A Manifesto for the content industry – 1. Do Not Sue Your Customers

Expanding from my previous blog this is the first in a series whereby I use you, my faithful readers (both of you), to sense-check my work and point out my idiocy. Thank you.

Do not sue your customers. Seriously, just don’t. It’s the economic equivalent of going to war. If, in the words of one CEO, you say “We’re going to sue the [expletive deleted] out of generation Y”, exactly how many of generation Z do you expect to buy your products? If someone is taking content you have the rights to and selling it on commercially, sure, take ‘em to the cleaners. But blocking up the legal system with 25,000 individual cases of people downloading The Hurt Locker is not only targeting a bunch of people who have no impact on your business model, it’s also an abuse of the legal process.

Taking legal action against someone is an act of aggression. In most walks of life it’s a last resort once all other options have been exhausted. If you have an argument with your partner, you talk it through, you might get counselling, you might end up at Relate, but you don’t phone the divorce lawyer straight away.

Similarly if your neighbour won’t return the lawnmower, you go round and ask for it back, maybe a couple of times, you don’t dial 999 as soon as the clippings have been emptied into the bin.

Most people would agree that the first thing to do in any disagreement is to talk to the other party and see if it can be resolved amicably but, for some reason, that doesn’t apply to the content industry. In the world of Intellectual Property, intellect is left behind and the first course of action is, all too frequently, a call to the legal department.

So ask yourself, are you getting hot under the collar about nothing? If a pre-mastered copy of your movie get’s leaked onto the web before all the special-effects are done, is this really going to stop people going to the cinema to see it when it’s done? Before you reach for the lawyers consider if you could be better served by going out there and talking to people. Explain that what they can download isn’t the finished article, empathise with them, if they’re going to that effort they’re probably some of your biggest fans. Handle it right and they can be some of your biggest advocates as well.

But let’s move on from this opening argument though and consider what to do if you think that you are genuinely being financially deprived due to someone else’s actions. There are three things to consider here:

1.  Are you targeting the right person?
2.  Are you using an appropriate means and claiming an appropriate recompense?
3.  Are you fully prepared for any backlash?

We’ll tackle these one at a time.

1.  Consider the defendant: are they an end-consumer who you haven’t effectively served in the market, or are they a middle-man profiting off your work without authorisation? If they’re the former then you’re barking up the wrong tree. Ventures like Spotify are increasingly showing that if you provide a decent legal experience that serves your customers, they don’t feel the need to get around copyright or distribution restrictions.
2.  Having identified that someone is wilfully, criminally distributing your product, you need to make a targeted and proportional response. If a torrent site in Norway has been distributing your software, use the existing legislation to find out who the uploader is and target them for proportional damages. Don’t sue the torrent site for the statutory maximum. There are two reasons for this, one is that if you take the maximalist approach the chances are that the site will close, declare bankruptcy and you won’t see a penny, the second reason is backlash (see point 3). Don’t be tempted by the dollar signs and go for the end-users either, it will sting you. The makers of the Hurt Locker are currently in the process of contacting 25,000 people and demanding $1500 dollars or threatening them with legal action (on the most flimsy of evidence). That’s what we call a shake down and it’s winning them no friends, even in the courts.
3.  Backlash. You’re probably familiar with the Streisand Effect. If not, take a moment to google this. Memory refreshed? Right, consider this and the quote at the top of the page. The internet is not going away. No matter how much lobbying is done. The current crop of rights holders are not going to remain the gatekeepers forever; there are too many alternative distribution methods now. If you aggravate and disenfranchise your artists’ fans both they, and the artists, will route around you. In some cases (see ACS Law) they may take active steps against you. This doesn’t mean you can’t take action when it’s needed; but you’ll need to be on the front foot with your web presence and you’d better have a good and honest explanation.

The bottom line is, if you’re relying on taking legal action to try to prop up a business model that’s no longer serving your customers, then you’re failing both your customers and the artists you’re claiming to represent. Adapt or be forgotten.