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Irrelevance is a far greater threat to gatekeepers than piracy — and they know it

A few weeks ago, I wrote about Paul Carr’s accusation of hypocrisy within the tech community for opposing bad copyright legislation and then also speaking out against plagiarism. His take was wrong, but it wasn’t unusual; it’s all too common for supporters of wrongheaded copyright legislation (like SOPA, PIPA and two decades of more successful proposals) to settle on a characterization of their opponents and then cry foul when those characterizations are not consistent with reality. It’s an example of confirmation bias: favoring information that supports a hypothesis and discarding (or dismissing as hypocritical) information that doesn’t.

The problem is that it’s not very productive to assume that actions which seem internally inconsistent are taken in bad faith. It makes a lot more sense to think of your own model as incomplete, and take in the words and actions of other as feedback to inform it.

In that spirit, I want to dig a little deeper into the motivations of the people who support legislation for expanded copyright laws. Especially in the heat of the debate, when rhetoric is running hot, it’s too easy to assume they’re real malice or profound ignorance. But to do so poisons the conversation and makes progress less likely. Worse, it makes it difficult to predict the next move and to change the conversation.

So what is it that drives the entertainment industry to promote legislation that is so offensive and anti-user it can lead to the biggest online protests in history?

Is it about money? The entertainment lobbyists provide plenty of stats about the money lost to “piracy”, but they know better than anybody that the movie industry is taking in record profits. And while there are problems with ever drawing a direct connection between infringement and lost revenues, the estimated impact of the “piracy” SOPA was addressed at was under $450 million — not pocket change, but not a crippling expense to these corporations.

Is it that these people feel there’s an inherent moral wrong in making a copy of something without authorization? That’s the basis for charges of hypocrisy against Bill Keller, the CEO of Vevo, and of course Lamar Smith, to name some very recent examples. Everybody who reads about these knew they were bound to happen — Cardinal Richileu’s famous “six lines” quote might as well be updated today to specify copyright violations explicitly.

But more importantly, if their goal were to reduce unauthorized copying, one has to assume they’d be taking the obvious action: making authorized copying easier. Or at least don’t make it harder. As long as these companies are undermining efforts to reduce piracy, it just doesn’t seem like it’s their goal.

So is their motivation preserving jobs? That’s the implication in Chris Dodd’s infamous and embarrassing quote about politicians not staying bought:

Those who count on quote ‘Hollywood’ for support need to understand that this industry is watching very carefully who’s going to stand up for them when their job is at stake. Don’t ask me to write a check for you when you think your job is at risk and then don’t pay any attention to me when my job is at stake.

All along, the understanding has been that the jobs in question were those of the men and women working on film sets or movie theaters (or, extending the idea beyond its logical bounds, the corn farmers behind the popcorn sales). But if that’s the case, it’s not the perception of the rank-and-file. Look at Wil Wheaton, who responded to Dodd’s quote by pointing out that he has “lost more money to creative accounting, and American workers have lost more jobs to runaway production, than anything associated with what the MPAA calls piracy.”

But the actions of the entertainment industry start to make sense when you realize that the executives are really thinking about their own jobs. The executives driving the agenda of the MPAA are tremendously well paid, and they know why that is: for decades, they’ve been able to function as the gatekeepers between artists and the public. They’ve had “exclusive custody of the master switch”, as Tim Wu quoted former CBS News executive Fred Friendly saying. For the most part, artists have hated this arrangement. But there was no alternative.

Creativity didn’t begin with copyright in 1710, and nobody honestly thinks it will end with the Internet. When these executives see major success stories like Louis C.K. selling hundreds of thousands of copies of his new special by himself, or Double Fine collecting $1 million in a single day of pre-selling an adventure game, or the 10% of Sundance films crowdfunded on Kickstarter this year, they must realize that their catbird seat is in jeopardy.

And you can bet that scares them. They know the Internet is here to stay, and absent legislative intervention, it will continue to disrupt gatekeepers. They probably know that efforts to preserve their outdated function on the Internet, things like maneuvering to control the .music TLD for “accredited” musicians, are Hail Mary passes. Too little, too late.

Echoing Tim O’Reilly a decade ago, the real threat to gatekeepers is not piracy but irrelevance. They’ve gotten comfortable as the solution to a problem that fewer and fewer people have, and now they can see they’re in a bind. It’s not an excuse, but an explanation: they’re pulling out the stops to defend their position, even if it’s against the interests of their customers, and against the long-term interest of the industry itself.