On Piracy: It Is Time to Stop Making Customers Criminals

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Today I'm reading articles on how the recent update to the Blu-Ray security system is causing a lot of breakage, and I recall a few weeks ago when Microsoft's anti-piracy software caused a number of legitimate users of Windows Vista to experience some pain. The RIAA going after mothers and kids is now infamous. I've often wondered if that group is run by complete idiots and if they recently created a martyr. Just do a search on Google News on RIAA, during an election year no less; that group now looks like an easy target for a politician wanting to get lots of points.


I'm still struck by the fact that most companies and associations, when dealing with piracy, seem to conclude that every one of their customers is a pirate when they implement an anti-piracy program. The result is that only the real pirates remain relatively unaffected by the changes.


I'm casting a broad net with this one because I don't see this as a problem with any one company or industry. It's a global problem and it is reflected in what appears to be a number of failed or failing strategies.


Open Source Connection


I was actually planning to do a piece on how the recent action against Monsoon by the Software Freedom Law Center may represent an abuse of power. (Note I said "may" before anyone gets carried away.) The premise was that Monsoon appears to be trying to comply and the Freedom Law Center's need for some case law appears to be the driving motivation to continue the actions (and to make the threat of action real), which could be classic abuse (my needs exceed yours and I have the power). But in thinking about it, this appeared to be a different spin on anti-piracy that hadn't occurred to me with regard to open source which, because it is often free, isn't actually viewed as a technology that is pirated. The nature of the piracy is different but the unilateral approach to it appears similar.


Google, which is based on open source but isn't really an open source company, on the other hand, only worries about piracy when one of its properties is used to illegally access a protected work. It doesn't worry about anyone pirating its products because it has generally removed the incentives to do so. And because what it provides is actually proprietary, it hasn't made it easy to steal its work either.


People Aren't Criminals


People aren't naturally criminals, but we do tend to be relatively social and like to share with friends and family. If someone wants to borrow a tool, they don't have to get a license from the tool maker or buy a new tool to do so, and that practice is relatively ingrained. Trying to get people to pay for every use of something is a fool's game and we see the failure of this practice every day. The end result has been abuses of power by those who have the mission of protecting these properties, a general decline in related revenues, and growing dislike for the entities who are using these practices.


When a company or industry is growing rapidly, it often doesn't focus that much on milking every customer for every dollar. This actually helps that growth. But when growth flattens out or goes into decline, the focus shifts to getting every dollar, seemingly milking customers, which seems to accelerate the decline as well. The Blu-Ray news today brought home the point that it is time to step back and say what we are doing with piracy is generally rather stupid.


Before the open source guys get too excited, I'm including them in this as well and not as a good example.


Defining the Problem


It would seem that these various entities view the problem they are trying to fix as a near-global lack of regard for intellectual property ownership rights -- as they believe they should be interpreted. I would argue that this is a symptom; the problem is that to do what people want to do with software, music or video, they have to break a contract they neither understand nor agree with.


It is clear that the suppliers of the content and the consumers of that content are not in agreement at all with regard to the rights that have been transferred. The consumers (individuals and companies), for the most part, are confused with regard to what they can, and cannot, legally do with it. In addition, they are prevented by license from doing some things they should legitimately be able to do, like create backup copies of children's movies and games (kids destroy CDs and DVDs), putting suppliers and users in unnecessary conflict.


So the problem is twofold. The industries (software, music, movies, etc.) aren't being realistic with regard to the rights they are granting, and consumers generally don't understand the rights they have been granted and, were they given a choice, would not accept them. If this were a contract, I'd argue there was no meeting of the minds and that the contract was void at inception. But licenses aren't contracts and they don't require both parties to agree. Maybe they should.


In thinking through this, though, the core problem may, in fact, be the mistaken notion that a unilateral contract can be enforced by anyone but a government (like a law) and that businesses can successfully pass enforceable laws. Think about it a moment. Isn't a license effectively a law in most ways that count to anyone covered by it, including both civil and criminal enforcement?


And even governments have problems with unpopular laws. Here in the U.S., we had prohibition, which outlawed the consumption of alcohol. Even massive government-level enforcement didn't work; we can probably all name several real laws that many, if not most, citizens in our respective countries regularly ignore.


Why Change Is Needed


Fixing this is self-serving. The way things are, the MPAA, RIAA, Blu-Ray Association, Microsoft and everyone else using the licensing model (and I'd include the open source folks in this as well now) are being increasingly viewed negatively because of the enforcement this model requires.


Microsoft has generally been focused on going after legitimate criminals but breakage in its automated enforcement tool has created an additional drag on the sale of its new OS.


For the RIAA and the music industry, their enforcement practices against children and unwed mothers has been a lesson in self-destructive PR, and the MPAA often seems like it's working to put the movie industry out of business. The recent changes with Blu-Ray put an additional cloud over that technology at a time when an increasing number of us are questioning whether it will even survive. None of this, by any stretch of the imagination, is actually good for these companies or industries.


The current environment also makes folks do really stupid stuff. Going after children has to be one of the dumbest ideas I've ever seen an industry group do, both because they are the most protected and because kids regularly rebel, which could increase the very behavior (copying music) that these groups are trying to stop. When Kaleidescape came up with a way to rip DVDs and protect the result, instead of the DVD Association embracing it and using it as an example of how this should be done, it sued unsuccessfully. That certainly didn't make its piracy problem, or image, any better. And, years ago, when a company called Bleem came up with a way to run Playstation Games on a PC (game systems are subsidized), instead of embracing the technology and taking what would have been a potentially huge increase in profits, Sony worked to kill the offering.


Recently, I've seen an open source twist to this in both the rewriting of the GPL and the enforcement action against Monsoon, both of which increased concerns with regard to using the related technology and appear to put consumers of the technology at a disadvantage. So this really isn't working well for anyone.


When the cure is worse than the sickness, it is really time to step back and rethink the approach.


Wrapping Up


I think we need to step back and think about what we are all doing with regard to piracy. The first step in our three-step program to recovery is to acknowledge that our customers are not criminals and don't deserve to be treated as such. Step two is to understand what these customers want to do and provide legal, and reasonable, mechanisms for them to do it. Step three is to focus enforcement efforts mostly on professional criminals and provide incentives to help quickly identify and prosecute the folks who clearly intend to break the law and steal from others.


Whenever someone comes up with a program that causes a lot of legitimate customers problems with breakage, enrollment, or use of a product or has at its core a process of serially or concurrently taking lots of customers to court, they should be asked nicely to go work for a competitor and assisted in their exit from the building.


Years ago, I read of an experiment where two identical classes were used to showcase human behavior. In one, the teacher was told the kids were geniuses. In the other, the teacher was told they were mentally challenged. At the end of the test, the phony geniuses tested vastly better than the phony challenged children. If you treat people like criminals, that is how you will see them and, increasingly, that is how they will behave.


Maybe it is time we treated our customers as we would like to be treated by our own vendors and recall the old rule "the customer is always right."