Let’s face it — very few of us really understand what is at stake for average users of the Internet in the piracy wars. Our eyes glaze over when we hear about international treaties and copyright law. But in his powerful new book, The Piracy Crusade: How the Music Industry’s War on Sharing Destroys Markets and Erodes Civil Liberties, Aram Sinnreich argues that free speech and privacy are under threat from cultural cartels in their quest to battle piracy. Scary stuff. I wrote to Mr. Sinnreich to ask for an interview and this is the result.
First of all, Aram, thank you for agreeing to this interview. Let’s talk a little about your professional background. You are an academic in the field of journalism and media studies. How did you come by your concern with the issue of piracy? Could you tell us a little about your own experiences as a musician and a consultant in the field of media law?
The pleasure is mine, thanks for taking an interest in this subject! As you mention, I’m a musician and a media/technology consultant in addition to being a professor. I think having one foot in each world – art, business and academia (yes, I realize that makes me a tripod) – has given me an interesting perspective on the subject of music, tech and copyright. Usually, the conversation is very siloed, and not only do people from these spheres rarely interact, they don’t even use the same language to discuss their shared interests and concerns. This is partially responsible for some of the obstacles we’ve faced in progressing beyond the “copyfight.” One of my primary aims in this book is to unite all three perspectives, lexicons, and, hopefully, constituencies so that the conversation can become more inclusive and productive.
I was a musician and songwriter before I ever considered research as a profession, so my earliest perspective on copyright was as an artist seeking “protection.” I remember one of my earliest gigs, in Brooklyn’s Park Slope when I was 18 years old. I knew there were some songwriters in the audience, so I went out of my way to tell them from stage that my material was “copywritten.” I still wince at the memory. But it’s useful for me to recognize that many creators feel very protective of their work and don’t want others to “steal” it by taking credit or earning revenue from it. Today, I release all my music under a Creative Commons license, which allows people to remix and redistribute it without asking for my permission (though I still ask for attribution and a share of commercial revenues).
I started looking at copyright and “piracy” as a research subject when I was an internet market analyst at a firm called Jupiter Research in the late 1990s. My clients included the major labels, film studios and software companies. Initially, I took a very protectionist view, advising my clients to use digital rights management (DRM) software to lock up their content before distributing it online. But once Napster was released in 1999, I realized that this fantasy of perfect control was completely unrealistic, and began advising my clients to assume content would be freely available to consumers, and to build “post-Napster” business models that generated value through content aggregation and delivery services, rather than via traditional retail.
I also produced some survey research for Jupiter in 2000 and 2002 that showed Napster users were more likely than other online music fans to have increased the amount they spent on music. I naively thought my music industry clients would be happy to hear the good news, but they were outraged. This was already an “inconvenient truth” for them, and they went so far as to issue press releases criticizing my research, and to fund their own research designed to contradict mine. It was at that point that I began to become interested in the role that ideology plays in the copyright industries, and how it often trumps basic logic. I also started to get concerned about the collateral damage to free speech and civil liberties that may be caused by copyright laws (the DMCA had recently been enacted). I couldn’t research that at Jupiter, of course, so I left to get my doctorate at USC.
In the years since then, I’ve continued to live simultaneously in all three worlds. My consulting clients have included both record labels and file sharing companies (I was an expert witness on behalf of both Grokster and LimeWire), and I speak at industry events about as often as I do at academic conferences. Recently at the New Music Seminar in New York, industry consultant Ted Cohen invited me to debate with him on stage. In his words, he cast himself in the role of “Christ,” and cast me as the “Antichrist.”
I have a few questions about the subtitle of your book, “How the Music Industry’s War on Sharing Destroys Markets and Erodes Civil Liberties.” Why the focus on the music industry? Has it been more aggressive than, say, the software or the book publishing industry?
That’s a good question. In terms of sheer numbers, the recording industry contributes a small fraction to the total amount spent on lobbying for stronger copyright and intellectual property laws. But in terms of shaping public opinion and policy and resisting institutional change, there’s been no industry so vitriolic, so inflexible and so litigious. The major labels have been the banner wavers leading the charge for ever-stronger copyright, and have done so while suing tens of thousands of their own consumers and engaging in continuing high-profile litigation against innovative and popular technology providers. There’s a reason the RIAA (the trade group representing the interests of the major labels), rather than its film, publishing or software industry equivalents, was voted “Worst Company in America” by the readers of the Consumerist blog in 2007.
Could you tell us a little about you mean by “the war on sharing?” I have noticed, for example, that the music industry is developing curricular materials for elementary schools to teach children that sharing music files is “stealing.” Do you have any comments on this move into the classroom by the music industry?
To begin with, “sharing” is an overly simplistic term, but it communicates something very important about culture: meaning and value are only produced when information is exchanged between two or more people. We use words we didn’t coin to describe feelings and experiences we all have in common. We play notes we didn’t name using instruments we didn’t invent. Our entire society is based on the premise that liberty can only exist when there is a public sphere, or a “marketplace of ideas,” to which all may contribute and from which all may draw. Consequently, one of our paramount values (enshrined in the First Amendment and elsewhere) is the right to share information.
More than any other kind of information, music is integral to the human psyche and human society. We use it to woo lovers, to soothe our children, to communicate our values and our identities – and we’ve been doing that for tens of thousands of years. It was only a few hundred years ago, when printed scores began to be mass produced, that we embraced the counterintuitive notion that music is a form of “property” that may be bought or sold, transacted or withheld by its “owner.” The founders of our country initially debated whether to have copyright laws at all, but ultimately decided that it was a necessary evil, because granting ownership over written expression creates a financial incentive for creators to share their work with the public at large. Yet there have always been checks and balances on the power of the owners, such as “fair use” statutes, to insure that the net effect of the laws was the enrichment, rather than the impoverishment, of the public sphere. Unfortunately, as many legal scholars before me have argued, the delicate balance has tipped too far to one side, and our public sphere has become significantly poorer as a result of increasingly draconian intellectual property laws.
As to teaching kindergarteners about the ostensible evils of “internet piracy” – it’s a transparent and deliberate form of propaganda and a massive imposition by a handful of private interests on millions of families. Children are not being educated about fair use, or about the value of contributing to the public sphere – they are basically being told that they, their families and everyone they know are criminals and deserve to be imprisoned. As a father of two school-aged children, I find this reprehensible. It’s especially galling given that our public schools are currently failing to produce literate, numerate, well-informed, civically-engaged adults as it is. How upside-down are our national priorities when evolution is a hotly contested theory but acquiescence to overzealous claims of corporate ownership of our shared culture is unquestioningly taught as objective truth?
In the introduction to your book, you make an interesting comparison of the present anti-piracy crusade to events in the days of the Crusades centuries ago. You write, “…in both cases, the enemy was dehumanized and delegitimized by being branded with the mark of piracy.” That is pretty strong stuff. Could you give us an example of how file sharers are “dehumanized?”
Right off the bat, the language of “piracy” is inherently dehumanizing. A pirate is a stateless criminal, the “enemy of all” according to Cicero. Beyond that, piracy crusaders have compared themselves to civil rights leaders (implicitly suggesting that file sharers are equivalent to segregationists, or worse, lynch mobs..?), and have explicitly compared filed sharers to terrorists, drug dealers and pedophiles. The level of rhetoric is so completely over the top, it would be laughable if it weren’t so sad.
Of course, it’s not just a rhetorical problem. RIAA lawsuits against alleged file sharers have targeted children, grandparents, disabled veterans, and even dead people, and the organization’s leadership has publicly declined to apologize or even acknowledge wrongdoing in such cases. And the laws, treaties and policies promoted by the piracy crusaders enable widespread surveillance and censorship against alleged infringers without due process, which essentially tells us that we’re all guilty until proven innocent.
You say, “Hollywood and its allies have used excessive force
in place of actual strategy.” Is the force not part of the strategy? Surely Hollywood has not spent millions of dollars on litigation without some thought. Did they simply underestimate the technological prowess and ideological commitment of their foes?
If excessive force is a strategy, it’s a short-sighted one. When employed politically, it’s typically called despotism, and we all know how that ends.
It’s an interesting question why the piracy crusaders have spent so much money on a battle they’re guaranteed to lose, and there’s no pat answer. It’s certainly not due to ignorance or lack of preparation; as I discuss in my book, the music industry has had very strong reality checks, and very sensible advice, from both within and without, for decades. Nor can it be attributed to sheer malice, as some would claim. I know a great many music industry executives, and with a few exceptions, they’re all really nice. I came very close to being a major label record executive myself a few years ago, but that’s a different story…
The best answer I can give you about why the labels and studios behave as they do is that their organizations are broken. Their structures and business practices are still mired in the technological and economic modes of 20th century media production, they’ve become unmoored from their roots in local (and even national) community, they’ve become leaderless appendices to large and sprawling multinational corporations, and their legal departments are the only ones with a coherent vision. Unfortunately, that vision is “sue everybody.”
You write, “…the targets of today’s crusade are often surprised and dismayed to find themselves under assault, and typically view their own activities as ethically valid, even if they do not conform to the (ever-expanding) letter of the law.” Could you give us some examples of the kinds of people and institutions who have become collateral damage in the piracy wars?
Let’s discuss ethics first. I’ve fielded surveys of internet users all over the world, asking people to share their opinions, in their own words, about digital culture and technology. My coauthors and I have found that, despite (or because of) the legal system’s failure to accommodate new modes of cultural engagement, individuals and communities are generating their own ethical frameworks organically, allowing them to make considered judgments about when and under what circumstances it’s okay to copy and share information that might technically be owned by someone else. In our most recent survey, we found eleven distinct ethical frameworks (such as whether the person doing the copying has worked hard at it, or whether he or she is making money from it). Only one of those eleven frameworks had to do with permission, which is, of course, the mechanism of copyright law.
As to collateral damage, it’s hard to overstate or even to summarize in a few short sentences. Hundreds or even thousands of promising businesses have been shuttered by actual or threatened litigation (I profile some of them in my book), and tens of thousands of families that have been economically impacted, and in some cases, devastated, by music and film industry lawsuits. There are also entire cottage industries such as “trolls” and “ransomware” scam artists that take advantage of stronger IP laws to extort money from law-abiding individuals and organizations, to the tune of hundreds of millions of dollars a year or more, incurring even greater costs in terms of inefficiency and lost opportunity (a recent analysis showed that nearly two-thirds of the patent cases in American courts in 2012 were initiated by trolls). International treaties, which often force American-style IP laws down other countries’ throats at economic gunpoint (e.g. threatening trade sanctions if they don’t comply), have had an untallied negative economic impact on those countries, and have been criticized for putting millions of lives at risk (for instance, when U.S. pharmaceutical industry patents are aggressively enforced in countries like India, where HIV and cancer patients can’t afford American drug prices).
Finally, there is a cost to the American – and global – public sphere. Not only have there been several documented instances of IP laws being used for the purpose of political censorship (e.g. DMCA takedown notices filed against newspaper websites and political ads on YouTube), but the net effect of rhetoric that criminalizes normative behavior, combined with laws that enable mass censorship and surveillance without adequate court oversight (often enacted pursuant to treaties negotiated in secret at the behest of content industries) is to create an environment so toxic that the “marketplace of ideas” ceases to function. Democracy can’t thrive in that kind of environment.
Please tell us a little about the emerging field of emerging field of critical information studies. What are the academic backgrounds of leaders in this field?
“Critical information studies” is a term coined a few years ago by my colleague (and book series editor) Siva Vaidhyanathan. The idea of CIS is to unite the methods, theories and findings of several different fields to investigate critically the mechanisms by which culture is regulated: economic, political, technological, and so forth. I’m not sure the field has “leaders” yet, but its ranks included scholars of law, communication, media studies, cultural studies, computer science, political science, journalism and business.
Could you please discuss the “format replacement cycle” and “digital dematerialization?” Is the latter leading to the end of the former? Or are we are going to see just more Amazon/Microsoft/Google/Apple device and platform wars?
Do you remember that scene in “Men In Black” where Tommy Lee Jones shows Will Smith the tiny disc that’s going to replace CDs and says “I guess I’ll have to buy The White Album again”? That’s a big laugh line because everyone in the audience knows exactly what he means. Every decade or two, the entertainment industry tells us that our old media formats are obsolete and we need to upgrade our shiny boxes and the content that plays on them. VHS to DVD to Blu-Ray, LP to cassette to CD. This cycle has been an engine of economic growth for the content industries because it artificially inflates market demand. I might only want one copy of The White Album, but I’ll need to buy it three times if I keep upgrading my stereo.
“Digital dematerialization” is a term I use in this book to discuss what happens when the new formats are software (such as MP3s), rather than hardware (such as CDs). In some ways, it disrupts the old ways of doing business. For instance, a cartel can no longer be based on controlling who gets to occupy the limited shelf space at a brick-and-mortar retailer. It also has consequences for format replacement – most VCRs can’t also play Betamax tapes, but an iPod or a laptop can play multiple software formats, and can even be upgraded to accommodate new ones. So technologically speaking, there are good reasons for the traditional cycle to be disrupted.
Yet, as you point out, we’ve already seen some format wars in the software universe. Although it’s technologically possible for every device to play every format, there are economic and political reasons why that doesn’t actually happen. You can’t play a Windows media file on an iPod, and you can’t read an iBook on a Kindle. The big software titans are busy building “walled gardens” to keep consumers invested engaged with their content, services, and devices, and this can lead to some economic duplication. For instance, I have a Spotify Premium account, but I also pay Apple for its iCloud service to host my music collection. I’m paying twice for the permission to listen to the same song. At the micro level, this helps the content industry by bringing in more revenue, but at the macro level, it probably confuses, bothers and scares enough consumers that a significant portion stick with free, open-source alternatives, many of which are unlicensed and not directly revenue-bearing.
Your book is very sobering reading for those who care about innovation. For example you write, “…initiatives were starved to death or sued out of existence not because they lacked market viability, but precisely because they possessed it.” Are there any lawsuits going on right now that consumers and civil liberties advocates should be following in the arena of “piracy” law?
Yes, there are tons. Litigation is only one of many methods by which piracy crusaders attempt to control information sharing, but it’s an important one. Interesting recent and pending cases include: Viacom v. YouTube, ABC v. Aereo, Capitol Records v. Vimeo, Sony v. Tenenbaum, Voltage v. Does, and Capitol v. MP3Tunes.
At times it is almost eerie reading passages in your book in the post-Snowden era when so much has come out about the national surveillance state. I kept thinking of Snowden as I read this passage from your book, “How can interpersonal relationships, creative communities, and democratic political processes survive in an environment in which every song, every e-mail, and every debate is subject to potential surveillance, censorship, and misappropriation by powerful and unaccountable commercial and
government institutions?” Do you think that people of Snowden’s generation simply think differently about Internet freedoms than people of the Chris Dodd generation? Does the generational shift give you hope for the future? Or am I doing you a disservice by seeming to attribute to you Snowden-like views?
As you observe, I wrote this book before Snowden’s revelations about the scope of surveillance undertaken by the U.S. government. While I’m not sure I hold “Snowden-like views” because I don’t know what Snowden’s views are, I certainly think he did a service to global citizenry by exposing the extent to which we are being spied upon as a matter of course.
I think your question may overstate the role that age plays in shaping people’s feelings about privacy. You may be interested to learn that, according to my own survey research, different age groups actually share similar levels of privacy concern (hovering at about 4 on a scale from 1 to 5), but that younger people are far more likely to have actively monitored and altered their privacy settings at websites than their elders. Other factors, such as nationality and education level, on the other hand, directly correlate with both privacy concern and privacy monitoring. As a rule, the more socially disenfranchised a person is likely to be based on his or her demographic profile, the less knowledgeable he or she tends to be about these issues. I find this very troubling, because it is part of a broader trend dividing the world into internet “haves” and “have-nots” – not just in terms of pure access, but also in terms of having the equipment to participate in the digital public sphere on equitable terms.