IP, SOPA, DRM, and the Dread Pirate Robby

It’s been a week since the big SOPA blackout, and MPAA and Congress are in retreat, at least temporarily. I did not black out my blog last week for a couple of reasons: first, I simply didn’t get off my ass to install the nifty WordPress SOPA-blackout plug-in, and second, I get few enough readers as yet it wouldn’t have had much impact. However, I did send snail mail to all three of my Congress-critters, so I’m not a complete slug. But I do want to say a thing or two about the whole mess.


First of all, I am a fan of intellectual property rights. I write software. I write fiction. I paint pictures. I also sell those things, and I use that money to feed my children. It goes towards a few less noble purposes as well, but for the moment, let’s focus on the poor hungry children.

A lot of anti-IP arguments focus on the evils of corporate greed and old white men who want to crush your spirit with their overpriced CD’s and copy-protected Blu-Ray’s. In that mindset, it’s easy to take up the rallying cry that intellectual property should be free for all. Viva la revolution! But somewhere back behind those corporate masters is a guy like me plugging away at a keyboard, hoping to go home at the end of the day and feed those hungry children.

If that’s still too white collar for you, how about all those extra names in the movie credits? You know, Best Boy, Gaffer, Lighting Assistants, all those jobs that leave you wondering, “Just what does a dolly grip do?” Well, I’ll tell you. He pushes a miniature train along a track while some other guy sits on top with a camera. It’s not motorized. It’s not remote control. The grip has to lean into it, get six hundred pounds moving at just the right speed, and keep pace with whatever the on screen action is supposed to be. It’s exhausting physical work, but he does it so that at the end of the day, he can feed his family with that film money.

So bitch and moan all you want about evil corporations and their profit. Just remember that behind it all are regular guys trying to make a living, so saying intellectual property should be free to all is an invitation for me, the dolly grip, and both of our families to move into your house and start rifling through your fridge. By the way, I prefer the spicy mustard, so stock up.


Now having said all that, I think that Congress’s recent attempts to protect IP through SOPA and PIPA were travesties. I understand that they meant well, but they gave too much power to companies and individuals to take down websites without any kind of court review. Plus, going after the sites at the DNS level seems pretty draconian, akin to the threats of old. “Not only will we kill you, but we will see to it that no one even knows your name.”

And for that matter, if it happened to me, what would I have done about it? That is, if I had some infringing material on my site, and they took me out at the DNS level, how was I even supposed to log in to remove the offending material? I don’t have physical access to the server. Am I suppose to call up my hosting provider and walk them through the various paths to delete the offending material, and then wait until I can get some kind of review process before I go live again?

I know little bloggers like me weren’t the intended target of SOPA/etc. They were really going after the likes of the recently shuttered MegaUpload, but where in the law does it make that distinction? We have already seen abuses of the DMCA by rights-holders filing false claims against those they wish to silence.

Anyone want to make a bet as to whether the Church of Scientology wouldn’t have used this to go after critics who post commentary on the various secret texts? Or maybe a political opponent who has your copyrighted photograph on his campaign site? Most of those abuses wouldn’t pass court review, but you’d be down and out of business before you even got your review.

No thank you.

Digital Rights Management

Some would argue that the other way to go is a heavy reliance on DRM, i.e. copy protection built right into the media and the devices that access it. On the surface, it’s a nice idea. Let’s use digital technology to solve this rights problem that was made so nasty by the very same digital technology. Websites can’t host copyrighted material, because the software/hardware won’t let them.

Alas, there are two problems with this. First, it’s kind of impossible. Yes, you can put in some controls that make casual piracy more difficult, but that’s all they can really accomplish. After all, these protections can be broken. If it is possible to show the IP to the valid user, then it is possible for an invalid user to bypass the protection and get at the IP illegally. It’s just the nature of that beast we call general computing.

Perhaps most frighteningly, I hear occasional arguments that the real solution is to rein in general computing to the point where these workarounds are no longer possible. Alas, the only way to really do that is to restrict all of our devices to the point where they are no longer general computers. And to be clear, the line of general computing is not a distinction between desktop computers and Kindles or iPhones. It’s the line between all of those devices and the old fixed-function calculators many of us used in the 70’s and 80’s.

If the price of protecting IP is a DRM that kills general computing, then the price of protecting that IP is too high.

The second problem with DRM is more emotional than technical. As I stated above, even breakable DRM can stop casual piracy, but it does so at the cost of treating all of your legitimate paying customers like criminals. To prevent you from doing something illegal with their IP, DRM advocates make it that much harder for you to enjoy their IP.

You can download a song legally, but then you run into problems playing it on your device of choice. You can read a book on your Kindle, but then you can’t let your wife read it on hers. You can watch that movie at home, but only if you’re in the right country.

In fact, bad DRM can put so many shackles on your legitimate paying customers that many of them will go find an illegal copy of the IP just so that they can enjoy it without your artificial constraints.

And that’s bad. No, not just bad, it’s B-A-D BAD.

Why? Because it takes someone who wants to be a good IP customer and encourages him to become an IP pirate. The very DRM that was supposed to diminish piracy is instead creating new offenders where there had been none before.

The Dread Pirate Robby

There are pirates big and small. Depending on your definition, big pirates might include the likes of MegaUpload or Napster of old, but they most certainly include the shadowy enterprises around the globe that create knock-offs of DVD’s or offer great streaming deals for pennies on the dollar. These were the official intended targets of SOPA. These guys aren’t trivial infringers or pirates of convenience. No, they are unethical businessmen intent on selling something they do not own. Boo! Hiss!

But these guys would be out of business without the small pirates. I call these smaller infringers the Dread Pirate Robby. Robby isn’t really all that dreadful, and he doesn’t even see himself as a pirate. To him, he’s just Robby, and Robby wants to watch a movie, listen to some music, play a game on his computer, and – we hope – read a book. Robby might pay for some of it, but he certainly doesn’t pay for all of it. Instead, he downloads what he wants from various sites or gets them from friends.

Robby doesn’t think of this as stealing from the creators of the IP. Not at all. After all, “It’s not like it costs them anything.”

And that’s the real problem here. It’s not the DRM. It’s not the warez sites. It’s not even MegaUpload or some shadowy Chinese DVD shop. It’s Robby’s mindset. He only thinks about what it costs to make the copy, and in that sense he’s right. It doesn’t cost anything to make a copy.

But that doesn’t matter. Even if Robby acknowledges that the IP cost money to produce in the first place, he often falls back on that tired old argument that it’s just some faceless corporation, and he’s fighting the good fight by depriving them of their ill-gotten profits. Except it’s not just some faceless corporation. It’s guys like me. It’s guys like that dolly grip. For Sting’s sake, it’s the poor bloke strumming on his guitar in a garage studio hoping to make some money on his music.

But even that doesn’t matter.

Not Cost… Value

What does matter is that Robby got some value out of watching the movie, listening to the music while playing his game, and – again, we hope – reading that book. He enjoyed himself. He turned a boring afternoon into a fun ride. Perhaps he even learned something. The bottom line, though, is that he got some value from his use of all that IP.

Well, I think that if you receive value when consuming some IP, then you should give some value back to the creators of that IP. I call it the value equation. If you get value, then you should give value. It’s that simple.

It starts getting complicated again when we add dollar signs, royalty percentages, distribution costs, and yes, even faceless corporations excising their pound of flesh. But at its core is that simple idea. If you use some intellectual property, you should pay for it, just like you would pay for a gallon of gas or a succulent strawberry. It’s not about what it cost. It’s about what you got out of it.

If we can instill that notion into the minds of Robby and all his misguided peers, then SOPA and DRM and all of those annoyances around copyright enforcement will go away. We will be left with a world where the main goal of IP producers is to get their best work into the hands of those consumers by the most fair and efficient means imaginable.

An impossible dream? I don’t think so. I look at the rise of iTunes and Amazon’s MP3 store. All of their revenue comes from people who want to pay for their music and get it in a nice, convenient way. Yes, Robby and his pals still download a lot of music illegally, but the success of these ventures is testament to the fact that a lot of people already understand the value equation. They’re not doing it legally because they’re afraid of enforcement. They’re doing it legally because they’re ethical.

The solution to all this is education. We need to teach Robby and his ilk the ethics of the value equation, and then make it possible for him to act ethically.

If we can do that, we can all live together in an ethical society, IP creators and consumers alike. If not, then we may be doomed to one of fear and enforcement.

3 thoughts on “IP, SOPA, DRM, and the Dread Pirate Robby

  1. Over all this is a good analysis, as far as it goes. And it addresses the the key issues of SOPA: too much power to the wrong people.
    One of the other key issues, is that it is cost shifting a civil issue from the commercial entities that chose this line of business, to the government and consumers. Copyright, until DMCA was almost universally a civil action for violations. Only in extreme cases did it become a criminal matter.
    One of the reasons the corporations *are” evil, is because of this shifting of the costs from themselves to other parties, which is just as immoral as any piracy.

    The rational of that IP creators are “due” to receive value from their work, does not hold up, though. There is no natural right of copyright, it didn’t exist prior to the 17 century. Also as a capitalist, you should be the first to recognized, that know one owes you a job, much less one that you “like”, or are “good at”.

    Interestingly the notion of fairness and “If you get value, then you should give value. It’s that simple.”, is a socialist and anarchist (true anarchist) value. not a capitalist one. People that follow those value systems, usually also hold to a certain moral accountability, in ripping off a “evil” corporation, is a type of civil disobedience that is morally justified. As well as, not cooperating with “evil”. I’ll be the first to say, that
    its not always practical to not cooperate. But in fact, the hypothetical grip, could be working in a warehouse, etc.

    Again, I’ll agree, that there is a social benefit in providing value to artist in order for them to be able to create. We would have a lot less “art”, without some type of system for compensation. It doesn’t have to be 50 years, or 96 years after the death of the author for works for hire.

    Robby may copy, because, yes its easier to copy, and “b” his rights that he had under the copyright law, aren’t being taken away (fair use, first sale, lending, etc).

    The studies I’ve seen, don’t tend to show that people are purchasing from Itunes and Amazon, because it is ethical, but because it is easier, (its way easier to buy an mp3, than pirate it these days). Again the DRM, being universally hated
    is because it makes things difficult, more than because it paints people as criminals. (People copied cassette tapes, and didn’t think it any worse that speeding on the highway, although I’d say, that speeding is worse).
    The “evil” corporations do a plenty good job of painting their customers as criminals, suing them, invading their privacy invaded, having their futures destroyed, etc.

    Since copying is free, and the pirate recognizes the immediate value from the act of copying, not from the act of creating where the value exists.

    If the corporation would spend as much money, on increasing the value of their product, by making it more available, (not less), and treating their customers nice,
    I think they would be more profitable. But usually corporations seem more likely to hold onto the “old ways”, until someone new comes along and puts them out of business, which is where I would bet.

    When copying is free, the law of supply and demand from capitalist markets, no longer works, but Hollywood is determine to embroil us in a war just as costly, and just as morally bankrupt as the Drug-War.

    • Alas, I don’t find your counterarguments very compelling.

      I’ve been hearing a lot lately that there is no natural right of copyright, that it has only existed for 300 years or so. Well, frankly, there is no natural right to consume IP for free. That notion has only existed for the last 30 years or so. If we are to make any arguments on natural right, I will have to stand by the notion that if you create something, you should have some level of control over it. That control should include the right to destroy it, to license its use, or even to sell it outright, transferring that control for a one-time fee.

      Whether my value equation is socialist, capitalist, anarchist, or even nihilist is immaterial to whether or not it is just or ethical. If I had to associate it with any -ism it would be TANSTAFL-ism.

      But regardless of what philosophical school you attribute it to, ripping off the conveniently evil corporations as a mural justification ignores my entire preamble that while your righteous wrath may be focused on the 1%, you are also stealing from the 99%. If civil disobedience were truly the goal, then instead of stealing from “evil” corporations, you should instead spend your dollars on projects that flow more directly to the 99%.

      And to say that an author or a dolly grip could simply choose to get a job doing something else is also irrelevant. He’s not doing what he’s doing out of any sense of having a right to have that job. He’s doing it because people want the product of his labor – they want that IP. The counterargument to this is that the IP consumer doesn’t have any right to have IP provided to him for free. He could just as easily choose some other activity to entertain himself that does not involve IP, whether it be a walk in the park or a game with friends. The demand for that IP is real, and the opportunity to find employment in its creation is real. What is at question is whether Robby is willing to pay to meet his own demands and whether I and my grip friend decide it’s worthwhile going to the effort to supply that IP.

      I will agree, at least, that copyright compensation doesn’t have to last for 50 year, 96 years, or forever. However, arguments about that do little to address the fact that the vast majority of copyright infringement is on works less than 10 years old.

      I have not seen any studies of iTunes customers comparing their feelings of convenience vs. ethics. All I have is a fair amount of anecdotal evidence. (And yes, I know very well that the plural of “anecdote” is not “data”.) However, I often hear that people are glad to finally have a way to legally pay the artist for the one track they wanted. I will also say that customers who desire convenience can also choose that option because it is ethical as well. They are not mutually exclusive.

  2. I’ll try and keep this simple. What do you think would happen if the dolly grip, and the actors and the painters all went on strike and refused to perform their services because they did not get paid for each and every use of their IP ?
    Nothing? Probably not, I suspect all the millions of kids in media colleges would skip up and gleefully take over for nothing, for the joy of working in media, and creating something fresh and interesting and commentable and comendable – or sometimes rubbish and appalling.
    What about musicians ? Suppose they stopped producing cd’s / mp3’s / mechanical copies completely ? They would have to perform in front of audiences to get paid – like the minstrel bands of old. If they want to feed their children, they will have to perform again, and again (the big acts would still be rich, you can betcha)
    What about software ? This is how Microsoft came unstuck, and IBM before them. The programmer writes the program once, then the company gets paid for each copy sold.. for ever ? The programmer only coded the program one time…
    This model is outmoded. Your warehouse worker doesnt reap the rewards of a weeks or a day or an hours work for ever.. your miner, truck driver, or factory worker do not get paid that way.
    This is how iTunes breaks the model.. it is better to pay 79pence for a single album track you identified using shazam, and listen to that track a hundred times, than have to pay £7.99 in a store for a cd (cheap at that price) for that one track and have the right to play a dozen other tracks you dont really like…
    Netflix and other movie services are clawing a profit in a similar way – make it cheap enough and its almost shameful to steal it anyway.. 1.50 for a movie experience at home !!?
    Say I go to see Avatar (highest grossing movie ever made), and I take my family, it costs me say £30 plus food drinks, gas, parking. Its a good film, but I dont get a great seat. I pay for it again on Netflix, but its not the 3d version and I still dont own it. In order to own it, I have to go to the store and pay another £40 for the blu ray version.
    I did this with Star Wars – I own the VHS, the DVD, the Blu Ray Boxed set, its too much really – George doesnt need my cash any more times for the same thing.

    The creator doesnt have a right to get paid every time someone consumes their art. Housebuilders dont get a percentage every time the house is sold.. in fact the creative industries are the only ones who have this business model, its outdated and they need to stop mooning to their MP’s about it, and work every day of their lives, the same as the rest of us.
    Aww hey, did I steal a copy of the Coldplay album ? Next time I pay £100 to see them, I’ll throw them a fiver huh

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