Why Courts Can Barely Dent Online Piracy

Paris – A French court just signed the death warrant of 11 sites that streamed pirated movies and TV shows. Will it make a dent in illegal media consumption? No more than the deaths of Napster, Kazaa or Megaupload.

The entertainment industry lobby is like Don Quixote fighting windmills – except Don Quixote, you feel a bit sorry for. The "majors", on the contrary, have a knack for uniting consumers against them.

Five TV and film industry groups filed the lawsuit in 2011 against sites that were “entirely or nearly entirely dedicated to copying audiovisual productions without the consent of their authors”. No argument there. They asked – and obtained! – that Internet service providers be forced to block access to those sites and remove them from online search results. That's where they start alienating the Internet community: when a storefront is found to be doing illegal business, no one asks the city to block the sidewalk, the telecom utility to strike it from the phonebook or taxi drivers to no longer stop there. ISPs provide roads; they're not supposed to direct traffic. We call that net neutrality: the "pipes" are neutral, and we the people are responsible for where we go and what we do there. When you start giving private businesses a mandate to censor, you open a big can of worms.

But let's be honest: outside of a closed circle of geeks and activists, few care about net neutrality. They just want their Downton Abbey when they want it. And that's where the entertainment industry lost us.

A self-destructive lack of innovation

Earlier this week, I came across this message on isohunt.com, a torrent site (I'll let you infer what I was doing there):

This kind of message is sure to infuriate any non-US media consumer. "More ways than ever" might be technically correct, but it's not nearly as good as it sounds. The truth is most countries do not have access to Netflix, Hulu or Amazon Prime. With few decent paying services, consumers across the world are the hostages of archaic regulations and unimaginative businesses.

Let's take France as an example, since it's the market I know. A 1986 law regulates how cinematographic content may be broadcast – at the time, it was meant to save movie theaters from the ascent of television and video stores (notice how back then we were already legislating our way out of crisis rather than innovating it). Once a film is released in theaters, one must wait:

• 4 months to see it as a one-time on-demand purchase
• 12 months to see it on a movie-specific cable channel (and its catch-up on-demand service – 10 months if they've signed a deal with the cinema lobby)
• 30 months to see it on other cable channels or broadcast television
• 36 months to see it on a subscription-based, on-demand-only service

You read right – that's 3 years before we could see a "recent" film on Netflix if we had it! That's only a small part of the regulation, which kafkaesque beauty you can explore here if you read French. When it's not legislation, it's delays caused by endless negotiations for international licensing rights; it's nonsensical TV schedules with episodes not airing in chronological order and laughable dubbing; it's on-demand rentals with prices as high as a physical copy; it's the can't-fast-forward morality lesson on piracy you're subjected to on every DVD you purchase in Europe... Meanwhile with pirate sites and a good ad block, you can binge watch any show in two clicks. (I'll concede that the past year has seen some improvement with the launch of a couple legal streaming services, such as OCS, the home of HBO here, to which I subscribe.)

To content on the path of least resistance

It can certainly be argued that these rules exist for a reason, that creators must have some monopoly in time to make their investment back, that fait établi is not a legal justification for theft. It's all true, it's not fair and no one cares. Call me a spoiled millennial, but I want content when I want it and how I want it. You can wish the market were different or you can work with what it is. Kevin Spacey had it right.

Where convenient legal alternatives exist, piracy has dropped. Consumers will take the path of least resistance to content. They want it as soon as it's created no matter if it's British, Swedish, French or Norwegian. Whether it's broadcast, cable or on-demand. Whether it's season 4 and they just heard about it now or the pilot aired yesterday halfway across the world. The pop culture conversation is global and it's instant. Adapt or die.

Photo: minor9th/Flickr under Creative Commons license.