On piracy and copyright and file sharing and free speech

Home taping is killing live music. Isn’t that what those old adverts used to say? The ones supposed to shame those of us with a drawer full of bootleg cassettes in our student rooms? I don’t recall such campaigns doing much good. But I also remember why we had those cassettes and why such small-scale, furtive illegality bears no comparison with the massive digital piracy that’s now going on and which so many people seem to think is somehow acceptable or excusable.

We copied those tapes because we were broke. I was, in 1983, and I am not talking about not having the cash to buy everything that I might want. I am talking about not having the money to buy the essential necessities of life. After paying my hall fees out of my student grant (which included daily breakfast and six other meals a week), I had £17.30 a week to live on, by which I mean buy clothes, food, books and everything else I might need. At the time, unemployment benefit was £25.40. And that was just in term time. Outside term, I worked in supermarkets, pubs, hotels and old folks’ homes, often two jobs at a time, as well as studying for the upcoming term. So no, I couldn’t afford legitimate music.

But here’s the thing back then, and it was the same for everyone I knew. As soon as we could afford to, we did buy legitimate copies of the music we loved. Being able to do that was almost a rite of passage and definitely a cause for celebration. Not least because the quality was so much better but also because we knew what we were doing was morally suspect, if not outright wrong. When we didn’t need to do it, we stopped.

In more recent decades, I’ve known pals with computer hard-drives loaded with illegal copies of UK and US TV programmes and films. This was because they had no legitimate way of seeing them; their local TV stations and cinemas weren’t showing them and at the time, because Amazon seemed convinced that the Balkans were still a war zone, they couldn’t buy anything online for local delivery. Once again, these friends worked very hard to get hold of legitimate copies, unhappy with the necessity of dodgy downloads. I’ve bought boxsets and books here in the UK and shipped them overseas. As soon as local conditions allow, those friends make legitimate purchases because they all understand that supporting the creative minds behind the things they loved would mean more of the same in the future.

That’s what copyright does. As Katherine Kerr says in her blog post which I urge you to read in full

The Founding Fathers established copyright protections with a short term to encourage writers and artists to create works ultimately for “the public good.”
… I doubt if it ever occurred to them that poor people might write books and thus need the money from the sale of those books to fund the next project. Fortunately, other legislators did realize it.
…Copyright frees the writer, in particular, from dependence on the patronage of the rich. …Books that would appeal to those “lower orders” were in short supply as well — until copyright. Books by and for women were most definitely in short supply …

This is not to say that copyright law is all wonderful. It’s highly complex, nationally and internationally and has been badly skewed by successive interventions by powerful special interests. I absolutely agree that it needs reform and I wish those campaigning for change every success. Mind you, I’m not convinced we’ll see much change until legislators at the highest levels really understand the need for change and are also prepared to take on those powerful interests, like, oh, for example, Disney. I’m not holding my breath, given those Rules for Life that include ‘Never start a land war in Asia’ also include ‘Don’t mess with the Mouse’.

Anyway, what has that got to do with the immorality of someone offering someone else an illegal digital copy of an author’s book, depriving that author and their publisher of at least the chance of legitimate revenue?

Deciding that a whole body of law has serious flaws is not an excuse for ignoring those aspects of it which are clear and straightforward, especially not when ignoring it is for one’s own personal gain. I object on both practical and moral grounds to the damage done to the UK dairy industry by the monopolistic practises and buying power of the big supermarkets. This does not entitle me to take a pint of milk from Tesco’s without paying for it. That is still theft. Or to give a technological example, for the benefit of those arguing with me on their iPads and iPhones – disapproving of the conditions in Apple’s Chinese factories doesn’t entitle me to help myself from the nearest Apple Store.

Ah but copyright law restricts free speech, I have recently been told. It is certainly true that restrictive regimes have used and abused various copyright laws to restrict and muzzle opposition. Yes, thanks, I know all about the history of samizdat publishing.

Once again, I ask, what’s the relevance of this entirely separate and yes, necessary debate, to the question at hand? How does how protecting my legitimate right to stop others illegally using my work for their own personal profit restricts anyone else’s free speech?

Since I’ve yet to get any satisfactory answer to that, let’s consider another entirely irrelevant argument that keeps being made. The file transferring technology that we now have offers so many varied and valid uses, not least enabling those under repressive regimes to share their thoughts and organise dissent. So do those undoubted benefits mean we have to tolerate the flood of digital piracy as a regrettable but inevitable consequence?

In what other sphere are abuses of technology ignored for the sake of its legitimate uses? I live in rural England where farmers and others have many and varied, legal uses for shotguns. I’ve yet to see any thug using a sawn-off to rob a bank given a free pass by the police.

Because what we are talking about here is illegality. And I am thoroughly sick of the supposed defence that file-sharing sites aren’t actually hosting the illegal files, they’re just putting the people who want to share them in touch with each other. Right, and pimps don’t prostitute their own bodies and fences disposing of stolen goods don’t actually go housebreaking. That doesn’t make what they do any less morally and legally reprehensible.

No, I am not in favour of SOPA or PIPA or similar. These are all fundamentally flawed attempts at legislation made by people with no real understanding of the complexities and realities involved. It’s on a par with the UK government’s response to the last outbreak of Foot and Mouth disease here; when the slaughter-and-cremate policy they insisted on was so outdated that procedures included instructions on requisitioning wooden sleepers and coal from local railway marshalling yards to build pyres. Yes, really. They were relying on plans made in the age of steam trains. But I digress.

Once there is the will, there must surely be a way to do something to address this very real and growing problem. Law courts can generally distinguish between those innocently caught up in handling stolen property and those who make a career out of knowingly engaging with organised and wholesale theft. Why can we not see those behind these file-sharing sites, claiming their hands are so clean, in court being asked to explain on what basis they imagined the latest John Grisham best-seller wouldn’t be subject to copyright and thus showing people where to find a digital copy for free was all so fine and dandy?

Because writers and artists are being deprived of their legitimate income. No, I don’t equate every illegal download with a lost sale but a percentage surely are. No, I don’t blame digital piracy for the way writers’ incomes have plummeted in this past decade. This is down to a perfect storm of changes in retailing and short-sighted moves by individual publishers and legislators resulting in a slew of unintended, destructive consequences. No, I won’t digress on all that here. If you want to know more, find me at a convention some time but be warned, you will end up feeling that the Wedding Guest collared by The Ancient Mariner got off lightly.

We have to deal with the situation we’re now in and the cold, hard facts are writers’ incomes are now under such pressure and publishers’ margins have been trimmed so finely, that even a small drop in sales lost to digital piracy can make the difference between contracts being renewed or writers being dropped. Forget the money for a moment. The current situation is bad for readers and the wider world of literature. Great writers are made, not born. Enduring and important works of literature emerge once authors have learned their craft and honed their skills in exploring and conveying the essential truths of the human condition. No one can do that if their writing career is cut off at the knees after two books.

Actually, no, let’s not forget the money. Because whether or not you care if any writers earn a living wage or not, let’s consider who is really raking in the cash from illegal piracy. Individuals like Kim Dotcom, who’s apparently made millions out of Megaupload, after his earlier convictions for computer fraud and insider trading. Then there’s the student facing extradition from the UK to the US over his website offering links to pirated TV shows and films, which was earning him £15,000 a month in advertising revenue. Okay, let’s say a book site wouldn’t get the same traffic. Reduce that by a factor of ten. That’s still £1500 a month for such a parasite abusing other people’s creativity.

How about the latest massive ebook piracy operation; a very slickly deceptive site from a cabal of thieving scum, offering unlimited downloads for a monthly subscription of $14.95, ‘just like Netflix’. No, not like Neflix (and I do hope their lawyers are aware of this) because not a penny of those revenues was going to authors or publishers and all those links were to wholly illegal downloads.

This operation has enraged me more than any other in recent times, because I can so easily see innocent new owners of a kindle/nook/kobo/whatever, with little Net savvy or understanding of publishing being duped. People like my Dad who’s contemplating an ereader on account of aging eyesight, a book lover who would never dream of actively seeking out illegal downloads. Someone like him could easily think this was an entirely legitimate site, just like Netflix, not least because he was honestly paying his monthly fee and the way such sites mouth pious platitudes about observing the Digital Millenium Copyright Act and here’s how to notify them of unintended infringement. Right, infringement of that brand new Patrician Cornwell bestseller which they had no reason to believe was under copyright.

Granted, such sites comply with DMCA takedown notices. Yes, they do, because it’s no skin off their nose if the people they’ve duped into handing over their cash can’t actually find the books they want next week. But why should the onus be on publishers and authors to police this theft of their intellectual property and then to laboriously issue those DMCA notices, a separate one for each of the separate formats in which any individual title is offered. This now takes up entire working days for editorial and legal departments, adding still more to a publisher’s losses.

And since we’re talking money, let’s consider how hard up someone must be to need to find illegal downloads, in the same way that we poverty-stricken students would club together to buy a pack of C90 cassette tapes. If you are able to afford to buy an ereader, still an non-trivial and discretionary expense, surely you cannot be that hard up. Okay, some people will get them as gifts who might struggle to find the price of a fancy coffee to spend on a new book. Then there are no end of free and entirely legitimate downloads available. Not just copyright-expired material though Project Gutenberg but offers and promotions from the publishers themselves.

I am no enemy of ‘free’. I choose to offer some of my own writing without expecting payment. Head on over to the Solaris blog for a copy of ‘The Wizard’s Coming’ if you like. Yes, this sort of thing is excellent advertising and a valuable promotional tool, more than ever in this digital age. The difference is, I have chosen to do this. My rights to earn a legitimate return from my own work have not been illegally and immorally ignored by someone out to line their own pockets.

I am a great fan and a lifelong user of libraries and while I value my Public Lending Right money from the UK, Irish and other European governments, I would donate my own books to libraries without any such recompense. I never mind seeing my own books in second-hand shops, even though I won’t earn a penny from resale. I see that as another way for my work to gain greater currency and circulation. The difference is libraries, physical or digital, are regulated and second hand copies of physical books are always going to be limited in number. Digital piracy downloads can add up to tens of thousands within hours.

Forget debates on cultural differences and history behind copyright or whether or not authors should write for art or money or the uses and abuses of technology. How is the current situation when amoral third parties can profit so massively from wholly illegal behaviour in any way acceptable? Answer me that and I’ll give you a free book.

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