Could The RIAA Stop Piracy By Coming Up With A More Compelling Story?

from the maybe-that-and-a-memory-eraser-ray dept

Fri, Jun 26th 2009 9:49am — Mike Masnick

GregSJ points us to an analysis of a recent paper on "the rhetoric of copyright policy." The original paper is actually called Meh. The Irrelevance of Copyright in the Public Mind. The original is a worthwhile read (as is the analysis), but the basic point is that people continue to ignore copyright law because they simply don't "believe" the story of "harm" that the copyright holders are spinning. This actually echoes Rep. Robert Wexler's recent remarks to the World Copyright Summit, where it's all about "the story."

The paper argues that some of the fault is with the media who has portrayed these battles over copyright "as a land grab that benefited only copyright holders." Hmm. Perhaps that's because it's, I don't know... true? Also, it's worth pointing out that it isn't completely true that the media portrays the copyright battles in this manner. The media has often been quite supportive of copyright expansionist policies -- after all, many of the media's current business models rely somewhat on copyright as well.

Still, even if it is true, the paper argues that the RIAA/MPAA/BSA just needs to come up with a good story (which doesn't need to be true!) to convince people of the harm of unauthorized downloading. As a part of that, they suggest that copyright maximalists have to become trustworthy. Try to read the following without cracking up (I couldn't):

To be successful, copyright holders and legislators must consider the construction of ethos and credibility. This is done not only through the reputation that one gains, but also through the discourse itself. Legislators and copyright holders must portray themselves as trustworthy. More specifically, the recording industry must appear to be treating artists and fans fairly, and legislators must appear to be acting in the public interest.... Legislators and copyright holders must maintain a stance that encourages the public to obey copyright laws. When legislators consider altering copyright terms, the public domain is necessarily affected, and great consideration must be given to how the public will react to the proposed action. When the public sees little incentive to honor the ostensibly limited protection granted under copyright law, copyright law will increasingly become unenforceable. However, if the public is provided with compelling reasons why term limits are in the public interest, they may be more likely to support these terms. Likewise, copyright holders must make more compelling arguments concerning why the public should obey copyright law. If the people have a compelling narrative to follow, they will do so--whether it is true or not. The challenge, then, is not to craft better law; the challenge is to craft better rhetoric.

The problem, of course, is that this doesn't pass the laugh test. It's pretty difficult to find anyone who believes that the copyright holders and legislators are doing anything in the public interest. And, I guess if it were possible to come up with rhetoric that made the opposite case, then perhaps people would change their actions. I just question how they could come up with such a story when all of the evidence points to the contrary.

Beyond that, let's face it, the RIAA actually has controlled the "story" for ages. It has convinced people it represents artists' interests, even though it does not. It's convinced people that potential copyright infringement is "stealing" or "piracy" when it's quite a different beast altogether. They've convinced people that copyright is the only way to make money off of content. The problem is that when anyone scratches the surface, they realize quite quickly, that none of this makes any sense at all.

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Filed Under: copyright, piracy, rhetoric, story
Companies: bsa, mpaa, riaa

57 Comments

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Ima Fish (profile), 26 Jun 2009 @ 10:21am

"the recording industry must appear to be treating artists and fans fairly, and legislators must appear to be acting in the public interest"

The use of the nonsense word "appear" destroys it for me. It makes the entire argument/story meaningless. In other words, he's admitting that the recording industry does not have to actually treat artists and fans fairly or that legislator must actually act in the public interest. He'd admitting the entire story is a charade.

With the speed at which news travel, it's much more difficult for the powers to be to outright lie as is suggested by this paper.
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:Lobo Santo (profile), 26 Jun 2009 @ 10:23am

Grass Roots Laws
Let's start a voter campaign; we'll pass a law, that says something like:
"Any legislator may be charged with 'Acting against public interest' as a civil suit; said CRIME will warrant the same punishment as treason."
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ZafT (profile), 26 Jun 2009 @ 10:25am

The Laugh Test
The "laugh" test you put forward actually helps drive home the underlying theme of this paper: The RIAA and friends have completely destroyed their ethos, and no reasonable amount of legislation will create a situation where people begin to obey copyright laws.
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ChurchHatesTucker (profile), 26 Jun 2009 @ 10:26am

Re:
"He'd admitting the entire story is a charade. "

When you're reduced to trying to change the story, regardless of reality, you've gotten into cult territory.

An intervention may be in order.
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Osno (profile), 26 Jun 2009 @ 10:30am

On the other hand if the RIAA did take artists and fans fairly, and legislators were actually working on the public interest, the story may be quite different. Talking the talk will make them less trustworthy, not more. Specially with papers like this. Stating "whether it is true or not" implies that they will be willing to lie. I don't understand how lying is conceived as a technique to construct ethos and credibility. At least they accept they're unethical and non-credible.
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ZafT (profile), 26 Jun 2009 @ 10:30am

Re:
The paper is not exactly condoning spreading lies. The point is that people have to actually believe the story. For example, the RIAA says pirates are stealing from the artists. Even if this is true, the story will not work unless people actually believe it to be true. You should read the actual paper.
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ZafT (profile), 26 Jun 2009 @ 10:36am

Transparency
Another passage from the paper:

"The RIAA must construct a public image of itself that fosters credibility. One possible solution would be greater transparency in the record industry. The public may need to be convinced that the business model of the record label is appropriate and that the artists are being treated fairly. If this is the case, the record industry must do a better job of articulating this; it is not enough to simply assert that the record labels are treating the artists fairly."
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ChurchHatesTucker (profile), 26 Jun 2009 @ 10:59am

Re: Transparency
"One possible solution would be greater transparency in the record industry."

HAHAHAHAHAHAHAH!

*deep breath*

HAHAHAHAHAHAHAH!

OK, I'm done.
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Dark Helmet (profile), 26 Jun 2009 @ 11:01am

Take your lesson from other dictators/idealogs
"And, I guess if it were possible to come up with rhetoric that made the opposite case, then perhaps people would change their actions. I just question how they could come up with such a story when all of the evidence points to the contrary."

Step 1 - Gain influence and control: whether by means legitimate or nefarious, make sure you have the power to enforce. This can be through the purchase of the "legitimate" government, or through expeditionary forces.

Step 2 - Create an idealogy through repetition: with copyright maximilists, it's "piracy is stealing/theft" and "we do it for the artists"; those are equally nonsensical as the terrorist mantra of "America is the Great Satan" and "Allah love Shariah Law". The two entities aren't equally evil, but they both accomplish influence through the repetition of false idealogies.

Step 3 - Preparation is complete, begin the takeover through legislation: now that you've created the idealogy through repetition and have the ability to enforce, you creep into total control through legislation. It doesn't matter any longer that this legislation is ridiculous, because you have enough people buying into the false idealogy coupled with the power to enforce that the dissenters are too drowned out or afraid to act.

As of today, we are in between steps 2 and 3.
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Ima Fish (profile), 26 Jun 2009 @ 11:06am

Re: Re:
"The point is that people have to actually believe the story."

Close. The point is that people have to actually believe the story, whether or not it's actually true.
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Mack, 26 Jun 2009 @ 11:06am

It is all about the first 3 words
To be successful, which is the point where the rest of the quote goes to poop. If they would have said "We as" then I see it being comical. They know what they need to do. Why are they doing it?
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Ima Fish (profile), 26 Jun 2009 @ 11:07am

Re: Re:
"When you're reduced to trying to change the story, regardless of reality, you've gotten into cult territory."

Where's L. Ron Hubbard when you need him?!
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Osno (profile), 26 Jun 2009 @ 11:09am

Agreed. I have read it in full now and I think that part of it actually makes sense. In the same paragraph you quote, they say that if transparency is not very palatable because of what they're doing right now, they may need to change their business model to actually make it fair for artists and the public.

I have a very mixed feeling about the paper, though. I don't see what good copyright has done (ever) to the society, and the paper (and also the content creators) put it as fact. If the public knew and believed what good copyright has done to society, they will probably respect it more.

As it stands, the public perception (IMO) is that copyright only helps establish corporations that get so powerful that they get to decide what culture is good and what culture is not. The fact that indie labels are not great supporters (or at least, not great public supporters) of copyright reinforce that feeling. And young people will always be anti-corporation. So if the corporation gets hurt, the general perception (again IMO) is not "meh" but "cool".

I think if they want to change they need the rhetorics and the transparency, but they also need to shed the "corporation" look and feel they have. They need to be hip like Apple or Google, not a dinosaur like Microsoft or IBM. That simply will not work in music. And if they do it wrong (as in, obviously feigning to be hip), the backslash will be even greater. Once again, talking the talk will not work.

Not being such great supporters of copyright will be a nice first step...
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Osno (profile), 26 Jun 2009 @ 11:15am

Sorry. Agreed (13) was in response to ZafT (6). That "reply to this comment" thingie is too much for my level of comprehension.
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Albert Nonymouse, 26 Jun 2009 @ 11:17am

All I need to know about filesharing
... I learned in Kindergarten.
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ZafT (profile), 26 Jun 2009 @ 11:20am

Re:
The general idea of Copyright is not necessarily all evil, and it is not only corporations that benefit. For example, imagine that you wrote an incredible novel. Then imagine that a big publishing company gets hold of it and prints it, then sells it for a lot of money. Without copyright, you don't get a dime.

The problem is that copyright terms are too long and that users are too restricted in their use of copyrighted material. This, coupled with the draconian enforcement policies of the RIAA, makes for public policy that is not supported by the public.

The answer is not to get rid of copyright. But copyright law should be something that benefits, rather than hamstrings, the public - creators and consumers alike.
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LostSailor (profile), 26 Jun 2009 @ 11:21am

Reasons to Buy
However, if the public is provided with compelling reasons why term limits are in the public interest, they may be more likely to support these terms.

How is this any different than the oft suggested "give consumers a reason to buy"?
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Jason, 26 Jun 2009 @ 11:43am

Re: Re:ZAFT
Ok lets pretend that you write, produce, and perform a song. The song makes it to number 1 on some chart and sold 1 million cd's in its first week. Of which you get $0.25 per purchase. Then next week your song becomes a ringtone of which 300,000 ringtones were sold. Of which you get nothing.

A fan purchases then song, and up uploads the song online for others to enjoy. Another person (single mother)downloads the song and listens to the song which you wrote produced and performed.

Now lets say that person gets sued for $80,000 for that one song. Of which the person who wrote, produced and performed recieves nothing from.

I can see how it works out great for all parties involved.
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Anonymous Coward, 26 Jun 2009 @ 11:45am

Re: Take your lesson from other dictators/idealogs
It would be funny if the entire plot of "1984" was kickstarted by some dude who didn't want others to "copy his floppy".
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Anonymous Coward, 26 Jun 2009 @ 11:48am

"Sincerity - If you can fake that, you've got it made."
— Groucho Marx
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Hayden Frost, 26 Jun 2009 @ 11:54am

Labels use the controlled composition clause and hollywood accounting to reduce artists income past the advance to zero. And since the artist must pay for a lot of things with that advance (like studio time, payola, artwork, managers, agents, attorneys fees, taxes, and more), there's virtually nothing left, and then they have to split that remainder between the band members.

If you want to know the real deal, look at Steve Albini's piece or Courtney Love's piece on the accounting of the record deal. The fact of the matter is that a band with a successful record nets the label $4m+, but makes less than they would if they flipped burgers. When the album doesn't break even (and most don't because the way recoupment is calculated), even headliner's like Toni Braxton declare bankruptcy multiple times to get out of the massive debts that the labels conjure up.

And most bands don't even look to get an attorney until after they're getting screwed (that's most of them). At that point, they can't even afford gas money (nevermind the $200-350 it costs just to file a lawsuit), and their cases are complete duds because of the record contracts. As an IP attorney, even in slow times like this, I only take artist clients as favors for friends.
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Technoviking, 26 Jun 2009 @ 11:56am

Re: Re: Re:ZAFT
What is the Label/Recording System value proposition?

I am very interested in your answer. Because, it seems the only value add is the ability to sue people, and maintaining a legal framework which enables for legal intervention.

Perhaps there's some other item I don't know about, but I remain very interested in any additional value-add.

Separately, it seems all other business activities can be replicated outside of the current Professional system, and at a lower cost.
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ZafT (profile), 26 Jun 2009 @ 12:00pm

Re: Re: Re:ZAFT
Jason - I didn't even come close to suggesting that copyright, as it stands, is anything close to perfect. I merely suggested, through an example, that /some/ copyright protection is appropriate. In my example, a big corporation takes advantage of the lack of copyright. It shows that getting rid of copyright altogether would make things even worse.

Are you simply looking for someone to pick a fight with? I'm the wrong guy. I believe copyright is in desperate need of an overhaul. But your assumption that (c) is an all or nothing proposition is naive, and actually perpetuates the problem.
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Osno (profile), 26 Jun 2009 @ 12:23pm

I still don't see the greater good of copyright to society. I only get hypothetical situations where it helps an individual. And those, I really don't think are necessary. I can always write a book and publish online, get read and then get someone to print it for me (on a contract, not on copyright) and get money on that. Or on reading/writing jobs. Or on conferences. Or on presentations. Or on sponsorship.
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Osno (profile), 26 Jun 2009 @ 12:24pm

And before this turns into a "fight" I'm really only interested in discussing the topic, because even Mike thinks copyright is useful in some situations and I simply don't see it.
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Jason, 26 Jun 2009 @ 12:39pm

Re: Re: Re: Re:ZAFT
Nope not starting a fight... your comments sparked a thought: in relation, my statements have nothing to do with your statements. My comments are more along the lines of the industry as a whole. You specifically discuss pros and cons of ©
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Tommy2face, 26 Jun 2009 @ 12:47pm

Re: Re: Re: Re:ZAFT
Zaft maybe you shouldnt get so emotional over the subject. I am not sure how you rendered your argument that Jason assumes anything about copyright. Your falicious argument that Jason has made an "assumption that (c) is an all or nothing proposition" of which "is naive."

You are both talking two different points. So go ahead and wipe that tear and maybe take the time to understand what somebody is saying next time you make such an ignorant statement.
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tim, 26 Jun 2009 @ 12:50pm

Re: Re: Re:ZAFT
I think you wanted to say:
"I can see how it works out great for all Lawyers involved."
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Hulser (profile), 26 Jun 2009 @ 12:57pm

Re: Reasons to Buy
It's different because "give consumers a reason to buy" is giving them a real reason to buy, whereas give the consumer a "compelling narrative to follow, they will do so--whether it is true or not" is like trying to polish a turd.
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ZafT (profile), 26 Jun 2009 @ 1:41pm

Re: Re: Re: Re: Re:ZAFT
No crying here. I simply thought that Jason distorted my hypothetical. His sarcastic ending statement "I can see how it works out great for all parties involved," along with a hypothetical that seemed to be organized to be specifically contrary to mine, caused me to think that his hypothetical was meant to somehow rebut the one I provided. If that's not the case, then I apologize (Jason). If it is the case, then the logic is wrong.
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ZafT (profile), 26 Jun 2009 @ 1:49pm

Re:
Osno - I suppose I see your point. If you think that everything can be handled by contracts, then maybe individuals do not need copyright protection. But even in the example you provide, once one copy is in the hands of someone that is not under contract, what is to stop them (especially if they have $) from making a copy and distributing it.

In other words, you make a contract with X to pay you $ to print your book. But once X prints your book, Y gets a copy and distributes it, getting paid. Since you have no contract with Y, they are not obligated to pay you. The deeper Y's pockets are, the more likely Y can eclipse the distribution of X.

Also, without copyright protection, why would X pay you, knowing they could not stop Y and others from simply making copies and selling them? Your hypothetical works as things stand, but partially because your contract with X gives them rights in return for the money they pay you.

I see that you could say "I'll keep it a secret from you if you don't pay me" or have them sign an NDA. But the point is that they are more likely to purchase rights from you than they are to purchase "first access".
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Jason, 26 Jun 2009 @ 1:49pm

Re: Re: Re: Re: Re: Re:ZAFT
No need to apologize... Tommy seems like an Azz
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Anonymous Coward, 26 Jun 2009 @ 1:56pm

Re:
I am pro-copyright in theory, but consider current copyright laws to be nothing short of theft from the public domain and that society would be better off on the whole with no copyright laws at all rather than the ones we have. Just putting that out there before I explain the value of copyright.

Copyright is a deal between society & contributers to the social commons. Society benefits because people are encouraged to produce cultural artifacts (or "art," if you prefer). It's a valid deal, in my opinion, because some kinds of work require quite a large financial investment -- either directly in dollars or indirectly in time -- and copyright laws give some reasonable protection from this risk. However for this to work, for society to benefit, "intellectual property" must be a temporary phenomenon. Eventually, art must enter the public domain or there is no benefit to the public.

Even worse than that, if copyright is complete and forever, society is harmed because the public domain evaporates. What kind of culture is it that can be owned by private parties. Where society, in other words we, you and I, have no right to the things of which it is composed?

It is the one we live in now, and it is insane.
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Anonymous Coward, 26 Jun 2009 @ 1:56pm

As mentioned the other day, the majority of people who felt that Kevin Smith was "a real person" would not steal from their "friend".

It's the trick, when you are "sticking it to the man" it doesn't seem bad, but it seems bad when you are taking something from a friend.
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Anonymous Coward, 26 Jun 2009 @ 2:00pm

Re: Re:
Oh, and it's named wrong. It shouldn't be called "copyright" because it's not some kind of inherent right. it's a business deal between society & producers. As such, it is whatever we legislate it to be.

Also, I make my entire living producing intellectual property, albeit of the computer code variety. Full disclosure. :)
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Fushta, 26 Jun 2009 @ 2:56pm

Re:
Ima,
That's the first thing I thought when I read that line, "the recording industry must appear to be treating artists and fans fairly, and legislators must appear to be acting in the public interest."
It comes off as meaning that they don't actually have to change their ways, just make the appearance.
I don't necessarily think the writer intended the message to "appear" so hollow, but that's the way it comes off. These industries have been trying to "appear" trustworthy for a long time, but haven't been successful. Why would trying to "appear" trustworthy make any difference now or ever?
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LostSailor (profile), 26 Jun 2009 @ 3:21pm

Re: Re: Reasons to Buy
Actually, there isn't much difference, it's all marketing, whether you're giving a "real" reason to buy a product or buy into an idea.
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Michael L. Slonecker, 26 Jun 2009 @ 4:10pm

The linked matter appears to be a very thoughtful exploration of many issues presented on this site. In fact, it reflects in a very straightforward manner the reasons underlying so many of the comments contained on this site excoriating the membership of groups like the RIAA, MPAA and BSA. It also reflects many of the very points made by techdirt authors.

Thus, I am at a loss to explain the enmity Mr. Masnick has chosen to express.
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Osno (profile), 26 Jun 2009 @ 5:17pm

I don't see what's wrong with Y making money of my work, either. It makes me more freely available, and more valued as an author. Example: I live in Argentina and I don't have access to a lot (and I mean a lot) of written material. If some Y in latin america decided to reprint stuff only available in the US or in Europe, I'll get to know many authors and their work will be more valuable (for them and for the other companies that want to profit with their work). I still think that served-first contracts (where X gets the first pass at my work) will be a good business model, and I think that if that the competition will make all the publishers come up with better products. Also, that's why I included the other ways to make money, because I realize that publication alone may not be enough in that case... but that only makes me a better professional. Finally, that still may be helpful for an author, but I don't see how it's helping society. I think that the good stuff will get written anyway even if the authors that are in it for the money don't want to publish if the business is not good enough.
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corberlaw (profile), 26 Jun 2009 @ 6:20pm

Re:
Here's the story: God will take Cary Sherman home if there's one more infringing download.
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Mike Masnick (profile), 26 Jun 2009 @ 6:30pm

Re:
The linked matter appears to be a very thoughtful exploration of many issues presented on this site. In fact, it reflects in a very straightforward manner the reasons underlying so many of the comments contained on this site excoriating the membership of groups like the RIAA, MPAA and BSA. It also reflects many of the very points made by techdirt authors.

Thus, I am at a loss to explain the enmity Mr. Masnick has chosen to express.

Hmm. I'm not sure why you think there's "enmity." I agree that the paper is thoughtful. That's why I said it was a worthwhile read. But what I found amusing was the idea that the RIAA *could* change their story in any successful way.
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Osno (profile), 26 Jun 2009 @ 6:32pm

Also, two things:
1. Exactly that (people reprinting works) happened in Europe, and it happened a lot. We still got a lot of art. Society didn't have a problem.
2. I think, and this is speaking because I have a hole in my face and based on what I think only, that the fact that copyright exists makes it difficult to imagine how an artist can make money without it. I think (same disclaimer) that if copyright never existed, we would have thought of some other way to sustain artists by now.
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Mike Masnick (profile), 26 Jun 2009 @ 6:32pm

Re: Re: Re: Reasons to Buy
Actually, there isn't much difference, it's all marketing, whether you're giving a "real" reason to buy a product or buy into an idea.

Wow. If you think it's "all marketing" then you're more disconnected than I thought. You really think that all of the reasons to buy are "marketing"? Yikes. No wonder you have so much trouble getting this.

A real reason to buy is not marketing. It's providing scarce value.

That's entirely different than coming up with a bullshit story because you're too lazy to change your business model.
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Anonymous Coward, 26 Jun 2009 @ 7:35pm

Perhaps they should just give away t-shirts and totally destroy the alternate marking strategies for bands.

Hey Mike, home come you don't run any of the "free concert" stories I send you?
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Anonymous Coward, 26 Jun 2009 @ 7:38pm

Re: Re: Re: Re: Reasons to Buy
"A real reason to buy is not marketing. It's providing scarce value."

No, the real reasons to buy are need and desire. Since nobody needs music, you have to work on desire. Since there is plenty of desire for music, then it is only a question of how it is marketed.

Your logic falls down on basic things like cars: There are more cars produced than are needed, marketing makes the difference in which ones are sold, at the intersection of need and desire.
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anon, 27 Jun 2009 @ 10:10pm

Re: Grass Roots Laws
It'll never pass. do you think that when the majority of us did not want the last legislated bailout that was passed anyway and if you think that no matter how many people would support such legislation that they will ever pass such a law is naive at best.
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anon, 27 Jun 2009 @ 10:16pm

Re: Re:
like j.r. tolkin you mean with his lord of the rings.
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anon, 27 Jun 2009 @ 10:24pm

star wars
the more you tighten your grip, the more will slip through your fingers. princess leia to darth vader

I just wanted to say that once and finally found a site where it would be relevant and where I wouldn't need an account to post it.
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anon, 27 Jun 2009 @ 10:24pm

star wars
the more you tighten your grip, the more will slip through your fingers. princess leia to darth vader

I just wanted to say that once and finally found a site where it would be relevant and where I wouldn't need an account to post it.
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anon, 27 Jun 2009 @ 10:25pm

sorry for the double post.
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Anonymous Coward, 29 Jun 2009 @ 7:56am

Re: Re:
If you were smart, you got paid for writing the novel before the publishing company could get it's hands on it. Copyright is an unnecessary crutch, especially in today's technologically-advanced world.
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Dark Helmet (profile), 29 Jun 2009 @ 8:28am

Re:
Maybe he can't understand what you're saying. Lord knows I can't.
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Anonymous Coward, 29 Jun 2009 @ 8:58am

Re: Re: Re: Re: Re: Reasons to Buy
I think sunroofs help differentiate, too... just sayin'...
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Anonymous Coward, 29 Jun 2009 @ 9:02am

Re: Re:
If X pays you $ for work, what do you care if Y benefits from the product? You've already been fairly compensated -- and if you didn't think your contract with X was fair, why did you sign?
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Anonymous Coward, 29 Jun 2009 @ 9:11am

Re: Re:
If X has paid you, and Y is distributing your works to a larger audience at no cost to you (since you've already done the work and delivered a product) how are you being harmed? I argue that Y is doing you a service, making you better-recognized and more likely to get future work.

Now, how X and Y feel about each other is a much different question, but that shouldn't concern you.
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Anonymous Coward, 29 Jun 2009 @ 10:57am

Re: Re: Re: Re: Re: Reasons to Buy
"then it is only a question of how it is marketed."

It comes down to things like the quality of the music, how much the agreement of purchasing music benefits the purchaser, your business model, the practices and ethics of your corporation, etc... not just how you market it.
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Anonymous Coward, 20 Jul 2009 @ 7:26am

Oh the irony! Legislators and copyright holders must portray themselves as trustworthy so that people will believe them when they're lying! Genius.
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