by Chris Whitten (copyright in the author)

It has been thirteen years since the free music service Napster burst into our consciences and anti-copyright activist Larry Lessig began campaigning for the free culture movement. Today however, we find that the free culture movement has lost the war for hearts and minds within the creative community and also increasingly with consumers.

Recent independent research and national political elections show the movement is going backwards from an already low base. The die-hards, lead by a small group of older academics like Lessig, and promoted by younger tech bloggers, who may be benefitting financially from their advocacy, have failed to convince with their philosophical, political argument. Even their claim the creative community would be richer, financially and artistically, by sharing it’s output free of charge hasn’t changed the way the creative community distributes its work.

Nothing promotes innovation better than successful innovation. And yet the vast majority of writers, film makers, photographers and musicians still copyright their works and still seek funding from traditional media organizations.  Anyone with even a passing interest in entertainment understands the bandwagon effect. Lifestyle TV is very popular; suddenly everyone wants to be a celebrity chef. Boy bands are popular, and suddenly there are a dozen new boy bands. Blockbuster movies based on 1960’s comic superheroes bring in millions at the box office, and there are now a slew of new movies featuring superheroes you’ve never even heard of before. Simply put, the MPAA and RIAA can’t stop the creative community from adopting successful innovation.

So over a decade into the free culture debate, where are the Top 40 Creative Commons stars? Where is the blockbuster TV series given away free on YouTube? Clearly there is no grass roots revolution in free entertainment that is gaining unstoppable momentum.

On September 24^th 2013, during a public debate held in Melbourne, Australia, titled ‘Copyright Is Dead, Long Live The Pirates’, the free culture movement rolled out Electronic Frontier’s Australia board member Angela Daly. During the debate Daly claimed to have benefitted more financially from giving her books away online, than by selling them through traditional means, protected by copyright. A second anti-copyright speaker, writer and journalist Dr Suelette Dreyfus, elicited enthusiastic applause from the audience by claiming copyright was a stitch up, legislated behind closed doors undemocratically, mainly benefitting big business. She attempted to hammer this home with a claim the entertainment industry is threatening the freedom and privacy of ordinary citizens in it’s efforts to protect copyright.

These free culture bullet points have not changed over the last decade. However, we now have ten years of experience post online piracy to assess them.

Bullet point number one: Can your business be more profitable by giving away the product?

Maybe. But isn’t that a choice better made by the product maker of their own free will. Not forced on them by outside parties? The free culture lobby has a tin ear on this. Daly chose to give her book away freely. That’s completely different from having her business decisions made for her, against her wishes. And if it really was such a no brainer, the simple reality is that millions of young, idealistic writers would have given their books away free by now and benefitted more financially as a result.

If you can show a believable way creative people can grow their business it’s extremely likely many of them will adopt it. The free culture movement has been unable to convince writers and musicians that they can survive and prosper by giving away their work.  As a result we find that an artists work is far more likely to be taken without consent than offered freely.

While I’m on the subject of tin ears, Angela Daly brought up that other old chestnut; free content fuels alternative sources of income. “A musician can make money playing live”. This claim has been rebutted time and time again, but the anti-copyright lobby either isn’t listening or fails to understand the very simple counter argument. As a musician in the 1980’s and 90’s, my income was derived from recording and playing live.

If you remove my income from recording, I am left with income from playing live. It isn’t shiny, new income; it’s income I was already earning thirty years ago. As simply as I can say it one more time, there is no financial benefit from having my avenues of income reduced.

As to copyright being an abuse of democracy by big business.

Isn’t it a little less democratic to ignore creative worker’s legal rights and take content without buying it, just ‘cos you want it? In fact one of the most recent changes to copyright occurred in 2011 as a result of lobbying by individual musicians in Europe, not the axis of American evil the anti-copyright lobby always cite; Disney, the MPAA and RIAA. At the time, UK Musician’s Union General Secretary John Smith called it a “brilliant moment”. By contrast, Jim Killock, executive director of the Open Rights Group, said, “It puts money into the pockets of big labels”.

So despite the clear evidence that average creative workers want copyright protection, piracy advocates never talk about individual artists because it humanizes the debate. Their clear tactic is to dehumanize by continually talking about Disney and the RIAA, wealthy and faceless corporations the general public have little sympathy for.

Dreyfus’ alarmist claim that the entertainment industry is attacking the freedoms and rights of those using the internet came just four months after Edward Snowden’s Prism-gate revelations to The Guardian newspaper. More evidence that the anti-copyright lobby seems incapable of evolving their case for change.

Despite the ongoing furor around technology corporations colluding with the NSA to spy on millions of Europeans, anti-copyright activists still blame the entertainment industry for threatening freedom and privacy on the internet. Really?

Having mentioned democracy, I guess I should commend some in the pirate community for taking their fight to the high seas of mainstream politics. The American Pirate Party leadership state ‘Our primary goal is to get elected into office. We believe in political change from the inside’. There would appear to be no rush to test their digital rights and copyright policies with the American voter however, as they’ve yet to formulate a broader policy platform necessary to mount a meaningful assault on any level of representation, local or national. Elsewhere, the political wing of the pirates has been active since European parliamentary elections in 2009.  Recently, Pirate parties in Australia, Germany and Norway took their message to the people in September 2013 national elections. Unsurprisingly, Pirate Times declared a 0.3% result for the PP Norway ‘a good result’, going on to suggest ‘the future looks bright’. However, measured against the high water marks attained at their launch in 2009, the pirate’s political ship appears to have hit The Doldrums, especially Down Under and in Deutschland.

Having gone as hard on government abuse of digital rights as they have on copyright reform, The Pirate Party could muster no more than 2.2% of the popular vote in recent German national elections. Between 2009 and 2012 the pirates had enjoyed some success in local elections, and had scored as highly as 13% in opinion polls across Germany. However, despite the ongoing NSA scandal, Der Spiegel predicted a ‘sinking ship’ in the run up to the 22^nd September election.

Earlier that month voters across Australia had shown more interest in The Sex Party, The Motoring Enthusiasts, and The Shooters and Fishers than the Pirate Party.

The big story of the September 2013 Australian election was not the success of the conservative coalition lead by Tony Abbott, but the rise of the ‘micro-party’. Two new political forces made it to the country’s capital. The Palmer United Party, not so much a single interest party as a self-interest party funded by billionaire mining magnet Clive Palmer. At the other end of the funding scale, The Australian Motoring Enthusiast’s Party, which campaigned amongst other things on the rights of 4WD owners.

With Edward Snowden trapped in Moscow, and expat Australian Julian Assange trapped in London both hitting the headlines in the run up to the September 7^th election, you’d think The Pirate Party would at least attract a sizeable youth vote, especially with voting mandatory in the Australian system. But it wasn’t to be.

Across Australia, The Pirate Party polled just 0.31%, with just over 42,000 votes nationally. The Australian Fishing and Lifestyle party won 0.45% of the vote, The Motoring Enthusiast’s Party, 0.50%, The Shooters and Fishers, 0.95% and The Sex Party, 1.37%. For some context, the other political party active on digital rights, The Australian Greens, polled 8.64%, around 1.5 million votes, and this was seen as a disappointing result for them.

So you might be forgiven for assuming Australians are too busy having sex in the back of a Land Cruiser after a successful morning’s fishing to pirate movies and music, but you’d be wrong.

Australia has garnered the dubious accolade of being the world’s leading pirate of popular American television.

In 2012, website Torrent Freak published piracy figures for Game Of Thrones which revealed over 10% of the show’s entire illegal downloads originated in Australia, a nation of just 23 million people. America, populace 313 million, could only manage 9.7%. A year later in April 2013, Australia again topped the piracy league table with 9.9 percent of all those downloading Game Of Thrones. Torrent Freak cited broadcast delay and cost of access as reasons for the high level of downloading.

Prominent local technology site Delimiter, which describes it’s readership as ’primarily IT professionals and early technology adopters’, headlined it’s coverage with ‘Despite quick, cheap, legal option, 
Australia still top Games of Thrones pirating nation’.

A few weeks ago the finale episode of AMC series ‘Breaking Bad’ again broke piracy records with 18% of the show’s illegal downloads originating in Australia, 14.5% in the USA. Torrent Freak cited the ‘convenience’ of file sharing sites, and the cost of legal access. However, subscribers to Foxtel could watch Breaking Bad’s finale episode just five hours after it was aired in America. Not bad considering Aussies are already at work on a Monday morning when Californians are just sitting down to their Sunday evening’s TV viewing.  iTunes offered the finale episode for AU$3.49

Delimiter’s Renai LeMay wrote:

‘Personally, I don’t really believe there is a basis for pirating shows like Breaking Bad on the basis of what many see as the technical annoyances of platforms such as Foxtel and iTunes.’

LeMay does however highlight an issue around converting consumers with disposable income into paying customers:

‘Most of my friends and colleagues are in their late 20′s or mid-30′s. They all have substantial disposable income and spend a solid proportion of it on entertainment and art. What this says to me is that there is a massive untapped market for great content in Australia — a market which is currently satiating its demand for shows like Breaking Bad illegally.’

So, perhaps there is an argument to be had about instant global access, especially in the age of social media. I guess it’s understandable that a certain demographic can’t stay off Twitter or Facebook for a day just so the ending of a popular series isn’t ruined for them. But at the same time, are local TV stations supposed to air their most watched shows, their most valuable asset, in the middle of a weekday morning just to satisfy a minority of viewers?

I will agree that consumers are experts on consuming. However, they aren’t experts on production. Quality content doesn’t grow on trees; it is invariably expensive to produce. Before the consumer gets hooked on a well made TV series, the show’s makers have to secure reliable and long term funding to get their series made. It’s not a little unfair then for consumers to complain about lack of cheap and easy access once they have become fans of a certain show. Cheap television is reality TV made with amateurs and a skeleton crew. Popularly pirated shows like Breaking Bad and Game Of Thrones employ a large, experienced and professional crew are filmed on elaborate sets, and feature professional actors.

Ironically, the reader comments posted below pro-piracy blogs often make the same excuse; “I pirate movies and music because I won’t pay for the crap the entertainment industry is making”. Which seems like a catch 22 scenario to me. You probably get what you (don’t) pay for. In any case, I don’t think anyone could claim ‘Breaking Bad’ is either cheap or crap.

Back to the IQ2 debate in Melbourne, ‘Copyright Is Dead, Long Live The Pirates’.

Lori Flekser, executive director of the Intellectual Property Awareness Foundation, spoke in support of copyright. She says research shows the vast majority of people download content because it is free, and not for any other reason. She cites research undertaken over five years by independent research organization Sycamore, in conjunction with Newspoll.

Flekser wants to dispel a few myths about content piracy.

Her number one myth is that everyone pirates. Implying that if you pay for content you are in a minority, essentially a sucker.

In fact, the Sycamore/Newspoll research shows 75% of Australians over the age of 18 (polled anonymously) do not illegally download content online. A similar figure has been stated by UK communications regulator Ofcom, with 18% of internet users over 12 years old admitting to having pirated content, according to their research. The Breaking Bad finale enjoyed a paying audience of 10.3 million in America alone, with half a million pirating the episode worldwide. So yes, it is clearly a small minority who are pirating. But perhaps they are a very vocal minority, especially online in the forums, tech blogs and chat rooms.

Another Flekser myth, which I would rather call an ‘excuse’, is that people who make television and films are too rich.

Although undoubtedly financially successful, Breaking Bad creator Vince Gilligan called piracy “ultimately a problem” in a recent interview with the BBC. “A lot of folks who worked on the show would have made more money,” he said.

Let’s not forget that as well as Hollywood executives like Gilligan and star actor Bryan Cranston, many who worked on the show are far less well paid including, the camera assistants, caterers, electricians and runners. These are average workers who depend on a show’s financial success for a job. If a show doesn’t make money, hundreds of employees are laid off.

Piracy is also not means tested. A common claim I hear, which is similar to the above, is that poor kids are pirating the content produced by millionaires. However, I’ve personally witnessed financially comfortable consumers (neighbors, and acquaintances) illegally downloading the music of debt ridden indie-rock artists.

The internet has given creative people instant access to a global market. Every year the tools we need to create have grown more powerful and become less expensive. We have the ability and freedom to self publish and distribute independently online. And yet the anti-copyright lobby still treats us as if we’re naïve, cowering to big business and shackled to the media moguls of the last century.

In fact artists continue to innovate and exploit opportunity via the internet. If simple exposure brought with it enough income to support our work, most of us would have freely shared more content than has actually been shared. By and large, writers, filmmakers and musicians still rely on people paying for their entertainment. That’s because the tried and tested business models work for most, and the free culture models only work for a few.

There is a very loud minority online, mostly male, 18 to 35, who believe they have a right to dictate to another sector of society, the creative community. They demand the power to set the price of content, when and where they access it. While they claim it’s a democratic right, when democracy gives them the chance to vote for greater digital rights and even dismantled copyright, less than 1% vote for it.

So I think you have to conclude there is no appetite for change in the general populace. Online piracy is simply about presenting consumers with content they can download without paying for it and without any negative repercussions to themselves. It’s about something for nothing, not about new societal attitudes to entertainment and the creative community, otherwise the Pirate Party in Norway, Germany and Australia would be as popular with voters as pirating content is.

When Labor’s climate change legislation increased the average Aussie’s electricity bill by 10%, Tony Abbott’s conservative coalition, vowing to repeal the tax, swept to power with over 45% of the popular vote. Promising to protect Australian’s digital rights and fundamentally changing copyright (which would effectively legalize illegally free access to content) The Pirate Party received less than half of one percent.

What consumers don’t spend on music, movies and television, they spend on shiny new gadgets on which to play music, movies and television.  As more and more content creators slip into financial hardship, the pirate site owners and tech barons build enormous corporate and personal wealth.

It’s still about money for both sides, and still not about politics or ‘new’ ways of thinking.

Articles used in research or mentioned:

http://piratetimes.net/pp-norway-got-0-3-in-national-election-and-750-000-euros/

http://www.spiegel.de/international/germany/pirate-party-fails-to-capitalize-on-nsa-scandal-a-923303.html

http://www.abc.net.au/radionational/programs/bigideas/copy-right-is-dead/4963270

http://www.abc.net.au/news/federal-election-2013/results/senate/

http://pirateparty.org.au/wiki/Policies/Copyright

http://www.ipawareness.com.au/home

http://torrentfreak.com/whos-pirating-game-of-thrones-and-why-120520/

http://delimiter.com.au/2013/04/03/despite-quick-cheap-legal-option-australia-still-top-games-of-thrones-pirating-nation/

http://delimiter.com.au/2013/10/01/australia-extends-global-internet-piracy-lead/

http://www.bbc.co.uk/newsbeat/24550831