The Modern Journalist

A Tale Of Free and Copyright Infringement

The first time I wrote about technology and entertainment was for the Austin Chronicle in 1997. It was my one — and only — feature piece for the weekly but it had a lasting impact on my view of this emerging world.

The piece was about Fringeware, a group of technophiles in Austin who — well, it’s hard to say exactly what they did. They had a bookstore and magazine. They held events. They were mostly involved in various ventures from the Electronic Frontier Foundation to Dell chip development.

But they were weird. Digital hippies. The kind of people who end up at Burning Man. People who viewed technology through the lens of the hacker and the Hacker Ethic: information should be free, developers should make tools, everyone should have the ability to tinker.

They turned me on to the authors who make up much of my reading list on this site.

So it was a shock when I joined Wired in 1999 to write about technology, entertainment and society and found that the entertainment industry — and its multinational conglomerate parents — had little in common with those Austinites.

I found myself writing about Napster’s litigation with the recording industry, Scour’s litigation with the movie industry, the Draconian Digital Millennium Copyright Act and a host of other tech-unfriendly topics.

Those and other early cases — MP3.com, Ed Felton, DeCSS — have laid two dangerous foundations that media companies accept as truisms today: you can’t make money by giving away content for free and technology companies can’t be trusted to distribute content.

This is not good.

The nature of digital technology enables people to parse through massive amounts of information using software agents then copy and share that information with an infinite universe. Anyone running a business should be able to see, without hesitation, the potential with this.

Of course there are pitfalls. Technology isn’t the magic bullet. Anyone who tells you otherwise is selling something you shouldn’t buy.

But you have to understand the underlying architecture and philosophy of technology innovation to see the potential. You can’t simply have a cursory knowledge (re: file-trading lets people steal) and expect to develop a cohesive, sustainable business model.

Time and again — for more than a decade — I’ve listened to otherwise intelligent people explain to me that there is no business model that can encompass the free distribution of content.

And every time I hear that I want to put my head through the wall in frustration because the major premise of the argument is flawed for two reasons:

1. there is an assumption that because that person hasn’t figured out how to build a sustainable business model, it can’t be done; and
2. it ignores companies such as Linspire, RedHat and id Software which have done just that

The issue has cropped up again, but the notion — laid out in the New York Times — was summarized and refuted quite well here at Techmeme. First the summary:

The basic problem is this: they hear about the importance of “free” and so they give something away for free. But they don’t have a business model around the free content. They don’t understand the economic forces at work. They just give stuff away and pray… and then whine when nothing happens.

The post then outlines the types of issues that companies should examine as they develop a free content, distribution system: services, tools, product revenue models, ect.

This is why I’ve argued that you must examine the Web not in terms of what you know offline, but how the world works in a digital environment. This type of system isn’t directly related to anything offline. It’s entirely a reality of the digital world.

I fear that the world isn’t moving towards a better, collaborative place where emerging business models have a chance to thrive — and change — the way we live now. The legal term for what happened in the late nineties and early aughts is “chilling effect,” which means the threat of lawsuits based upon vague copyright and technology laws forced companies to shutter because they couldn’t face a protracted legal fight.

That fight is still happening, although in the case of Google vs. Viacom, the deep pockets are equally matched. However, if the courts find that Google’s YouTube has willfully committed 1.5 billion acts of copyright infringement, we’ll see at the very least the end of an independent Google — and possibly an end to the company completely.

Why?

The same reason we saw the end of MP3.com, Scour, Riffage, Napster and so many other distribution networks: a failed legal structure that rewards traditional companies for finding ways to halt innovation while keeping their marketshare.

It’s no wonder there is acrimony between the traditional and modern media worlds. One believes the other are thieves and the other believes the one are dinosaurs.