Pirate Marketing?

Let me start with a confession; I have never seen the TV show Glee.  But lately I have heard a lot about it, from the odd perspective of copyright law.  In this blog post by Christina Mulligan, the copyright consequences of practices that are taken for granted in Glee are tallied up.  Apparently the cover performances, music videos and remixes could result in millions of dollars of liability if done by real high school musicians.

As Mulligan points out, there is no attention to copyright issues as these teenage performers go about making their music.  They “see so little wrong with this behavior that the word ‘copyright’ is never even uttered.”  In this way, Glee is a telling illustration of where we are as a culture; what a small group of entertainment industry executives would insist is stealing is everyday practice for many real-life consumers and performers.  Copyright only really works to protect the big name writers and performers; for so many lesser-known musicians and for millions of consumers it is merely a hindrance or, perhaps even worse, a non-issue.

It should be noted that Mulligan does not consider the possibility that fair use might actually support her contention that “remixing isn’t stealing,” even if industry lawyers would disagree.  But the larger question is really whether copyright is doomed to irrelevance in the remix culture.  Is all lost for those who believe that copyright has some important function (however defined) in incentivizing new creation?  If so, is what we gain by the demise of copyright compliance greater than what we lose?

Perhaps there is a middle ground, as illustrated by this remarkable letter written by media consultant Brian O’Leary to incoming Author’s Guild president Scott Turow.  O’Leary cites the research done by his own organization, Magellan Media, which found “an apparent correlation between piracy and a subsequent growth in paid sales.”  O’Leary is not, I don’t think, suggesting that the content industry should encourage piracy, even if such a thing were possible.  But he does suggest that it is counterproductive to fight piracy too aggressively, since “discovery, even using a pirated file, may lead to more sales.”  In short, the natural tendency of the kids from Glee may not be a death knell for the content industries, but an opportunity to refine their business models and consider how to maximize discoverability while still offering added value that will lead to sales.  I was particularly struck by one specific warning that O’Leary offers, that publishers should not undermine discovery (and frustrate consumers) by delaying the release of e-book versions in order to prop up print sales; the e-books, even when distributed without authorization, may themselves support print.

In all this I think there are two lessons for those of us interested in copyright and, especially, in scholarly communications.

In regard to copyright, these two very different communications reinforce the point that the terms “piracy” and “theft” are much too blunt instruments for this discussion.  Piracy has a long history in intellectual property, but it should be reserved for large-scale commercial interference in the marketplace.  The attitude toward remixing and other non-commercial, personal uses of media needs a different term that takes account both of the ubiquity of such uses and their potential.  How about “opportunity?”

For academics, the important message is that there are lots of venues for distributing our work and the most important criteria should be discoverability.  As the original rights holders in scholarly works, faculty authors do not have the same concerns about so-called piracy that the movie and music industry has, for example.  We are free, as long as we retain our rights, to distribute our work in whatever ways lead to maximum access, and we can manage our copyrights for that purpose.  With improved discovery, as O’Leary’s research suggests, comes greater impact, and that should put a “gleeful” smile on the faces of scholarly authors.