Busting Your Delusions About Content And Piracy

We've spent a lot of time this week looking at proposals for how ISPs should deal with allegations of piracy via torrents and how those would work in practice. There's broad agreement that the proposals aren't perfect and that a dedicated downloader could easily work around them, but there's also clearly some widely-held misunderstandings about the nature of the proposals and the alternative business models which might drive entertainment in the future. Let's bust through a few of them.

Picture by Kevin Dooley

Yet again, it's worth pointing out that the proposals from five local ISPs are just that: proposals. There's no agreement that such a scheme will happen, and it's almost certain that it will need to be modified to get copyright holders to agree to it. However, many of the disputable points that have arisen in comments on Lifehacker, and in other discussions of the issue, would remain incorrect even if an entirely different scheme was adopted.

Myth #1: Piracy would stop if we had better streaming alternatives

The original issues paper argues that providing legal means of accessing media online -- whether that's pay-per-view movies, an all-you-can-eat subscription service, or permanent purchase of digital copies -- is the most effective means of combatting piracy. Virtually everyone who has commented on the issue agrees with that, and I do too. But there's an important caveat.

Firstly, while offering cheap and legal alternatives would certainly reduce piracy, it clearly wouldn't eliminate it entirely. No matter how affordable you make a given service, if people believe that there's a free alternative available, it will get used even if its legality is questionable. (And to be honest, the legality of torrenting movies or TV shows or full-release games isn't questionable in most cases: copyright law is very clearly being broken.)

The affected industries could probably live with that outcome: after all, piracy was still an issue back when I first started buying music on cassette tapes. It's always going to be with us. Pretending that every single torrent downloader would disappear if better alternatives were available is realms-of-fantasy material. The existence of a service like Hulu in the US hasn't stopped people continuing to share shows that are available on that service.

Myth #2: $20 a month for everything ever made is a sustainable business

A related point is that some people appear to have an unrealistic expectation of what a legal service might consist of. The figure of $20 a month often gets bandied around, probably because that's around what Spotify charges. But a little bit of thought suggests that a movie subscription service, in purely commercial terms, should cost more. After all, producing an episode of a TV show costs more money than producing a song, because more people are involved. (Yes, artists can spend ten years on a single album, and people can shoot video on their phones. But as a general principle, that ratio holds.)

If the production costs are higher, it's not unreasonable to expect that the subscription might also be higher as well. In fact, a service like WatchNow from Quickflix costs less than that -- $14.99 a month -- but doesn't promise to offer access to everything. For newer movie content, you'll pay on a pay-per-view basis. Some people seem to find that objectionable. Many more find it objectionable when it comes to television. But it's foolish to think that all TV is produced for free viewing and subsidised by ads. Some is produced by subscription-only channels. Much is government-funded. The "I can already skip the ads on my PVR" argument doesn't apply here.

There's a second important related point. No legal alternative offers everything anyway. iTunes -- the poster child for successful legal alternatives -- still has major gaps in Australian music coverage. Hulu does not offer everything recently shown on US television, even if you pay for the enhanced version.

Even if regional variations in stores disappeared (and that seems unlikely in the short-term), there will still be hold outs on a global level. AC/DC aren't racing to sell their music digitally, for instance. The attitude "I can't get everything I want, so I'm forced to torrent" thus becomes a self-perpetuating excuse. There'll always be a gap. Many people appear to believe that unless they can watch a show the second it gets transmitted anywhere in the world, a commercial service isn't good enough. I just can't see how that becomes sustainable on a global basis, but it's clearly far from a minority view.

Myth #3: Easy excuses will let you keep torrenting

We've identified a couple of obvious ways consumers could work around the proposed notices system, such as using proxies or by regularly resetting your IP address. Readers piped up with other suggestions, pointing out that you could argue against a notice by saying that multiple family members had access to the account, or that you had a completely open hotspot which anyone could use.

My issue with the last two strategies is that they're not going to be an effective argument if you've received more than one notice. Sure, you could argue that you didn't have a secured hotspot the first time a notice shows up. But if alleged infringements keep happening and you do nothing to change that situation, the game has changed, and you're going to come across as either stupid or criminal. If there's a clear process in place and you've been pointed towards appropriate educational resources, a court is more likely to assume that you've broken the law than that you're an idiot. (Though it might well assume both.)

Ultimately, the notices system seems designed with the intention of ensuring that names and addresses of alleged offenders only get passed on to rights holders and into the courts when there's clear, unambiguous evidence of ongoing infringement. There's plenty of room for arguing about the details, but taking the Pollyanna view that your apparent ability to consume any kind of content you like constitutes an unalienable right to grab it however you can seems a really immature way to go about it.

Copyright law is messy and in need of reform. Many (probably most) people genuinely want to support artists and properties they enjoy. Technology is evolving far more rapidly than legal or commercial systems, and many content producers are greedy. Finding solutions that keep everyone happy is tricky, if not impossible. But let's not muddy the waters further by deluding ourselves that our own behaviour is beyond reproach, or proposing ideas which don't survive the first whiff of reality.

Lifehacker's weekly Streaming column looks at how technology is keeping us entertained.


Comments

    While I agree decent paid alternatives will never *stop* piracy, it's going to have a big effect.

    Currently, especially in Australia, TV show piracy is so rampant simply because it provides the best product. The legal alternatives presently don't come close.

    You can get episodes as soon as they're made public anywhere in the world, you can watch them whenever you want, on whatever device you want, and you can easily just download once for an entire household to access it.

    The fact it's free is just a handy bonus. I'd really like a paid equivalent that provides what I listed above, but also guarantees quality, makes the process more user-friendly, and - most importantly - actually financially supports the creation of visual content I like.

    We just need a cable style system to be implemented. You'll never get everything for $20/month - but picking and choosing the "channels" you like and paying for them individually would be fine, just like how cable works now.

    *Disclaimer: not that I ever pirate anything. I'm basing my knowledge on what I hear others do, of course.

    What id you deliberate leave your WiFi open as a service to your local community?

      Generosity is not, as I understand it, much of a defence in court.

        It isn't, but surely as long as you could prove that your internet is in fact accessed by many random people that would reasonable doubt.

        It's not against the law to allow free net access, and why should you be held accountable for what someone does with your network, it's not a dangerous weapon, there isn't anything irresponsible about it, free wifi exists all over the world in plenty of shopping areas.

          Kind of like how ISP's aren't responsible for what their customers download

          However, it's not a criminal case when they say you downloaded their tv show. Therefore they don't need to prove "beyond reasonable doubt"...

    I've never heard anybody arguing that easy legal alternatives will eliminate piracy, in the same way I've never heard that raising the speed limit will eliminate speeding. There'll always be some people who have a moral aversion to paying, but they're not a viable target market.

    Steam is a good example of this. It's dramatically reduced game piracy by making it so much more convenient to get what you want legally. I think their model translates over to tv/movies moderately well.

    In terms of time gap, there's no real business case for delaying the release to certain parts of the world - regional pricing differences sure, but time delays no. In the old days it was because only a certain number of film reels would be produced and shared around, but that's not a viable reason anymore.

      Why is there a business case for regional pricing differences for digitally delivered content? In fact, the free trade agreement should protect us from this for content from the US. (Noticed that Steam charges in US dollars to avoid an Australian presence, yet still price-fixes based on location? I assume this is to get around the FTA).

        I'm not saying it's a good idea, but it isn't too hard to argue that people in Russia will pay less than people in England for a DVD and you could boost profits by dropping the price.

        It doesn't have to be good to have a business case.

        Valve (Steam) do not price fix. The price of games is set by the game publisher, not Valve. Its the publishers that are ripping off Australians so much.

          While I dont agree with the price differences on Steam between the US and AUS, there are situations where a price difference is important.
          Namely in countries where the currency or average wage is alot lower.
          I'll use the example of Poland (since thats where I'm from and visit regularly). Over there a brand new release game can cost around 130ZL (MW3 - retail) which is under $40AUD. Now for that economy $40 would be a rough equvielnt of $100.
          Blizzard on the other hand still charge $15US for a month of WoW. If you do the same comparison thats a bit less than half the cost of MW3 in Poland. So imagine if we had to pay $50-$60 for a month of WoW.
          This is an example where world wide pricing doesnt work.
          For this reason it is unresonable to charge a single price for a game or movie world wide. Again - i dont think there should be any price difference between here and the US, but in some situations it make sense.

          Steam/Valve is complicit though - they enforce the region locking. And until recently were pretty much the only serious digital distribution channel, and so could have pushed to fix the situation. Look at GOG - they simply removed the region checks so people could take advantage of better regional pricing, because they're committed to the customer.

      steve jobs argued that providing legal alternatives to pirated music would reduce piracy... and a short time later itunes store revolutionised the sale and distribution of music.

      fyi i'm not an apple or steve jobs fan boy, in fact i will never ever use itunes to manage my music library. can't argue with history tho.

        Yes but for purely digital content where is the extra cost in the Australian market?

          Oops, should be in response to the comment above

    I download all my TV shows and movies. I will only go to the movies to see visual blockbusters (eg, avatar, inception)

    If I could get a service that delivers the same content (non-blockbuster movies and all TV shows), with zero time delay/cinema exclusivity and low prices and a relaxed DRM then I would use it.

    If I have to wait 1 extra day or pay $30 to see a new release, then I will continue to choose the faster option.

    Let's also not delude ourselves into thinking the 'download option' (euphemism intended) is free or even cheap.

    It costs $50/m for some of our high capacity internet plans. Add on top of that a VPN or Usenet service in future when the copyright regulations get stronger and piracy adds up to a pricey in itself.

    The other thing I should point out is that gone are the days of 'quality', 90% of movies now are terrible (or my standards have gone up???) and not worth what we *used* to pay for them. Hollywood studios are pumping out some absolute junk these days which is another reason I don't like high prices - because the odds are whatever you pay up for is going to be terrible.

      I agree with you on the standard of movies these days. We're lucky to get 5 movies in one year that are worth a $20 movie ticket.

        Yeah lets not get started on cinema prices. That's another whole can of worms. And the popcorn... DAMN.

    The most important point was made early on: nothing is going to eradicate copyright infringement. Nor, IMHO, should anybody really make that a goal: in the end, everything is a remix.

    www.everythingisaremix.info/

    Mixtapes and VCR recordings of TV shows are, IMHO, no different to filesharing. And it's not as though the record/movie industry is struggling at all.

      "Mixtapes and VCR recordings of TV shows are, IMHO, no different to filesharing."

      Unfortunately your opinion doesn't count at all, what counts is Australian law which clearly distinguishes between a mixtape/VCR recording and filesharing.

        It's in the same spirit, and that's what he meant, no doubt. However, this article seems to be restricted only to file-sharing which is done over the internet - the whole issue about piracy never seemed to be an issue when people were sharing cassettes, and CDs with their friends - even though copies were easily made.

        I'm curious. Where is this clear distinction?

          I'm fairly certain I've read chunks of it before that stipulate a difference between recording broadcasts for personal use (i.e. VCR/Tivo/Foxtel IQ) and taking those recordings and sharing/distributing/selling/rebroadcasting them.

          I'm hoping someone will correct me if I'm wrong, but I'm almost certain I've read those kinds of distinctions before.

            I've heard that, legally, if you take your twenty year old VHS of Scooby Doo episodes and give it to a friend to watch, that's illegal.

            While recording shows yourself to watch is technically illegal under the shower of shit that is copyright law, it's when you distribute that you're really being officially naughty.

              My understanding is that *ANY* unauthorised copying consists of copyright infringement and could theoretically be a cause of action for the owner of the copyright.

              This includes taping a tv broadcast, making a mixtape from your CD/vinyl collection and downloading an unauthorised torrent of a studio movie preview. Copying is copying, and if you're not licensed to do so then you are infringing the exclusive right of the copyright owner.

                I've heard that as well but how does it apply to stuff like Foxtel IQ?

                As near as I know the AFP haven't been kicking down Foxtel's door for selling a device to record TV.

                  Having a cause of action doesn't mean that you have to use it. Consumer broadcast-recording means have been commonplace for decades now and nobody cares to prosecute because the payoff doesn't meet the cost. Cases would have been won quite easily, but the damages awarded would have been nominal at best because there is no way to argue that anybody suffered a measurable loss from someone recording a TV broadcast.

                  This is why it boggles my mind that courts are accepting arguments about the "loss" suffered by copyright holders in regards to the newer copyright infringement methods. You can't argue that you have lost a sale when the infringer was never going to buy your product anyway.

                  To be clear, I don't condone copyright infringement or think that this is a justification. But I do think that due process is important and one of the key principles in the role of damages is to make up for a measurable, identified loss.

    Again you guys have suggested that restarting you router to get a different IP address will result in people having their warning count reset.

    It's completely misleading, ISPs record which IP addresses were assigned to which account holders for any given period of time. The warnings would have an IP address and a date associated with them, the ISP would determine which account leased that IP address at the time and then record the warning against the account holder.

      Yeah reading the proposal its "an IP Address
      matched to a specific Account Holder" and they would appear to have a database setup specifically for the infringement notices..

      "the ISP will match the IP address from its scheme database
      and then send a Discovery Notice to the Account Holder."

      lol, I've read that a few times around the net, kind of ruins your credibility of being someone that has an informed and well considered opinion when you make large gaffes like this.

    For TV, downloading is really the only choice unless you want to wait years to pay a 200% markup on the box set when it comes out in Australia. The commercial TV stations seem to be the problem here.

    For movies, I have been following Quickflix since they announced PC movie streaming. I still think the service has some ways to go but it is definitely a step in the right direction. Problems the the service at the moment: 1. the movie selection is small, I have more movies transcoded from my dvds than they have in the subscription collection. 2. They are all old movies (answered partially by number 3). 3. I heard that recent movies on pay-per-view were going to be $5. That is too high considering the cost just going down the local Blockbuster/Video Ezy and picking up the DVD/BR. Progress nonetheless.

    The main reason that some friends of mine pirate TV shows (ahem) is that you just don't get the same content on free-to-air here in Australia - they can get episodes of TV shows hours (if even that long) after its showing.
    Piracy has been around as long as people have charged for entertainment.
    And unfortunately, while some of your arguments are that we're opting for convenience, and would pay for it, as long as there is a free/cheaper alternative, some people will go for it.

      I for one would go for it if the content was plentiful and reasonably recent (new TV shows no more than a month after they are shown overseas) and the price was right... then I could drop my usenet account and stop adding more drives to my server lol. So far for the level of content available (Quickflix being the only one so far), the price is not right.

        Would you pay to wait a month when you can download a show for free within 30 minutes of it's US broadcast?

    "it's free"

    I think that's the elephant in the room. Why pay when you can get it for free? Let's say you go through the checkout, they forget to charge you for an item, will you tell them and pay or just fistpump in your pocket and spend the money on something else?

    Not trying to justify it but unfortunately it is human nature, we're lazy (most of us) and whatever we can get away with, we try.

      I would happily pay a per-episode cost to download a high quality version of an episode of a tv show I enjoy watching such that a season of the episodes would cost the equivalent of the season on Blu-ray.

      Unfortunately it would inevitably be hobbled with DRM or require a special player (I just want to stream it to my PS3 to watch on the tv!).

      So I make do by downloading the episodes advertisement free shortly after they air in the US and then buying the box-set when it's available.

        I agree. If there was a service that let me download top quality AVIs (or whatever format) with no rubbish restrictions (such as only watch 3 times, or 24hrs to watch), straight after the show airs in the US. I would happly pay per episode/series/movie. But as duster says - these files will always come with restrictions and that just brings us back the the DRM debate.
        Althought tbh I'm not sure HOW MUCH i would pay. I think a 4dvd box set of Supernatural for $80 is absurd.
        Maybe its just the mental realisation that you're paying $80 for something that aired on TV, in the past, for free.

    http://delimiter.com.au/2011/11/29/self-interest-is-ruling-australias-piracy-debate/

    For a long time now I've maintained that if I could pick and choose which channels I received on a foxtel subscription, I'd have signed up years ago...

    i.e. $30/mo for basic channel pack (say, 20 channels), then every individual channel after that is an extra $2. Not to say this would replace the current bundles/packages, but I certainly don't need 7 different news stations and 15 different sports channels, I'd much rather pay $2-4 for one of each.

    "Piracy would stop if we had better streaming alternatives"

    Who claimed that? That's not a myth, it's something you just made up on the spot.

    If Hulu was on offer in Australia, and the content was actually on par with what we've seen in the USA I guarantee you that there will be a REDUCTION in piracy.

    You'll NEVER completely eradicate it. Think of all the crime across the world. Think of all the things far worse than content piracy. Think of how long people have been trying to stop those things. You cant.

    The most egregious tactic that's driving piracy is the number of times we get charged to watch something and antiquated regional release strategies. A person goes to the movies every week to see a new film, when it comes out on bluray, they buy it, they want it on their portable device they buy it, the special edition bluray comes out and they want more money for it, it airs on TV and the networks pay. How many times do you want to charge for the same product? Also, I know this is kind of a dead horse, but I really think the impact of piracy is overstated. Take away the free (albeit illegal) methods of viewing these things and all of a sudden there are impacts across the board. The person who gave a small indy flick a chance because it was free didn't discover the hidden gem, which means they aren't buying the directors next flick. They aren't buying the bluray and they aren't telling their friends about it. True art was meant to be seen. Artists should be supported, but we are now at the point where the main objective of a film is to make a large profit. Budgets are inflated. Also, as stated before, the penalties for piracy are ridiculous. Australia should be looking to protect it's citizens from these ridiculous penalties and looking more at appropriate reparations. We scream and shout when our citizens are locked up for smuggling drugs overseas but sit quiet while huge multi-national corporations seek unrealistic penalties on our own shores. The damages are difficult to quantify.

    Ultimately the key here is service. And like everyone, I speak to my own experience of what happens outside Australia.

    When I was in the UK I was able to:
    - Get a 15 pound subscription to emusic to use credit in their store
    - Stream ad-supported Southpark Episodes directly from Comedy Central
    - Have a BBC Iplayer that had a wealth of movies and content.
    - And finally have a 15 quid a month subscription to Cineworld which gave my unlimited Cinema

    As a result of these services I:
    - relied less on people who would download episodes of my favorite shows
    - saw more movies at the cinema
    - purchased more music online through legel channels that was not subjected to DRM.

    Unfortunately we dont live in a perfect world. And it would appear that Content Owners cant see beyond the North America. For now, ill continue to use my VPN to workaround it.

    To be honest, if I had to pay for some the stuff I watch which is pirated, I simply wouldn't watch it at all. Same for music. In the last year or so I would only have paid to watch maybe 2 or 3 different series and a handfull of movies.

    I watched Rush and Sea Patrol on the internet when they were on. About 2 out of 3 times the episodes were uploaded illegally before they were posted on the respective FREE and copletely LEGAL channel 9/10 websites. So it was more convienient and the episoodes were in higher quality illegally than they were legally.

    Can someone please explain to me exactly what incentives that an ISP has for eliminating torrenting and piracy?
    If my ISP suddenly throttled my connection after some questionable bandwidth usage, it wouldn't take me long to find a new ISP.

    Copyright owners should be working with ISPs on locally hosted content with a profit sharing agreement. How is using an ISP to distribute significantly different than retail is now?

    The extra costs could be put onto the ISP bill to promote people buying more content. ISPs hosting save on international bandwidth as it's stored locally. ISPs get paid to be the police of piracy instead of just forced to by content owners and have a vested interest in stopping piracy.

    People have nothing to complain about when the service is available. They could set prices based on per view, or time limit and DRM free copies of videos. With purchasing being stored by ISPs so that you can re-download and that data is in a shared database or is required to be transferred when you change ISPs.

    You could also have two versions of videos, free or cheaper with ads or ad free.

    No excuses for the fringe pirates, you are never going to stop the hardcore ones.

    Everyone Wins.

    meh

    i pirate because i've lost tens of thousands of dollars buying shitty media that was neither useful or entertaining.

    i'm sick of the industry and its attitudes and as far as I'm concerned am happy for them to be taken out.

    I really don't care if the industry collapses any we never see another film or hear another song. I still have several decades of media to get through.

    its not the end of my world and as far as I can tell humans will continue to express themselves through other mediums and forums.

    External streaming services like HULU Plus mean your still paying twice for the content - once for the content and again for the bandwidth.

    I think that legal content could compete with BitTorrent on total price provided that ISPs were deeply involved in the distribution of the content. Currently, people pay ~$50/month to the ISP to get many GB of data from outside the ISP's network, i.e. international torrent peers. If the ISPs hosted the content locally and legally, their external bandwidth costs would reduce dramatically. So you could still pay ~$50/month for access to unmetered content hosted and cached within the ISPs network if they got the pricing structure right. Perhaps a mobile phone style plan would be suitable, i.e. $50 per month for $50 worth of content with ~10GB external internet data included free.

    I don't think anyone has claimed Piracy would stop if we had a better streaming alternative - but I think simple traffic analysis of streaming services vs torrent traffic in the US shows that it would recover substantial revue currently not being captured because pirates want a quality of service that simply isn't available.

    And piracy has been rampant since the introduction of VHS. It's never going to go away entirely. But I think most pirates who actually have money to spend (IE potentially capturable income) would pay a reasonable amount for reliable, high quality, convenient services, which lets face it - torrents aren't. Cams, low quality rips, mislabeled links, malware, unreliable junk and stupid file names that clutter a media center? What a pain. I'd much rather pay a reasonable fee and have it actually work. Like the people who use Netflix and spotify.

    There will always be piracy from people who either don't have, or simply won't spend money on music and movies/television. But capturing more profit and reducing piracy dramatically is as simple as not crippling your service in geocoded regions.

    I often wonder if an honesty box system would work.

    If I pirate a show I like I could then go to the producer's website and give them some money. Seems like the best of both worlds, honest people who want fast content can pay, producers get money with minimal effort expended in distributing their products.

    I realise it doesn't solve the problem of people who pirate shows anyway.

      I try to work on this system anyway. If I like a TV show, I'll buy it on DVD (though wait for the price to come down a little). If I like a movie/if its epic, i'll buy it on blu-ray. I always try to see the big movies at the cinema, then bide my time til they come out in Full HD and I can watch em on my home theatre system/

      Similar thing with music. I pirate a lot of it, but if it weren't for that then I wouldn't know a majority of the bands I know now, especially the smaller ones. I see my favourite ones live when I get a chance (to support them and because live music is awesome) and buy their CDs to get full quality in my car. So yes, it is technically stealing, but the amount of bands I've shared to my friends and supported in other ways makes me feel ok with that.

    i recall reading a study that piracy actually helped content sales through exposure. someone who wouldn't be exposed if they had to pay for it downloads it by chance, enjoys it and buys it. they also can't count people who would never of bought it in the first place as lost revenue. they haven't lost anything it's not like content is finite and they now have one less to sell. at the end of the day the movie and record industry are cunts.

      I bought Community on DVD after downloading the first season when a mate recommended it. If it wasn't for torrents I wouldn't even know about half the shows I watch regularly now.

      A somewhat direct, if not honest, appraisal!

    There's a reason Australia is such a prolific country for piracy. We get everything so damn late.

    My wife loves How I Met Your Mother, she's bought all the seasons on DVD. When season 6 started last year we started downloading it so we could watch it each week as it came out. When the DVD came out last October she bought it, we've been torrenting the 7th season and there's little doubt we'll be buying it on DVD.

    Why should we wait a year for it to appear on Foxtel (which I pay $100 a month for) or DVD to watch it when it's available for free right now?

    Piracy wont go away until there are no humans living on earth. But legal alternatives imo wont make a huge difference

    Spoilers are the reason my (ahem) friend pirates TV. What with social networking and generally wanting to keep up with non-spoilery news when the show starts airing in the UK/US the internet is full of chatter about that week's episode. It's much easier to avoid being spoiled for a few hours/a day than weeks or months.

    Plus, as people have said already, Australian TV is complete balls. Commercial networks start showing shows from o/s in crappy timeslots then can them after a few weeks.

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