With the Internet, We're All Street Performers

There are many articles online that echo the MPAA talking points about PIPA and SOPA, the Senate and House versions of a law that gives media companies the right to command law enforcement to go after those they target with little or no judicial review, no requirement of evidence, no right of the victims to challenge their accusers.

For me, these articles all do away with any authority they could have brought to the issue by attempting to associate those who download MP3s and MP4s as "thieves." The thieves they try to remind you of are those breaking into someone's home, or taking something off your person. Some articles go even farther and try to compare downloading to drug trade, or even terrorism.

Let's be clear in our terminology. Downloading an MP3 is a form of "theft," but not that kind. In order to take something from you or your house, I need to deny you access to it. In order to download an MP3, I take nothing - I enjoy your efforts without paying you, like someone passing a street performer without putting anything in the hat.

There are no laws stating you owe a street performer, even if you stick around while they play. But media companies don't see themselves this way either because they're full of themselves, or they see the end of that legal road, and don't want to go there.

To be concrete, Louis CK, Trent Reznor, Radiohead, and several more artists have posted their work for free or variations (sometimes a small flat price, sometimes you pay what you want etc), and made plenty of money anyway. I haven't heard them outwardly acknowledge they're doing a global street performance, but the business model is identical: Some paid. Some didn't. The artist did well. At its core this is how media works - you put it out there and you hope some people like it enough to pay for it. Some like it and don't pay. If you're unlucky, few like it in the first place.

Implicit in this exchange are the ideas of availability and value. On value, the consumers who pay do so in part because they value the work and want to do their part to see more like it made in the future. The consumers who don't may have many reasons, but at least part of that reasoning is that they view the cost as too high for the work.

On availability, media companies are stuck in a circular argument in which they've managed to jail themselves. Media companies apply region protection to their distributions. They'll release a movie first in the US, then take it to DVD and on those DVDs they'll apply a Region Code that locks those DVDs to the US. Then they'll license that movie to Netflix and in that licensing contract, lock distribution to only US. Later, if there was enough revenue in the US, they might target global markets.

During the time between initial release and global release there are international customers, many who would likely pay for it if they could. The internet has no region codes, no licensing restrictions - and so many download it for free, in part because it's their only option. In return, media companies increase their accusations and fear of international customers and increase their attempts at restricting regional distribution in a confused desire to keep their content from reaching international shores.

I'll pause for those skeptical - you might point out that media companies must do things this way for a reason, and there's no proof it would get better if they got rid of these cave-tech region restrictions. But remember that the artists doing their own releases above did not region-restrict their media, and had numerous international customers. For a larger example, I point to a company that has made a business model out of global release, a video game distributor: Valve. Valve created a platform called Steam they use as a global marketplace to sell games. While the Steam platform warrants a lengthy analysis of its own, let's stick to the one point for now: Global availability. Valve has seen piracy drop dramatically in migrating to a global release model. Don't take my word for it - here's founder Gabe Newell on how this change has made some unexpected markets like Russia some of their best places for sales.

Inside the US, international availability is a minor issue (some travel enough to not want the irritation of a region-restricted DVD), but in many cases convenience is the issue instead - in this case the availability issue is their living room, not their country. I can go on a torrent site right now and download every movie and TV show I've ever heard of. I can go on Netflix, Hulu, Amazon, etc and get a randomly changing slim slice of that same selection. Shouldn't I start where the selection is greatest?

And frankly in many cases the value just isn't there. Big movie companies think they should be getting $10 at the box office - now that they're adding the 3D gimmick, they think they should be getting $15-20. Millions of downloaders do so in part because they disagree.

We don't need new laws that force those consumers into compliance with what these content distributors feel they're owed, and force consumers to wait until they have the privilege of availability. Both of these are attempts at perverting the market. If Congress really wants guidance on how to write a new law, begin by doing away with the worst parts of the DMCA, where for example free speech can be squashed by making a false copyright claim. Then, if more protections are needed - and perhaps they are - look at Valve and Louis CK's business model, and ask them what would help them, not Viacom and Rupert Murdoch.

We all hope to create content at some point in our lives that others enjoy, and hopefully even pay for. But the big businesses are trying to force us back into an old model and aren't ready to accept that in this new global market place where media moves so readily, we're all street performers. Even the big guys.

Stop Enforcement of Patents Without a Publicly Available Product

http://mobileopportunity.blogspot.com/2011/08/case-for-software-patents.html

He takes a long time to get to it, but I 100% agree:

restrict the right of "non-practicing entities" (patent trolls) to sue for patent infringement.

That's exactly what we need. Unfortunately he spends most of his time rehashing an old debate, briefly mentions this with no ideas on how to implement it (a tough problem), and moves on.

I think you could lay down some pretty simple rules. First, you could state that a patent cannot be enforced in court if what it protects is not available to the public either through your company or through a company that has licensed it. What this would lead to is a big company potentially stealing your idea while you develop it - but you can always finish the race to get it to market THEN sue for past damages. I think this is an acceptable outcome. It would prevent patent trolls from suing because they obviously have no intention of introducing a competing product, and the cost of doing so would be too high.

It would leave the licensing option open to some abuse though, and the definition of "available to the public" needs a tighter definition as well. But hey - it's a start. More than this guy tried.

He also leaves out one last negative impact of patents: They completely disclose to the world the details of what makes your product special. They protect you from the country against competition (and even then, probably only from small players in the country - big companies have a long history of kicking over the little guy, patents and all). I question whether the value of patents remains for small innovators (which should be the goal) when they have to fully disclose what they're patenting. It seems like you should be able to file a patent, get approved, but not have it go public until you give a say-so (basically when the product is released). There's no point in having the patent anyway until then (because you can't sue until it's available to the public), and making it known beforehand is dangerous - Chinese manufacturers love to just steal designs wholesale and give US companies the finger.

That's the final piece that's missing - worldwide protection after disclosure. That's really an enforcement problem. I suppose that's up to the PTO and the US as a whole to enforce - but only after we get our own **** together.