The controversial US copyright and piracy acts Sopa and Pipa (see this Wired piece for a Bluffer’s Guide on what they are) have been thrust centre stage by Wikipedia’s planned protest black-out on Wednesday. It has taken an entity the size of Wikipedia to bring the debate out of the confines of the digerati and to the mainstream. For that Wikipedia deserves great credit.
And the debate does need to take place in the mainstream. The effects of the bills (if passed, upheld in the face of legal challenge and then successfully implemented) will be felt keenly by mainstream consumers.
However I am not going to add to the already vibrant and detailed discussion about the ethical and constitutional implications of the bills, nor the legion flaws and ambiguities in the proposed legislation. Instead I want to put Sopa and Pipa in the context of wider media industry strategy and response to digital change.
Sopa, Pipa and the Media Meltdown
Back in my days at Forrester I helped develop the concept of the media meltdown to describe the process of media industries responding to the impact of digitization.
The media meltdown occurs in three key stages:
- Stage 1: Audiences take control of their content consumption via new digital technology (think CD ripping, P2P, on demand video streaming, iPads etc).
- Stage 2: Traditional media industry business models crumble while media companies grapple with denial. Instead of comprehending that a paradigm shift in consumer behaviour has occurred they think they can turn back the proverbial clock by fighting online piracy and restricting the disruptive threat of legal services.
- Stage 3: There are two potential conclusions, either the media industries comprehend that user behaviour has changed for ever and that they need to embrace that change with new business models, or they fail. (For more on the media meltdown check Forrester’s CPS blog and the ever insightful James McQuivey)
Of course as with any analytical framework, this is a generalized world view but it provides a very useful lens through which to view media industry anti-piracy legal activity, lobbying and resultant legislation. It is immediately apparent that Sopa and Pipa fall within stage 2 of the media meltdown but it would be disingenuous to suggest that the media companies that have lobbied for them – and for other acts such as the French Hadopi act and the British Digital Economy Bill – are in complete denial. Rather what we have is a distortion of priorities. These media companies and their industry bodies in particular rightly identify online piracy as a major disruptive threat to their businesses. However, instead of recognizing that behaviour shifts have occurred around which new businesses should be built, they reason that turning off the tap on piracy will starve piracy of oxygen, until it withers away.
Digital Piracy Perennially Outwits the Pursuer
As well intended as this thinking is, it is flawed. Digital piracy (in its many, many guises) is all about innovation and change. Every time media companies manage to finally catch up with digital piracy – either through enforcement, legislation or technical measures – the pirates have already moved on. Fighting piracy is akin to a game of whack-a-mole, but in this version of the game the moles learn. Every time one is smacked down another one comes up that is smarter, harder to see and more difficult to reach.
Mainstream Consumers Become the Effective Targets of Anti-Piracy
The simple and unavoidable fact is that piracy will always move more quickly and more effectively than its pursuers. Technology improvements can be measured in days, even hours. Legislation takes years. This dynamic is one of the key reasons why acts like Sopa and Pipa have such far reaching implications for mainstream consumers: the hard core tech savvy pirates will always find ways of evading the counter measures, the mainstream will not. Remember how DRM inconvenienced legitimate customers and did nothing to impact pirates? The parallels here are clear. Of course there are obvious and important differences between digital content buyers and passive pirates, but there are also similarities. One of the most important of which is that they are often the same people. Many paid content buyers also access free illegal content: they blend their content acquisition practices, often using free illegal sources for either discovery or the content they are just not willing to pay for, and then paying for the rest.
Legislation is Fully Necessary But Strategic Priorities Need Rebalancing
To be clear, this is not an apology for piracy, nor is it an argument against legislation – indeed it is crucial that laws evolve quickly enough to keep up with digital change so they can establish the frameworks in which legitimate content business models can prosper and illegal ones cannot. Instead I am making the case for a rebalancing of strategic priorities and for taking the long view. Consumer behaviour has changed for ever. More people are consuming more content across more platforms than ever before, but fewer of them are paying for it. Making free illegal content harder to get will only weaken consumption and demand unless game-changing legal alternatives simultaneously fill the vacuum.
For example, turning off access to the Pirate Bay and then pointing users to iTunes will fall far, far short. Media companies need to get brave, like never before, and quickly so. They need to start looking at what makes the illegal services so threatening to them and then give legitimate companies licenses to do just the same, legally. Some media industries get this more than others. For example the TV studios quickly realized the best way of fighting free was with free itself, launching Hulu, ABC.com and iPlayer as genuinely compelling (in fact even more convenient) alternatives to BitTorrent.
Legislators: Compel Media Companies to License to Identikit Legal Alternatives
If the US Congress wants to ensure that Sopa and Pipa are balanced in a way that will help drive digital innovation rather than stifling it in favour of analogue-era protectionism, they should look to baking-in binding innovation commitments from media companies. To ensure that for every type of illegal service that is wiped out of the US-facing Internet, the opportunity is created for new companies to offer the same type of service legally, with guaranteed licenses from media companies (i.e. without being watered down to irrelevancy with usage restrictions). Then Sopa and Pipa could become the foundation stones of a period of unprecedented media industry innovation that would finally recast the mould of media business models in the post-meltdown world. The alternative is media industry failure. Though they might not realize it, the media industry lobbyists are currently on track for hastening their industries’ demise, not safeguarding their futures.