Chris O’Brien’s 4-part program to “move the piracy debate forward”

Mercury News columnist Chris O’Brien asks, “After SOPA defeat, how can we move the piracy debate forward?“. He answers his own question with a 4-part program:

  1. Cool the rhetoric.
  2. Get better data.
  3. Be transparent.
  4. Avoid politics.

What’s not to like? So let’s look at some details.

Cool the rhetoric. O’Brien says, “It’s unhelpful and dangerous to take a heated situation and try to escalate it to nuclear levels.” As examples, he points to a blog headlined “Kill Hollywood” as well as Chris Dodd’s threat to withhold political contributions from President Obama and from legislators who wouldn’t stay bought. Good advice, but let me add a few more suggestions:

  • Stop using the word “piracy”. Pirates wield AK-47s, hijack ships, and kill people. Even Kim Dotcom hasn’t been accused of any of these (except maybe a virtual AK-47 in Modern Warfare 3).
  • Also stop talking about “content theft” and “stealing”. “Content theft” is when someone steals the CD you bought. The issue here is copyright infringement, which is when someone copies the CD you bought. One way to tell the difference is that stealing the CD is punishable by a small fine and/or a few months in jail, while copying the CD is punishable by a fine of up to $2.5 million plus a year in jail.
  • And stop equating copyright infringement with counterfeiting. In particular, stop suggesting that unauthorized sharing of movies has anything to do with deaths from phony pharmaceuticals. If you can’t tell The Dark Knight from the dark night, let someone else take over the argument.

Get better data. As O’Brien observes, “opponents simply don’t believe the content industry’s claims,” and not without reason: PolitiFact’s Truth-O-Meter recently said “False” to chief SOPA sponsor Lamar Smith’s oft-repeated claim that “Illegal counterfeiting and piracy costs the U.S. economy $100 billion every year.” So, yes, by all means, let’s do the numbers, but let’s do them right:

  • Don’t count each unauthorized download as a lost sale. That assumption violates common sense and everything we know about human nature.
  • Measure ends, not means. Copyright exists for exactly one reason, “to promote the progress of science and useful arts”. When you hear “financial rewards for the creation of art”, remember that money is the means, not the end. It’s the goal of Copyright to create as much art as possible, not to generate as much money as possible.
  • Don’t presume the existing business model and don’t narrowly define the music business or the movie business. The music business is not the commercial labels; the movie business is not Hollywood. For help avoiding legacy-business-induced myopia, read The Sky Is Rising by Michael Masnick and Michael Ho.

Be transparent. That is, avoid back-room deals. O’Brien suggests posting proposals for all to read and comment on, and carrying out negotiations and discussions in the light of day. To which I’d add:

  • Put an end to the ongoing secret negotiations and arm-twisting related to ACTA and TPP. One reason no one trusts the entertainment industry is that, even after decades of laws strengthening copyright, there always seems to be one more working its way through the system, which emerges as a fully developed fait accompli. A transparent post-SOPA discussion is pointless if a secret parallel agenda is being pursued at the same time by one of the parties.

Avoid politics. In O’Brien’s words, “Any dialogue will likely have to come from outside Congress.” Venture capitalist Fred Wilson made the same point a few days ago in the context of his proposal to create a blacklist/whitelist approach to Web-site blocking:

  • “We don’t need legislation. We need a negotiated solution between the tech industry and content industry. The minute you introduce Washington and lawyers and courts, it’s war. I don’t think that’s where we want to solve this problem. Let’s solve this problem in boardrooms and meeting rooms, not in Washington.”

We’re seeing more and more of these “Where do we go from here?” articles, and O’Brien’s provides another increment of grist. Sooner or later the mill will start turning again.