That’s not to say that we’ve all stopped believing in creators’ rights or that we no longer think piracy is a real problem.  On the contrary: the creative economy depends on creative rights.

We all understand the demand for easy access to inexpensive content, and the people who produce that content – artists, movie makers, journalists, musicians, songwriters and more – are eager to deliver it. But, as it turns out, they want their rights to be respected.

Unfortunately, some consumers get confused about the difference between demand and entitlement. A recent TechDirt screed illustrates this entitlement mentality.  Writing about Joel Tenenbaum, who was sued for pirating and distributing songs online (a jury found that he had willfully infringed copyrights and awarded a judgment far larger than had been asked), Mike Masnick wrote:

“Tenenbaum’s actions robbed no one. No one has a “right to be paid for their work.” You have a right to try to convince people to buy, and the RIAA and its labels FAILED in convincing Tenenbaum to do that. But that’s the market at work. Today for lunch I may pick the deli rather than the pizza shop next door. Based on the RIAA’s logic here, I have just “robbed” the pizza place of its “right to be paid” for its work. There is no right to be paid. Only a right to try to convince people to buy.”

Of course, Tenenbaum did choose not to buy the music.  But that didn’t seem to stop him from taking it anyway.  He just chose to take it without paying for it.  And then he let other people take it, too. To most of us, a marketplace gives the consumer the chance to buy a product or not.   But, apparently, in the pirate’s world, the way the “market” works is that you get a choice between buying and stealing, as if the two are equally valid options.

Let’s cut the nonsense out of his analogy: Tenenbaum didn’t choose the “deli.”  He wasn’t even interested in the free samples that the “pizza shop” offers.  He wanted a bunch of full slices of pizza, and when he thought no one was looking, he took them.  The way Masnick tells it, if you don’t create something that people want to buy more than they want to take for free, it’s your own fault:

“Deserving to be paid for your work and a nickel gets you five damn cents. You earn money by offering something in the marketplace that people want to buy. You didn’t do that.”

So, apparently, Joel Tenenbaum is simultaneously a “consumer” and somebody who rejected what the music industry offered.  And yet…

“You made the conscious decision to declare war on your best customers.”

I’m not sure in what regard Tenenbaum could be considered one of their “best customers.”  It was my understanding that customers paid for things.  That puts a fat asterisk on statements like this:

“The idea that not giving money to the RIAA somehow means less music will be brought to the public is laughable. It’s not a fact, it’s pure propaganda. Thanks to these same new technologies that the RIAA has tried to kill off, it’s easier than ever for bands to create, promote and distribute music. And because of that, there’s more new music out there than ever before.”

It’s true, now that the technological barriers have dropped so far, musicians are giving away tons of songs for free!  And yet, Joel Tenenbaum didn’t choose to download one of those songs.  He wanted something that was more valuable to him… though, apparently, not so valuable that he would pay for it.

Musicians often give away their content for free, most of them with the expectation that they’ll be repaid in other ways.  Some of those models – for instance, giving the music away for free and making it up with concerts or merchandise – do well for some artists (though, it’s hard to see how a songwriter makes money in that model).  That’s their right, and creators should be free to choose their business model.

But for those creators who don’t want to give tracks away for free, it’s high time for pirates and their enablers to stop rationalizing theft by imagining that they’re somehow doing their victims a favor.

Creators have a right to be paid in exchange for their work, if they make it a condition of using their work, just as pizza makers can require you to pay them before they give you their pizza, and just as car rental agencies can require you to only use their cars in specific ways while in your care.

Lawsuits may not be the solution to getting broader respect for these intellectual property rights. That solution really is going to be found in new technologies and new business models.

But let’s be honest in the meantime: Piracy is not just another consumer choice.  It is theft.

What was surprising however, is that this time, the leak was universally condemned by Wolverine’s online fan community, bloggers, movie buffs and comic book fans.  Several movie blogs are refusing to run reviews of the raw footage (FoxNews.com’s Roger Friedman was fired for writing a review of the pirated copy), while others such as Dark Horizon have condemned the uploading of the pirated copy as an “act that cruelly robs thousands of people of not just months of hard effort, but their livelihood as well.”  The New York Times was even spurred to ask whether Internet access is a fundamental human right, or a privilege, carrying with it a responsibility for good behavior.

Could the leak of Wolverine be the seminal moment when online piracy jumped the shark?  That’s doubtful, but the tide of public opinion does seem to be starting to turn.

Sweden has a particularly bad reputation when it comes to digital piracy.  It is the home of Pirate Bay-the self-proclaimed world’s largest bittorrent tracking site-but its bad reputation is well-deserved for other reasons too: the country’s main statistics agency recently estimated that 8% of the Swedish population uses P2P networks, and even major party political candidates there have supported decriminalizing “non-commercial” file-sharing. (Just how transfers of complete creative works can be considered “non-commercial” is befuddling: there is certainly a commercial impact on the creators, artists, and musicians who are not being compensated.  It’s a bit like saying that people who knowingly swap or receive stolen goods aren’t actually doing anything wrong, which is a bit of a head-scratcher.)



Even more stunning evidence of Sweden’s illegal file-sharing problem came last week when a new law aimed at curbing piracy took effect. The law, based on the EU’s Intellectual Property Rights Enforcement Directive (IPRED), requires ISPs to divulge information about illegal file-sharing activity, allowing copyright holders to take legal action against infringers. The day after the law took effect, Internet traffic in Sweden plummeted by over thirty percent in the first 24 hours, and there’s little doubt as to why.  

But were the file-sharers suddenly scared straight?  It seems unlikely that that’s the case given the overwhelming sense of entitlement many Swedes seem to feel towards their “free” digital content.  As the BBC reported, Kjell Bohlund of the Swedish Publishers’ Association said an incredible 80 percent of Swedes don’t think copyright holders should take action against P2P users.

Christian Engstrom of the Swedish Pirate Party-a political party working for copyright “reform” in Sweden (i.e. decriminalizing file-sharing)-agrees that the majority of file-sharers haven’t simply given up or seen the error of their ways.  Engstrom told the BBC, “Experience from other countries suggests that while file-sharing drops on the day a law is passed, it starts climbing again. One of the reasons is that it takes people a few weeks to figure out how to change their security settings so that they can share files anonymously.”

Turns out, he was right.  In response to the new law, Pirate Bay launched a new service just a week after IPRED took effect called (mockingly) Ipredator, which anonymizes users’ IP addresses so they can continue to share files without fear of legal action.  The service will also make it next to impossible to find identity thieves and other cyber-criminals who can now use the service to anonymously carry out even more online mayhem, but as long as illegal file traffickers can continue to get their “free stuff” this is apparently an acceptable price to pay. Before the service even went live, over 100,000 people had signed up, roughly 80 percent of them Swedes, a Pirate Bay spokesman told a Swedish news agency.

Speaking about the sense of entitlement Swedes seem to feel, Bohlund of the Swedish Publishers Association remarked, “Ultimately we have to change people’s perception on file-sharing” so that they understand they’re “taking money out of the pockets of musicians, authors or artists.”

In the U.S. this education process is now underway. Several ISP’s here are now sending notices to copyright infringers along with standard cease and desist letters from copyright owners.  CNET reported that these cover letters “inform the customer that downloading unauthorized copies is illegal,” but noted that ISP’s have no intention of cutting off subscribers for repeat offenses, as would happen under a “three-strikes” rule. 

According to ISP’s, even without a three-strikes threat, the letters seem to be working; there have been few repeat offenders.  While it’s still early, the evidence so far seems to suggest that U.S. Internet users don’t want to contribute to the growing trend of online lawlessness and are responsive to educational efforts discouraging it. 

With the explosion of free and inexpensive content online-subscription based service like Netflix, ad supported like Hulu, or pay-per-download like iTunes-getting users to switch from illegal P2P downloads to legal options isn’t a tough sell.  As Billboard.biz reported earlier this month, P2P use among American teens is on the decline as they move to streaming sites that increasingly provide safe, legal, licensed content.

That’s good news, but in other parts of the world, there’s a lot more work to be done.  But with collaboration between technology companies and copyright owners-plus flexible policies that allow those companies to find innovative new ways to deliver content legally-public opinion is shifting. As Internet consumers increasingly have other legal options to enjoy content online, sites like Pirate Bay that relish thumbing their noses at the law are starting to look like the irresponsible Internet citizens that they are.