"Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves" -- William Pitt the Younger, 1783.
Pitt the Younger is no hero of mine. However, when we hear that PIPA/SOPA must be brought forward due to the "theft" and "loss" to Hollywood, his concise debunking of "must" leaps to mind. We must, must we?
Exigency is the surest way to get bad laws, poor decisions, and regret. It is the quickest path backwards. It creates urgency and discourages consideration. It drops a heavy curtain of silence over debate. It impugns the motives of all critics and makes "critic" into "enemy." If the nation needs a thing, then failing to provide it is to fail the nation herself.
My age also makes me suspicious of PIPA/SOPA. This is because "Home taping is killing the music industry." When I was in high school, I was accused of personally taking bread from my favorite artists' children (she looks unstarved on "Bones," I must say) by copying the LP's I had bought onto cassette and sometimes getting a cassette of something I hadn't bought from a friend (as a rock snob, I usually got things that were out of print and thus impossible to find). I was informed, even on the inner sleeve of my Warner-Electra-Atlantic albums, that I was a very, very bad person. Congress even imposed a federal sales tax on blank tape for the benefit of a private entity. Every cassette tape included a fee that went to the RIAA. Every time I courted a woman with a mixtape and, like a dog marking territory, attempted to impose my taste on her, the RIAA got money. Amour sells.
Fortunately, way back then, Maxell and TDK were big corporations, too, and they didn't own any music companies (yet), so they fought back somewhat. They did studies that showed that people who did home taping bought many, many more albums than people who didn't, etc. It didn't matter, of course.
So, on the basis of my natural hackles being raised against "necessity" and the replay of the "home taping" misery, I thought it might be good to ask a few questions. I will not be able to answer all of them, but perhaps you or someone more clever can.
We need to understand terms like "Hollywood," "pirate," and "loss/steal/take." I believe that the third term makes no sense and has no usefulness unless we understand the first.
Hollywood
When we say "Hollywood," do we mean a town, or an industry? Do we mean an industry or a particular form of that industry? Do we even mean one industry, or rather the industry's form across commodities?
Merriam-Webster online defines "Hollywood" simply as American movies, American Heritage in its prior edition embedded in Yahoo defines it as "flashy, vulgar" tone associated with the U.S. film industry. However, when we're speaking of legislation, "Hollywood" is not Barbra Streisand or Michael Bey.
"Hollywood" refers to directors and actors and writers when we talk about environmentalism and human rights, and other issues of content for film, primarily, but when the noun is used for a discussion of a collective political action, it typically denotes studios, not studio employees. This article at New York Post illustrates what I mean: "Hollywood" is planning $3,000,000.00 in advertising for SOPA/PIPA to "strike back" against the Internet.
When we look at the list of politicians who support SOPA and PIPA, it looks bipartisan in both ways. This "Hollywood" supports Democrats, and so our collective stomachs fall when we see otherwise sensible people supporting bad bills, but it also supports Republicans and their quest to give us what Mubarek had: an "off switch" for the Internet.
What, then, is this "Hollywood?"
This Hollywood is the Hollywood of both RIAA and MPAA: it is the trade group of corporations that are publicly traded. It will gladly use a baseball bat to swat at a fly, because it is indignant and means to send a message to all the other flies.
Even as, entertainers, artists, writers, game developers (somewhat), and Internet companies are scattered all over the place on the issue. "Hollywood" is uniform in its insistence that SOPA/PIPA is necessary. It's the "necessary" that we should think about. We ought to give them some credit and assume that they do not expose themselves to this much high profile ridicule and animosity without at least believing that there is necessity.
Premise: Hollywood is not an industry and not a place. Hollywood is a business model for music, publishing, and film. The word signifies less a place than an historical configuration of production whereby an oversupply of talent is filtered to a controlled commodity of entertainment with a market adjusted rate of capital return.
The Hollywood Model:
This Hollywood depends upon an exaggerated, nearly clownish incarnation of capitalism. The hills are alive with the sound of musical, verbal, visual, and dramatic geniuses. That kid you knew in high school who seemed really special probably was. The young lady singing on the bus and always working on her voice quite possibly is a great singer. The po-faced youngsters with their college ruled notebooks more full of poetry than class notes might become poets.
We are currently seeing just a slight glimpse of how much talent there is out there. When MySpace showed up and the world heard how many good local bands there were, and blogs showed how many good writers there were, what was in crisis was not value, but money. What fell down was capitalized art and entertainment.
To profit in art, to have an "art market," supply and demand have to be managed so that there is massive demand for a small supply and a complete control over the means of delivery.
1. The pre-history of "entertainment": In an America or UK without radio or television or movies, front parlors had instruments and houses had singers. Each church had a superstar chorister. The nearest thing to a commodified art market was book selling, where copyright had ensured that publishers owned rights and extended this principle into sheet music. In the pre-entertainment world, songs bounced from village to village, developing new lyrics. Art developed micro-movements. Plays celebrated and reenacted local issues. In other words, FOLK ART proliferated, but not very much got to a large audience.
Well, not much folk art seemed to get to a large market. We can all sing some version of "bang the drum slowly/ And play the fife lowly." Quite a few of us can recognize a Shaker chair. Folk art achieves an incredibly vast audience, but it does it serially, being passed diachronically through time, because tradition is one axis of meaning for folk art.
2. To control the means of production, you must first have one.
Once we must have expensive equipment and expansive space for an art, we have a means of production that requires the capital owner. Further, change the experience from individuals across time to masses simultaneously (a large audience rather than multiple small audiences), and exhibition or production requires mass capital.
Once cameras, studios, theaters, record studios, pressing plants, wharehousing, distribution lists and accounting are necessary components of the art, it is a commodity rather than an art. The those thousands of artists need access to the pipeline and must be graced by the pipeline's owners.
3. Capital investment's triumph over the wealthy.
Hollywood is not the vulgar studio model, per se. It is, rather, the opening up of the studio business to bets and venture capital.
When the company can kick out the bad and groom the good, then the company can also control competition from similar artists and create "entertainment" as a reliable investment. It can keep supply appropriate to demand and set price.
This "Hollywood model" involves, as its first concern, return on investment. To ensure return on investment, everything else is fair game.
Making an LP is easy, but getting it heard is hard. Making a book is not very expensive, but getting it to the reader is expensive. A film, though, was too expensive for anyone to make, but the film arm of the Hollywood complex achieved a remarkable return on investment, despite seeming risk. All other entertainment companies followed suit. For the companies, the art is an investment, and the interest by the corporation is the protection not of the art or the artist, but the reliability of profit control. Their talk now, as in 1972, about protecting the artist rings hollow.
The essence of the problem with capitalism is that buyers do not pay the worker; they pay the worker, and they pay the guy who had money. [Here is the movie theater, and why you do not pay the actor or director when you buy the ticket. You pay the investors.] [Here is the music business, and, I must say, it assumes a very good contract.] [For books, there is no guide. Basically, the author's going to get nothing at all, if it's an academic book, fair money if it's a textbook, and next to nothing if it's a literary book.]
"Hollywood" is the MPAA and the RIAA. Is is not SAG or DGA, AFM, or AFA. It is the professional trade group of the publicly traded corporations that must ignore artistic value in favor of a commodity, "units," "screens," "shelves." They must because this is the only model that can tame the chaos of creativity and taste and make invite an investment class.
Piracy
A blog post over at FAIR made an interesting point (picking on the Gray Lady) the other day. Just as Chris Dodd was lamenting the fact that the mean, shifty, irrepressible Internet was going to spread lies without fact checking, the Times copied out MPAA claims about the jobs that Hollywood creates and the jobs pirates cost.
It's easier to find talk of pirates than acts of piracy, at least online. A pirate takes away and/or steals. Ignoring for a moment that file nabbers do not physically remove those files, they also do not tamper with or corrupt them. They do not harm the product in any way, if they can help it. (In fact, if we want to find piracy of that sort, we need to think back a bit, to Microsoft responding to the "threat" of multiple platform applications with "polluted Java.")
Pirates exist. The people who sneak video cameras into movies and videotape them and try to sell them on the corner are pirates. They are lying about what they have, damaging the art, and attempting to do so for profit. The people who counterfeit CD's or DVD's and show up in a diner with a suitcase of latest releases are pirates. They are frequently passing off inferior goods (damaged goods) and always doing so as a way of fleecing the consumer. There may be a caveat emptor situation that buyers enter into, but it's still piracy, and both parties know it.
However, is the streamed movie piracy? More directly, is the stored pile of mp3's piracy?
If we take the notion that intellectual property is a corporate license, an imprint for buying and selling as if it were a widget, then they are all piracy. If we assume, though, that intellectual property belongs to the artist, not the corporate entity, then...maybe.
Costs Hollywood $X
The RIAA and MPAA have played a game, an elementary game, with numbers since the days of "home recording is killing the music industry." They claim that every copy is a lost sale. That should be hilarious, especially given the MPAA's prior success with the same argument.
Chris Dodd, and all of the spokesmen and women in favor of PIPA/SOPA said one thing over and over and over again: they are "working diligently to protect American jobs from foreign criminals." It was always "designed to" and "intended to." Such statements are meaningless. My use of TNT underneath your chair was intended to be a gag.
Dodd dismisses the criticisms, himself. After all, the Digital Millennium Copyright Act has been good for everyone, hasn't it? The interview at The Hollywood Reporter is worth reading in its own right, but this stood out to me:
THR: And how do you answer critics who say the legislation would hamper innovation on the web?
Dodd: That was the same argument made 14 years ago when the Digital Millennium Copyright Act was adopted. And it’s the same argument — the sky is falling. You only need to go back and take a cursory look to see what happened in the last 14 years, the advances and innovations in technology despite the claims in 1998 [of what would happen] if [Congress] passed that act. It did not break the Internet. It did not deprive anyone of freedom of speech at all. And it certainly did not curtail or stymie creative innovation in new technology.
Yes, DMCA. Dodd actually mentions it as an example of a success, of the Internet making a mountain out of a molehill.
As I recall, DMCA was "necessary" to stop online piracy. It was "intended" to save jobs. It was imperative because of all the "lost sales" that pirates were causing. In other words, the very same rationale, practically verbatim, came out of the same office for DMCA as SOPA/PIPA, and it went through.
A consequence of DMCA, as you may know, has been ever-increasing copy protection. It has also been the sacredness of the DVD format. Every single copy of every single CD or DVD is a criminal act, just about, as fair use has been bordered and copyrights have come to be inviolate things that do not attach to objects.
Indeed, if we have any memory at all, we can recall that home taping cost huge numbers of sales, just as downloading did in 1999. In fact, the record business was going to disappear entirely because of Napster. Once all the teenyboppers began downloading, the music companies and radio stations were going to all go silent. Odd that they haven't. Odd that their profits are fine.
The pirates are costing thousands of jobs and millions of dollars today, just as they did before DMCA, and so the movie studios were all going to go away without DMCA. Oh, wait. Oddly, though, for global box office, things are doing just fine.
The math game that Hollywood plays is simple. Every time you download "Green Grass and High Tides" to reconnect with your hell raising youth and to remember that time when you were fifteen and had your first beer and burned doughnuts in the high school parking lot, that is the full purchase price of "The Greatest Hits of the Outlaws" that they lost, because you would have spent the full price on the full CD, had you not been able to download the song you wanted. When there is a movie you think, "Meh, I might like to see it, but I might not," and you stream it, you just cost them the full DVD price, because, had you not done that, you would have purchased the DVD at retail price and not rented it.
In other words, every download is a sale, they assume. Further, every copy is a sale.
Needless to say, teens do not have the income to buy everything they would like to hear or watch, and so their choice is download or non-participation. Now, any music model that emphasizes the "hit song" over the artist leads to a desire for "that song" in the youth market, and that makes the sale of the CD doubtful to start with.
DMCA, though, has meant that people cannot copy their own, purchased DVD's. It means that they cannot copy their own, purchased (with a hologram and five layers of packaging) CD. Thus, for those people who listen or watch on computers, there are no "safety copies" and no portability. Copies are often made for those purposes, but the Hollywood investment model gets to count each copy as a lost sale.
Why PIPA/SOPA?
Nothing can explain Chris Dodd thinking that the non-profits who protested MPAA's stunt were "abusing the position they have been afforded in the marketplace" (by the largesse of Hollywood), but something can explain their risky behavior.
The primary goal of Hollywood corporations is to protect the reliability and predictability of the revenue of a given business model. That model, where investors get dividends on the venture of a film or year of music, was corrupt, distorting, and exploitative at its heart. As the film industry has projected revenues coming more and more from DVD and less and less from theatrical release, they want to have zero leakage. As they lose control over production of film, distribution (DVD's are going to get to you only through distributor advertising) is going to be everything.
It's not about the surfers. It's about owning the pipeline.