I saw this graphic on Facebook today, and it really cheesed me off. While the message has some truth to it, it is filled with subtle yet powerful distortions.

To say that a cup of coffee costs “pennies” to make is misleading; “pennies” sounds like 5~9 cents, while the actual cost in materials is over a dollar, and the price goes up if you account for costs such as labor, rents, etc.

That a cup of coffee takes “minutes to prepare” is also wrong, because the comparison is with the beginning-to-end song production; to account for coffee production in the same way, from planting to processing to shipping to preparing and to serving, making a cup of coffee can involve hundreds of people over a year or more of time to create. Hell, the graphic even cites musicians’ “practice”! How about farmers’ training? No, if you count coffee as taking “minutes” to prepare, then a song takes only “minutes to sing.”

That coffee is “gone forever after one use” is simply the nature of the product—should we value food and drink less because we cannot eat and drink them endlessly?

Not to mention that a cup of coffee can be made to last for a good half hour, resting in a comfy chair at the coffee shop while reading a nice book. A song lasts maybe three minutes, so a cup of coffee can be worth maybe 10 listens. You may still listen to a song dozens of times, but by the time metric, the comparison is far less severe than it is made out to be.

As for the songs, well, those claims are also exaggerated. Yes, it costs thousands of dollars to record—but after they record it, they can cheaply create endless millions of copies. Divided between copies, the cost comes to… pennies!! Much less than a cup of coffee, to be certain! It may cost $100,000 to record a song, but a best-selling song can sell 10 million copies. That’s about one penny per copy.

It can be used over and over again… but not exactly. First, media types (records, tapes, CDs, digital) change often, and every time they do, the music industry demands you pay full price for the new version. Some people have been made to pay for the same Beatles song half a dozen times. Many of these versions have been discarded when the new ones present themselves, so not a “lifetime” thing after all.

Second, it used to be that you owned the media; you could buy or sell used, you could borrow or lend. You could inherit music from a parent, even. Now, you only own the “license”—the temporary, limited right to listen to the music in restricted ways. And when a music service dies, or if you stop paying, you usually lose access to the music you paid for. You can pay $1 for a song, but you can’t own it for $1.

For you to truly buy and own a song for a long time (maybe a lifetime), you have to buy the CD… which is much more expensive than the coffee.

The final statement, however, is the worst of all, and makes me really angry. The biggest text on the graphic: RESPECT THE ARTIST: BUY THE MUSIC.

Oh, really? Well, aside from the fact that you don’t “buy” it anymore (you pay for a license), the whole “respect the artist” thing is a heaping, stinking pile of bull.

Music labels have for decades abused the artists, and pay them very little or even nothing; most artists make their money from tours and performances, even endorsements, but not from music sales. The artists’ income from music sales is a tiny percentage (divided between the band and their managers & agents), but that’s before the studios first charge the band for almost every possible cost they can force them to pay. For example, although everyone profits from the use of the studio, the artists are forced to pay for that by themselves. In the end, they get little to nothing—literally nothing, very often. Lyle Lovett, for example, sold 4.6 million albums, and got a net of $0. Nothing. Not a single penny.

Indeed, artists are forced to sign long-term contracts and give up their rights, working long and hard for the tiny chance at success, while the music companies rake in all the profits. So, every time I hear the industry shout, “Respect the Artist!” my response is simple: You first.

Here’s the real irony: if you pirate every MP3 you listen to, but go to the concerts to listen to your favorite bands, then you are respecting the artists. That gives them the most profit. I’m not saying you should pirate the music, I am only pointing out that it rarely, if ever, hurts the artist. It hurts the insanely rich recording studios who abuse the artists.

Most artists don’t care if you pirate the music; in fact, the more you pirate their music, the more likely you are to want to see them in concert, which gives them much more profit than if you bought the rights to listen to the song! But the artists can’t usually say that, because they still are bound to the music companies. Some do, however; Lady Gaga, Neil Young, Shakira, Norah Jones, and many others have actually said they’re OK with piracy… and no wonder. It helps them more than it hurts them. Neil Young calls piracy “the new radio.”

Whatever you think of piracy, whatever its legal status, it has no damaging effect on them. When studios condescendingly exhort us to “respect the artist,” it’s like billionaires saying that the estate tax “hurts farmers.” Which is bullshit—and, ironically, actual bullshit does help the farmers. The bullshit in the graphic above, though, helps the artists not even a little. It may even hurt them.

Today’s legal and technical systems give far too much power to copyright holders, in ways that range from annoying to ruinous. Content owners have bulled their way into most every crevasse, dictating unreasonable terms and causing headaches wherever they go–and usually to no good effect.

DRM in HDMI cables, for example, made my brand-new DVR completely unusable for perfectly legal recording of hi-def TV shows, for example. Content providers have litigated their way to getting a cut of blank media sales, extorting who knows how much without even any proof that they lose any sales to piracy. And speaking of extortion, they have started an industry of nuisance lawsuits, preying on people with unreliable IP address identification, forcing them to pay thousands of dollars in what amounts to a shakedown, or face even more than that in legal fees alone. Meanwhile, copy-protection schemes forced on paying users create all kinds of limitations and annoyances–while non-paying pirates have full and free use of media at the highest qualities.

One of the many results of this campaign is policies concerning content-playing services like YouTube, which bend over backwards to please content owners. You may have noticed that if you make a home movie and add a bit of your favorite music to it, YouTube will probably mute the audio or apply restrictions and ads; fair use is not recognized, nor are international variations in law. It doesn’t have to be a directly-applied soundtrack, it can be just a snippet of music playing in the background; that’s enough to have your content taken down on copyright violation grounds.

However, content owners are given far too much leeway. One recent example occurred when a hapless YouTube uploader tried to put up a video of himself outdoors collecting a wild salad. There was no music playing, just this guy talking in a natural setting. The music licensing company Rumblefish demanded the video be taken down. Apparently, the birdsongs in the background were claimed by the company to be part of their copyrighted catalog.

NASA, however, is a more recent victim, with the news services playing the villains. NASA created a video of the LCROSS spacecraft crashing into the moon, and placed in the public domain–as are all NASA videos, being paid for with taxpayer money.

Well, not so much. The Associated Press claimed ownership, and YouTube obligingly conceded, taking down many accounts for “copyright violations” when they uploaded the NASA video to YouTube. One can only guess that the AP simply copyrights all video and audio that they pass on, even public domain content they have no right claiming ownership of.

But that was three years ago–and NASA continues to be plagued. This week, one of NASA’s own videos on NASA’s own YouTube page was claimed as the private property of the Scripps News Service, which had the video taken down.

Scripps eventually apologized for the “mistake,” but the content companies continue their practices of throwing copyright notices over broad swaths of content, whether they actually own it or not, penalizing countless people, many of whom have done nothing wrong–and most of whom constitute no threat or harm to any copyright holders. It has simply become a broad game of marking territory and punishing people without review or standing.

The bills are in storage but not necessarily dead. Their seemingly inevitable momentum, however, is, at least for the moment, halted.

Ironically, these bills, which are supported by both political parties but overwhelmingly by conservatives, was taken down in no small part by something conservatives would have expected to come from the other group of business interests: a corporate strike right out of Ayn Rand’s Atlas Shrugged.

The thing is, the biggest giant to go on strike and stop producing for society was Wikipedia, a not-for-profit foundation. Yes, other for-profits joined in, like Google and Facebook, but those giants did not shut down, probably for the same reason true Randian corporate strikes never happen: they don’t want to stop making money.

Alas, the politicians are doing little but playing an evasive waiting game, knowing that momentum like we saw recently is hard to build, and they can just quietly come back to this issue in weeks or months. Hopefully, the protests will not subside.

While it’s a slightly encouraging sign that the White House has signaled its opposition to the SOPA and PIPA legislation, it does so only on some technical grounds, not on what I would think are the more fundamental grounds, leading to the distinct possibility that the worst of these acts will eventually pass.

If you get a copy of the legislation (PDF file), you’ll note an entire section (starting on page 34) which allows a “qualifying plaintiff”–effectively a corporation holding copyrights–broad powers to act against anyone they feel is infringing on those rights. All they have to do is try to send mail (pages 35-36), if any addresses are available, and the action has started. If there’s no mail or if no one responds in seven days (page 38), then their powers expand considerably. The corporation can then get a court order which will go into effect in any jurisdiction (no more of this filing individual actions in each district) which will, within 5 days, shut down the web site’s account, force financial services (e.g., VISA or PayPal) to cut off their accounts (page 38-39), force advertisers to cut off all ads for the site which could include normal search engine results (page 40), and allow the corporation to send threatening messages to the site’s users (page 41). If the site owner still hasn’t shown up, the corporation can get a court to force them to comply and fine them (page 42).

Let’s say you have a monetized blog and a music label doesn’t like how you quoted lyrics from a song they own. They can not only send you a cease-and-desist order, but now that is backed up by an effective nuclear arsenal of legal weapons which, within 12 days, can utterly destroy your web site. You might be on vacation, or simply didn’t post an email address. Too bad, sucker–Sony Music just had your site taken down, all your links struck, all your accounts shut down, and sent threatening messages to everyone who left comments on your site or whose IP got any content from you.

Or let’s say you have an online business selling items, which may include items which make fair use of copyrighted material, say in the form of satire, protest, or other protected speech. If the corporation which owns that content wants to, they can take you down–and your powers to fight back are now excruciatingly limited, considering that they can smother your livelihood virtually at will.

More to the point, they can threaten you with all this–unless you do exactly what they tell you immediately. If you want to fight it, you might have to travel a great distance at great expense on a very short timetable, hauling your attorney along with you–while the corporation threatening you has to exert only minimal effort and expense. This could make for the mother of all nuisance lawsuit runs.

The proposed laws would effectively give the music and movie industries a host of powers they have tried to abuse in the past but could not. Instead of having to threaten lawsuits in which people could defend themselves, they can now threaten immediate action which could cost the accused even more if they tried to defend themselves. No more “pay us $3000 or we’ll sue you” nonsense–now we’ll start hearing about threats where people are forced to cough up much more, once the amount of damage they can incur with only minimal expense has increased greatly.

Note also that these copyright holders are being given similar powers as law enforcement. I can’t be the only one concerned about this as a trend, can I?

The same copyright holders who routinely sue people for outrageous amounts based only upon an IP address, when it is clear the targets had nothing to do with the infringement? The same copyright holders who have made a habit of shaking down individuals for thousands of dollars apiece against the threat of costing ten times more to fight what may be specious allegations in a court of law–in effect, hundreds of thousands of sham nuisance lawsuits? The same copyright holders who then opened the door for innumerable scam artists to wield the same legal weapons as means for even greater shakedowns of the general public?

The same copyright holders who paid off politicians to get the DMCA, and made it the law of the land that stealing one song could incur fines of up to $150,000?

These same people are now paying money (let’s face it, our government was up for sale long before Citizen’s United) for legislation to get these new acts passed, ones where the copyright holders are given access to similar powers as law enforcement? Where they will be able to, with the same flimsy standards of “proof” that they have abused for years now, have any person they choose lose their web site and possibly their livelihood, have their access to advertising shut down, close off any methods of receiving income, and even force search engines to erase any sign that they exist? Even lead to their imprisonment?

Yes, yes, I know they will not start doing this to everyone. But from their past actions, it is clear they will cast a wide net and will not hesitate to ruin people who are clearly innocent in order to maintain the illusion that they don’t make mistakes because their system of collecting evidence is a sham. And yes, I know they are not becoming a new armed police force who can act independently and with impunity. But they are beginning to take on roles that traditionally have been wholly in the realm of public law enforcement.

This is what concerns me most: the precedent that is being set. The precedent that corporations are now active participants not only in creation of absurdly lopsided legislation (which gives then extraordinary awards for pedestrian crimes, the effects of said infringements being in fact very much debatable), but are also becoming active participants in the process of enforcement of these laws. Corporations as police, corporations which can act not just to sue people but to immediately erase their businesses in an age where many businesses are based on the web. And then, later, sort things out and maybe impoverish them or send them to jail for a few years. Based upon legislation they wrote to their advantage and then paid lawmakers to make into the law of the land.

Surely I cannot be the only one who sees this not only as an exercise in rabid plutocracy, but also as a trial balloon for future expansion?

When the music industry complains that piracy is killing the music business, they always show you charts like this:

That would certainly convince a lot of people. Of course, once one remembers that the economy took a downturn around 2001, and that the music industry slashed the number of releases it tried to sell at about the same time, then the numbers begin to make more sense.

Add to that the realization that a big part of the boom from the 80’s to the 90’s was the CD revolution, an artificial bump where many people were re-purchasing their music collections, thus adding sales that would not have otherwise occurred. This boom would not be repeated with electronic sales, because people can simply rip their CDs to make that transition, and do not have to repurchase music yet again–as much as the RIAA insists they must. Therefore, download sales only represent new purchases, while CD sales, to a great extent, reflected repurchases.

Still, does that explain the whole decline? Why are sales dropping below pre-boom levels? Why the low number of electronic sales? Er… electronic sales of albums… ahhh.

The one piece of data the RIAA tries not to show you is this:

True, these are single sales, and so represent only about 1/10th the strength of album sales. However, you get the picture: people are spending less because now they don’t have to buy 8 songs they don’t want in order to get the 2 they do want. Factor in these sales to the other chart, and you’ll find that music sales are doing better than they were in the 70’s and early 80’s, before the advent of CDs artificially inflated the numbers.

In short, the music industry is doing just fine, and is not really losing sales, at least not enough to matter.

However, the ability to claim that piracy is hurting them is very useful in getting them all kinds of attention and free stuff, from abusive laws in their favor and huge kickbacks from the sale of blank media.

To give you an idea of how out of proportion things are: in the state of California, if you go to a music shop and steal, say, three music CDs–let’s say with a total of thirty songs on them–worth about $48, and you are caught, then you will probably be charged with an infraction and fined a maximum of $250. No civil suit would be filed.

If, however, you go online and use filesharing to download the exact same thirty songs, you stand to be sued for $4.5 million, or 18,000 times the penalty for the same theft in physical form. Nor is that a meaningless number–that is the actual amount per song–$150,000–that many people have been sued for.

In theory, the difference is supposed to be due to the fact that file sharers distribute as well as download (ergo “sharing”). However, to reach a proportionate level of penalties to the physical theft, each file sharer would have to distribute a full copy of each song to 18,000 different people–something which is not just unlikely, but absurd. It’s roughly two terabytes of data (assuming less than 4 MB per song), which, with a rather high-speed 10 Mbps upload capacity running non-stop at full speed, would take two and a half weeks to accomplish.

Obviously, no one but the most dedicated file sharer imaginable could come close to uploading enough songs to merit the penalty–even if one assumes that file sharers participate as fully as any given average file sharer would, which means in reality that they would likely send small portions of some of the songs to a relatively small group of people (hundreds, perhaps, but more likely dozens).

This is even ignoring the logical impossibility of each file sharer being personally and fully responsible for the petty theft of 18,000 other people. Supposedly each fine is to cover the loss to all people shared to, but each person shared to also is equally liable–meaning that the penalties may be applied thousands of times over against the same people, amounting to vast multiple-jeopardy. At the very least, we see penalties for theft which are so absurd as to be criminal in and of themselves.

So, what merits the vastly disproportionate penalties?

In the end, one thing: money paid to lobbyists, who contribute to political campaigns, thus buying the ability to write laws saying whatever the hell you please. Laws passed by people whose duty, in theory, is to serve the very people the laws so disproportionately punish. Democracy at work.

Add to this that these penalties could be taken from people who downloaded nothing, but simply did not have the technological prowess to understand that their wireless network, set up by someone else, was not password-protected, in a lawsuit filed clear across the country in a courtroom they could not afford to reach, much less pay for an attorney to defend them.

There is something intrinsically wrong with a system which, even in theory, would allow this to happen.

Yep, the RIAA really set a class act for others to follow, all right.

For years, the RIAA waged a campaign against piracy. Blaming piracy for revenues lost due to a slumping economy and their own poor choices, the RIAA successfully lobbied Congress to pass an intellectual property law with ridiculously bloated penalties. They then used that to threaten file sharers. Knowing that taking thousands of individuals to court would be unfeasible, they took a page from the satellite TV anti-piracy attempts from a few decades earlier and also accepted “settlement” fees, nothing more than extortion really, usually at $3000 a head. Targets of the campaign usually had little choice, as defending themselves would cost more than the settlement fees would–the classic nuisance lawsuit. That was the idea: the RIAA wanted to establish that file sharing could cost users far more than they were comfortable risking; it was the whole point to be scary and intimidating. They cared little for fairness, propriety, or even guilt or innocence.

Although they now claim to have ended their campaign, they established a dangerous precedent. Others with even less scruples than the RIAA are now using the tools the RIAA left behind not as a means of discouraging piracy, but rather as a means of simply shaking down thousands of people at a time for money. It’s not about protecting intellectual property any more; it’s now seen as a revenue stream for shady film producers.

It started with the producers of The Hurt Locker. They changed the game by altering the method of shaking people down: instead of suing file sharers individually like the RIAA did–expensive due to individual filing fees–they came up with the plan of suing thousands of people all at once in a single venue. This would still allow them to extort people for thousands of dollars apiece, but to do so more quickly and inexpensively. Where the RIAA probably lost money, these producers saw a chance to enhance the earnings of their films.

While the Hurt Locker suit was eventually dropped, it didn’t take long for really scummy B-movie producers to pile on. Soon enough, small-time producers of cheesy and/or pornographic dreck started employing ratty ambulance chasers to file legal extortion rackets of their own, jumping into the game with the same enthusiasm–and just as much legitimacy–as Nigerian scammers. Now as many as 130,000 people have been sued in these new mass filings. Often they are thrown out, but the producers hope that, before that happens, they can scare enough enough people into coughing up settlements that they’ll end up with a tidy profit.

I don’t think anyone expects any of the lawsuits to come to anything, but there’s money to be made by giving these people the choice between paying a certain amount as a settlement or paying more in legal fees to defend yourself–especially if the extortionists are able to sue people all over the nation from one courtroom, forcing 70-year-old computer-illiterate grandmothers in Florida to defend themselves in Los Angeles courtrooms.

In fact, one movie producer, the Camelot Distribution Group, makers of the widely-acclaimed Nude Nuns with Big Guns, is jumping into the game, suing nearly 6,000 people for tens or perhaps hundreds of thousands of dollars, unless, of course, they pay the $3000 or whatever the scam goes for today.

The problem, in this case? Aside from it being a quasi-legal extortion racket? Camelot, it turns out, doesn’t even own the rights to the movie they’re trying to sue people over. That’s the level of scumminess we’re looking at now: scumball hack excuses for movie producers churning out pornographic trash using the court system to legally extort thousands of people… for a piece of fecal matter they don’t even own.

Thank you, RIAA, for setting the bar so low.

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Speaking of the RIAA, a case going to court could, potentially, change the landscape of these scam lawsuits. One of the two lawsuits that the RIAA did actually follow through on is going to a federal appeals court, which will be asked to judge on the legitimacy of the vastly inappropriate penalties in the intellectual property laws–the ones that the RIAA bribed Congress to get passed. There’s no question that they are far too excessive; the question is, will the court, often setting aside its own moral outrage, treat this as a purely technical matter and refuse to recognize the impropriety of fining an individual $150,000 for copying a $0.99 item and sharing bits of it between other people.

The whole idea of the penalty is flawed: it holds each file sharer responsible for the downloads made by a large number of other people in the network. If all users were penalized, the payoff to the title holder would be vastly disproportionate to the actual value lost–if any.

Let’s hope that this court will finally do away with the outrageously inappropriate penalty and remove from these scumwad movie producers the weapon they’re using to extort people for fun & profit.

The RIAA claims it has stopped, but certain movie producers have not, and this is a practice that goes way back: large corporations, suspecting piracy, send out mass mailings to people accusing them of stealing, and demand thousands of dollars in “settlement” money or else they will be taken to court. Even if the defendants win, it winds up costing them more than the settlement would have cost–even just if measured in time lost and hassle caused.

I remember when it started back in the 1980’s. Then, it was pay TV broadcast via microwave signals that you needed a special satellite dish to receive, and a special box to decode. Back then, there were pirate kits to unscramble the signal. The media companies took a similar slant to today’s: they assumed guilt. They sent people around neighborhoods to see if they could spot parabolic dishes on houses, and if they found any, checked them against subscriber rolls. If there was no subscription, then whammo–you get a letter threatening a lawsuit unless you cough up three hundred bucks, or whatever.

A key point in demanding such a settlement is that it is a lesser amount than one would spend in legal fees in one’s defense. While this could, in one respect, seem lenient, as it allows violators to get off lightly, it is, in another very important sense, highly unethical: it essentially forces people innocent of any violation to choose between paying a large amount of cash which also is a de facto admission of guilt, or paying a much larger amount of cash to defend their innocence–and risk losing and paying crushing amounts. Either way, innocent people–many who cannot afford any such expenditure–are give no choice, no recourse, and are forced to pay money to avoid prosecution.

Should this kind of lawsuit be legal? It seems to be the very definition of extortion, the classic case of the powerful shaking down the little guy. Yes, many of the targets are legitimate–but what about the ones who are not? Are they simply “acceptable losses” in such cases?

The US Copyright Group (USCG), representing certain movie producers, has “sued” 16,000 people without even naming a single one–all they have are IP addresses, and are guessing at who owns them. And as we have seen in the past, this is far from an exact science.

Organizations like the USCG don’t care–they see all people they charge as guilty, or at least want to because otherwise they can do nothing. They don’t want to be held to the standard of proving guilt, they want to try people in civil court simply because they might be stealing. They have gotten around the sticky issue of being incapable of definite identification by simply not giving a damn, and use the legal system as a club to make people pay.

Even just asking the courts to issue an order allowing the plaintiff to demand ISPs hand over detailed records of IP addresses is objectionable. Most ISPs do hand out this data, though they should never do so to anyone except law enforcement. The ISPs that hold out do so not because of principle, but because it’s too much trouble for them. They should refuse simply on the grounds of not betraying customer expectations of privacy–but if that is not good enough, then because many networks are unprotected or could be hacked, and so identifications could lead to false prosecution.

Not to mention that the plaintiffs here don’t give a damn about who is innocent and who is not–they’re like the Medieval crusaders who said, “Kill them all and let God sort them out.” Not a legal practice I would think we should allow.

Imagine that a newspaper distributor has a newspaper vending machine. He notices that after stocking 100 copies in a machine, only 66 payments were made–meaning that perhaps half of the people who got newspapers took an extra one for free. The vendor got video of everyone who used the machine, but could not identify them or say from the video who took one copy and who took two–however, they did get license plates. If the vendor went to court demanding the judge issue an order for the DMV to release all the names and addresses of the vehicles in the video so that the vendor could threaten them all with lawsuits unless they paid exorbitant “settlements,” would a judge grant such a request?

I would hope not.

Without proof, it is doubtful such a plaintiff would win–and the attempt to shake down people like that would not exactly be seen as kosher. And yet, that is exactly what the RIAA has been doing, and what the USCG is picking up on. They are guessing as to who is stealing their stuff, we know that they are wrong in many cases, and with unprotected WiFi networks and wardriving being a factor, even a correct IP identification is not conclusive. Were the industry one which reacted more with caution, dropping suits that even seem improbable–like the paralyzed stroke victim in Florida accused of downloading music in Michigan–or dropping cases against people who are sympathetic and clearly unable to pay, like the disabled single mother from Oregon–they would at least come across as slightly more legitimate. And although they do drop some of the more ludicrous suits, like the one against the 66-year-old grandmother who supposedly downloaded rap songs on a computer that couldn’t even run the software, their usual stand is to stick to their guns, and demand the $3000–or else.

Technically, I suppose it is legal for these people to send out these mass settlement “offers.” The question I have is, shouldn’t there be a law that protects individuals from the legal shakedown now happening on massive scales?

A recent case which highlights the real agenda these people have is their lawsuit against a lawyer who sells $20 legal kits to people included in the mass-extortion cases, like the 5,000 anonymous defendants in the Hurt Locker suit. The legal kit includes several motions and an affidavit with meticulous instructions on how to fill them out correctly and serve them to the court.

Why is the lawsuit against this lawyer telling? Because the forms would allow potential defendants to defend themselves much more cheaply, thus making the multi-thousand-dollar “settlement” payoff unlikely. Clearly they don’t want to see all the defendants coming back with lawyers, if they fight so hard against even preliminary attempts at a legal defense–something which would turn the tables as it would cost the plaintiffs more money than it would be worth to prosecute. Which means that they were expecting most of the defendants to simply pay the thousands of dollars like nice little extortion victims and not make a fuss.

Even if their actions were not so transparently flagrant, such mass suits should simply not be allowed.

Seven years ago, I wrote a three-part blog post (parts one, two and three) on what I saw as being the future of television. And despite the fact that TV content producers seem intent on taking a very different course, I stand by my assertion that the system I described back then would be the best available, given the bandwidth.

My idea was based upon the difference between broadcasting and narrowcasting, and how ad revenue is generated. Currently, television initially generates revenue by being broadcast over the airwaves, carrying advertising (more and more each year, it seems) during the commercial breaks. The problem: it is difficult to create an ad that will appeal to more than just a small portion of the audience. You are sending the exact same ad to millions of people who are so varied that most will not respond to the ad, and some may even have a negative reaction to it. As a result, the effectiveness of ads is only a tiny percent of what is possible, wasting the vast majority of ad revenue potential.

In recent years, another two revenue streams have appeared for these shows: sales of DVD sets, and, similar in certain ways but different in others, online sales of the episodes. While ads may still play into them, these versions mostly make their money by the customer paying up-front. A season of a TV show on DVD might range from less than $20 to up to $100. TV shows for download often cost $2 an episode.

There are significant problems with these models. As mentioned above, TV broadcasting is massively inefficient. Add to that the fact that shows are dribbled out by day or week, disappear and are inaccessible for months or years at a time, and appear only on a pre-determined schedule which is easy to miss. Not very user-friendly.

Sales of DVDs had an initial burst, but now the medium is struggling a bit more. People are catching on to the fact that paying $150 for a full series of TV shows seemed like a good idea at first, but later realize that they might never watch it again. Furthermore, since these must be bought physically, they are not available on demand, immediately on a whim. (Services like Netflix successfully play to these weaknesses.)

And not many people are going to cough up $2 to watch something they can get on TV for free, or can be bought cheaper by season on Blu-ray with HDTV quality and extra features like deleted scenes, outtakes, commentary and featurettes. Frankly, I never understood that model at all. In fact, the whole idea of paying for TV is still relatively alien to many people: TV has been free for most of our lives, and many almost see it as an expected right. I’d be willing to wager that if you polled people and asked if it was wrong to pirate software, movies, books, and TV shows, most would say it was wrong to pirate the first three, but few would have as much problem with pirating TV shows. They’re on TV, after all!

All of this is tainted more by the senseless paranoia of the content producers and their fear of piracy and loss of control, which pushes them to add DRM and other restrictive features that only hurt paying customers, and result in more people resorting to piracy.

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In 2003, I suggested a different take: targeted advertising and narrowcasting. Put all TV and a great deal of movie content on the web, for unlimited free streaming and viewing at any time the viewer desires. The cost: the viewer must make their commercial preferences known, filling in a bit of information once a month. When the viewer then asks for a presentation of media, the content, originally with blank spaces for advertising, is filled with ads that are targeted at that one viewer.

The benefits for all sides is great. First, the viewers: they not only get everything they want, a virtually unlimited, all-you-can-eat buffet of on-demand content, but it’s free of charge. And while there are as many commercials as before, there is a huge benefit: the commercials are all ones that you want to see.

That’s the secret: by filling out some personal info, specifically (a) what are your interests, (b) what do you plan to purchase in the near future, and (c) what kind of commercials do you like, in addition to a few other bits of indicative data, TV ads could be transformed into something the viewer will want to watch. Currently, commercials are things to avoid–mute the sound and take a kitchen or bathroom break. But the truth is, there are commercial we all want to see. But because commercials today are broadcast, perhaps 97% of them don’t interest us, so we tend to skip them all.

But what if the commercials were directed at your interests? For example, if the ads were all for movies, new books, computer stuff, and some other things I am interested in, I would probably be interested in staying with the commercials, watching them all and letting them have their hypnotic, subliminal way with my subconscious.

There could even be feedback, a “next” switch for commercials–if an ad comes up that you don’t like, just zap it with the remote. This could be used to build up data on what you do and do not like, and so be utilized to weed out the remaining commercials that you don’t want to see–kind of like Apple’s “Genius” feature in iTunes. This could also be used to sharpen their targeting; random ads could be tossed into your mix, and by analyzing what you zap, they can build up a scenario of what new stuff they can throw at you which you might like.

The benefit for advertisers should be abundantly clear: the efficiency of ads rockets from single-digits to near-perfection. Instead of people turning off ads, people will stay and watch them, and might even look forward to them. Even good commercials suffer from the taint of being commercials, with all the negativity currently associated with that medium. But if people begin to like commercials, their effectiveness will increase beyond just the growth in targeted exposure.

This will, in the end, benefit the content producers the most: because each ad sold will be up to 20 times more effective, they can up the revenue that much more. And since viewers will not mind the commercials so much, they won’t get as much blowback for adding more ads, up to a certain point of course.

But the best part is that by making the content freely available over the Internet, you completely defeat the problem of piracy. Downloading pirated stuff is not too difficult, but most people would much prefer a free alternative, and would certainly find it easier to use. If the model I describe were used, then there would be no need to resort to piracy, unless you are religiously opposed to advertising of any kind, or are the kind of person who refuses to divulge any info about yourself.

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And that would be the point probably most focused-on with this system: giving up personal data. For a long time, many people have been concerned about what data is collected about them, and how it is used and potentially abused. Privacy looms large, and admittedly, the model I describe above seems to ask the viewer to surrender a great deal of that privacy.

Well, yes and no. First of all, we surrender privacy every day. When you join new web services, buy something online, or download free software, chances are you are giving away a good deal of private information, including your name, age, email addresses, physical addresses, profession, and a lot of other stuff. We commonly post personal information online, from our profile on social networking sites, to our hobbies and preferences in telling people what we like, to our political and religious feelings on blogs and forums.

Advertisers already suck in volumes of data about us. Take that supermarket member card that’s in your wallet, which you have no problem swiping at Safeway to get the “discounts” connected to it. That card is connected to your name, address, and other info they get from you and about you via other means (including public land ownership records, career info, etc.). Every time you buy stuff with it, they record what you bought, how much you bought, when you bought it and at what price, and use that data for advertising and for presentation & pricing of goods they sell you. Similar goes for your credit card trail, and other things you use without thinking about them.

The fact is, you already hand out, usually for no actual benefit to you, far more information than I propose is involved in the system I laid out. In fact, if privacy is truly a concern, then the system could be set up so that the data collected for this TV system would be completely unconnected to your name and public identity. The reason they collect your name, address, and other data is so they can use it to predict what you’ll want to buy. In the system I propose, they don’t need to do that. Frankly, I don’t think they really care what your name and address are; they only want to make money off of you. And if you are telling them exactly what you are interested in buying, what you’re looking for, then they don’t need that info, and could easily do without it.

So when you join this system, you could do so anonymously; your name and address are never asked for and never given. Nothing needs ever be tracked back to you personally. By giving more personal information, the system becomes more private.

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I truly see this as being the optimal system for everyone. There’s a problem, though: fear, stupidity and greed. (Aren’t they always the problem?)

What set me off on this topic? This story about Apple’s rumored plan to rent TV shows for 99 cents. Frankly, I see this as still too expensive. Sure, better than regular TV because the ads aren’t there and it’s on my schedule, but worse than buying the DVD later on because the resolution is poorer, there are no extra features, and you don’t get to keep them.

But the content producers are calling this new model dangerous. Why? Because they saw the music industry lose their evil, usurious model, and fear that somehow something similarly bad will happen to them. So they shy away from even a model which would still be far from perfect and skitter back to even less perfect models.

Argh. It frustrates me to see them wear their fear and greed so transparently, to be so idiotic in their pursuit of fleecing the public, when it seems that a far superior system is available–but they are just backing away from it, step by fear-filled, idiotic, greedy step.

A person enters a store and shoplifts 3 music CDs worth about $10 each.

The person is caught. As a result, that person is forced to pay $67,500 in damages.

Doesn’t exactly sound right, does it? And yet, the RIAA thinks that’s not even close to enough–they want 10 times that amount, or $675,000, over two-thirds of a million dollars.

Why the excess? Because it was file sharing, not just simple theft. Therefore, any one person guilty of sharing files is also responsible for–apparently–some 22,500 other people also downloading each of the files.

So let’s try another analogy. I come up with a great recipe for gazpacho, and put the recipe in a book. Someone copies that recipe and sends it to thousands of people for free, ruining my book sales. I can sue them for all the lost revenue, right? Sure–but that’s not the analogy here. The RIAA is not trying to sue the person who originally made the copy and released it, but one of the people in the chain that passed it along. Seeing as how this person was one of thousands to receive and share the recipe, can I truly sue them for the lion’s share of the damages? That’s far more questionable–especially when removing that one person from the chain would have made absolutely no difference whatsoever in how far the copyright violation was spread.

One cannot say that downloading a song without paying for it is a legal or even ethically excusable act. However, there is a law–I think it’s actually a constitutional amendment–about “excessive fines.” And $22,500 for being a small link in a big chain of sharing a $1 commodity is about as excessive as one can imagine.

The courts agree, and so far more than one judge has cut that penalty down to $2,250 per song–which is still far too excessive. The legal minimum is $750 per song, which is also still too excessive–but then we have to realize that it was the industry that wrote that legislation, paying some paltry bribes to politicians to make it the law of the land.

Which is the greater crime here. But nobody’s getting sued for that, unfortunately.

Imagine this scenario: you work at a non-union company, doesn’t matter which one or what you do, except that you are low in the ranks. There is someone who manages the security department, who understands the technical aspects of security really well, whereas you don’t know much about it at all. This person is high-ranking, very well-off, and has the resources of his entire department at his disposal. Additionally, this person is in tight with upper management, and is even allowed to write company policy.

Now, it appears that some people who work for the company have been stealing this person’s lunch from a refrigerator at work. Because of certain laws concerning workplace surveillance, video cameras were not an option to catch the perpetrators. Instead, the security guy claims to have acquired forensic evidence from the refrigerator and the trash, and claims that it points to dozens of people at the company–including you–as having stolen his lunches.

In retaliation, he demands that you and every other offender he identified pay the equivalent of the cost of lunch for him at a nice restaurant every day for two months–quite a hefty sum–on the accusation that you may have taken his lunch one day. If you don’t, then he will file a formal complaint against you, using the forensic evidence he claims to have collected. If the claim is successful, you will be fined, fired from your job, and have a stain on your employment record that will follow you for some time.

You may defend yourself, but you will have to hire experts in security and other people to help you make your defense, without which you don’t stand a chance–but they will cost a great deal more than paying the demanded “settlement.” And even with the hired team, you still might lose the challenge and pay the penalties anyway, in addition to the cost of the defense.

Disregarding the unlikelihood of this scenario, what would your assessment be? Is the manager abusing his power and influence? As he is in fact being robbed, is he justified in his response? Or would you simply consider him to be a petty, arrogant ass?

I see this as being roughly the equivalent of what innocent defendants face in the P2P mass-extortion nuisance lawsuit business (in which lawyers for movie producers are suing thousands of John-Doe defendants for downloading their bad movies). Even the ones who are guilty are being abused in the form of apallingly excessive fines. You don’t threaten to fine someone $100,000 for allegedly littering, or even for catching them doing it red-handed. And when a person’s guilt is ambiguous at best, extorting money from them is completely inexcusable.

Take this case of a elderly couple, both 69 years of age, accused by studio lawyers of having illegally downloaded, via BitTorrent, a schlocky violent-action film based on a first-person-shooter video game:

“My wife and I are both 69 years of age and the only occupants of this location,” wrote Wright. “Charter personnel installed the high speed equipment for our internet connection and we have made no modifications to it. If it had any features that made it vulnerable to ‘hacking,’ we had no knowledge of that. The technology is way above our abilities to deal with.”

In short, the couple’s WiFi signal was likely hijacked by a neighbor who downloaded the movie, and the couple had no way of knowing about this or preventing it. Rather than realize that a near-septuagenarian couple would not know how to download movies illegally and would never watch their crap movie in the first place, and rather than figure that continuing to attempt to extort them would result in bad press and make them look like complete schmucks, they instead smugly used legal maneuvering to essentially call the elderly couple idiots and persisted in their attempt to extort $1500 from the folks. It seems that in an attempt to give the court detailed information in their request to squash the lawyers’ subpoena, the couple accidentally invalidated their own motion–something a lawyer would know how to avoid, but the old folks wouldn’t.

The analogy I laid out at the top of this post holds true. A powerful entity–the entertainment industry–has bought off the government with bribes and essentially written the law themselves, in which they allow themselves huge rewards for what are in relative terms piffling offenses. They then use these laws in addition to the legal machinery at their disposal to extort exorbitant amounts from tens of thousands of people who may or may not be guilty of the offense and who mostly cannot afford to take the chance to defend themselves. True, offenses were committed; the lunches were indeed stolen. But the manner and method of the response is outrageously out of proportion (even for those in fact guilty), and in its scattershot attempt to nab offenders who cannot definitively be identified, they know that they are demanding huge amounts from people who are innocent and cannot afford to pay.

Read the Ars Technica article which details several cases of people who are likely innocent but fell victim either to IP address misidentification or WiFi leeching by neighbors, and are now facing the prospect of (a) paying dearly for an offense they did not commit, (b) paying more dearly to defend themselves, or (c) paying obscene amounts if their defense is unsuccessful. Worse, these people, often people who can’t afford much at all, are being forced to defend themselves in a court all the way across the country. Frankly, I think the judge should lay down these rules: that (1) the plaintiffs must sue each person individually in their district, (2) they must prove that the person in fact downloaded it and did not have their WiFi hijacked, and (3) if they fail, they must pay for the defense of the defendant.

So the question might become, how does the entertainment industry deal with piracy reasonably? Ideally, they should come clean and admit that piracy is in fact not costing them nearly as much as they claim, and that turning so viciously against the public is gaining them no sympathy from anyone. If they can truly make a case that they are losing some money from this–not the ridiculously inflated claims they publicly release–then do what most industries do in response to common cases of widespread theft: catch and punish those you can prove without doubt, otherwise just hike your prices a modest amount to compensate (something the industry is probably already doing, come to think of it). If they must take legal action, then stop with the “settlement offers,” which are little more than legal extortion–or else make the offers much more reasonable, like demanding the offender pay for the full retail value of the item, low enough that people would pay without much more than grousing.

As for the laws making the accused liable for penalties in the amount of tens or even hundreds of thousands of dollars for downloading a $10-$20 piece of crap, they are unspeakable obscenities that do not belong on the law books, and should be stricken–and would be, if the politicians who write our laws actually worked for the people, like they’re supposed to, instead of being bought off by corporations.

The judge in one of the mass-extortion P2P blind-lawsuit cases (from the same lawyers trying the same thing with Hurt Locker downloaders) has told the plaintiffs to do a good job of rationalizing their asinine behavior, or file individual lawsuits instead of mass lawsuits.

A short while ago, I commented on the recent mass-nuisance lawsuit issued by the producers of The Hurt Locker. The lawyers in that case are repeat offenders, carrying out the same tactics for a German film titled Far Cry. In that case, they are suing roughly 2000 “John Doe” IP Address holders, subpoenaing their ISPs to rat them out so they can be squeezed for cash.

One ISP, Time Warner Cable, said “no.” Their claim is that they have limited resources for hunting down the identities linked to IP addresses given by outside sources, and most of that capacity is dedicated to law enforcement, to help hunt down people like child porn distributors or other seriously dangerous people. They claim that their spare capacity is only 28 subpoenas per month–and the bottom-feeding lawyers trying to extort money in the mass-nuisance lawsuit are demanding that Time Warner drop everything else and spend the next three months doing nothing but servicing their claim against 800 of their customers. Time Warner said they were not interested, thanks.

So the scummy lawyers did what scummy lawyers do: they filed a brief against Time Warner, claiming that they were aiding and abetting pirates, threatening to sue the ISP for contributory copyright infringement.

Look, I’m not endorsing piracy here, but these filmmakers are being asses. Extorting $1500 for downloading a movie? Up to $300,000 if it goes to court? Strong-arm tactics if anyone stands in your way? There’s money-grabbing, and then there’s asinine money-grabbing. If these people were more reasonable and proportionate in seeking redress from some couch potato in Springfield who never would have paid $20 for the movie anyway downloading their film and watching it in a way that is little different in the long run from watching it on TV while muting the commercials, then OK. But demanding an ISP abandon its law enforcement duties in serious cases so they can extort a grand and a half from people like that is going beyond normal schmuckery.

Voltage Pictures, makers of The Hurt Locker, have officially filed suit in the U.S. District Court for the District of Columbia against “1 – 5000” John Doe defendants in “every jurisdiction in the United States” for illegally downloading and sharing their motion picture. In the suit (PDF), they allege “great and irreparable injury that cannot fully be compensated or measured in money.” Nevertheless, they are seeking to be compensated in money–specifically, pursuant to 17 U.S.C. § 504, at least between $750 and $30,000 per defendant, in addition to costs, attorney’s fees, and “other and further relief,” in addition to demanding that each defendant destroy all downloaded copies and never, ever even think of downloading any of their movies ever again.

In short, they have jumped on the RIAA bandwagon: file a massive, indistinct lawsuit against thousands of people in the hopes of (a) scaring file sharers into stopping their nefarious activities, and (b) raking in huge amounts of cash via what is essentially extortion writ large. It is expected that Voltage will offer “settlements” in the amount of $1500 per defendant, qualifying as extortion because, like any good nuisance lawsuit, the settlement will cost less than any defendant would pay in legal fees even if they successfully fight off the lawsuit. If all the defendants settled, Voltage would rake in $7.5 million. This assembly-line extortion is a new line of business for attorneys, just like class-action lawsuits as described in Grisham’s The King of Torts. They even go so far as to put the movies online themselves so they can more easily get the IP addresses of downloaders.

So, who are the defendants in the Hurt Locker case? Essentially, Voltage Pictures, makers of the film, have collected up to 5,000 external IP addresses, which identify only the general location of the people who downloaded the movie via BitTorrent, and have filed suit in hopes that this will allow them to legally obligate the ISPs serving those people to hand over the internal records which will provide enough information, they hope, to identify specific downloaders. ISPs who cooperate are not exactly innocent here–they make money off this as well, charging $32 to $60 for each IP address given to plaintiffs, citing costs for doing the search and notifying the address holder.

Voltage Pictures has the ability to carry out this kind of action this primarily because corporations were able to get laws passed which demand abusively large penalties for file sharing. The statute allows the plaintiff to “elect” (language used in the current suit) to take statutory damages between $750 and $30,000 per infringement, even if it cannot be proved that the defendant willfully committed the offense–meaning that if it were simply their liability, if it happened over their connection even without their knowledge, they could be still be forced to pay. I presume that this covers not having a protected WiFi network and a neighbor downloads the movie over stolen bandwidth.

If the file sharing is found to be willful, the penalty jumps to $150,000.

For file-sharing a single movie file. Yeah, that’s “justice.” The law allowing this is obscene and must be rewritten.

Let’s call this out for what it is: extortion. Legal or not, it’s is nothing less than extortion, a grab for cash by unethical means. Today, a film’s profits are measure in terms of domestic and international box office, as well as DVD rentals and sales. How long before proceeds from nuisance lawsuits are added as an element in determining the total earnings of a film?

Randy Cohen, ethicist for the New York Times, has an interesting spin on a reader’s question about pirating a book which he already bought. In short: it’s illegal, but not unethical. The reader in question already paid full price for the hardcover, so Cohen feels that there is no bad juju involved in downloading the same work for an ebook reader:

Buying a book or a piece of music should be regarded as a license to enjoy it on any platform. Sadly, the anachronistic conventions of bookselling and copyright law lag the technology. Thus you’ve violated the publishing company’s legal right to control the distribution of its intellectual property, but you’ve done no harm or so little as to meet my threshold of acceptability.

Cohen notes immediately after that, however, that publishers disagree:

Unsurprisingly, many in the book business take a harder line. My friend Jamie Raab, the publisher of Grand Central Publishing and an executive vice president of the Hachette Book Group, says: “Anyone who downloads a pirated e-book has, in effect, stolen the intellectual property of an author and publisher. To condone this is to condone theft.”

I’m definitely with Cohen on this, although he’s a bit wrong on what lags behind what (see the next paragraph). What the publishers want, of course, is the ability to re-sell the same product to the same consumer over and over again, and call them “separate” purchases. I liked my purchase of the Star Trek Blu-ray because it contained a digital copy which I could use on my computers and my iPhone. Including a DVD-compatible version would be even better. The point is, you should never be forced to pay twice for the exact same thing. Publishers, of course, want as much of your money any way they can get it, so they fight for the paradigm of device-centric purchases.

Partly to blame here is the mindset that came into play with business purchases of software. Because businesses would use the same software on hundreds or thousands of machines, instead of having to wastefully purchase that many physical copies of the software, they would buy just one copy. That copy would come with an EULA (End User License Agreement) that would spell out exactly how the software could be used–how many machines or users, in what environments, etc.

Soon enough, the EULA was popping up everywhere, including personal purchases of software. If you buy a copy of a program for personal use only, you may have to pay several times–one each for every computer you use it on. Sure, if there are different versions for different devices, like for Windows, OS X, and the iPhone OS–that represents separate products which the author must work to produce. But for the exact same product on two machines using the same OS? How is that really fair, when there’s only one user? Depends on how you see it, of course–and of course, sellers will want to see it in the way that makes them the most money.

Most users see it differently: I am one person using this content, I should not have to pay to use it in two different places. Some extend that not just to themselves, but to family–after all, if I buy a book, I don’t have to pay for my family members to read it; within the home, there is a “community property” sense at work. While the same could be said about lending to friends, most people would agree that the ethical line ends pretty sharply at the borders to your house, and some will say it ends around the individual user. Publishers insist that it ends around the individual device. Often times a compromise is met which reflects these sensibilities; for example, your iTunes account can be extended to five devices, enough for most families. Some software comes in heavily discounted “family” packs.

However, the EULA was seen as an opportunity for content publishers in the digital world, who applied it to music, video, and all other forms of media. Publishers realized that they could use the EULA to keep that cash register ringing: sell a movie on DVD, then on Blu-ray, then for the computer, then again for the mobile device. As the number of devices which can play media multiplied, publishers saw the number of sales opportunities similarly multiply, and so have since aggressively pushed the idea that any copying, in any form is illegal and shameful. That includes ripping your CDs to iTunes. You’re a criminal, they insist; instead, if you want to use your iPod to listen to the music which you already bought on CD, you must go to the iTunes Store and purchase it again digitally, like a good little consumer. Naturally, most consumers call bullshit on that and rip away.

What it comes down to is perception and control. Are you buying a thing, or the rights to use a thing in a very specific way in a very specific place? Once you buy something, do you own it for personal use, or does the publisher maintain both ownership and control, with you simply having the privilege of looking at it in the way the publisher approves of? It could be argued both ways, with publishers claiming that the idea of copyright in itself asserts eternal control by the owner over intellectual property. But publishers try to go beyond that, not just controlling the rights to the intellectual property, but also controlling a consumer’s personal use of that property. If John Grisham writes a book and I buy a copy, he still owns the story, but he does not control the specific book I bought, nor can he dictate to me how I read it. Publishers are trying to change that, at least in the digital world (though you know they would do the same in the physical world if they thought they could get away with it).

As I laid out a little more than fours years ago, once you apply the digital model to a physical purchase, the “eternal control” concept and most EULA terms come across as ludicrous. If you purchase a paperback book, it does not come with an agreement that you will only read it at home, and that reading it in a cafe, at the park, or at work would require additional payment. They can’t charge you extra for reading the book in bed, or using a book-light with it. In purchasing the book, there is no legal way for the publisher to prohibit you from later selling that book to another person. Nor will they try to–people would seriously balk at that, the idea being contemptible.

And yet this is precisely the kind of control and re-purchasing which the publishers are trying to foist on people with the transition to the digital medium. If you buy digital music, digital movies, or ebooks, you will not be allowed to re-sell these things, even if you paid more for them than you would have for a physical copy. And many will forbid you to transfer the work to another location, or else severely limit it. Technically, I am violating my purchase agreement when I rip a DVD I bought so I can view it on my computer or iPhone, unless they specifically say I can.

Screw them. I say the traditional model holds. Cohen is right: if you pay full price for a book, you paid for the book content to be at your disposal. Downloading the digital version of the book is no crime, as the publisher and author have already made their money off of you. In my book, forcing a consumer to pay again for something they already bought is, if not illegal, then certainly unethical. Now, if the electronic edition is different, if it contains extra content like audio, video, or even changes one would expect in a subsequent edition, that’s not kosher to download for free; it represents added work. Sure, you can grouse that the 47th re-re-release of the “Star Wars” soundtrack only adds two tracks that the other five versions you bought don’t have, and George Lucas is being a schmuck for trying to make you pay for the same music over and over again just to get the new snippets–but there’s new content, and so you can’t say you already paid for it.

Publishers instead insist that it’s all in the agreement, and will refuse to sell to you unless you agree to their terms. The law, over time, has sided with the traditional model (remember the whole debate over recording video at home?), but more and more I fear that the content cartels will get more and more restrictive laws passed, like the DMCA, and eventually consumers will be forced by a government bought and sold to work against them to toe the publishers’ line.

How is it that no one doing PR against piracy can open their mouths without sounding like complete idiots? Agnete Haaland, the president of the International Actors’ Federation, has the solution to the piracy scourge:

“We should change the word piracy,” she told reporters at the unveiling of the report on Wednesday.

“To me, piracy is something adventurous, it makes you think about Johnny Depp. We all want to be a bit like Johnny Depp. But we’re talking about a criminal act. We’re talking about making it impossible to make a living from what you do,” she said.

And no, that’s not from The Onion. I did not make that up. Piracy, according to Agnete, is making it impossible for actors to “make a living.”

It’s not the greed of giant megacorps that make $2.64 billion from a movie like Avatar, or, as the same article points out, rakes in nearly $2 trillion every year. It can’t be that the huge parasitic media corporations are robbing the performers blind and making life tough for the rank and file. No, because $2 trillion can only go so far. No, it’s the pirates who are sucking up as much as 1.16% of that total (again according to that same article, and that’s probably an over-estimate) who are the real problem. If only the megacorps could recoup that 1.16%, then it would all go to the starving artists, who would reap the full rewards of their efforts and could finally make a decent living. Yeah. I believe that. That makes sense.

And what’s the biggest part of that problem? That they’re called “pirates.” Normally, these people would be leading responsible lives, paying $40 for that second visit to the multiplex instead of downloading the film online–but the urge to visit thepiratebay.org and download a torrent so they can feel just like Johnny Depp in “Pirates of the Caribbean” is just too damn strong.

And it’s not just the swashbuckling image of clicking a web link, it’s that label, “piracy.” Oooooohhhh. That’s what sucks people into these lives of reprehensible crime–they can’t resist the cool name.

Says “Agnete Haaland.”

You know there’s a scam afoot when some big entity wants something enacted which will profit them handsomely, but holds up a sympathetic face as the “real” benefactor of the scheme. Wealthy people and corporations do this all the time through politicians–whenever there’s a tax cut for huge corporations, for example, the “small business owner” is always trotted out as the real reason the tax cut is being proposed. But in reality, small business owners end up getting reamed because the real benefactors, big business, become more engorged and able to crush the small business owners.

This is the strategy used by the music labels when they do anything concerning their “war on piracy”: they trot out the poor, beleaguered artist, claiming that it’s all for them. Of course, none of it’s for the artist–the artists, of course, get reamed by the labels, who force them into horrifically unfair contracts. The music industry is nothing more than a parasite, a middleman grown into a monster which dominates the entire business, holding both artists and audience hostage. Whenever the labels want a “piracy tax” on blanks CDs, digital audio players, or any music delivery system “for the artists,” you can be damned sure that the artists aren’t getting squat from it. Whenever they want new legislation which gives them perpetual control over something you have paid for, or the ability to violate your privacy or otherwise treat you like a criminal, or to sue more easily so they can extort more money from those unable to defend themselves, you can be sure that the winnings don’t ever get distributed to the artists.

Case in point: the artists are suing the music industry in Canada for stealing their music and not paying for it. Yep: the big music labels–Warner, Sony BMG, EMI, and Universal–have been pirating music for more than two decades. That’s right, they were pirates before online file sharing was even possible.

Here’s how the scam works: in Canada, there’s a loophole in the copyright law which says that if a music label wants to create a “compilation” CD (hey, that’s a mix tape!), then they don’t need to get the artists’ permission beforehand. Instead, they only need to make the CD’s and then place it on a “pending list,” the claim being that they will eventually get the permission of the artists and pay them the required royalties.

You get one guess as to how that worked out.

Yes, that’s right: the music labels put more than 300,000 songs on the “pending list,” and never paid for them. Maybe that should be the legal defense for any P2P file sharer sued by the labels: “The songs were on my Pending List! I was eventually going to pay for them! After a few decades! Maybe!” Why not–after all, that’s what the music labels have been doing, cheating the artists out of at least $50 million in royalties.

The irony of this situation deepens: you know how the music labels lobbied for and got a ridiculous $7500-per-song penalty against file sharers? Well, by Canadian law, there is a potential $20,000 penalty per song which is abused in this fashion–meaning that the labels are now potentially liable for more than $6 billion in damages.

And the artists are suing.

It will be interesting to see how the industry defends itself. They’re the ones who have been claiming that ripping off artists is the primary crime committed; they’re the ones who have pressed for the full damages possible when they even have circumstantial evidence of stolen music. And in this case, the music labels themselves have admitted they’re doing this.

I am certain that I am not the only one here who hopes that (a) no settlement is reached, and (b) the court rules for the artists to the full extent of the law. The only regret here is that the labels will probably be able to limit damages to their Canadian branches only–the bulk of their businesses are probably shielded from damages. But if the Canadian labels claim they aren’t worth a collective $6 billion, then they can simply have 100% of all music profits redirected right into the artists’ pockets, with interest, until the full amount is paid off.

After all, it’s for the artists.

After years of consumers paying waaaay too much and most often being forced to buy more music than they wanted, prices have finally fallen to a much more reasonable level, the 99-cent price set by Apple’s iTunes Store. It’s the way it should be: most songs are available by themselves, producers can force album-only sales if they absolutely feel they need to, and now album extras harken back to the days of the LP and attract buyers to the album paradigm–if they want it.

In the meantime, the recording studios have been trying their hardest to suck whatever money can be had from the consumer. From using extortion to force $3000 “settlements” from accused downloaders, to lobbying for and getting governments to force CD-R makers to charge a premium so that the tax can be put directly into the music industry’s pockets, charging consumers for a crime that most of them have not committed–and still leaving them liable to be sued anyway. And the laws the RIAA lobbied for allow for up to a $150,000 fine per each $1 song, which of course is a reasonable fee, right? (Some states apply no more than a $50,000 penalty for grand theft.)

After all this, consumers need a break, not more people trying to shake them down. But that’s what’s happening–except this time it from the groups representing the performers. Now, I have sympathy for this group–they tend to get screwed over by the music labels themselves. The problem is, they’re like a kid bullied at school who then picks on the smaller kids who are already bullied half to death: these groups are not demanding more money from the labels, they’re demanding it from the other end, the wrong end of the distribution chain.

What’s more, they’re making the music labels actually look less absurd, by making even more absurd demands themselves.

You know when you visit the iTunes Store and you can preview a song for 30 seconds to check if it’s the one you want? That’s right–these groups want to charge for that.

They also want a piece (or, that is, a bigger piece) of TV shows and movies sold, as they contain music. But they’re not asking for money from the studios, who, after all, are the ones who already pay them and who really control the deal. No, they want retailers like Apple to pay them–a second time. In essence, they didn’t like the deal they got from their immediate employers, so they’re seeing if they can get complete strangers who buy an end product to pay them, directly. (Am I mistaken, or is this not done in any field?)

The representatives pushing for these new charges are making the case that they are paupers, citing paychecks they receive which are literally just a few pennies, or deals where they don’t get paid at all. One can be fairly certain that they are taking the minority of deals where they are screwed over most and leaving out the better-paying deals. But even if they’re not, they’re still doing this bass ackwards. They have no right going to the retailer and demanding money from them. The argument is that they aren’t paid for TV or movie music when those media are sold online. OK, fine–take it up with the studios. Trying to get laws passed that charge iTunes is simply stupid.

Let’s look at an analogy to see exactly how stupid this is. Let’s say that in one of the computer classes I conduct, I teach a student to make a web page. Later that student becomes a web designer. Just like the musicians, my work contributed to the final product. Then I decide that my salary is not high enough. So, is it reasonable for me to go to the place where my former students work and demand a cut of their revenue, or demand that they start charging for views of their web site to pay me? Hell, no. If I want to get paid more, I go to my boss and demand a raise. If I can’t, it’s not incumbent upon my students’ employers to make it up to me.

Let’ stop being stupid, shall we? If laws need to be passed, pass them so that artists get a bigger cut right from the start. I imagine, however, that the reason they’re not trying that is because they know that the RIAA will crush them in the lobbying game. And that’s a shame–but it doesn’t make it OK to then force someone else to pay.

MacDailyNews reports on a WSJ article (behind a pay firewall, so read it at MDN instead), the gist of which is this: music labels resent the fact that iTunes sells songs one at a time, and despite its enormous success and domination of the digital music sales market, are pulling popular songs off the service because they want to force consumers to buy the whole album.

Imagine you like to drink Coca-cola, but instead of being able to buy a bottle, you instead have to buy a twelve-pack with one Coke and eleven other drinks, maybe only one or two of which you actually would want. Imagine you want to buy a new book, but you can’t unless you also buy a dozen other books you have no desire to read.

Now, there are some cases where buying an omnibus is necessary. You have to buy a whole magazine or newspaper for one article, for example. But that’s not because of forced bundling, that’s the nature of the product. And there are no technical reasons why you can’t buy music one track at a time; indeed, Apple has shown that such a model works impressively well. Instead, this is a matter of choice from the seller, making the cola and book analogies above appropriate in this case.

So this is about one thing, and one thing only: using the leverage of one good product to sell a bulk package consisting mostly of sub-standard products which will mostly go unused. In short, it’s a 1000%-or-more price hike. I’m sure that’ll discourage pirating.

News of Spain:

Spanish consumers will from July 1 pay a special anti-piracy tax on all new gadgets capable of recording, copying or storing sound and images.

The tax, known as the “digital canon”, arrives 18 months after its scheduled date following sometimes-angry debate between collecting societies and gadget manufacturers.

This is nothing new, but is a reminder of how powerful the studios’ lobbies are. Think about it: everyone is charged an official tax to pay for crimes they don’t commit. Who else gets this kind of subsidy from the government? Shops and stores may raise their own prices to offset shoplifting, but do they ask the government to add a surcharge to sales tax which goes to “compensate” them? So why don’t the music labels simply do what the shops do, and raise the price of their products?

What’s worse, the “cost” of piracy is not measured and may not even be real; what this is may be little more than a private tax enforced by government fiat. Like oil refineries claiming that people are siphoning fuel from their tanks in a way they cannot measure or detect, so the government adds a tax to car purchases to compensate them.

Incredible, but it’s becoming a trend to have such “taxes” to benefit the “artists” for an imagined and undefined loss, charging consumers for a crime they may well not commit before they even have the means to commit this crime.

If such a tax is imposed on me, I will seriously consider seeing it as a license–prepaid–to pirate an amount of music equal to the tax charged. I will have paid for it, so I could consider it perfectly legal to get value for what I have been charged.