Why Availability isn’t Everything with Piracy

Open SignWhen I’m asked what I suggest copyright holders do to reduce piracy, my first answer is almost always the same: Make sure that potential customers have legitimate access to the work in question.

The reason is breathtakingly simple: If you don’t make a work available, it will be pirated, quite literally, 100% of the time. Though I believe this is the creator’s/rightsholder’s choice to make, if we start the conversation with the idea that reducing piracy is the primary goal, the easiest and most effective single step one can take is increasing legitimate access to their work.

This closely mirrors a common point made by individuals who oppose attempts to strengthen copyright law, namely that increased enforcement and increased legislation are not nearly as effective as increased legitimate access. We see this in other reports as well including reports about how Spotify is helping reduce music piracy in the countries it is active.

But while I agree with all of that, increasing access to copyrighted works is not a silver bullet to stopping piracy. As the Spotify report referenced above shows, even with Spotify and it’s access to free, legal music, some 22% of individuals in the Netherlands aged 15 and up downloaded illegal music. Much of that content, inevitably, was almost certainly available on Spotify to begin with or on other legitimate channels such as YouTube.

To be clear, between 2008 and 2012, there was a significant drop in music piracy, namely a drop from 32% to 22% of people. That’s nearly a one-third reduction in the number of people who pirated music. Still, it’s by no means an elimination of piracy.

To make matters worse, despite widespread growth, Spotify is still losing money and is still paying artists very little. In short, if Spotify can’t improve its financials, any reduction it caused may short lived and, if it can’t help support artists, it may not do much good.

While I’m the first to agree that availability is important, it is only part of the solution and any lasting answer is going to be more than just making copyrighted works available, it’s going to be a combination of multiple variables working together.

The Game of Thrones Problem

MPAA GraphWhen people talk about the issues of piracy and availability, Game of Thrones is often thrown around as a key example. The series is notorious both for being widely pirated, breaking several records, and being difficult to access, namely being only available to HBO customers.

It’s undoubtedly true that the lack of immediate and easy legitimate access to the series has spurred much of its piracy, it isn’t the only factor. The series is also incredibly popular even without piracy and is widely considered must-see television and a cultural phenomenon. There are many works out there that are far less available legitimately that don’t see nearly the level of piracy.

And the picture on availability is much different with other works. As the infographic from the MPAA shows (above right), there’s been a steady in crease in the number of services that offer streaming television and movies legitimately online. According to the MPAA, there are currently 95 in the U.S. alone. There are also sites such as Can I Stream It? that offer guidance on where to find legitimate streaming versions of movies and TV shows.

However, according to Torrentfreak, U.S.-based traffic to The Pirate Bay has actually increased in recent years. While this may, as the article indicates, be a failing of the “Six Strikes” system, it’s also a failure of increasing availability.

Anecdotally, this is backed up by filmmaker Ellen Seidler, who writes the site Vox Indie. Her film, And Then Came Lola, has been available on Netflix, Amazon and Hulu for some time (though it is not available on Netflix currently) and still saw widespread piracy on various sites.

Though music piracy has decreased in the U.S in recent years, dropping from 33 million people in 2005 to 21 million in 2012, that impact has not been felt in other areas, something also noted in the Spotify report regarding the Netherlands, even as legal availability increases across the board.

While some may argue that this means film and TV aren’t open enough, not having reached a true “Spotify for your TV” system (Netflix being the closest). However, given the difficulties with profitability for Spotify and the royalties musicians are claiming to see from it, many are wondering if the reduction in piracy has produced real benefits on the ground.

In short, legal availability doesn’t destroy piracy. Instead, it merely reduce it in some cases. However, that reduction can often involve taking deals that offer little significant difference over piracy, providing little, if any, benefit to creators and rightsholders.

Solving the Problem

Unfortunately, there’s no easy answer for copyright holders on this problem and no one unified path. Any improvement in the situation is going to come about due to a combination of enforcement, business model and technological shifts.

If availability alone fixed the problem, piracy would be decreasing across the board and be virtually nonexistent for music. While change takes time, especially when you’re breaking habits, it’s already fairly clear that availability alone will not deter piracy. After all, if the Humble Indie Bundle, which sells a series of video games under a name-your-own-price model, can be routinely pirated, anything can and will be pirated, regardless of availability and price.

For some, this means that ignoring piracy is the best solution available. Simply ignore those who pirate your content, price and market your works to those who pay and move on. For others, this means using a combination approach, making content available, engaging in reasonable enforcement and taking available proactive steps to protect your work.

After all, the goal of enforcement isn’t just to try and motivate those who pirate content to become legitimate customers, it’s to reduce the competition that legitimate services face from illegitimate alternatives. Every illegal streaming service that is closed isn’t just a boon to copyright holders, but the companies like Spotify and Netflix.

In short, there are no simple solutions and, as I’ve said before, every content creator is in a different position.

There are no one-step solutions and no one-size-fits all answers.

Bottom Line

Copyright enforcement increasing legitimate alternatives are not mutually excursive acts. Rights holders can and have been doing both for some time. In fact, if done well, they can support one another.

There’s never going to be a complete elimination of piracy, but that doesn’t mean rightsholders can’t work for and find an approach and a balance that helps them earn the most from their work and support their other efforts.

What that balance is, as I said above, will be different for each creator but it’s never going to be simply a matter of increasing availability.

The works on this site, for example, are about as available as a work can get. They are here, for free and available at all times of the day with no ads and can even be reused with a Creative Commons License. Yet, time and time again they are infringed upon.

As great as increased availability is and as important as it is to reducing piracy and other infringement, by itself it isn’t the answer, despite what many seem to claim.

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