On January 24, Senator Harry Reid will likely call for an up-or-down vote on considering the Protect IP Act (PIPA), the Senate’s companion bill to the House of Representative’s much maligned Stop Online Piracy Act, or SOPA. This is a part of a process called “cloture” which enables the Senate to break filibusters and move a bill toward passage. If 60 votes are obtained from the 100 available, the bill is essentially fast-tracked toward approval.
PIPA and SOPA are most clearly associated with Hollywood interests, but a quick perusal of the list of supporters reveals that all of the large U.S. publishers, or their corporate parents, are lined up in favor of passage: Hachette, Penguin, HarperCollins, MacMillian, Random House, and Simon & Schuster.
I will not analyze why almost everyone that understands the technical operations of the internet or cares about innovation is opposed to these bills. I am not going to debate that the bills are probably most effective against counterfeit, not pirate sites, and those are a fraction of the illegitimate business on the net, because the pirate sites will simply resurface. Nor will I go into the more learned analysis of leading legal scholars that suggest that PIPA and SOPA contravene First Amendment rights, which theoretically publishers hold dear.
Instead, I am going to take publishers at their face value: that they are genuinely concerned about piracy, and they want to shut down sites that distribute content under terms that rightsholders have not approved.
In 2002, almost 10 years ago, Tim O’Reilly penned a famous essay entitled “Piracy is Progressive Taxation” in which he discussed O’Reilly Media’s decision to release ebooks without DRM, and O’Reilly’s belief that piracy was not a significant threat to their sales or reputation. Tim ends the essay by quoting from Star Wars’ Hans Solo: “Give the wookie what he wants!” — in other words, by filling demand in as many places, and as many ways as possible, the incentive for e-book piracy is dramatically reduced. Whatever piracy remains is likely inevitable: hardcore users who will resist proffering any payment for content under any terms. The majority of readers seek an easy, straightforward means of purchasing what they want. In fact, by allowing “freeniks” to pirate, price setting can focus solely on customers from whom revenue is expected, generating higher income across the demand curve.
Such analyses appear not to matter to Big 6 publishing, which has endorsed on a draconian effort to control the access to their content on the network: a strategy that, as Cory Doctorow recently observed, is ultimately an attack on general purpose computing and networking:
[i]f you think of protocols and sites as features of the network, then saying “fix the Internet so that it doesn’t run BitTorrent”, or “fix the Internet so that thepiratebay.org no longer resolves”, then it sounds a lot like “change the sound of busy signals”, or “take that pizzeria on the corner off the phone network”, and not like an attack on the fundamental principles of internetworking. …
[w]e don’t know how to build the general purpose computer that is capable of running any program we can compile except for some program that we don’t like, or that we prohibit by law, or that loses us money.
Instead of heeding Tim O’Reilly’s 10 year old lesson that making content available in desirable places under terms that users accept is the most profitable path, publishing has implicitly decided to attempt to control something they have no adequate understanding of, and can never really control: computing and the internet. They’ve shot themselves in the foot.
And what I find most darkly amusing is that they weren’t content to stop there. The one place in the book distribution ecosystem where piracy is most efficiently defeated, where users have access to content for free but under carefully controlled circumstances, have been libraries. Libraries have always been the best counter to piracy. And instead of cementing a relationship with libraries that works to the benefit of all parties, publishers have steadfastly withdrawn the ability of libraries to provide free content, even when it is available for only limited borrowing periods, or only a restricted number of titles, with severe constraints on sharing and copying. Instead, they have indicated an interest in the commercialization of libraries by encouraging rental models.
And so, having shot themselves in one foot by trying to control piracy through technically inappropriate means even though it is a manageable risk, they’ve looked around and noticed that books remain available for free at another location, libraries, and so they’ve taken aim and shot themselves in their other foot. Someone needs to buy them steel-toed boots before they decide to aim higher.