Sunday, February 18, 2018

On Media Piracy and "FairPlay Canada"

This is a new development to me, but then I haven't been following the issue of piracy all that closely for some time.  The upshot is that a group of commercial interests are lobbying the CRTC to set up an anti-piracy panel.
The submissions started flowing in after the coalition of more than 30 members — including media companies, unions and creative industry associations — submitted their request to the CRTC on Jan. 28. 
They propose that the CRTC create an independent agency to identify blatant piracy websites that internet providers would then be required to block their customers from accessing. 
The coalition, which calls itself FairPlay, says Canada needs to take action to stop the scourge of piracy sites that are threatening the country's cultural industries.
It took a bit of digging (FairPlay Canada's website doesn't even register in Google's search results - in part because of the commercial brand FairPlay.  I did, however, find quite a number of articles which give some clues as to who and what is behind FairPlay Canada.


At a glance, this is not a surprising lineup of participants.  Basically you have the major media corporations and the organized guilds of performers lining up to protect their commercial interests. 

When you go through the "harms caused by piracy" section of the FairPlay submission to the CRTC,  as posted on the ACTRA website, we find a few things of interest.  A lot of it comes down to the usual assortment of complaints about copyright violation, control over the work and so on (I'll come back to this later).  The real crux of the argument boils down to complaints about the amount of "money lost to piracy".  Inevitably, these arguments come back around to how those monies could be used to augment cultural efforts in Canada and so on.  

Digital piracy has been a fact of life ever since the personal computer emerged in the 1970s and companies have been trying to overcome piracy in one form or another for just as long.  At first, it was so-called "copy protection" schemes which tried to make it harder to copy raw media (inevitably, every one of these schemes fell to some clever person's tinkering).  By the late 1980s, it was trivial to copy pretty much anything from floppy disks to ROM cartridges, and more sophisticated attempts to curtail theft such as hardware dongles were routinely overcome with relatively trivial bits of software modification.  

In the 1990s, with the advent of the Internet, we saw the rise of modern digital piracy, where entire websites were dedicated to carrying bootleg media ranging from music to movies and software.  (anybody else remember Napster?).  In the late 1990s, the United States attempted to address these issues with the Digital Millennium Copyright Act (DMCA).  Whether or not they succeeded in this endeavour is open to debate.  I personally have never been impressed by the DMCA because it was so clearly written as a give-away to huge corporate interests (e.g. the ability to transfer copyright ownership from a person who created a work to an arbitrary corporation, which can then extend copyright indefinitely.)  However, the DMCA only created a legal environment within which so-called "copyright theft" (piracy) could be prosecuted.  It did not create a mechanism for addressing piracy itself.  

On the surface, if the FairPlay Canada proposal were to be enacted, it doesn't sound entirely unreasonable.  Monitor and block piracy websites.  Okay ... not entirely an unreasonable demand from a certain perspective.  I can even agree that within certain parameters there is a validity to it.

However, one can also imagine that it would rapidly become very difficult to identify a given site as specifically being a piracy driven site.  For example, the website Mega is touted as a file storage archive / sharing site, but has been accused by various sources of being primarily a piracy site.  Yet, in function it is similar to facilities like DropBox, Google Drive or Microsoft's OneDrive which are understood to be cloud storage services.   So, one has to imagine that establishing criteria upon which such a determination could be made is going to be very difficult indeed. 

As the persistence of websites like The Pirate Bay has shown, tracking down and limiting the activities of piracy is pretty much the equivalent of a giant game of whack-a-mole.  Shut down a piracy source in one place, and it will inevitably spring up somewhere else.  We should not ignore the existence of alternate traffic routing services as a way to hide piracy sites as well.  Tools like TOR, i2P and others essentially create a second web that is very difficult to trace.  Telling ISPs to block specific sites is fairly easily undermined using tools like these.  Talk to anyone who lives in a country like Egypt where the government routinely blocks access to various services on the Internet - there's always a workaround - don't imagine many countries are willing to invest the kind of resources that China has in their "Golden Shield Project", which is what would ultimately be necessary to rigorously enforce this proposal.  

At this point, I want to circle back to the claim of financial harms done by piracy.  Often we see claims of millions of dollars in "lost revenue" from the anti-piracy lobby.  Usually, this is computed by estimating the number of bootleg copies of a given item or service and then multiplying it by their standard rate for that product.  If you take the view that piracy is the same as shoplifting, this almost seems like a reasonable approach.  

But, is piracy the same as shoplifting?  I would argue that it is a quite different phenomenon, and one that needs to be explored more thoroughly.  Where shoplifting may have a variety of causes, ranging from poverty to mental health issues, piracy does not have the same motivations associated with it.  In my personal experience, piracy tends to be driven by a few different motivations:  the "because I can" mentality; curiosity or test-driving a product; simple economics - it's cheaper. 

The "because I can" crowd you can pretty much write off as sales you will never make.  These are the people who pirate stuff because it's possible for them to do so, and possibly because they get a thrill out of doing something borderline illegal.  Fundamentally, it doesn't matter how hard you try to lock things down, these people will never pay for your product.  If you will, It's quite relevant to understand that these people are doing it for "the thrill".  You might be able to threaten them with various legal consequences, but that's about as far you will ever get.  

The last two groups are part of the market that is available to you as a vendor. They aren't your problem customer though. As a business, you haven't made them a customer yet. You need to figure out how to do that.  Does that mean getting into bed with the pirate sites?  Possibly. It might also mean coming up with a new way to market your product. 

Microsoft figured this out with their Office product, and switched to their "Office 365" subscription service.  Suddenly, where a full featured copy of office used to be close to $700 CAD, it became ~$100 / year, and you get the updates as part of the bargain.  I can't prove that this has reduced the number of bootleg installations of Office out there, but I do know quite a few people who switched to it when they realized that they could justify the annual subscription fee in their minds. 

What does this mean for streaming services, and their bootleg counterparts? Many of the bootleg streams charge a subscription fee too. It's pretty easy to extrapolate from there that these people are willing to pay something for the service, but perhaps find the current fees to be too expensive.  Business is all about finding their market and engaging it.  As much as you might want "all of the pie" in a particular domain, it's not going to happen.  In digital media, it's the world of the bootlegger, in fashion, it's the knockoff maker, and on it goes.  

Recognizing that the industry in question is asking for some kind of remedy for their perceived woes, I will argue that the proposed remedy is both impractical, and intractable.  It cannot work in any meaningful way, and will not work in the short term or long term.  The commercial interests need to find a way to engage with the "commercial pirate" and come to a solution that works.  There is no chance that a non-commercial pirate can be brought to heel - forget them - it's not worth the constant game of escalation. 

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