How About This Instead of SOPA? My Proposal for Legislation to Proactively Combat Piracy While Encouraging an Open and Innovative Internet
Last week’s Internet-wide SOPA/PIPA protests divided the Internet between content owners looking for stronger anti-piracy tools and technologists who believed the proposed legislation was an overreach. Those opposed said SOPA/PIPA opened the door to content companies taking down sites such as Tumblr and WordPress based on infringement by even one of the sites’ millions of users. Though I was at AOL/Nullsoft when Gnutella was created I am not pro-piracy by any stretch — half of what our company, Topspin, sells is easily-pirated digital audio and video (it could certainly be argued Topspin stands to benefit from SOPA-style legislation) and our raison d’être is helping artists leverage their creativity to build a fan base and earn a living. But I found myself on the side of the technologists in this debate; based on my read the legislation didn’t solve the problems it aimed to and created a number of unintended problems instead. I voiced my opposition to SOPA/PIPA in a letter on Topspin’s homepage last Wednesday, archived on Topspin’s blog for posterity.
Given many of SOPA’s proponents are people I count as both friends and business partners I found myself in frequent debates on the topic in person, over email, on Facebook, and in Twitter exchanges. In these debates I tried to convince this wasn’t an question of “is piracy good or bad?” but more of a mouthful: “what is the practical way to support an ecosystem where copyright holders have options and control without breaking the openness and innovation which makes the Internet valuable?” This is not a question of pro or anti piracy, it’s a question of how to put the controls of pricing and access into the hands of the person who owns the copyright while allowing innovation on the Internet as a platform for discovery and consumption.
More than one person turned the question back on me: “If SOPA/PIPA aren’t the answer, then what is?”
The first question that needs answered is: Do we need a legislative solution beyond what’s available today? Via previous legislation (DMCA, PRO IP) we already have a laws for protecting copyright online, as evidenced by the innumerable take-down notices issued to sites like YouTube every day and US government shut down and arrests of Megaupload and the company’s officers. But these take-down notices are exactly the problem, opponents will tell you. I spoke to a lawyer representing music publishers who described the cat/mouse game he plays with illegal lyrics sites every day. He can only practically issue so many take-down notices and can’t make a dent in the hundreds of thousands of pages these sites have up. Meanwhile legitimate sites which share ad revenue with the artists, or even artist pages who want to give their lyrics away for free online in the context of their own site, are pushed to search-results-page-two or further back. Similar are the complaints about torrents of MP3s or lossless files in search results, linking to .torrent files on transient off-shore servers and bundles of albums at sites like Megaupload, Rapidshare, and others who have plenty of legit purposes right alongside the illegal sharing of copy written material. Prior to this SOPA debate I would have told you further legislation wasn’t the answer or needed. Now that we’ve seen some very scary legislation introduced I would prefer to err on the side of proactivity from the technology camp. If we’re headed toward more legislation, let’s help craft the solution rather than complaining about the byproduct of lobbyist pressure. If there *is* something we can do to improve the cat/mouse game for content owners while maintaining an open and innovative Internet, let’s be a proactive part of that solution.
Also, as you are imaging what the Internet looks like once your solution is implemented, please keep in mind an increasing number of artists are releasing their content outside of the traditional models, in many cases for free. Take a look at the top 50 albums of 2011 on Pitchfork, 4 were given away as free downloads instead of sale (The Weeknd, Clams Casino, Danny Brown, and Frank Ocean). Read this incredible case study on how Pretty Lights went to #1 on Pirate Bay and reached millions of people as a result. Free is a price point many creative people will intentionally release their content at. Any legislation must be about giving artists control of how they release and charge for their creative work, not dictating a business model or price point to them.
There is a solution which curbs piracy, grows the industry overall, gives equal opportunity to all content holders, and allows for exponentially more innovation in the digital media space than we’ve seen in the past fifteen years. My proposal:
A content registry where copyright holders can express the rules governing the use of their content and a legislative requirement sites dealing in media respect the rules expressed by the rights-holder in the registry.
In more detail:
A central organization or consortium would construct a content registry software solution and service. Copyright holders would place their media along with all the rules governing the use of said media, in the registry. These machine-readable rules would contain the prices for various uses of the content, from download and streaming to inclusion in subscription or other services. Any application creators willing to abide by the registry’s rules would be welcome to utilize the content, though rights holders could still opt in/out of specific services via the registry, too.
If you are building a sites with legitimate uses which could also be leveraged for piracy then you use the registry for a different reason, testing to see if the content uploaded by a user is available for the use in question. For example, if I upload a file to Rapidshare for free download, Rapidshare does an Audible Magic-style identification on the file then checks the registry to see if this content is available for free download. If so, awesome. If not, kick it back to the user. This is a non-trivial development challenge with many questions about who would build and maintain it, but it’s not science fiction. The technology exists. YouTube has very sophisticated recognition and rights management technology today. Similar systems have been built by countless companies over the years. Look under the hood of services such as MediaNet, 7digital, Rhapsody, and many others and you’ll find independently-developed versions of such a registry managing rights, paying rights-owners based on varying kinds of usage, etc. This solution would make a similar registry and technology available in a non-proprietary way.
An industry-wide content registry is not a new idea. In fact when Rob Lord and I started Medicode in 2001 the notion of a “digital packing slip” respected by all members of the digital value chain was a key part of our vision. I pitched this idea at Yahoo! when they purchased Mediacode in 2004 but couldn’t make it stick. VEVO CEO Rio Caraeff worked on something similar at Universal Music Group several years ago but wasn’t able to make progress there, either.
Today, if you want to start a music service, you start by visiting the major labels, sharing your idea and asking for a license to use their content in your service. Assuming you can get the meeting and general approval of your particular use, they ask for an advance payment (a steep barrier for most any startup technology company which immediately whittles the field down to relatively few players) and dictate the terms of an agreement. That’s just for the four (soon to be three) major labels. Once you’ve cleared that hurdle you need to find a way to cut a deal with thousands of independent labels to build a catalog of music. Also, this is just music which is easily organized by label, distributor, artist, album, track, and genre — other forms of art (movies, images, etc) are even messier. No wonder piracy reigns supreme. Building successful consumer-facing businesses on content is a nearly insurmountable challenge. Few, if any, technology companies have historically made it to positive cash-flow on this model in the past 15 years. It’s a high stakes game (evidence: the more than $100M Spotify has raised thus far) and the road is littered with the bodies of those who have attempted to run this gauntlet (recent evidence: Beyond Oblivion, a $40M smoking crater where $20M was spent on music licensing before a product even existed). For more on how this model works read Michael Robertson’s pessimistic piece re: Spotify.
But what if there existed this registry of all content, one where any developer was able to use your music to develop a service, so long as he respected your wishes. You, the content owner, could set the rules and the prices. Which tracks are available for free download? Available for streaming? How long a streaming sample allowed? High definition? At what price points? The market could decide if the price you’re asking is fair: “My service only supports downloads with a wholesale price of $0.70.” “My service is only interested in free downloads.” “My service is only interested in content which is available for subscription streaming.” The content owners could opt in/out simply by setting the rules. The upside to the industry as a whole is massive, developers willing to play by the rules can integrate media into their apps (and pay for the rights to do so) simply, and a true digital marketplace for content governed by market forces, not gatekeepers of large catalogs of content. I strongly believe the net of this will be more money to content owners more quickly than the current course we’re on today. We keep hearing “digital music needs to get to scale quickly for the music industry to succeed”; why wait for one player to scale when you could scale an industry of players?
Until this SOPA/PIPA debate I hadn’t thought of adding a legislative component to this idea of a content registry. Thinking on it over the past two weeks the “enforcement” component here strikes me as a reasonable pill to swallow. Oh there’s still something about it that makes me queasy and I reserve the right to change my tune based on the specific implementation but I think the quid pro quo here can be net positive for both sides. It would allow is a way for good actors to reasonably stop illegal uses on their sites while letting the many legal uses sail through without scary threats. You would effectively be drawing a bright line between white and black hats in the content services game, a line Safe Harbor works against today. This would be useful to both content sites who want to proactively respect copyright so long as the cost of becoming a white hat is not overly burdensome.
MPAA and RIAA: What do you say? Shall we work together to build an industry-wide technical solution to curb piracy and grow the overall pie? Embracing the above solution would show you aren’t simply interested in regaining yesterday’s control but are truly interested in seeing innovative content applications so long as your copyright is respected. Count me on board if you want to tackle this together.
Thanks for reading. I share this here to get feedback on the idea. If it resonates I can follow the thread. If it doesn’t I can refine my position. If it’s confusing I could devote an episode of This Week In Music to talking about it. Feel free to poke holes, comment, and share.
ps – Dumb question:
In order to find a solution you have to identify exactly what you’re trying to solve. I found myself asking this question repeatedly and getting blank stares: “What, exactly, are you hoping SOPA/PIPA stops?” I’d ask. (Incredulous) “Piracy! Of course!” Arrrrrrr and avast ye! Unfortunately many don’t appreciate piracy is far from the only factor which has caused the traditional recorded music business to shrink in the past 12 years. What, specifically, are you hoping SOPA/PIPA eradicate? Limewire? (It’s dead) Torrents? File share sites? Sneaker Net? File transfer via AIM? Something else? When discussing a legislative solution to a technological problem, an “I know piracy when I see it” argument won’t pass muster. In order to propose a workable solution you have to first enumerate the specific situations you’re looking to overcome. What people told me they were trying to stop:
- Upload and share of copy written material to download sites (Megaupload, Rapidshare, etc), particularly when these sites are hosted on non-US soil and domains
- Search engines linking to Torrent sites
- Illegal lyrics sites
Anything else? Please be specific. I’d love to see a comprehensive list of the piracy outlets folks want to see stopped. For what it’s worth, these are all quite difficult because they’re general activities that have legitimate non-infringing uses, too, so any solution to these is by definition non-trivial.