A graduated response to copyright

Dr. Jason Rutter is a sociologist with a fascination for the copyright debate. He is currently conducting a two-year research project at the University of Leuven, Belgium, called STEVO, the Socio-Technical Evolution of Intellectual Property online, which focuses on the user side of file-sharing. Dr Rutter explores how the downloading of copyrighted material occurs and how it has found a place in the day-to-day routine of many people as a normal and accepted practice. We talk with him about file-sharing, the widening gap between consumers and producers of content and the future of copyright.

The user experience

People view digital goods very differently from physical goods. The notion that creating a copy doesn’t create a direct loss has now evolved to be deeply embedded in our culture. As is the notion that access to digital goods should be cheaper than possession of a physical copy. In my experience, these people are not the entertainment industries’ biggest nightmare. As long as they see these principles upheld and a convenient way of accessing these goods is in place, they are perfectly willing to be consumers more than pirates.

A common thread in my research is that I notice that people are willing to legitimately consume goods when they see the value. But if the proposition doesn’t suit them, they resort to piracy using arguments like: “everybody does it”, “it does no harm” or “they brought it on themselves” to justify their behaviour.

As for the more shady side of file-sharing, I find that, in general, there are a number of consumers that shy away from buying counterfeit goods as they know that organised crime was probably involved. For file-sharing, this is the same. There are some people who do not engage in file-sharing as there is a dark side connected to it. What I consistently find in my research is that piracy is no counterculture, these people aren’t revolutionaries. File-sharing is mainstream and pervasive. If the situation is to be mended, rights holders should acknowledge this and work from there.

The market context

The functioning of markets for content is especially hard to understand. It is not as clear-cut as Big Content states: there is little evidence, to my knowledge, that entertainment industries are losing out because of file-sharing. Revenues are down, yes, but there are more reasons than just piracy that can explain this. Household spending on entertainment is down, but do remember that we’re still in a time of deep economic hardship.

Besides, there is an increasing body of research that demonstrates that file-sharers do indeed spend more on entertainment than non file-sharers. Even when one statistically controls for enthusiasm and fandom, as a recent study found, file-sharers are still the bigger consumers. Of course, correlation should not be mistaken for causation, but it’s an interesting find.

The difficulty in claiming the economic high ground goes the other way, too. I have yet to see pirate parties developing a sound economic case on their philosophies of sharing. Open source products are nice for the niche they serve, but mostly they are geeks’ wares aimed at geeks. Linux, for example, is just a pain.

The failings of copyright and ways to mend it

From the perspective of a sociologist, laws are social constructs that serve to structure the way that groups of people interact. Mostly, the bottom line of laws is to reduce harm and promote fairness. Consumers increasingly feel disenfranchised from copyright as they perceive it works to the benefit of rights holders more than to their benefit.

Now that behaviour has changed in a deep way because of new technological options, copyright is more and more about legislating human behaviour. However, it is practically impossible to legislate human behaviour. Behaviour is the result of a very complex negotiation between a lot of different factors like habits, norms and values of peers, hierarchies, financial and material options, regulation etc.

What worries me is that increasingly, copyright is entering the civil liberties domain. The international tendency to sever internet connections as a sanction for piracy strikes me as over the top.

Furthermore, copyright is just inflexible. It has been developed as a one size fits all solution. But with all the different kinds of content that we now have, this just doesn’t work.I’m not saying that copyright should be abandoned, but it needs mending. For me, when looking at restructuring copyright, or any kind of law, three questions need to be answered and balanced:

1.    Who is it protecting

2.    Who is it rewarding

3.    Who is losing out

Currently, copyright is geared towards the right holder. It is the right holder that is protected and rewarded. Many consumers feel that in the current constellation, they are the ones losing out. They just do not see how the current copyright regime is benefitting them.

Along that line, I would propose a graduated response to copyright. If cultural goods are important, we should study why they are important and create flexible copyrights that suit different contexts and contents, e.g. for academic purposes, for performance etc.

Closing remarks

From my perspective, I would say it is important that the entertainment industries at least acknowledge that file-sharing is a mainstream action. File-sharing is, amongst many people, an accepted form of consumption. As such, finding a solution should start there. Marginalising file-sharers doesn’t bring a solution closer. Quite the opposite, it further estranges them. In the end, rights holders do not need to love file-sharers and embrace them for it, but to close the gap, they should at least have a cup of coffee with them.