How Piracy Can Help The Artist

This article is partly a response to the piracy debates that have raged on in Junkee here and, in opposition, here.

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The piracy ‘debate’ has barely progressed since the Napster days. With unauthorised file-sharing going from a hacker activity to a mainstream one, the discourse has stagnated with questions of theft and morality, and fallen back onto familiar political and ideological agendas.

In that moral quagmire, we’ve continued asking the wrong questions. I want to step outside the ‘is copyright good or bad?’ set-up, because I think it’s a false one. As a writer and an artist and a rabid fan who wants to see the artists I adore flourish, the questions I want to see addressed are: How can artists benefit from the system, as faulted as it is? How might piracy benefit artists? Which artists are experimenting and succeeding with the new digital distribution sphere, and how can others learn? What new systems of doing and distributing are emerging from the digital debris?

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Why I think what I think

I’ve had a couple of professional, first-hand experiences with the existing IP system that continue to shape my views about piracy. In my early twenties, I worked in various roles at various places as a graphic designer and a lowly website-builder of open-source software. I produced all manner of pretty things — pamphlets, print advertisements, illustrations and layouts for books, front-end website interfaces — all of which, of course, were copyrighted. But I didn’t own the copyright for all that work. In my work in the IT and design worlds, the copyright for all that shittily paid output lay with companies that I worked for.

Sure, I did the work knowing that I would have no legal claims to the intellectual rights to my own work. But let’s debunk the idea that copyright is purely about defending artists. Even though “copyright covers the expression of ideas such as in writing, music and pictures”, which sounds like it’s about protecting artists, often the ownership and benefits of those ideas remains with the companies that exploit creative people to begin with.

Now, I’m a practicing artist and freelance writer. I work for myself. If anybody stole the images and work and words that I produce, I would for sure come down on them with the full force of intellectual property legislation and the help of excellent organisations like Viscopy, who assist artists in licensing and collecting royalties. Although there are some worrying operational practices with these groups (The Australian reported that the Copyright Agency paid its own staff more than they paid artists and authors in 2009. Inefficient, much?), they clearly do valuable work in allowing artists to get paid for their work.

I tell you these things to show you the usefulness and the limitations of intellectual copyright as it stands. I can see the benefits of the current copyright system for artists. But I can see where it fails us, too. We absolutely have to take a nuanced stance on the standard definition of copyright; to take it as gospel ignores the fact that it doesn’t always defend or reward cultural producers, but the companies they work for.

It’s this mixed situation that means we have to stop putting ideology and politics first when it comes to piracy. We have to look at the legislation and the reality of what it means to produce and consume work in a digital age, and only then draw conclusions. That’s why I want to reframe the admittedly important personal question of whether freeloading is morally good or bad, and ask instead, how can creative producers use peer-to-peer systems to their own advantage? How might piracy work for artists?

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Please seed: what piracy did for a small Aus film

There’s a growing rash of really switched-on filmmakers and artists who are very cleverly hijacking peer-to-peer systems of financing and distributing and turning them into the systems of financing and distributing. Increasingly, direct-to-viewer, low-cost, lo-fi online distribution mechanisms are being used not just by the super-famous like Radiohead and Louis CK, but by emerging artists, too.

How did the producers of cult horror film The Tunnel (2011) profit from giving their film away? First, they crowdfunded part of their budget, and continued this campaign well into the film’s release. Second, they released the film on BitTorrent, on DVD, in almost-sold-out special event screenings at cinemas (with Q&As with the cast and crew), and as an iPad application (which contains the same content as the DVD). They also then approached a bunch of online streamers like Sydney Morning Herald TV, which gave them a cut of advertising revenue.

The film’s innovative strategy became a cornerstone of its marketing scheme, and a type of free advertising for the special events and paid-up merchandise from which they made their money. And unbelievably, it turned out that people still paid for things like DVDs — 25,000 of them — even after they’d watched the movie for free online. Why? They wanted to support the filmmakers. And the filmmakers put this question of the necessity for audience support up front: there are messages all over their website and at the beginning and end of their film along the lines of, “Hey, if you like us, please send some cash our way. Thank you, thank you, thank you.”

The film racked up coverage from publications like the The Sydney Morning Herald, The Daily Telegraph and Inside Film, which was less concerned with the movie itself than the idea that the filmmakers were attempting to solve some of the film industry’s biggest problems by hijacking piracy and experimenting with audacious distribution and financing methods. In doing this, The Tunnel‘s producers systematically thought through and mainlined the advantages of piracy as a distribution platform, and made a new lean but eager approach on that foundation.

That kind of makes The Tunnel BitTorrent’s first legitimate child. It’s an attempt to make file-sharing the main system of distribution. And, to a degree, it worked: they built a portfolio of work, built an audience, and got funding for a sequel.

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Who else is making it work?

German filmmaker Fred Breinersdorfer has argued that giving away films for free is a radical but sensible solution. He wants a one-stop-shop for licenses that would allow internet companies to acquire the rights to screen any film no longer in theaters — for free.

Sites like VODO are trying to raise a whole new, corporate-sponsored distribution system from the peer-to-peer madness. They distribute 200 first-run indie features through BitTorrent, get cool media figures to curate packages of these films, solicit pay-what-you-want donations from users and revenues from ads, and split the profits with filmmakers. They also offer pathways for films to be syndicated to cable TV and online and mobile streaming providers. Most of the films that are working for this low-rent, P2P-meets-Netflix model are low-budget horror and doco makers, including the 2010 Australian film, Lanfranchi’s Memorial Discotheque.

BitTorrent Bundle is another media store that works for the benefit of established and new self-publishing artists using the efficiency and availability of torrent technology. It’s a direct-to-consumer model that offers legal and inexpensive downloading options — but it’s not on the iTunes or Spotify plane of existence, which are clearly run along the old exploitative lines rather than to artists’ advantage. It’s a pretty awesome example of new wave digital thinking: why can’t artists set up their own systems of distribution? Why rely on the old ways of doing? Why not contest that digital space? In terms of the next steps, could there be legal, non-profit file-sharing organisations that function in the same way that Viscopy and the Copyright Agency do, with the express intent to support creative producers?

Other filmmakers are using torrents not as a new system of distribution but as a form of marketing. American indie director Stacy Peralta released a bundle of extras and an older film to promote his new one, the skate doco Bones Brigade: An Autobiography (2012). He’d used the traditional distribution system before — theatres, festivals like Cannes — but wanted to try the direct-to-fan method.

Authors are trying this method, too. “Self-pirate” Gayla Drummond writes:

I researched to discover what the major reasons for piracy were, and came up with three: availability, DRM, and price… As a result, I distributed my work to as many sites as possible, made it DRM-free where I was able to, and experimented with pricing to find what people were willing to pay for it. I stated more than once that I was totally okay with people loaning my ebooks to others (before lending systems on Amazon, etc), but did ask that they please not put my work on file-sharing sites.

The rest of her words are worth reading.

All of these guys are trying to make piracy work — for creators. Totally sustainable systems of revenue might not emerge from any of these experiments, but it doesn’t hurt to try.

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Let’s get lo-fi and DIY

Those are a few examples of how piracy is being used for good, not evil, by artists who aren’t already mega-famous. Continuing to experiment with low-cost, lo-fi, direct-to-viewer systems of distribution and payment is, to my mind, the best thing that artists and fans can do right now until more stable forms of online distribution emerge. They cut the middlemen and give power back to creative producers. They’re not always runaway successes like The Tunnel, but they give us lessons to learn from. No, this direct-to-consumer approach doesn’t obliterate piracy, but it does take a bite out of it.

The low down here? If you look at file-sharing less as a moral issue and more as an extremely effective mechanism — probably the most effective mechanism — for distributing creative content, the question becomes about how to monetise it in a way that benefits artists.

Remember, the old studio system never allowed many filmmakers to make their professions their day jobs, nor did the traditional way of doing business by record labels benefit many musicians. Those old systems were designed to funnel talent and benefit the studio executives and investors, not artists. File-sharing is not the reason most artists cannot make a living from their profession.

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Hang on, downloaders spend the most?

The music and film studios won’t tell you this, but it turns out so-called “freeloaders” are the best, most active consumers and spenders. Yeah, piracy actually can help. Increasingly, studies across the music industries in Canada, France and Norway are showing a correlation between high piracy and high sales. File-sharers are actually the biggest buyers of paid content such as merchandise, tickets to gigs, boxed sets, and so on. Many media commentators and IT experts see piracy as a result of problems in the formal retail market, and believe that software piracy in developing countries creates new customers down the track.

Not only is there a strong correlation between piracy and paid consumption, but there’s also a link between increased, legitimate online services and reduced piracy. Research from Rice University and Duke University in 2011 found that dropping digital rights management (DRM: tech-fixes that try to control access) actually lifted sales. On the flipside, when people are offered inexpensive, convenient and accessible options to buy stuff online (like the iTunes Store and Spotify, neither of which are especially generous to artists), they use them massively. This is being increasingly recognised in legal spheres; for instance, in 2011, a Spanish Judge declared shared files were not foregone sales but a form of free marketing. The answer to freeloading? Offer great, paid-up services that enable artists to sell directly to fans with a minimum of middleman interference. That’s why we need online services for artists, by artists, to fans. Criminalising downloading doesn’t stop sharing, it increases infringement.

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The false logic of ‘losses’

Chris Ruen’s argument in his Freeloading book relies on the same false logic that the movie/music studios rely on: they count every download as a lost sale. That’s just flat-out false economics. Estimates of so-called ‘losses’ incurred by major studios due to unauthorised downloading usually assume a fixed level of demand which piracy merely cuts into, something that media and film theorist Ramon Lobato has debunked well. This is what Lobato calls a “zero-sum notion of economics” that just doesn’t fit — in reality, “demand for media products is highly flexible”. Not every pirate would have bought a CD or DVD. By contrast, two business professors at Carnegie Mellon University, Heinz College, have stated that preserving the old ways of distributing content is leading to real sales losses:

“…every week customers have to wait before they can buy a DVD translates into, on average, 1.8 percent lower DVD sales. Given that good-quality pirated versions are available close to 14 weeks before the legal versions, the losses can be in the millions of dollars. Not surprisingly, a 14-week delay also translates to a 70 percent increase in pirated movie downloads in those countries.”

Dispensing with the old moral arguments about the goodness or badness of piracy allows us to look at the dynamics underlying piracy, and gives us clues about how artists might be able to benefit from the new digital world. Labelling downloaders as thieves doesn’t.

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Digital rights management is a massive fail

Finally, it bears repeating: as a weapon against file-sharing, digital rights management has failed. Some publishers have even dropped DRM completely and found no impact on sales, no increase in piracy. Every time a new geo-blocking or other lock-down mechanism is developed, a counter-measure by ingenious tech-heads is deployed within weeks.

That’s where the ethical discussion can play an important role. You can’t stop people downloading or control their access with technological barriers, but you can compel them to put their money where their mouth is and to financially support the artists whose work they love.

To illustrate this point, I’ll share one final anecdote with you. My housemate is in a pretty up-there Australian band, one which has (insanely) never received commercial airplay but continues to be super-popular in national awards, on Triple J, and on local stations like FBi. He says that fans semi-regularly come up to him at festivals, apologise for illegally downloading his album, and sheepishly but happily hand over twenty bucks by way of belated payment. Fucking beautiful. Let’s all be these kinds of fans. The really great thing about this, says my housemate, is that this type of direct payment precludes his record label and distributor from taking their own little slice. That twenty dollars is his.

Twenty dollars here and there is not a new system of professional payment or a lucrative career, by any means. It’s an example of the positive fan sentiment and conscience that needs to be mobilised and scaled up by artists.  How can we motivate and utilise that kind of giving sentiment and active fan support more? How can we systematise it?

Beyond that, how can we galvanise the lessons of cluey artists experimenting with new systems of distribution in the digital age? It’s a question for all of us: the diehard pop-culture addicts who can’t imagine leaving our houses without our headphones on first thing in the morning, and the artists who can’t imagine not producing this stuff — but still want to make a career out of it.

The old ‘good or bad’ piracy debates have led us nowhere. The digital age is here. Are we going to lament it? Or are we going to hijack it and make it work?

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Lauren Carroll Harris is a writer and artist. She does research at UNSW on the Australian film industry and distribution. Her publication, ‘Not at a Cinema Near You: Australia’s Film Distribution Problem’, is out now through Currency House.