FairLoading

The news media amplifies novelty, conflict, and sensationalism, knowing we can’t resist a good disaster, metaphorical car wreck or tribal battle of good versus evil. Such inherent tendencies of media (and ourselves) tempt us into orgies of mass misunderstanding, both of the world and our role within it. We may be entertained. We may watch contentedly and follow along as passive observers. But, in the end, we feel a little more isolated than we started, a bit more pessimistic.

The freeloading debate was nourished by this lust for novelty, conflict and sensationalism. In the case of digital music, consumers were mistakenly led to believe they had to choose between Digital Determinists, who were dismissive of artists’ rights yet appeared to be on the winning side of history, and corporate rights holders, who argued on behalf of artists but resembled the greedy relics of an impossible past. The resulting conflict, “technology vs. the man” or “the future vs. the past,” rose to increasing prominence in the public mind. Moderates or pragmatists went unnoticed in this polarized debate not because they were missing, but because they had no side to call their own.

And there were perceivable costs to this missing middle ground of opinion. Torrent Freak reported on a study conducted by Lund University in 2012 that found site blocking or graduated response having minimal impact on the 15-25 year old FreeLoaders’ attitudes toward creators’ rights.3 “Our conclusion is that repressive actions that lack societal support may still have effects, but that the effects are limited,” researcher Marin de Kaminski explained. “Our results show that young people feel no pressure from neighbors, friends, relatives, teachers etc. to refrain from file sharing. A higher degree of pressure or social control would most possibly have a clear impact on habits and practices regarding file sharing.” Torrent Freak added that, “Essentially, file-sharers do not believe they are doing anything wrong and while this remains the case the ‘problem’ is unlikely to go away.”

The disengagement and resignation many have offered to freeloading is just as much of a problem as the cat-and-mouse with sites like The Pirate Bay. The disengagement has occurred as a consequence of the haphazard way freeloading was constructed in peoples minds through the Decade of Dysfunction and the notable absence of strong voices from respected artists who are ready to draw a line in the sand for the sake of their fellow creators and a confused public. If a sensible middle ground is to develop, it needs to develop around something. If a moderate mind feels isolated in their views, they are much less likely to express them or feel confidence that they are members of a community trying to encourage progress.

Writing a book on freeloading is asking for trouble. Upon studying the issue, I became all too aware of how fast it moves, how quickly one controversy bleeds into another, and how quickly predictions made with absolute confidence are disproven by the passage of time or consumer behavior. For that reason, I am reluctant to draw out specific solutions to freeloading based upon one controversy or another, in the fear (or rather confidence) that the particular conditions of freeloading as I finish this book in 2012 might not apply in five years or ten years.

But after watching both sides of the freeloading debate engage in a seemingly endless war characterized by defamation and distrust, while making no serious effort at clearing out a space for common ground, readers are owed an attempt at solutions. I have spent many pages detailing all that is wrong and self-destructive about our acceptance of freeloading, but how can we pivot this discourse towards a better understanding of copyright and our collective rights and responsibilities? For that, I offer the principles of FairLoading.

It is time to unite in service of our linked interests: for consumers, respecting the spirit of copyright as a cornerstone of an open, technological society that values creativity and recognizes that maintaining a diverse creative culture gives us more of the quality art and information we need to understand ourselves and the world around us; for industries and artists, respecting consumers and the spirit of copyright law will help maintain and profit from an engaged market of paying consumers long into the future. Manifesting the principles of FairLoading will require a conscious, good-faith effort on all sides, but our reward is nothing less than economic and spiritual prosperity, as we all benefit from the digital revolution’s great potential.

1) An independent creator has the right to distribute original works in a manner as s/he so chooses, whether for free or for pay. Consumers have a corresponding duty to respect that right.

This is the core sentiment of traditional copyright. Whatever new technologies or models develop through the 21st century, creators must retain the practical right to describe how and where their works ought to be distributed, lest they be exploited by forever advancing means of copying or evading the rule of law. For every equally held right carries a responsibility to uphold that right for others, and consumers need to keep their duty to respect the rights of creators in mind as they navigate the ever changing terrain of new media.

2) An independent creator can extend the rights to a creative work to a record label, publisher, production company or any other legal business partner as s/he chooses.

Here is another core tenet to understanding traditional copyright. Failure to understand this concept provided an opening for those in the “copyfight” to vilify copyright as solely a mechanism for bloated corporate behemoths. Though it is fashionable to lambast content industries, we are smart to remember the artists who have chosen to partner with such industries of their free will and who have built inspiring creative careers with that industry’s help. An attack upon copyright-based industries is really an attack on copyright and, by extension, the multitudes of creators who depend on its legal protections.

3) No individual or business is entitled to knowingly exploit a creator’s unlicensed creative works for pleasure or profit.

So long as freeloading is easy and convenient, many will continue the practice. My goal in this book is not to guilt or shame consumers into never freeloading again, but to drive a wedge into the narcotic acceptance of the act. Placing that wedge relies upon individual consumers acknowledging that they are not entitled to content that they know is unlicensed. There are grey areas of copyright, but they shouldn’t keep us from acknowledging what is often a black-and-white issue: illegally downloading or streaming free content that one knows is digitally available through licensed means.

Similarly, we can make distinctions for The Pirate Bay and those who advertise the fact that they are engaging in mass exploitation of creators’ rights. We can separate the more ethical uses of P2P technology and storage lockers from the egregious violators of creators’ human rights. The Pirate Bay itself has proven this point. They trumpet their service The Promo Bay, which provides a home for unsigned artists to host and distribute their work. Why can’t we keep the wonderful service that The Promo Bay provides, and do away with the exploitative Pirate Bay? Digital Determinists tell us we have to accept the good and the bad of the Internet, but that is pure laziness. It is merely a question of will on the part of the citizenry, elected officials and the technology sector. In April, the cyber locker service Rapidshare released a paper entitled, “Responsible Practice for Cloud Storage Services,” that acknowledged the seriousness of freeloading on storage lockers and suggested concrete policies to establish a foundation for ethics and responsibility in digital commerce.4 Such steps suggest that a constructive path on addressing the convenience of freeloading is entirely possible, and is in fact already happening.

4) The right to free speech does not entitle an individual or business to infringe upon any person’s legal rights as a means of expression and/or speech.

As non-transparent lobbying groups like Fight for the Future dispense propaganda unto the public in cynical means to achieving their own mistaken ends, “censorship” will be trotted out again and again to stiff-arm any attempt at marginalizing the clear cases of artistic exploitation online. It is crucial to keep in mind the distinction between “censorship” that occurs in response to criminal activity, which is in accord with the freedom of speech, and censorship that occurs in response to speech, such as the Chinese government blocking Internet users from information on the Tiananmen Square massacre or the Iranian government’s shutting down of offending newspapers. These are not even remotely the same, and nothing exposes the First World entitlement of Digital Determinists as much as when they portray shutting down criminal enterprises like Megaupload as an injustice somehow related to the oppression Chinese citizens face. And before we put too much trust into Google or any other Internet company on protecting “Internet freedom” we should remember that Google themselves facilitated Chinese censorship when trying to enter their market for search engines in the late 2000s. Such companies are businesses with their own profit motives as their primary consideration, not society’s health or the preservation of human rights.

5) The traditional principle of copyright, that a creator has exclusive right to the fruits of his/her own labor for a limited period of time, is fundamental to preserving independent free expression in an open, market-based society; and is a Human Right delineated in Article 27 of the United Nations Declaration of Human Rights.

Copyright is dismissed by some Digital Determinists as “unnatural” or “artificial”—and therefore undeserving of respect. But all rights and laws are somewhat “artificial,” created by the consent of the governed under the rule of law and the values of society. Creators’ rights have gone part and parcel with the rise of modernity and rise of geniuses like Mark Twain, John Ford, Orson Welles, Ella Fitzgerald, The Beatles, Vladimir Nabokov, Bob Dylan, David Foster Wallace, Kurt Cobain…this list could go on for a very, very long time. So it is naïve and self-destructive to pretend that copyright has been anything but a gift to human civilization. It is a human right that demands preservation.

6) In respect to the rights of the public, expressed by the Public Domain, copyright length should be reformed to a retroactive maximum term of fifty years.

The extension of copyright terms far beyond their traditional limit is a violation of the public right to share in the bounty of creative expression; it is as much an abuse as the disregard of copyright shown by the FreeLoaders. At a time when the Pirate Party finds a European constituency and more young people become subject to the propaganda of groups like Fight for the Future, the longer the entertainment industries hold up the sensible return of copyright to a maximum fifty-year term, the more dangers copyright-based industries will face. No one respects the entertainment industries for pushing copyright toward being a near-perpetual right—nor should they. Along with the RIAA mass lawsuits, it is an area in which I wholeheartedly share in the indignation many FreeLoaders express for Hollywood and the RIAA.

Why fifty years? Because it is sensible, easy to remember, and has historical precedent in the United States and around the world. Rights holders in the United States enjoyed a maximum fifty-six-year term for many decades, before our modern acceleration of term extensions began in the late 20th century. As recently as September, 2011, the European Union extended copyright terms for song recordings to seventy years from their original terms: fifty years.5

Fifty years is enough time for a creator to exploit his or her own works. I would hold the rights to this book until the age of eighty—this strikes me as perfectly fair and would represent a radical return to traditional principles of copyright. In cases where a rights holder dies before the term is up, it is just that immediate family members be able to reap some rewards for their loved one’s labor—but not forever.

If the fifty-year term were enforced retroactively, think of the books that would be available for free electronically and the literary enthusiasts who would emerge online, ready to point readers to free, under-appreciated works of old. Think of the old films that would be made available and the local film societies that would pop up online and off to expose new generations to obscure works and the classics. As for music: well, we already know what it would resemble, don’t we? Except in this reality, older songs, from the 1960s on down, could truly be shared, sampled and remixed without fear of law or guilt of violating creators’ rights. The abundance of blues, jazz, and early rock ’n’ roll could breathe new life into sample-based genres like hip-hop and electronica. It doesn’t take much to imagine how this surge of works into the public domain could be quite beautiful. Each passing year, society would have a chance ring in another year of works into the public domain in an annual celebration of our cultural heritage. Don’t I sound like the digital utopian?

Of course, the film, music, and publishing industries will be horrified by this idea. But as the Decade of Dysfunction comes to a close, governments are having trouble forcing Internet Service Providers to block websites and torrent trackers that are unapologetic in their violation of creators’ rights. Even if they seize website domains, mirror sites pop up in no time. Dealing with the just inefficiencies of due process law, governments are at a distinct disadvantage in this cat-and-mouse game. When governments attempt to better align their powers of enforcement with the swiftness of their enemy, their critics from Silicon Valley erupt with familiar cries of censorship, due process or privacy violation.

Why doesn’t Congress explore a fifty-year term that benefits the public domain (and online distributors that might specialize in curating such works, making advertising revenues along the way) in concert with stiff enforcement measures against websites that serve no significant purpose other than infringement, so that creators’ exclusive rights still under term have a better chance of being enforced? With sufficient government and ISP cooperation, rights holders could be given increasingly efficient means of being alerted when their copyright-protected works are posted online without their consent, so that they can quickly take down their protected works or leave the content to be casually shared if they so choose.

As it stands in 2012, content companies are treading in dangerous water by continuing to extend copyright terms, while legislating punishments such as temporarily disconnecting infringing FreeLoaders from the Internet. A United Nations report in 2011 called such disconnections a disproportionate violation of human rights, and they are right to raise concerns with the practice.6 The Grokster decision by the US Supreme Court wisely recognized the problems in too forcefully going after individual downloaders, rather than focusing on distributors. Unless content companies wish to revisit the poisonous history of the RIAA mass lawsuits in the US, they are obliged to work with governments to find proportionate, enforceable punishments for individual FreeLoaders, understanding that nearly any enforcement measure will be doomed over the long term unless copyright terms are returned to a reasonable length.

The fifty-year term also offers an opportunity for digital consumers who feel genuinely oppressed by the length of terms today: civil disobedience. The fifty-year term can be self-enforced by a consumer who wishes to make a statement: simply by counting back fifty years and FreeLoading content released before that year. This is no substitute for pressuring a political representative or organizing a constituency, but such a violation is at least conscientious, based on principle and respectful of creative works under reasonable terms.

If citizens around the world actively rally around the fifty-year term and corresponding enforcement measures, there is real opportunity for progress. But this will take work, time and the frustration of dealing with elected leaders who may not be willing to act.

7) Record labels/publishers and consumers share an opportunity to seek fair treatment of artists in the digital age, embracing a 50/50 royalty split for digital works as an ideal.

There is another opportunity for digital reform that can be powered by consumers and industry on their own: the FairDeal model. For the FairDeal model, we look to the community-based ethics of Punk, built on togetherness and mutual respect, epitomized by Dischord Records of Washington, DC. Whether one is attracted to punk or hardcore music, the label presents the communities of independent music and publishing a way to capitalize on the efficiencies of digital distribution, while combating freeloading and revolutionizing their respective industries.

As previously noted, no one in the 1990s argued that music should be free. The staunchest critics of the record industry were found in the punk movement and in figures such as Ian Mackaye, founder of Dischord and member of seminal bands like Minor Threat and Fugazi. The punks’ response to the raging commercialism they saw in the music industry wasn’t to give everything away, but to respect fans by charging around $10 for albums and keeping concert tickets in the same price range. This is the true spirit of DIY—not that we are all on our own, but that we can build something genuinely better together. Echoing the approach of Todd Patrick in the live realm, Dischord sought to do a “reasonable amount of commerce” to profit as a business, while keeping overhead low to give bands a larger cut of profits while charging consumers less than other labels. But Dischord was marginalized by the stridency of (some of) its music and reliance upon independent record stores and distributors. Thanks to the digital revolution and direct sales, the Dischord model has the chance of exploiting a vastly expanded market of consumers and incentivizing the DIY model on a mass scale. Such is the dream of FairDeal.

Why don’t independent labels decide upon a standard of fair business practices that clearly sets them apart from the major labels? For example, that their artists receive a fifty percent royalty on digital sales and at least thirty percent on physical. They could also commit to charging no more than $9 for digital albums, sold directly through their online stores. If the independents were able to decide on such principles and brand them as “FairDeal,” or something similar, the stage would be set for radical change in the music industry that benefits independent labels, artists, and fans. Realistically, FairDeal would need to become its own independent organization, charged with certifying that contracts fit its parameters as advertised so that consumers were not deceived. Labels could then use the designation to market themselves individually (FairDeal certified stickers or stamps) or combine their efforts to create a digital wholesale store, where a digital consumer could shop knowing that the participating bands and labels all fell under FairDeal. If some combination of these ideas were initiated by independent labels and found support from paying consumers, the major labels would be forced to take notice. By building such a community of engaged creators, investors, and consumers all treating one another with respect, manifesting shared cultural visions, the Internet would deliver a sustainable consumer revolution. Rather than taking the FreeLoaders’ lazy approach to destroy the music industry, the goal would be to participate in creating a better one. Such a course of events isn’t as unrealistic as it may at first sound.

Many independent record labels already offer 50/50 deals and would only need to publicize them and organize a FairDeal structure, perhaps through the independent labels’ advocacy group, A2IM. As for the digital wholesale store, the basic idea is already being played with. A wide association of labels participated in TheNewRecord.com, which launched in October, 2011. The site served as a center for fans to browse new releases by independent label artists, sample licensed MP3s and link to the labels’ respective digital stores to buy directly. Add the FairDeal brand and perhaps some social media features, and the independents have an opportunity to support the wider independent community while profiting individually. Another layer could be added in which physical independent record stores participate by offering promotions or advertising events. The possibilities are exciting and, if successful, could be copied by the book publishing industry with relatively few alterations.

In the capitalist system, any change is possible if consumers perceive value, be it ethical or qualitative, and respond with their wallets. Responsibility can be a truth-based brand, a status symbol, and a signifier of conspicuous consumption. When consumers and industries come together in mutual support of progressive economic practices and can prove such partnerships to be profitable, we have the potential to substantially affect the world, and the internet surely makes this type of change more possible than before.

Finally, resolving the tension of freeloading requires greater awareness of the need for communication between consumers, creators, and editors (such as labels and publishers). The news media in particular has a role to play in this regard, to not be bashful when it comes to reminding readers and viewers of creators’ rights when they are questioned or violated; or of the spirit of limited copyright terms if and when additional extensions emerge for legislative debate. The words we use when discussing freeloading, the attitudes we accept and the openness of the conversations we hold on the issue (private or public) all make a real difference in the aggregate—they impact whether we will use the Internet to create or to destroy. The Decade of Dysfunction went on as long and painfully as it did for no other reason than this communication breakdown. For solutions to remain possible, we must not be afraid to listen.