We just had a post about a guy in the UK who could not buy the version of RosettaStone's language training software that he wanted because the company would not sell it to him. In response, he felt compelled to pirate it, rather than pay lots of money for a lesser version with no promised upgrade. And here's another, similar case, involving venture capitalist Fred Wilson, who could not find a legitimate way to buy The Streets' new album after hearing that it was being released. After searching all over for it, the best he could do was order a CD. Instead, he ended up getting an unauthorized copy.

Then I searched the Internet for the record. It was not even listed in iTunes or emusic. It was listed on Amazon US as an import that would be available on Feb 15th, but only in CD form. I'm not buying plastic just to rip the files and throw it out. Seeing as it was an import, I searched Amazon UK. And there I found the record in mp3 form for 4 pounds. It was going to be released on Feb 4th. I made a mental note to come back and get it when it was released.

I got around to doing that today. I clicked on "buy with one click" and was greeted with this nonsense (click on the image if you want to read it). So then I went to find a VPN or proxy service that would let me grab a UK IP address so I could buy the record. That was an exercise in frustration. All I could find was monthly or daily services that were 2-3x the cost of the record. I could not find a free service that would let me change my IP address for a few minutes so I could download the file. As much as I wanted to pay the 4 pounds and pay for the record, I wasn't going to lay out $10 or more to do that.

So reluctantly, I went to a bit torrent search. I found plenty of torrents for the record and quickly had the record in mp3 form. That took less than a minute compared to the 20+ minutes I wasted trying pretty hard to buy the record legally.

Fred points out that he spends a ton of money on music every year and wanted to spend money on this music. But he was prevented from doing so for no clear reason. As he says at the end of his post:

I don't know whose idea this is of the way to market a record but I'm hoping they read this and never do this to a fan again. Fans love music. They want to support the musicians and they want to pay for music. But if you put enough hurdles in front of them, they will become pirates. As I did this morning.

Copyright maximalists who hate the DMCA's safe harbors often claim that service providers can easily tell what content is infringing and which is not. This is, in fact, a key part of the argument made by Viacom in its lawsuit against Google over YouTube. It claims that YouTube must know that the clips are infringing and should be taken down. There's just one problem: even Viacom doesn't seem to know which clips are infringing and which are not. It turns out that, among the many YouTube clips included in the lawsuit, approximately 100 were uploaded on purpose by Viacom. Yes, you read that right:

Viacom sued Google over clips it claimed were infringing, that Viacom purposely uploaded to YouTube.

That alone should show how ridiculous Viacom's claims are in this lawsuit. There is simply no way for Google to know if clips are uploaded legitimately or not. Oddly, however, the court has now allowed Viacom to withdraw those clips, but lawyers like Eric Goldman are questioning how this isn't a Rule 11 violation for frivolous or improper litigation. But, more importantly, it demonstrates that even Viacom has no idea which clips are infringing and which are authorized. Given that, how can it possibly say that it's reasonable for Google to know?

The ruling against Lori Drew was quite problematic, because it twisted a computer hacking law to convict a woman who had done something else, which was distasteful, but not illegal (at the time). It looks like others are doing the same thing... and succeeding. An appeals court has upheld a hacking conviction against a man whose "hacking" seems to have consisted of uploading a naked photo of himself to the website Adult Friendfinder from his work computer. How is that "unauthorized use" of a computer under the statute in question? Well, the court says that it's unauthorized use because he was using the computer to solicit prostitution -- and that's a crime, therefore, it's unauthorized. By this rather troubling reasoning, just about anyone who commits a crime on a computer can now also get hit with this law against hacking, because their use, by definition, would be "unauthorized." About the only good thing in the decision is that the court tossed out the lower court's ruling that the guy had "stolen" money from his employer by using the computer for non-work purposes.

About a year ago, some commentators were positively shocked that tons of folks still got the latest Radiohead album via BitTorrent rather than the band's own pay-what-you-want site, which allowed people to get the music for free. However, the real point (which many seemed to miss) is that the reason people will often access the content via unauthorized sources isn't just because it's free, but because it's more convenient and doesn't require leaping over annoying hurdles. Plus, for many, it's a single interface and a single source for all the content they want.

So, it should come as no surprise at all that plenty of folks are still downloading unauthorized versions of TV shows that are available in authorized streams for free. First off, downloading the content lets users watch the content when and where they want -- and allows them to archive it or watch it on other devices. Second, it's just a lot more convenient for many users to get the content that way.

Once again, it looks like the entertainment industry got hung up on that whole "free" bit, when that's hardly all there is to the equation. Just because they put something up for free doesn't mean they've effectively competed with the alternatives. When the alternatives offer more and better "features" and much greater convenience, the "free" part is only one of multiple selling points. Simply putting content up for free without matching those other features means that plenty of folks are still going to get the content elsewhere. Rather than fighting it, it's about time companies learned ways to use this to their own advantage.