Saturday, May 19, 2012

Thoughts on piracy

According to Forbes, Game of Thrones will likely be the most pirated show of all time. There are many reasons for this, one being HBO's business model, as summed up nicely in this comic by The Oatmeal.

I myself am watching Game of Thrones legally, yet not paying for it. My sister records the episodes and I watch them at her place. In effect, I'm piggybacking on her account and we're getting two views for the price of one subscription, since I don't have cable at all.

Personally, I've had mixed feelings about piracy for a long time, and I'm still not sure what my position will eventually evolve into. I've got friends in two camps on this. My artistic friends (game designers, people involved with film and music, and those who can draw well) generally think that piracy is one of the greatest sins of the modern world. Meanwhile, my techie friends seem to have not even the slightest trace of guilt about it.

A great case in point: I watched Breaking Bad for the first time last year, on the advice of a coworker. First he said "You should check it out." I said I'd see if it was on Netflix, it was, so I got hooked. I feel good about watching things on Netflix, because in effect I've already paid for it, and the money that I pay indirectly gets back to the studio via whatever contract they've negotiated.

When I'd finished the third season, I realized that the fourth and final season (so far) was not available yet. So I told my coworker, "Well, I'm gonna wait a while until Netflix uploads the next season." I got funny looks. He said "Why don't you just torrent it?" -- as if there is no reason in the world not to do that, and I must be some kind of Amish hippy or something to not have thought of it.

I'm not saying I took the moral high ground here. I held out for a few more days before I talked myself into torrenting it. But at least I'm aware that there is a moral issue. I discussed it a few times with said coworkers over lunch, and they at least acknowledge that it might be a problem for the studios. I have a strong suspicion that most people under the age of 20 would not even go as far as recognizing that it's illegal.

To be clear: Most of the movies I watch are either in theaters, purchased or rented DVDs, or legally endorsed streaming sources. Most of my music is from CDs I own or MP3s I purchased online. Most games I've played and enjoyed are either free or paid for. Most, but definitely not all.

Let me play "angel's advocate" and try to fairly represent the side of my art friends.
  • Being an artist, of one sort or another, is hard work, usually for low pay.
  • Making money as an artist depends on some sort of reliable revenue.
  • Without a business model that produces reliable revenue, big budget art will not be viable. Movies like The Avengers have to show in theaters and sell DVDs, or there's no economic incentive (hence no ability) to make them. Games like Diablo III and Skyrim need to pay their designers, actors, modelers, and developers, and that means they can't afford to give it away. Musicians need to make enough money to live on. And so on.
  • When you consume art for free that you have been asked to pay for -- watch a movie, play a game, put music in your collection -- you are stealing it. The artist deserves to make money for producing things that you enjoy, and you are taking advantage of them by not paying for it. (This is one of the points I am a little ambivalent about. Just bear in mind that I'm trying to accurately represent the artist side of the equation in making these points.)
  • The more art people steal, the more difficult it becomes to make money as an artist. It's a tragedy of the commons situation. Eventually we may get to the point where the quality of art declines dramatically, because the really talented people will not be able to produce art full time, nor will the budgets be there for big projects.
  • Therefore, by pirating, you're hurting everyone in the long run.
I don't really want to post the pirate's justification for pirating in much detail. I've heard them presented in many conversations; I've even tried using a few myself. But even to me, they ring a little bit hollow. They strike me as the rationalizations of someone who knows they're doing something wrong but wants to keep doing it.

For the sake of putting them out there, here are some briefer hits on the pro-piracy arguments:
  • It's not really stealing if you copy something without destroying the original.
  • Information should be free anyway.
  • I wouldn't pay for it even if I couldn't pirate it, I'm too poor or it's not that good.
  • I tried to give HBO my money but they made it too hard. (See the cartoon above.)
Many of the arguments come up in this Reddit conversation about "Thrones," which the Forbes article also links.

I don't want to pretend that these are really strong arguments from an ethical point of view, but I do want to point out a few things about managing incentives properly.

There is a saying among economists, that you put a lock on your bike to keep honest people from stealing it. In other words, leaving your bicycle unlocked is just too tempting, and some people who wouldn't normally steal a bicycle may succumb if it's just sitting there unlocked. Meanwhile, a really determined criminal will still steal your bike with or without the lock. It's just that if you have the lock, the probability that your bike will be stolen on any given day goes way down.

In other other words, we all have a certain moral threshold, some lower than others. I'm pretty sure I wouldn't steal a bike, with or without a lock; and yet I stole season 4 of Breaking Bad. Where does the moral calculus lie?

It seems to me that people decide on a course of action based on a variety of factors, of which the primary motivators are
  1. How great the benefit is for doing something unethical (If there's no benefit, the choice would be easy) versus how great is the fear of being punished for your actions (taking into account both the likelihood of being caught and severity of punishment).
  2. How difficult the action is to perform. (In the bike lock example, moral objections plus the difficulty of breaking a lock will be enough to deter some people from stealing a bike, whereas without the difficulty factor, they succumb.)
  3. What magnitude of harm they think their actions might cause. (Robin Hood is a prime example. In this case, the principle that "Stealing is wrong" butts up against the observation that it will do more good than harm. Most people would place "Stealing $1,000 from a billionaire" as a lesser evil than "Stealing $1,000 from a person who needs that money to eat.")
There may be more factors there, but let's just take these three to start with. On these axes, media piracy falls in an area for most people that makes it really easy to rationalize.

How great is the benefit of piracy? Well, not really that great. You can watch a movie that you would otherwise miss. It might not even be a very good movie, or else you'd be more likely to pay for it. There is benefit, though, as The Oatmeal points out. Sometimes you're saving the cost of a ticket or DVD, and sometimes you're seeing something now that won't even be available for a year or more.

But what about punishment? Despite a few well publicized cases in the last decade that turned out to be a PR disaster for the RIAA, generally people know that the chances of being caught and making charges stick for something that millions of people do, is minuscule at best.

How difficult is it? The first time you try it, it takes a little research. On subsequent tries, it's trivially easy, requiring only some nearly free bandwidth, and a few hours of slightly slower internet access.

What magnitude of harm? This is the major point of dispute. Even if we completely grant that it's wrong to pirate, and even if we accept the fact that artists need that money, the individual harm that I cause by pirating a movie is still very small. Depending on when they say it, the MPAA claims that piracy costs their industry $250 billion, $58 billion, or $6 billion per year. A piece in Ars Technica suggests that it's not nearly as bad as any of those.

Certainly, if someone pirates a movie that they would have otherwise have paid $20 for, then the studio loses $20. But part of the effect of piracy is that people wind up seeing a lot more movies than they would actually buy, and most people see their "theft" of any individual movie as being worth a buck or two at most... and one TV episode being worth far less. Again: I'm not saying any of this to argue that it's actually okay to do this, just pointing out how the calculation shakes out for people who pirate regularly. When a pirate steals an episode of a show, they probably think of that individual action as costing a few cents.

In HBO's case, on one hand I think they're being a little bit foolish by making customers jump through so many hoops to get a copy of the episodes. Yes, if they force somebody to subscribe to their full service then they wind up with a lot of money. But if somebody doesn't subscribed even though they would have been willing to buy some episodes on Netflix or Hulu for, say, $20, then that's $20 that HBO simply doesn't get which they could have. I'm not the CEO of HBO, of course, and they might have calculated the difference. But my feeling is that if their business model is to force customers to stay subscribed to traditional cable service forever, I don't think that model will last very far into the future. I know I'm not the only one who's just abandoned cable entirely in favor of paid online entertainment, and I imagine this will become more common going forward.

On the other hand... the fact that HBO doesn't charge a reasonable price for their services doesn't automatically entitle people to steal them. As with all of capitalistic offers, your options within the law are to either accept the services, find a legitimate bargain, or just don't use them.

But despite all that rationalizing, we still have those issues in the background that make piracy an easy thing to do. The act of pirating is ridiculously easy, and will only get easier. There are steps that many game companies are taking to prohibit piracy, such as the growing trend to do what Blizzard has just done with Diablo III, which is to require that even mostly single player games connect to a server at all times. However, in the case of music, media and text... I'm fairly well convinced that it will never get more difficult to pirate them from a technical perspective.

The reason is simple. No matter how many safeguards they put on DVDs and ebooks, eventually you have to let paying customers see and hear it. That means that you have to allow every customer to decode it and play it back visually and audibly, and that means that you can capture the output to a file as well as the screen. Look at it this way: in the worst case scenario for pirates, even if the software was completely flawless, it wouldn't be able to prevent external recording devices from just taking a video of the video.

When you look at it that way, legal wrangling like SOPA and PIPA are all that media companies really have to turn back this tide, and they're not good tools. They'll never make media harder to copy, and they won't convince people that the pirated video is costing them more than a couple of bucks per "theft". So the cost/benefit calculation of pirating is their only weapon -- trying to impose draconian punishments on people who get caught, so that they won't do it.

Yet SOPA and PIPA had all kinds of problems because they overreached, causing companies which do not encourage piracy to protest that this would hurt their business model. In effect, the cost to the society for implementing those measures was worse than the cost to the media companies. In my example above, I said you could copy movies with a video camera. Suppose the MPAA decided to push Congress for a law that made owning a video camera a federal violation subject to a hefty fine. That might solve some of their problems, but it wouldn't be a solution that citizens would stand for, for many legitimate reasons.

So as I've felt for years, I don't know what the solution to piracy is. Since it is a tragedy of the commons problem, everyone who pirates contributes a small amount to the problem, but the overall consequences are large. And I don't want HBO to go away. From what I've read about them, it seems to me like it would be extremely difficult for any other company to undertake such large scale projects with such a generous lack of censorship. As popular as it is to talk about "crowdsourcing" these days, I think people underestimate the magnitude of shared resources that has to go into a huge entertainment project.

There is, of course, a lot of fat that can be trimmed out of the publishing industry in general. Greta Christina recently proved that you don't have to go through a giant publishing corporation to make money on book sales, and Joss Whedon showed that you can make money on a silly one-off independent film project. But that's probably not a fair standard, since he's Joss Whedon. Already an established Hollywood presence (more so now that he's directed one of the biggest box office hits of all time) and with fairly big name actors willing to work with him pro bono.

It could be that some art forms will simply be unavailable, or will decline sharply in quality, because it's no longer feasible to produce expensive things and make money with them. That'll be sad. But with all that said... I may be a hypocrite, but torrenting is still fun.


  1. As an artistic individual myself who has for years made shitty-to-no money through my artistic efforts (though not because of piracy, but because of the low income opportunities for anyone doing non-commercial creative work), I am naturally simpatico with your list of anti-piracy arguments. Someone once said that life as a working artist is all about proving your talent to people who have none. I would add that it's also about proving the value of your talent to people who don't think art is work and thus worth paying for. (Tell someone you're an artist, and within about 90 seconds, a healthy percentage of them will almost certainly ask you for free work of some kind.)

    Here's the problem with piracy as I see it (and as someone who has done his own share of torrenting): People only resort to piracy because the proper distribution channels for obtaining what they want aren't giving them what they want. This is bad decision-making at the corporate level, not the creative one. Ultimately, all that artists want is an appreciative audience. And the problem for those of us who aren't in the limelight isn't so much piracy as obscurity. Every novelist isn't J.K. Rowling or Stephen King. Every movie isn't The Avengers. Every band isn't U2.

    The cartoon above is an excellent example of what went wrong in distribution that caused the present piracy problem. Rather than embracing the internet as a vital and emerging new distribution venue back around 2000 like they ought to have done, the entertainment industry either simply ignored it or didn't think ahead with any degree of seriousness towards how to effectively exploit it. This allowed Napster to slip in through the hole in the fence, and once P2P was off and running, there was no stopping it. It took years before marketplaces like iTunes and later Amazon MP3 gave the public a way to just buy stuff online easily, but even then, those outlets had to pacify an entertainment industry still living in the previous century, who demanded specific pricing structures and shit like DRM. (Contrary to most people's determination to think of him as evil incarnate, it was Steve Jobs who fought the labels as long as he could to keep song purchases at 99¢.)

    But even with legitimate venues for downloading and streaming entertainment options, the corporations holding the copyrights still, bafflingly, make it a pain in the ass to do it. HBO programming is a case in point. I finally bought Game of Thrones on Blu-ray, but for people who aren't subscribing to HBO through their cable service, finding an online option is frankly insane. HBO GO is a streaming service that only people who subscribe to HBO already can use. You can stream the episodes on Amazon, but it's a buy at $3.99 per show, not a rent that you can enjoy as part of a subscription fee. Same on iTunes. As for Netflix, forget about it. [continued]

  2. What is your view on pirating for the purpose of early viewing? You mention torrenting season 4 of Breaking Bad but eventhough you saw the season early that didn't make you cancel your netflix subscription I imagine? So the net effect was not that you payed less but only that you saw something earlier than you otherwise would have.

    I think with regards to TV shows this is a non-trivial part of the pirating population at least if one takes non-US viewers into account. Other than people who want to see a show early you also have the subset of piraters that can view the show legally in their own country but who choose to pirate because they want to watch the show in the original language rather than a version dubbed into german, spanish or french etc. These are examples that inflate the piracy numbers without actually losing anyone any money. I agree that piracy is a problem and it's unsustainable but there are also times when the problem gets exaggerated which is also not good.

  3. [continued]

    So if all you want to do is watch the motherfucking show to see what all the fuss is about, your "legal" options are to either rent the discs via Netflix or (assuming such a thing still exists in your town) a video store, or to purchase each episode of the show as a legal download from approved sources, or to stream it on HBO GO, in which case, you've probably already seen the show because you have HBO on cable.

    Is it any wonder this is the most torrented show out there? Goddamn HBO is doing throwing up every brick wall it can think of between it and its eager audience.

    It's not the case that most people simply don't care to support artists. The popularity of Kickstarter has made it all too clear that people love to rally behind artists with impressive projects, throwing money at them to realize them. But audiences are frustrated by corporate entities that control and restrict easy access to popular entertainment for reasons that are obscure and baffling at best. Audiences are, on the other hand, happy to know there's a way to financially support an artist as long as there's no grubbing corporate middleman running interference between them.

    Perhaps because artists think creatively, wherever you see smart and even counter-intuitive decisions being made to minimize the effect of piracy, it is usually initiated by them. Popular blogger and author Cory Doctorow has, with the full permission of his mainstream publisher, put all of his science fiction novels on his website to be read absolutely free. The effect of this, interestingly, is that he has seen a boost in the sales of the published editions. Again, for most of us, obscurity and not piracy is the problem, and if people have a way simply to discover new talent they would appreciate, then time and time again it's shown they love throwing money in the artist's direction as a token of their esteem. But in most cases, the corporate copyright holders simply won't meet audiences halfway the way artists are willing to. They are stuck in a older model of doing business, and old habits, even bad ones, die hard.

    I work in film. I have a goal to make them, and when I do, I want them to make me money, and toward that end I hope that audiences can find and watch them by following the path of least resistance. As an audience member, I was delighted to buy the Blu-rays of such HBO series as Rome and Game of Thrones when they hit. But that wasn't the way I first got to watch them. For that, I torrented. HBO gave me no other choice that I considered fair as a consumer.

  4. Martin, I want to believe it, but I'm not totally convinced that most people would pay for entertainment if it was optional. You and I do, but we grew up in a generation before this was an issue. I think there is likely to be a generation gap, in that today's 20 and under set has already grown up in a world where they mostly assume that they can get a lot of good stuff for free.

    At the risk of sounding like a grumpy old man, I think the gap is real... we revert to the behavior we're familiar with, because there was a time when we couldn't get these things without paying for it.

    1. Hi Russell, I don't believe it's ever been that hard to get free movies and games. Before the internet there was the sneaker net, and it was generally much smaller scale but people would share stuff between one and other. Hell, people at work STILL bring there laptops and hard drives in to share what they've bought/downloaded.

      Also, I don't think it's just that it's easy, I think it's also because the laws are stupid. If I'm not mistaken the current draconian laws have the potential to get you more prison time than some murderers. Yet it's pretty unlikely that you will get caught. I think when you have stupid laws it breeds disrespect for laws in general. Copyright infringement should be on the same level as a non-dangerous traffic violation.

      I'm wondering what your stance is on abandonware? The discovery of recent, and long missing, Dr. Who episodes has brought that issue back into the forefront for me.

  5. Let me preface what i'm going to write by saying I'm an artist, a designer to be more precise. However, I'm going to write this post from a perspective of a consumer, because nobody is exclusively one or the other nowadays. Today, content creators and content consumers are blended together, and often this fact gets overlooked in the discussion.

    Piracy is a service problem.

    Torrents, cyberlockers and indexing sites etc. provide a better, easier to use and faster service than the rights-holding companies.

    The second fact is, that piracy (in its modern internet-form) has been around for a good 20 years now, yet nobody could actually document "damages" in this timespan.

    Once it was said that piracy would kill the PC-software market, yet from all we are seeing, the software market is stronger than ever.
    People buy more software, people buy more games and entertainment than ever before.

    If piracy would really hamper sales, or lead to those "losses" the industry supposedly suffers, we would necessarily need to see a decline in purchases.

    If you are right in your assertion that most pirates don't pay for entertainment, and the amount of active pirates/downloads increases every year, we would have to necessarily see -some- kind of measurable negative impact on the industry.

    But we just simply don't, we actually see the -reverse- (

    The fact is that most pirates buy entertainment, and lots of it.
    "Pirating" is a discovery process, most people I know that regularly pirate agree with this (
    I wouldn't have heard of Game Of Thrones here in Sweden were it not for torrents, and I wouldn't have bought the first-season complete collection on DVD.
    Most "pirates" use downloads to gauge a product before purchase. In a time where game-demos for example went woefully out of style, its the only way to make an informed decision.

    People don't like to buy/pay for a "cat in a bag". They want to make informed purchase decisions.

    You don't buy a car without a test-drive or at least sitting in it and touching the wheel, why should you treat a purchase/payment for entertainment any other way?
    Adding to that the that the buyer essentially has zero rights from his purchase and people have a right to feel ripped off and try to find a different way to acquire a product.

    The DRM issue already is creeping into our "physical" reality, iPhones, PS3s and other pieces of hardware have proprietary technology that can't be re-purposed or modified by the user (the whole debacle of the military using PS3s as cheap clusters).
    Consumers are loosing control over the technology and products they legitimately purchased.

    While yes pirating is nowhere near ethical, the other side of the debate is not helping solve the problem, they are making it worse most of the time.

    At the heart of this lie the old and useless IP and copyright laws that need a complete rework.
    Its bad for the artists too (this is from the perspective of an artist).
    Its bad that I get my videos flagged and removed from youtube because I used a 10 second clip of Game Of Thrones in a review (just to get it reinstated later, after i battle the DMCA for two weeks).
    Its bad that i cant freely remix and re-purpose original commercial content. Video-collages are completely impossible to make and publish without getting DMCA'd to all hell nowadays.
    [continued below]

  6. [continued from above]
    Current IP-laws and their watchdog-laws like DMCA are stifling creativity and preventing free exchange of ideas.
    Furthermore the more invasive laws lobbied for by the content-right holders (publishers) are gnawing on information-freedom and net-neutrality every day.

    Take for example postal mail privacy. There is no law that requires you to identify yourself on an mail-envelope. You can send mail anonymously, and you are protected by the postal privacy laws that nobody will open your mail.
    Why is data-transfer online treated differently? Why can corporations (ISPs) inspect my packets in a transfer and decide if they are "legitimate" or not.
    You can't have both.

    Piracy is a spectre hung over the populace, the scare-tactic used to lobby for -more- privacy-invading laws and more control over content by the rights holders, even though they already have -all- the control over the content anyways.

    This is why piracy exists, these are the issues that drive people to pirate.

    I remember getting my entertainment over sneaker-net in the past, the same debate and outrage was here before when VCRs were introduced into households.
    The movie/tv-companies screamed like little children that nobody would go to the cinema anymore, everyone would just get free entertainment from their TV and then infinitely copy it for their friends, cutting out the advertisement.
    Yet the sky did not fall, the industry did not crumble.
    Not to mention that the whole industry of Hollywood is -based- on piracy and patent-infringement.
    Hollywood was created as a safe haven from the Motion Pictures Patents Company that held a copyright monopoly on film on the eastcoast.
    Sure, a time later the supreme court ruled the MPPC was unlawfully creating a copyright monopoly but the point still stands, the first Hollywood movies were infringing the current MPPC copyright.

    And I agree, they were infringing it for a -good reason-, and I see several very good reasons for todays piracy as well.


    I want to keep this section separate because I think its important.

    Please Russell, don't call it "theft" its copyright infringement. There is a reason why its not legally considered theft, because it isn't.

    If it was considered theft, then the legal system would treat it as theft, and the law would also use penalties like in theft.
    I.e. nobody would pay upwards of 100.000$ for 10 pirated songs on their PC (ex.:

    If you want to call it theft, then please lobby to make the legal system see it as theft and follow legal procedures according to theft.

    At least following the strict legal proceedings for theft would guarantee a fair trial, instead of being faced with a civil lawsuit from a company that can crush you with resources you can't defend against.

    It would also stop copyright-trolls that accuse 70 year old women of pirating porn ( and mass lawsuits against random IP addresses you pulled out of the torrent cloud (

    Innocent until proven guilty and all that.

    Good read though.

  7. I torrent something when I don't have any other option as described in the cartoon. Netflix has a good selection, but it's fairly limited. There are no alternatives in my country. That show is not available to rent in a store and any titles that I do want to rent, are way over priced.
    The industry needs to move with the customers needs. They can't decide to charge whatever the hell they want for any kind of shit. If I see a movie in the cinema and enjoy it, I'll buy it when it comes out on blu-ray. I don't torrent things I enjoy. The makers deserve money if they produce art that I would like to buy.

    I don't think it's fair for some studio to produce a shitty movie/game and expect the public to pay money to find out that it's shit.

    I have a 100+ game steam library and an ever expanding video collection. I definitely feel justified in my process of buying something, when the alternatives are rarely consumer friendly.

  8. Russell,
    let me give you an example how one can become mad with the current status of anti-piracy efforts.

    I suppose you've heard of a TV show named "The Atheist Experience".
    May be Martin has also an idea what I am talking about. I see you both regularly there.

    To my point.
    I am going through the old shows from

    Some guy with Youtube name DonBakerTheAtheist has uploaded all these old shows there.

    You see, he is a pirate. The show is also a pirating show.
    How do I know?
    That is what Youtube tells me in about 20-25% of the videos.

    I happen to live in Germany. There is some organization GEMA
    which is the copyright cop in Germany.

    Before using the current great song "Listen to Reason" you had short pieces of music while rolling some text in the beginning of the show.
    Why? Why are you such a terrible pirate Russell? Why are Don. Martin, Matt, Jeff, Ashley and the others such bad people, stealing music from the poor artists?

    Thanks to the efforts of our brave copyright cops a vast number of the shows are not available. Youtube shows a text that something, belonging to someone is not currently licensed to residents of Germany.

    What is the end effect? More than a hundred shows are censored as a side effect. The old shows have no audio only download, so that is the only practical venue for us, the other pirates in the world to listen to some show, that discusses among other issues the .... freedom of speech.

    I listen to 2-3 shows each evening. Normally I am not allowed to listen to at least one in such a session. Each time I want to scream and I plan to start pirating just to mess with theses idiots. They (I don't mean google) are blocking an hour and a half show for a 30 seconds piece of background music.

    I am even more angry that more than half of the blocked shows are featuring one Jeff Dee. Was he choosing the music that there is such a coincidence?

    Not only they are not protecting any copyrighted material, nor they are effecting in fighting piracy. Actually they are forcing people like me to be pirates.

    In the UK people can watch a lot of content from the BBC site. Some of the content is not available in Germany in any legal way. I have to pirate. I have no way to pay for it.
    A lot of entertainment in the US is available on Hulu and the networks own sites, which again I have no choice but to pirate. Then there is the other situation where something is available only with German dubbing. Imagine buying a DVD without the original language. Can you guess how strange Schwarzenegger sounds? Or someone with a southern accent?

    What is easier and safer?
    1. Buy DVD, find out there is no English audio and go pirate it.
    2. Go pirate it.
    3. Go and hope to find a Creative Commons licensed material, like your show, on a pirate site and ... pirate it? Or is it really pirating it? I am confused in this case.