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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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May 18, 2005

Pesce on Hyperdistribution, Part 1

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Posted by Alan Wexelblat

So, having read part one of Mark Pesce's series on television piracy, I can say "welcome" to another copyfighter, albeit one whose writing has an ahistorical bent to it.

Pesce's column makes it seem like the story starts with Battlestar Galactica and BitTorrent in late 2004. Um, no, I'm sorry. I was watching Babylon 5 episodes with vast groups of MIT geeks as soon as someone could snatch the downloaded signal off the satellite, days before the local affiliates broadcast it. Friends of mine have been going to Buffy parties and participating in other TV-show sneak-preview distribution networks for years. So yeah, BitTorrent makes it easier and having broadband makes it available to more people, but it's not really new.

Pesce's next point is that BitTorrent creates a kind of "hyperdistribution" in which the net becomes more efficient at distributing media than broadcast possibly can. Again, not really news. To pick just one non-random example, Nicholas Negroponte has been saying things like this for years (see Being Digital for example).

Pesce is also wrong when he calls out region-specific/live broadcasting as "unsuitable" for hyperdistribution. He should study some of the history around the Cartel's attempts to cut off TiVo's distribution features because they break region locks for things like blacked-out sports events. Trust me, there's an audience for this.

What Pesce is really trying to write is his analysis of the potential commerical models that hyperdistribution enables. Assuming that the Cartel called off its attempt to smash BitTorrent, and called off its jihad against its TV-viewing customers, it might consider some of what Pesce is offering in the way of alternative business models. He notes that station id 'bugs' are permanently etched on most TV shows now. I find these logos incredibly annoying, but Pesce seems to think it's a good place to put station-independent "advertiser payloads" (why does this remind me of "deaths by friendly fire?"). He notes that some advertisers are already doing this, as well as experimenting with different forms of embedded (and thus less skippable) advertising.

Mark has correctly noticed that television revenue is directly proportional to audience size - that's the metric advertisers use - and that BitTorrenting the content only builds audience. So in theory it should make economic sense to build a business around this. However, what he's failed to realize is that the Cartel are impervious to economic analysis, as it's oil to their water.

[Edit: changed the title and removed timeliness references in response to Mark's notes about his historical involvement. See comments for details]

Comments (11) + TrackBacks (0) | Category: Big Thoughts


1. Copyrighter on May 18, 2005 8:36 PM writes...

Just as "the Cartel" is impervious to economic arguments, "Pirates" are impervious to admitting that much of the effort behind new technologies is designed to steal content. As much as you'd like the Cartel to admit their economic arguments are overblown, they'd like you to admit that a lot of people do use BitTorrent, et al. to acquire content for free.

Seems like a standoff.

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2. Mark Pesce on May 19, 2005 2:07 AM writes...

While I do appreciate the kudos, I ahem haven't been late to the game. Far from it. If you look back a solid 20 months, you'll see a continuous series of works (mostly on the AFTRS website, that illustrate the evolution of my thinking.



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3. Branko Collin on May 19, 2005 6:25 AM writes...

"admit that a lot of people do use BitTorrent, et al. to acquire content for free"

You may want to rethink that; there is nothing wrong or illegal with acquiring content for free.

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4. Dr. wex on May 19, 2005 8:02 AM writes...

To add to what Branko has said I'm not going to claim responsibility for others' statements but I believe it's acknowledged in MGM v Grokster that 90% of the activity on the net may be illegal. Coincidentally, this is the same percentage of illegal use that was estimated for the VCR at the time.

Mark, I'll take your point that you've been writing on this stuff for a while and therefore stand even more confused at your ahistorical approach to the topic. Care to elaborate?

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5. Copyrighter on May 20, 2005 3:33 PM writes...

Actually if it's content that the content owner is charging other people to have and access and is not making generally available to the public for free, then yes, there is something VERY wrong with acquiring it for free. This is the problem: amoral people like you who want to have the fruits of other people's labor for free, whether they be physically or intellectually based.
Unfortunately, the Copyfight armada is composed of three groups:
1. People who understand that copyrights as they are established currently do have some flaws that could be improved.
2. People who support emerging content distribution platforms for legal means.
3. People who want to steal content. (Which seems to about 90% of the real reason.)
I'm all for intelligently reforming copyright to intelligently safeguard producers of content in the new technological world. I am not for disabling the economic systems so that thieves can steal.
I don't have any rethinking to do. However, you may want to look in the mirror. Or maybe you have and you've decided that an amoral life of theft is the path for you.

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6. Neo on May 21, 2005 2:38 PM writes...

Well, it seems we have a new forum troll: Copyrighter.

What he'd like us to believe: in making a copy of something you can somehow be stealing.

The truth: there is no evidence that filesharing is taking money from the deep pockets of greedy corporations, let alone from poor artists. There is circumstantial evidence that filesharing is having almost exactly no effect on corporate bottom lines and is helping obscure artists, and obscure artists could definitely use the help.

The three major stake holders are as follows:

Consumers benefit from cheaper/free access to content, to the extent that this doesn't stop more content being produced. Lots of music and other content was produced for tens of thousands of years before there was a Statute of Anne, let alone DRM and the DMCA, so it seems likely that consumers benefit maximally if there is zero copyright law whatsoever. (There are 30,000 year old cave paintings. In the US, they may actually be eligible to enter the public domain soon ;P)

Artists benefit from some weak protections, but they don't benefit from anti-filesharing activity. They might benefit from stronger trust busting and anti-payola laws however. Their biggest threat isn't greedy thieving downloaders, it's greedy thieving major labels. For them, a business model based on people having electronic versions for free and paying for concerts, big screen big sound, or other performances, for memorabilia or other tie-ins, and for "100% genuine" physical media, perhaps including fancy-packaged limited edition versions. CDs with "Buy buying the songs on physical media you are helping support the artists you love" on the packaging, etc. Not having their work attributed to someone else is also something artists tend to want. So is having as wide an audience as they can reach.

Big companies, especially in a cartel, benefit from crushing competition, limiting entry to the market, controlling distribution, and artificially inflating prices, while diverting as much revenue to themselves as possible, leaving the artists with a pittance.

Also, be it noted that the consumers and artists are individual human beings, while big companies are not and have no particular rights to existence and do not deserve our sympathy. Unlike human beings, they have no feelings or cares, and they tend to have no conscience.

So it's pretty clear our system should ignore the goals of large companies and consider those of consumers and artists. Consumers outnumber artists but without art there are no consumers of art. So, I'd say go with what's behind door #2: protection against bootlegging physical media and fraudulently entering live performances, but leaving filesharing alone. Forcing the distributors to compete with free should make them shape up. Make the law make it plain that there is no such thing mentioned in the Progress Clause as *distribution* rights and make it a right for artists to terminate any contract with a distributor and take their business elsewhere at any time, and the companies will quit abusing artists, quit abusing their customers, and things just might get a whole lot better. I hope.

Dropping the stupid laws regarding recording in a theatre or other performance house should be high on the agenda too. Shaky camcorded low-res footage of a theatre screen and occasionally the back of someone's head can only serve as free advertising for a movie. Only if the movie sucks is it likely to reduce box office revenues; and if the movie sucks, it doesn't deserve those revenues anyway. Protecting sales of a bad product through enforcement of consumer ignorance of how good or bad the product is until they've purchased an instance of said product is definitely not the purpose of copyright law or any other law.

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7. Branko Collin on May 21, 2005 4:43 PM writes...

Ah, the famous "labour should be remunerated" argument. Funny how there is not a single law or opinion in this world to support that, yet proponents of stronger copyright always keep dragging its dead corpse into the arena of the copyfight.

Pray tell, copylibel, why should work be rewarded? Should this concept of a state enforced reward be restricted to the products of creativity? If so, why? If not, then what kinds of labour should also lead to instant remuneration?

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8. Mark Pesce on May 25, 2005 4:26 PM writes...

Elaboration: The 2nd article published *anywhere* about Napster was by yours truly. In FEED Magazine, back in the day. It would have been the 1st article, only Stephen Johnson wouldn't believe that it was a worthy subject until Janelle Brown published her piece in SALON. So I lost out by a week. Whaddeva.

That entire semester - which spanned the rise-and-fall of Napster - my class at USC Cinema School got a bellyful from me about the changning role of copyright. Did we understand any of it at the time? No. This was the opening of 2000, and, quite frankly, none of us understood anything. It's arguable whether any of us understand anything now.

I just spent the last two days in Tihany, Hungary, scaring the bejesus out of the leaders of Hungary's media industries. Did I have answers for them? Not really. Did I have questions for them? Plenty. Questions they needed to ask themselves.

There are no easy answers. This is not a simple buggy-whip versus combustion engine sort of transition. It's not just money that's at play. It's not just careers and reputations. It's more than all of this, and while copyright looks to be the center act, it's really nothing more than a distracting sideshow. The real work - still to be done, though I'm doing what I can - will come from a study of the behavior of the audience swarm. Now that the audience has control of distribution, what does that mean for the audience? Can we even talk about an "audience" anymore?

Stuff like that.

Permalink to Comment

9. Copyrighter on May 25, 2005 9:28 PM writes...

Troll -- persistent contrarian view, whatever you want to call it...I'll bite.

"Pray tell, copylibel, why should work be rewarded?"
Because the overall well-being of society is increased through concentrated efforts of its citizens. Reward for effort has proven to be the best method for motivating said efforts.

"Should this concept of a state enforced reward be restricted to the products of creativity?"
The state doesn't enforce the reward, the state enforces the rules of the free market which provides the reward. And no they're not restricted to products of creativity.

"If so, why? If not, then what kinds of labour should also lead to instant remuneration?"
I would say that a lot of kinds of labor should lead to remuneration but I don't have a defined taxonomy in mind.

Listen, you can get into your tortuous arguments all you want, but in the end if you're taking music that someone else created for sale, then you're stealing it. I don't care if you believe that free sampling is an effective demand generation technique. It's the studio/label/artists' decision whether to employ that strategy -- it is NOT a decision that belongs to the public. Now, the public can REWARD the creator by consuming more of the product that is freely sampled and ENCOURAGE such behavior. In this case, you may find that over time studios/artists/labels actually do turn to free online distribution. Just because it's technically possible to make a copy that doesn't deprive the owner of their physical ownership isn't the point. The point is that you derived a benefit that you are not priviledged to under our current economic system. The owner of the content has invested a serious amount of time and money into creating a product to be made available for sale, not for theft. The fact that you would completely disregard that effort and hide behind arguments about how the industry is corrupt or that you don't see why someone should or should not be rewarded is besides the point. It's not how the system works and it's certainly not how the system will be changed.

Regardless of how loud and strident the Copyfight movement gets - it still ain't gonna happen.

By the way, I wonder how Corante would feel if copied all if their content and mirrored it on my own site and replaced their advertising with my own? I bet they'd scream bloody murder and so would you, Brooky.

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10. Copyrighter on May 25, 2005 9:37 PM writes...

And another thing!! (hehe...)

If you're so fed up with the current system, why don't you create a competitive system? Create a system that creates and distributes music for free over the internet? Isn't that what is? Now, that approach I respect: If you don't agree with the current system, don't destroy theirs by being petulant and crying, destroy them in the language that America respects; the market. Go out and create (or become involved with) your own and make it better than what is available. I don't respect someone who tries to tear down others' efforts. I do respect someone who creates a better way and succeeds because of it.

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11. Copyrighter on May 25, 2005 9:41 PM writes...

Apparently the free music site is called, not

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