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Wolf in sheep’s clothing: MPAA’s Dodd pushes ‘more subtle’ approach to anti-piracy

Chris Dodd, head of the MPAA, has opted for a "softer" approach to dealing with Internet piracy.Since the entertainment industry’s fight against file sharing began around the turn of the century, the line has been that downloading music or movies for free is “stealing,” and that file-sharers are “thieves.” Trade groups like the Motion Picture Association of American (MPAA) and Recording Industry Association of America (RIAA) have pushed lawmakers and the public on their side using such a strategy. And the philosophy has become all but common knowledge. But if recent remarks by MPAA chief Chris Dodd indicate a change in approach, that line of reasoning may soon move aside for a softer, less-combative technique.

“We’re in a transformative period with an explosion of technology that’s going to need content,” Dodd, a former U.S. Senator, told Variety at an industry event this weekend. He added: “We’re going to have to be more subtle and consumer-oriented. We’re on the wrong track if we describe this as thievery.”

Subtle. Consumer-oriented. On the wrong track if we describe this as thievery… Those are lines I never thought I’d hear from a top Hollywood lobbyist. (Technically, Dodd is forbid by Senate ethics rules from personally lobbying Members of Congress until January.) Part of me is cautiously optimistic about such a transformation, while a much larger part is terrified about what this change of tune could mean, both for consumers and the Internet as a whole.

1 + 1 ≠ 2

As I have argued in the past, painting file-sharers as thieves is simply the wrong way to convince people not to download music illegally. While some may be deterred by such semantics, many simply do not equate downloading a file with stuffing a DVD down the back of your shorts, and walking out without paying for it. Part of this is surely because illegal file sharing is fundamentally different than physical theft. With illegal downloading, you don’t actually deprive an owner of their property — the definition of “stealing” — by making a copy of a digital music or movie file. Or, as Stanford University Law School copyright expert Mark Lemley explained to the Los Angeles Times in 2008: “Copyright infringement is not ‘theft’ in the same way that taking a CD from a store is theft. If I take your physical property, I have it and you no longer do. If I copy your song, I have it, but so do you.”

Of course, one could argue that “stealing” is simply taking that which is not yours to take. Or that uploading a movie to a BitTorrent site is stealing because it deprives the copyright owner of the ability to control how that content is distributed, if not the property itself. It also can deprive the copyright owner of the ability to make money off of their intellectual property — after all, you can’t beat free. One could even argue that anybody would steal if they knew they could get away with it, which is obviously impossible to prove one way or another.

Regardless, saying that illegal file sharing is “stealing” and those who partake are “thieves” feels inaccurate, if nothing else. It feels like hyperbole, like a scare tactic crafted by propagandists. And when it comes to laws surrounding something as stupefying as copyright, feelings are really all that matter.

Unfortunately for copyright-reliant industries, a good many people simply don’t give a damn. Pew Research found all the way back in 2003 that 67 percent of Americans who download music online “do not care about whether the music they have downloaded is copyrighted.” Since that time, the RIAA and MPAA have sued thousands of people for copyright infringement — some for hundreds of thousands of dollars — in an attempt to frighten people into compliance, and yet online piracy continues to thrive.

Why this outright disregard for the woes of copyright holders and the law? I would wager that a large part of the public’s ambivalence toward illegal file sharing stems from the glamorous image of celebrity: The most visible people from whom we are “stealing” often appear to have better lives than we do. They have better cars, better houses, better clothes, better sex. They eat better. Their kids attend better schools. And because of the economic and lifestyle disparities (perceived or otherwise) between industry executives and popular artists and fans, those who run file-sharing sites like The Pirate Bay are not seen as horrible thieves, but as Robin Hood, stealing from the rich to give to the poor. That is, if they are seen as “stealing” at all.

Fact is, nearly anything we could wish for is now at our fingertips instantaneously, for free. We expect it. So while we know copyright infringement is clearly and increasingly against the law, few people see the immorality of downloading songs, movies, or TV shows for nothing. Mike Masnick of TechDirt — one of the leading voices in this entire debate — argues precisely this.

“We are collectively living in a state of cognitive dissonance, uncomfortably embracing two conflicting beliefs at the same time,” he writes. “Copying is illegal. Copying is not wrong.”

The next rabbit hole

Whatever the reasons for our apathy, it’s clear now that calling your customers thieves has little benefit to anyone involved — something Dodd has apparently now come to terms with. Given his willingness to admit as much publicly, I assume that others in his industry share the sentiment. The question is, what next?

As Dodd says, the Internet offers “an explosion of technology that’s going to need content.” Which, of course, is true. Perhaps that means that Hollywood has finally decided to lay down its sword and accept that it cannot change the course of history, and must instead embrace the world as it is and as it will be: one in which everything is available easily, to everyone, instantly. Perhaps Hollywood will decide to divert some of its millions away from the creation of more mind-numbing tripe, and instead invest in the next generation of entertainment distribution. Perhaps it will save itself through ingenuity, technological creativity, and the development of mind-blowing businesses.

Perhaps — but such a refreshing scenario seems to me more a fairy tale than a realistic vision of the future.

On top of their scare tactics — and I call them scare tactics without hyperbole; labeling illegal downloading “theft” is an intentional attempt to frighten people away from the practice — Hollywood has also pushed for greater and greater power to control the means of illegal intellectual property distribution — i.e. the Internet. Hollywood’s most recent attempt at this came in the form of the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA) — and most of you surely know how that went. But this failure only means that they will try the same thing again, with a far more sly design.

In fact, such efforts are already underway. Dodd himself has admitted that SOPA (or something like it) is currently being crafted behind closed doors. And the RIAA and MPAA have managed to strongarm the nation’s leading Internet service providers (ISPs) into launching their own anti-piracy plan, which circumvents government involvement altogether.

So when I hear Chris Dodd say that the entertainment industry’s new approach will be “more subtle” and “consumer-oriented,” my first thought is not that it has finally seen the light; it’s that more websites will be shut down; more overreaching laws will be written, proposed, passed; and a new, nefarious PR campaign will slip its way into the public conversation. Those slithery words make me feel as though the hammer of moral and legal condemnation will soon be replaced with roofies-laced lollipops that get us nice and pliable so they can unsheathe their daggers unnoticed.

Conclusion

In the end, the question is not whether or not illegally downloading anything is right or permissible. (Despite what I may have implied, I do not believe it is — as a matter of personal principle, I never download a single file that I do not have the legal right to access.) The question is: Will we let the forces that were become the forces that be.

We are amidst a battle over what the Internet is, and what it can become. Those who have fallen victim to its powers — the MPAA, RIAA, and all those they represent — have been fighting a losing war against this technology since the day it rendered their business models obsolete. And now, we are at a crossroads. Either the entertainment industry will embrace the new era by pushing technology forward, or it will continue to hold us captive in this poisonous atmosphere of loathing between product and consumer, artist and fan, until the valuable creations it claims to protect become ever more worthless.

We have already shown which side we stand on. So, Hollywood, what do you say — are you with us, or against us?

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