ACTA Failure Inspires The Most Clueless Column Ever

Stupidity

from the do-these-people-think? dept

Last week was a good week for those who believe in the internet and culture, with the rejection of ACTA being a key moment in Europe, on par with the rejection of SOPA in the US six months earlier. Of course, as we saw with the defeat of SOPA, a number of ACTA supporters who haven’t come to terms with why the public was so upset are lashing out. One of the more outspoken responses against the EU Parliament’s decision came from Ewan Morrison for The Guardian, in a piece that I honestly read over a few times to make sure it wasn’t satire. I don’t think there’s a single truly accurate statement in the entire thing. It sets the bar of misinformation so high that I think from now on I will compare any clueless article to the newly developed Ewan Morrison scale of wrongness, with this column scoring a perfect 10 out of 10. Let’s explore why.

The headline defines the kind of malarkey we’re in for, stating: Throwing out Acta will not bring a free internet, but cultural disaster.

Really? So blocking an agreement that ratchets up copyright enforcement marginally, and which might criminalize a few things that are widely accepted in the public, means we’re headed for cultural disaster? How so? Morrison never bothers to tell us. He makes no reference, whatsoever, to anything that’s actually in ACTA, but seems to merely assume that ACTA would have magically made piracy go away and sent people back to buying CDs and DVDs… and even paying for news again. Clearly he has never read ACTA. Many of our concerns about ACTA weren’t in what it would directly do, but in how it would set new floors that meant today’s problems in copyright law couldn’t be fixed going forward. There were also issues of vague definitions that we were afraid would be used overly broadly (“commercial scale” for example), but that wouldn’t have changed the basic issues Morrison seems concerned with.

History is strewn with moments when politicians made swift decisions that led to disastrous consequences. One such moment has just occurred. In throwing out the Acta (Anti-Counterfeiting Trade Agreement) bill on Wednesday, MEPs in the European parliament have unwittingly signed their countries up for a future in which internet piracy will lead to the decline of film, the novel, journalism and music on an industrial scale.

This is pretty funny, in that this was actually quite the opposite of a “swift decision.” Copyright expansion, on the other hand, has a long history of government officials pushing for “swift decisions” that expand copyright law, without giving anyone any actual economic evidence that it’s needed, or explaining any logical rationale. This is an issue that goes back centuries. Copyright expansion is always rushed through. We almost never see thoughtful debate on the issue. Instead, the rejection of ACTA was quite the opposite. It was a case where the public spoke up, and many MEPs actually took the time to inform themselves of the details and realized that ACTA is not a path forward. In fact, many MEPs changed their minds on the issue over the last six months as more data and evidence was presented to them. That’s the exact opposite of what Morrison claims happened.

This is not scaremongering. One need only look at the stats from the US, where during the Clinton administration the internet companies were given free rein to pillage copyright material via the rushed-through Digital Millennium Copyright Act (DMCA).

I have to assume that Morrison was not paying much attention during the battle over the DMCA, because it was anything but “rushed through.” In fact, if Morrison actually knew anything about the history of the DMCA, and the long and hard-fought battle that went into it, he would know that it was championed by the legacy entertainment industry as the savior for their business (just as they demanded SOPA and ACTA) and it was the other side — those who believed it would lock up culture — who were protesting against it, and worked for years to have it repealed. For the “copyleft,” the DMCA was considered a huge failure. For Hollywood it was considered a long-fought win. Pretending it was quick and a victory for the other side, is an attempt to either rewrite history, or is history written by someone who is ignorant of what really happened.

This revisionist history of the DMCA is really amusing for those of us who lived through the original battle. However, due to some misinformation, a few new copyright maximalists today pretend that the DMCA was a bad law for them, even though it was what they fought for. Of course, their real complaint is with just one aspect of the DMCA: the section 512 safe harbors, which the ISPs fought to have included in the law, because without it, folks like the RIAA and MPAA (and, apparently, Ewan Morrison) would try to sue the ISPs if they didn’t wave a magic wand and stop their users from infringing. If you actually take the time to understand the safe harbors, they make perfect sense: they say that you blame the party actually infringing, not the tools they use. To people like Morrison, apparently, it’s better to blame the tools. For what it’s worth, the DMCA only applies in the US. If Morrison — who appears to not live in the US — is really so troubled by it, I’d imagine he’d have proof of services in other countries that succeed in stopping piracy because they can be sued out of existence based on their users’ actions. Oh, he doesn’t?

According to Robert Levine, in his book Free Ride, the music industry in the US has declined by over 55% in the last decade. Film is following with its first decline in recorded history. Journalism is heading towards “free”. All because people now assume that “ripping” is the norm. If “aggregation” is OK, as the Huffington Post do it, then why should we pay for journalism? Why should we be branded pirates? This is what the European parliament has just ruled. Everything on the net, from now on, will be free.

Almost everything stated here is wrong. First of all, the music industry in the US has not declined by over 55%. The recording industry has. But the recording industry is not the music industry. The music industry continues to grow (and that’s based on the IFPI’s numbers — yes, the industry’s own numbers).

As for “film,” more and more films are being produced every year, and all sorts of new business models are popping up. 10% of the movies at Sundance this year were financed by Kickstarter — a site that was less than 3 years old at the time. Imagine how many films will be financed by new business models and services going forward?

As for journalism, that’s not heading towards “free” because “ripping” is the norm, but because of the basic economics of the internet and the fact that there’s a lot more competition. The attack on HuffPo is just totally misinformed, since HuffPo/AOL actually employs a ton of journalists, contrary to Morrison’s claim. Besides, if “aggregation” is beating your reporting, you’re doing it wrong.

And, as for that final line: “This is what the European parliament has just ruled. Everything on the net, from now on, will be free.” I’m curious if Morrison can point out (1) where it says that everything online will be free and (2) where ACTA would have stopped that? Does he think that ACTA would have magically stopped fundamental economics of competition? That ACTA would have magically wiped out free content online? The failure of ACTA doesn’t make content free. Morrison seems to think ACTA is something that it is not. And ACTA supporters claim that those who fought ACTA ran a misinformation campaign — where are they denouncing Morrison’s crazy claims? ACTA would not have had any impact on the online services that Morrison seems to think are the root of all of the problems in the world. It didn’t address that issue at all.

As a journalist, novelist and a friend of many who “used to be” musicians, I see the wrong in this.

“This” being the strawman that Morrison just set up — that without ACTA, everything is free. You see the wrong in a claim that you totally made up out of thin air that has no basis in reality. Kudos to you.

I defend copyright because it is the lifeblood of the creative industries and of democracy.

And yet… somehow, magically, as copyright has become less and less respected, content production has increased by orders of magnitude and creative industries have grown as well. If it’s the lifeblood of creative industries, then that wouldn’t be true. In other words, this claim is flat out wrong.

And, uh, copyright is the lifeblood of democracy? How so? Morrison provides no other explanation and there is none, because that’s a ridiculous claim that has no basis in, well, anything. Hell, here in the US, the first major democracy, we came quite close to not having copyright law at all. No one — on any side of this issue — thinks that it is necessary in a democracy. You might argue that it’s a good thing, or a bad thing, but no one thinks it’s the lifeblood of democracy.

Other unexpected voices have joined the cause of copyright protection – Dr Dre claims there will be no future generations of rappers because of piracy and the expectation that recording artists will put their work out for free.

Hello, totally random non-sequitur. Why is Dr. Dre an “unexpected voice” in all of this? I could just as easily list off tons of musicians who claim otherwise. If we’re looking at the rap world, why not talk to Chuck D or Hank Shocklee or 50 Cent — all of whom have stated the exact opposite. I actually tried to look up the details of this claim by Dre, and couldn’t find it anywhere. The only thing I found was that he followed Lars Ulrich’s original lawsuit against Napster with his own such lawsuit. That was more than a dozen years ago. The market for rappers has not disappeared at all. In fact, it’s grown. Why? In large part because of the mixtape world, in which artists put their work out for free — which has resulted in many of the top rappers today getting discovered, and making a ton of money down the road. So, forgive me for not buying the claim from Dr. Dre when reality has shown the exact opposite.

Modern consumers don’t think of the next year – they are hooked on the short-term quick fix. They don’t understand the negative impact of piracy.

Of course, we’re still waiting for the actual economic evidence of the “negative impact of piracy.” Most studies don’t seem to show that. They do show that it has caused some difficulty for some record labels, and shifted around where some of the money goes, but that’s about it.

Over the last year, I’ve conducted surveys of the students I’ve lectured and 90-98% of them, between the ages of 18 and 32, are involved in daily acts of piracy.

Not quite sure where he lectures, but there is absolutely no reasonable study that supports this claim. None. Zilch. Zippo. Music Ally, who’s really good on these things, did a survey a few years back, and found that the rate of infringement among younger people was actually decreasing — and they were looking at those who did it at least once a month (not daily, as Morrison says is the case of the young people he talks to). In 2009, they found that the percentage of teens who file shared once a month was 26% (down from 42% two years earlier). And yet Morrison claims that it’s 90 to 98% infringing daily? Meanwhile, a study done at Columbia University last year found that 70% of those 18 to 29 had acquired some infringing content, but that “large scale” piracy was exceptionally rare. Of those in the 18 to 29 year age bracket (closely corresponding to Morrison’s 18 to 32) a mere 7% had large digital music collections — which you would expect if they were sharing every day.

So forgive me for putting on my skeptic’s hat, but that 90 to 98% claim doesn’t pass even the simplest laugh test.

Oh, and let’s not even start discussing the fact that every single study on the subject has shown that “regular” infringers spend more on content than those who don’t infringe at all. In other words, if Morrison’s number was actually accurate, there likely would be a lot more spending on content.

They no longer pay for music or films or journalism.

Again, the actual evidence has shown that those who infringe actually spend more than those who don’t bother. But why let facts get in the way of good rant?

They have a vague idea that what they do is left wing, that it has somehow to do with freedom of speech. And I say to them, but don’t you want to make films, be journalists, make music? Where will the money come from if you don’t pay? This is a blind generation. And there is no point trying to convince them person-to-person that what they are doing is damaging their own future.

Which of course ignores the fact that many of these kids are likely aware of all sorts of new business models that have been popping up all over the place. They know that the live music market has grown tremendously. They know that there are platforms like PledgeMusic and Kickstarter and IndieGoGo. They know that services like Spotify are now paying larger and larger sums and many users are switching to them away from infringement out of convenience. They know, then, that there’s still plenty of money to be made.

The only solution is governmental.

Er, except that we’ve already seen that the actual solution is not governmental, but is coming from all sorts of amazing innovations and new services that help artists create, distribute, promote and monetize already.

And the problem started with legislation: the DMCA, with Clinton, who was bullied into it by the tech companies in Silicone Valley.

Again, this is an astounding rewriting of history in that it flips the story completely on its head. First of all, it’s Silicon Valley, not Silicone. Second, the DMCA was pushed almost exclusively by the entertainment industry, and its passing was celebrated by them, and decried by the tech industry in Silicon Valley who, for years, sought to have it repealed. It’s difficult to take Morrison seriously when his key talking point appears to be the opposite of what really happened.

The ruling makes it impossible to sue internet providers for copyright infringement on their own sites. So for example, if I am a band, it will be my responsibility, or that of my record company, to trawl the tens of thousands of rips of my songs and send out writs and sue individuals. Meanwhile, the internet companies who profit from piracy are left scot-free, legally.

First of all, the DMCA is a law, not a “ruling.” Second, it is not impossible to sue internet providers for copyright infringement if they’re responsible for the infringement. It only says that if they are the tool provider, you don’t blame them for how people use the tool — but you can use the DMCA to have them take down infringing content. And I wonder: how “scot-free” did Veoh get off? That company was sued by Universal Music for copyright infringement and had to shut down because of the legal costs… even though the judge eventually ruled Veoh legal. YouTube has been fighting a massive infringement lawsuit from Viacom. Scot-free? Meanwhile, lots of other companies have been shut down in a post-DMCA era, including Napster, Grokster, Aimster, Kazaa, Morpheus, Zediva, etc. Scot-free? Even if you believe many of these companies should have been found legal, it’s clearly 100% false that any company can use the DMCA to avoid legal impact.

And, these days, nearly every major user-generated content site offers a copyright filter, anyway, that lets copyright holders “register” their works and have them blocked.

According to Robert Levine, 75% of all material on YouTube is in breach of copyright. That’s a $36bn company, with 75% of its content based on piracy. And don’t forget that Google owns YouTube. Also, Google Adsense places advertisements on YouTube pages, and makes money from them, without any proper legal procedure to test whether such pages have been ripped. Google and YouTube also sell ads on pirated pages. And 99% of their income is based on selling ads.

First of all, I’m not sure where the “$36 billion company” part comes from. Google is valued at closer to $200 billion. Perhaps he means just the YouTube part of it, which perhaps is valued at $36 billion, but as a subsidiary of Google I’m not sure that number is accurate. Either way, even if we accept the claim that 75% of the material on YouTube is infringing — a claim that seems dubious — that doesn’t mean squat. Where is YouTube actually making its money? Videos on YouTube are not all equal.

And, here’s the big thing that Morrison leaves out: YouTube long ago instituted ContentID — a system that lets anyone designate all of the content they hold copyright on, and prevent any of it from being uploaded to YouTube. It also has this amazing thing that lets copyright holders monetize the videos by putting ads on them and having Google give most of that money to the copyright holder. In other words, for many, many copyright holders, YouTube has become a massive profit center. And Morrison doesn’t even mention that, bizarrely suggesting that only Google makes money on those ads. Also, while some Google ads have made their way onto sites that offer infringing works, Google is pretty good at policing that. In fact, part of the evidence against Megaupload was the fact that Google cut off their ads on the site. That seems to disprove the basic claims Morrison makes.

The internet is a vast succubus that preys on the content made by the creative industries. Ask yourself why it is that recent culture has ground to a halt.

Er, culture hasn’t ground to a halt. More music is being released today than ever before in history. More movies are being released today than ever before in history. More books are being released today than ever before in history. More sources are reporting the news today than ever before in history.

There is nothing radical or hip about being a pirate. Those who think they are being counter-cultural by ripping content off the web are fools, and this includes those who fought against Acta in the name of “freedom of expression”. They want the internet to be some kind of 60s utopia where everything and everyone is free. But we still live in capitalism, and if you make culture free, you make it a ghetto.

I have no words to respond to this paragraph, because it makes no sense and has no basis in reality. In all the years that I’ve been involved in these discussions I have never, not once, heard anyone claim that they’re looking for some sort of hippie/utopian vision where “everyone is free.” In fact, many of us believe strongly in true free market capitalism, where we try to minimize things like government granted monopolies on abundant goods. And, again, this idea that if culture is “free” it’s a ghetto is again proven wrong by reality. Shakespeare wrote in a time without copyright, and seemed to create some pretty compelling cultural artifacts. Oh, and if you look at the data, it sure looks like public domain works sell pretty damn well. The copyright-free world is not a cultural ghetto, and we have empirical evidence to show that.

The internet is not free. It is about as free as the free market. And the companies that run the internet are all massive US corporations. When you rip material on the net, there is a cost. You are handing over you own country’s cultural content to US corporations, who will never pay a penny in return.

Really, now? Of course, paying the RIAA/MPAA labels and studios — who both have a long and very detailed history of failing to pay royalties — is somehow better? Whereas, when you actually look at the companies that Morrison is slamming, you discover a very different story. We’ve already discussed Google’s ContentID program, which returns a hell of a lot more than “pennies” to content creators. And then you look at things like Kickstarter, in which more than 90% of the revenue goes directly to the artist — completely flipping the traditional label structure on its head (where standard royalty rates are 10% to 15% and only if you recoup).

After Acta has died, we must go back to US legislation and overturn the DMCA. Sites like YouTube would then be deprived of 75% of their illegal content. It won’t be much fun – 75% less fun, but then maybe we will start to understand that we have to pay for culture.

As if ACTA would have changed the DMCA? It would not have. At all. Morrison clearly has not read it. Second: if, in this mythical version of the world, we did in fact “overturn the DMCA” (or, rather the only part he really dislikes — the safe harbors — because I imagine he’d throw a complete shit-fit if the rest of the DMCA were overturned), there wouldn’t be 75% less content on YouTube. YouTube would basically cease to exist. There would be 100% less content. And you know what? For all of those who want to distribute and share their content, they would no longer get to use YouTube’s storage, bandwidth and software for free.

You see, these services he’s slamming as somehow profiting unfairly, also happen to provide tremendously useful services for content creators. Before YouTube, if you wanted to post video online, you had to install a complex and expensive video server that had serious compatibility issues, and you had to pay for all that bandwidth at crazy high prices. But YouTube provided all that stuff for free… and made it easy. If he’s so concerned about “free,” then I assume that he doesn’t use any of these free services online.

Over the years, we’ve seen all sorts of ignorance spouted in support of copyright maximalist positions, but I have to admit that this piece takes all of that to new and never-before-seen levels. As far as I can tell, there is not a single accurate or sensible sentence in the entire piece. Kudos, Ewan Morrison, for setting a new bar in ridiculous articles. All others shall, in the future, be measured on the scale you set in this entirely fact-free piece.

Filed Under: acta, dmca, europe, ewan morrison, journalism, piracy, rob levine, safe harbors