy doesn't hurt their agree with you, it is difficult to make a profit when you're giving your product away for free, but you need to find a functional and easy-to-use way to get people to pay for it, which  I think you pointed out somewhere....

“Distributors Make Doing the Right Thing Too Difficult, and That’s Why People Have To Illegally Download.”  Many people complained that they would pay for programs if they could get them as fast, or if it were less expensive.  As I said in my original post, that isn’t an excuse, any more than saying “I’d have bought the book if it weren’t quicker and cheaper to steal it from the person next door.”  But I do agree that the model clearly isn’t working because many decent people, who otherwise would never consider taking property without paying for it, feel entitled to take digital entertainment.   Disruptive technology sometimes makes us forget that, just as performances needed to be paid for in the real world, they need to be paid for online.  But I hope we’ll get our perspective back."

Despite some arrogant word choices there, I agree with you that when people have a legal and viable way to actually get to something then you will see a drop off, but you can't expect them to change their perspective. That's some Clockwork Orange style thinking right there. I explained in my last post about why those viable ways aren't viable to everyone. Yes, if people have money and they have access to them, then they don't have a great excuse, but they still have autonomy and you really cannot take that away from them and nor should you.

 This happened after Napster came out with file-sharing and people started downloading music for free.  Apple and other companies saw the issue and found a way to make music available online just as quickly and almost as cheaply.  Napster was shut down and most people started doing the right thing again."

But also, Napster did come back in the following years and tried to go legit. The difference was that Apple had a good stronghold on the market and were bringing out a series of products at the time that they could (and have) easily marketed to the average consumer. Napster had a pretty bad rep, for obvious reasons, and luckily it's founder, Sean Parker, met a pretty good guy called Mark Zuckerberg, which created the place where you were able to share your original thoughts out to the world...for free. Hmmm...

Sean Parker: Internet Bad Ass

"Many companies today are working on how to deliver their products flexibly enough to meet the lifestyle and expectations of online consumers.   But while they are working out the kinks, we shouldn’t be doing something that hurts people who work in the entertainment industry.  The market and political pressures will solve many of the issues people raised, but we have to show some restraint while that sorts out.  For example, despite claims that viewing “Game of Thrones” requires that people either buy an expensive subscription package or wait months to get the most recent episodes, you can in fact get the entire season online for about $30 and watch the episodes right when they come out." 

I think QuickFlix is the only one that's even close to $30 and if you're referring to Apple's pricing, I'm just personally not a big fan of them or supporting them, so I don't bother. Again, just a personal preference and also an issue of financial security.

"I know some people will still passionately disagree (and will let me know it).  But instead of shifting blame, I’d just ask that the next time one of us considers illegally downloading a copyrighted work, we remember (and actually follow) the Lannister family code:  “A Lannister always pays his debts.”

Oh and that last line sounds so incredibly threatening. Finally, I don't care for Perez Hilton. Sorry, just not a fan of his writing. Dude looks good though, shows how awesome you can be with a bit of hardwork and a lot of being cool and writing a lot. I hope to achieve some kind of financial prospect in the future from just writing, but I understand that it is difficult for people to be bothered to read something of this length and that I am still working on crafting my writing and have yet to actually score any employment that is willing to pay me for any of that writing. The guys at HBO aren't concerned by piracy, distributors are making amends to get people what they want, the rest can be chalked down to semantics and other legal and financial riff-raff, so what is it that's really bothering you about people pirating things, specifically Game of Thrones?

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