The (Non)Problem of Piracy

Yesterday, I sent out a series of tweets tagged with #piracyinanutshell. And, frankly, it was a long series, because I had a fair bit to say on the subject, and even when I stripped my thoughts down to the basics, there was a hell of a lot left. One of my friends remarked that he couldn’t possibly retweet all that (and most people who did retweet any part of it stopped after the first three tweets), and since I’d been dithering with the idea of a blog for a while, I decided it was time to finally give it a go and give my Twitter account a little rest.

So this is my big blog post on piracy – the digital kind, mainly, though I may touch on other kinds. It’ll cover a lot of the same territory as the #piracyinanutshell tweets, but I’ll be expanding on some of the points I made there. And, I’ll be honest, this will probably tie into a lot of stuff other people have already said, and said well. But with SOPA, PROTECT IP (PIPA), ACTA and more still rearing their ugly heads, the debate is far from over, and I’ve been wanting to say my piece for a while now.

Hi, my name is Cassandra, and I am a pirate. Yarr.

Actually, the truth is that I haven’t pirated much of anything lately. That’s not because I’m afraid of SOPA or PIPA, though I think they’re terribly bad bills that should not under any circumstances be made law. It’s also not because I’m afraid of the MPAA or the RIAA, though of course I’m naturally afraid of any dangerous, irrational person armed with devastating weapons, and both organizations seem to be stocked full of such people right now. No, my piracy has died down mainly because it is far, far easier for me to access the content I want to enjoy through legitimate methods than it was even a few years ago. Does piracy still exist? Sure. And lots of people – even at the MPAA, even at the RIAA, even at the various entertainment companies that have voiced their support for stronger copyright enforcement – still engage in it. But is it still a problem? Was it ever a problem? Well…


Okay, yes, there are forms of piracy that are problematic, to say the least. If someone is profiting off work they do not own, that’s wrong. Flat out. Plagiarism is wrong. Unauthorized reproduction and sale of intellectual property is wrong. What Cooks Source did was wrong. The situation described in this blog post is wrong. If someone rips off the movie you spent months or years of your life perfecting, burns it on a DVD, and sells it for half-price, they are unlawfully depriving you of income and they should be prosecuted to the full extent of the law.

But what if people aren’t profiting? What if they’re just sharing a music file with others, or uploading a TV episode that other people might have missed? Well…certainly it’s not great. Certainly it’s against the law as it currently stands. Certainly people should be supporting the people behind the music, books, movies, TV shows, comic books, and other entertainment they love. And maybe it’s not the most moral thing you can do.

But I want to touch on a point I just made: most forms of piracy are already covered by the law. SOPA and PIPA didn’t exist when the RIAA and MPAA were going after pirates (and suspected pirates, and people who almost certainly were not pirates) with vicious, predatory lawsuits. Megaupload was shut down without the power of ACTA. What does this tell us?

It tells us that we are past the point where effective legislative solutions to piracy can be implemented. More than that, we are well past the point where draconian attempts at legislative solutions to piracy should be implemented. In fact, we as a society – and, most especially, those of us who create, publish and license content – should be taking a long, hard look at piracy, copyright, and copyright infringement as they currently stand. Because we can never end piracy – it will always be part of our society. But we can minimize it.

Let’s start by asking ourselves why people pirate copyrighted material rather than buying it. There are a few main reasons, and I’ll get the more vexing reasons (which, in my opinion, still represent a minority of pirates) out of the way first.

1. Some pirates aren’t interested in paying one red cent for your work. Sad but true. Some people just want a free ride. Maybe you ticked them off at one point and they’re voting with their dollars – but they still want to see what you’re up to. Maybe they’re horrible people who refuse to pay for anything they can steal. You can think what you will of them, but here’s the ugly truth: these are not lost sales. These people are not lost customers. They were never going to be your customers. And if piracy somehow ended tomorrow, they’d probably just go without.

2. Some pirates might pay for your work, but your asking price is out of their range. Maybe they can’t pay you what you’re asking. Maybe they just think it’s too much. I think a lot of software piracy comes down to this. These people might buy used copies at a reduced price, but they probably won’t pay the full ticket. These are lost sales, but unless you’re willing to lower your access price, or implement some kind of ‘pay what you will’ program, you probably can’t do much about these people either.

3. Some pirates just want to try your work out before they buy it. Okay. This has, historically, been me. I’m going to make some confessions now. I’m not proud of any of these things. My first copy of Eden Studios’s excellent Buffy the Vampire Slayer RPG corebook? Scanned PDF found on the Internet. After hearing Dar Williams in concert at a college conference, I downloaded a few more of her songs to see if I really liked her, and I did not pay for them. Same with Jonathan Coulton, following my first exposure. And so on. But I went on to spend tons of money on all these things: after I’d checked out the Buffy RPG and figured out it really was for me, I not only bought the corebook, but all the supplements. And the Angel RPG. And the All Flesh Must Be Eaten corebook, and several of its supplements. And the Ghosts of Albion RPG. I became a loyal customer. Those musicians I mentioned? I’ve bought songs on iTunes, albums in stores, tickets to their concerts. And I am not alone in this. Most people don’t like to plunge headlong into something they don’t know much about. That’s why free quickstart kits for RPGs are a fantastic idea, why video game publishers should put out more playable demos, why it’s a really really good idea for musical artists to post music videos and sample songs online. Even that won’t stop piracy, of course, but it’s a step in the right direction. And the people who pirate for this reason – because they want a free sample – aren’t lost customers. They’re potential customers.

4. Some pirates really, really want to buy your work…but they can’t. Oh no! The DVD won’t be out for months! Or it’s already out, but only in specific regions! The next season of your TV show is about to start and none of the old episodes are on Hulu or Netflix or Amazon or iTunes! Your new book isn’t currently available in certain countries! What’s a poor fan to do? These are lost sales. And they’re on you. Or possibly your publisher, or distribution company, but the point is that there’s a solution: make your work available. Don’t turn your nose up at ebooks or streaming video or downloads. Use every avenue you can to get your work out there just as soon as you possibly can. (I’m going to point out that even the great Neil Gaiman is not above this form of piracy. He recently mentioned on Twitter that someone had burned the latest episodes of the BBC’s Sherlock on disc for him. When called on it, he said quite reasonably that he would buy the DVD when it came out, but he wanted to watch the show as soon as possible. And, in an age when spoilers are literally everywhere, sometimes even on t-shirts, this is a fair point.)

5. Some pirates want digital backups of items they already own. Although, often, these people are just ripping CDs or DVDs if they can. These are lost sales in the sense that people aren’t paying you twice for the same thing presented in different formats, but…really, are you entitled to that? Once someone owns something, shouldn’t they be allowed to back it up or store it as they will? If they then turn around and sell the item to someone else, but keep the digital copy, okay, that’s annoying and, yes, technically illegal. But most people aren’t thinking that far ahead. You can minimize this form of piracy by volunteering digital copies of any material you sell. At least one of my Supernatural DVD sets came with a code that allowed me to download all the episodes on iTunes. My copy of the Cortex RPG came with instructions that allowed me to obtain a free PDF. If you’re committed to service, customers will flock to you. They’ll stay loyal. Digital backups make for great service.

Oh yeah…and there’s a sixth reason.

6. Some pirates are sick and tired of the crap you’re putting them through. Why am I not allowed to skip through the anti-piracy ads on some of the DVDs I bought through completely legitimate means? Why can’t I rip the CD I bought to my iTunes account so I can play the songs on my iPod? Why do I have to put up with draconian, intrusive DRM that stands a decent chance of screwing up my computer? EA, do you really need to make me log into the Cerberus Network every time I want to play the DLC I already paid for and added to my copy of Mass Effect 2? Couldn’t you just check once in a while? What if I’m not connected to the Internet? I have been known to play games on my laptop while traveling. Yes, I do put up with DRM and other anti-piracy measures, but I don’t like it. A lot of people don’t like it. And there comes a time when you’ve pushed people too far and they don’t want to play your games anymore. I promise you that the movies, music and software you can get on, say, The Pirate Bay don’t come with any of that stuff. People don’t like to be treated like criminals, and it especially grates when they have in fact done precisely what you want them to do.

So there are the problems. What are the solutions?

1. Make your work available. I touched on this earlier, but again: push your product any way you can. If you’re only selling Region 1 DVDs of your cool new indie movie, well, maybe you should look at digital distribution to customers outside the US. And, yes, as a bibliophile, I have my problems with the Kindle, the Nook, and other such platforms – but as a content creator, I cannot afford to ignore the realities of digital publishing. A lot of people do their reading on those annoying little tablets now. Ignore them at your peril.

2. Push more free samples, and/or offer subscription services. I’m looking at the comic book companies here. Guys, I love you, and I’m really excited by some of the stuff you have to offer, but I’m poor. I can’t afford to keep up with your huge summer events, and my pull list is already pretty full, so a new series is going to have to fight pretty damn hard for my dollar (or four…or five). But you’ve taken some steps in the right direction: you try to put your best foot forward on Free Comic Book Day, and sometimes you publish sample pages or entire issues of new series in the back of your existing books. A couple of you even put your first issues online to hook readers. All good.

But…guys…have you taken a look at Netflix? Seriously, look at Netflix. $7.99 a month, and I get access to their whole streaming library. It’s a pretty good library. It’s not perfect, but you could put your second-string series on a service like that. For higher prices, maybe I get access to everything. When I go into a comic book shop, I often don’t leave without spending fifteen or twenty bucks just on books I’m going to read once and throw away. If I could spend twenty, thirty bucks a month on a service that granted access to digital copies of all of DC’s comics, or Marvel’s, or Dark Horse’s, yeah, I would probably spring for that. I would keep buying trades (because they often include special features and I like physical books) and action figures and shirts, and the collectors would keep buying those physical comics. (Comic book stores would probably take a hit. Hopefully they would be able to keep going through trade, toy and specialty item sales. I can’t say I like this, but again: I can’t ignore the realities of digital publishing.)

And this goes for a lot of businesses. What if I could read X number of novels out of, say, Tor or Del Rey’s catalog for Y dollars per month? I’d probably try more new books, and I might discover some new authors who would then get a whole lot of my money. (Jim Butcher, Patricia Briggs, Seanan McGuire and Charlaine Harris already get more of my money than I care to admit.) Music? Hell, there are already music subscription services out there. TV? Hulu Plus already has you covered, and by the way, more networks should sign on to Hulu or similar services. Movies? What if I could pay a premium to Netflix or another service for same-day-as-theater streaming access? There would still be advantages to going to the theater (the social experience) and to buying DVDs (special features, higher resolution), but if I just wanted to check out a movie I wasn’t sure about, it’d be a hell of a lot easier.

But then there’s my next, slightly contradictory suggestion…

3. Offer more a la carte options. Now I’m looking mainly at HBO and Showtime. Look, premium channels are expensive. And here’s the hard, cold fact: I don’t want to pay for the whole package. I’m not even going to watch most of the time. HBO is A Game of Thrones and True Blood. Showtime is Dexter, House of Lies and Shameless. That’s it. And sometimes they put free episodes of new series online to get us all hooked, and that’s great, but I still don’t want to pay the full admission fee for the networks. But iTunes already has a workable concept here: the season pass. You pay one fee for the whole season, and as each episode becomes available, you download it automatically. If I could pay 25 bucks for a season pass to Dexter, True Blood, or House of Lies, I would do so in a heartbeat. I could keep up with my favorite shows, I could talk to fellow fans without fearing spoilers, and I wouldn’t be paying for a whole slew of channels I won’t even be watching 95% of the time. And, again, there would still be reason to buy the DVDs: higher resolution than streaming video or digital downloads would allow, better framerates, better sound, and all those lovely special features. (I won’t lie: the special features are half of the reason I love the True Blood DVDs. The fake commercials, the PSAs, the documentaries…they’re pretty damn awesome.)

4. Consider alternate pricing models. Remember what I said about people not meeting your asking price, or not wanting to pay for your work at all? Well…here’s a way around that. Let them pay what they want. It’s not going to work for everyone, obviously, but it’s been tried on an experimental basis: Cory Doctorow‘s done it with his novels, Radiohead did it with In Rainbows, game developers have done it with the Humble Indie Bundles, and even restaurants have gotten in on the act. If you’re an indie developer, writer, musician, filmmaker or artist, you might draw in potential customers by following their example. Will you get rich? Probably not. But I’m often pleasantly surprised by the generosity of the average person. Plenty of people have made money by putting their work out there and trusting their fans to pay what they think is fair, whether through direct purchases or later PayPal donations. It’s hard to argue with someone’s asking price when the asking price is whatever the customer is willing to pay.

5. Do not treat your customers as criminals – use carrots, not sticks. No restrictive DRM. No limitations on the customer’s ability to back up their purchase. No mandatory anti-piracy PSAs. If you want to provide an incentive to buy a certain product, try offering bonus material with the purchase: special features, sneak peeks at your next project, DLC, whatever. Hell – Mass Effect 2’s Cerberus Network is controversial for a lot of reasons, but it’s not a terrible idea. If you buy ME2 new, you get free access and some bonus DLC. If you buy it used, you don’t get access to the Cerberus Network – but you can still play, and if you want Cerberus Network access, you pay a small, one-time fee and you end up with all the perks a new user received. I don’t want to hold up EA as a sterling example of how to treat your customers nicely, but I think they were on to something with Cerberus.

Oh, yeah…don’t be a jerk about people selling used copies of your work, either. (And I realize I’m talking mainly about physical products here, though some electronic licenses are transferable.) Yes, that’s money you don’t get to see, but unless you’re willing to change your pricing model, you probably wouldn’t end up seeing that money anyway. Again, carrot, not stick: you can easily say, sure, buy my game used, but if you buy it new, or pay me a nominal fee, you can get all this shiny premium content. You can buy my album used, but there was a one-time code in there that gave you access to a special section of my site – and, hey, you can still get a fresh code with a small donation. And so on.

6. Protect your work, but don’t be a jerk. Mashups. Fan videos. Fan fiction. To some creators, they’re perfectly fine – even awesome! To others, they’re the devil’s work. But here’s the thing: your fans will remember how you’ve treated them, and yes, it may affect their purchasing decisions. You should also recognize fan work for what it is: free advertising. Now, as a writer, I know people like me can’t afford to read fan fiction based on our work – if similar elements come up in later installments, we may be accused of plagiarism; we may even inadvertently commit plagiarism. It’s a little easier for, say, musicians to watch fan-made music videos or listen to mashups of their songs. But whether or not we personally review this fan work, whether or not we give it our personal stamp of approval, we can encourage the fans to do what they like as long as they reference the original work. I discovered Jonathan Coulton through a machinima music video for Code Monkey. I’ve discovered some really interesting movies and TV shows through clips used in YouTube videos. Your attiude as a creator should be use, but attribute.

Some people may do things that irritate or offend you – but if you start telling the fans what they can and can’t do, or (God forbid) personally reviewing and approving all fan material, you lose plausible deniability if something goes wrong; and if you shut them down altogether, you may lose fans. As long as your fans are making it clear that their creations represent their interpretations of your work, and as long as they recognize your ownership, include proper attribution, and link back to you in some way, it is not your problem. It may even be a boon.

And if you are in a position to look at some kind of fan work, and you like it, make sure you say so, and in a public forum. The fans will love you for it, and you may end up discovering an exciting new talent and encouraging someone’s future career. Stranger things have happened.

(But, again, as a writer, never ever ever ever read fan fiction based on your work. At least not until you’re absolutely certain you’re never revisiting the subject.)

7. Know when to release the Kraken. That kid in Dubuque, Iowa who’s sharing a bootleg tape of your concert with all his friends is technically committing a crime – but he’s also bringing in new fans. That woman in Santa Barbara, California uploading new episodes of your television show to The Pirate Bay is technically committing a crime – but she’s also providing a service for existing fans, and possibly allowing new fans to catch up. You can pursue legal action…but maybe you should stop and think about what you’re doing. Maybe it’s time we all let piracy go…as long as there’s no profit involved.

Ah, and there’s the rub. Sometimes you have to bring the hammer down. If someone is making a profit off your work, without your permission, go talk to a lawyer and nail their sorry butts to the wall. If someone’s ripped you off without attribution and refuses to make things right – profit or no profit – it’s time to stop playing nice. But remember: with great power comes great responsibility. Don’t fight the fights you don’t have to.

Of course, the nature of copyright is such that sometimes you have to go after anyone who infringes on it, and you can’t ignore piracy once it’s brought to your attention, even if you’re perfectly okay with people sharing your stuff without your direct permission. But that’s where all your other options come in. If you make it as easy as possible to access your work, if you offer something of value for the customer’s hard-earned dollar, if you grant limited permission for not-for-profit derivative works…then you will minimize piracy. You won’t have to fight as many battles. You won’t have to look like the bad guy when you don’t want to.

The market is evolving. The Internet has had a huge impact on all our lives, and we all have to face facts. Information is free, and no matter how many lawsuits you file, how many politicians you buy, how many laws you push through your respective governments, that’s not going to change. Not easily, and not without draconian measures that would have a profound negative impact on all of us. You can still make money in this world – but only if you work to win the sales you actually have lost, and recognize the rest as sales you never had in the first place. Stop treating pirates and piracy as the problem. Start treating customers like people worthy of your respect. Change now, or watch the world change without you.

As noted in Angels in America, the world only spins forward. Try to keep up.