Eat less, exercise more.

This simple advice is, barring medical problems, at the heart of any weight loss plan for the 75 million self-identified dieters in the US.1 Yet the US weight loss market is valued at over $60 billion a year, filled with a constant stream of fad diets, “miracle” foods, and dubious supplements, as many search in vain for a magic bullet.

The same is true when dealing with expressive works like music, movies, and books. Many search in vain for a magic bullet to ensuring a vibrant creative ecosystem online, but more and more the key boils down to simple advice: Make piracy harder, make legal options easier.

Carnegie-Mellon economist Michael D. Smith describes this in a recent article on Digitopoly, Anti-piracy regulation and competing with free. The article is a response to an earlier op-ed piece by Nick Bilton at the New York Times, Internet Pirates Will Always Win. Smith took issue with the defeatist attitude that Bilton adopted concerning making piracy harder.

In short, Bilton’s arguments don’t mesh with reality. Smith points to his own research on price differentiation that  “found that while Amazon’s prices were well above the lowest price online, they still retained a dominant share of the market in head-to-head competition with much lower priced alternatives from online retailers like altbookstore, booksnow, and musicboulevard.” Smith goes on to explain:

What does this have to do with anti-piracy regulation? Possibly quite a lot if one views “competing with free” as simply a special case of price competition. Imagine competition in the digital media space where the media companies and their online distribution partners play the role of Amazon, and where pirate sites play the role of lower priced alternatives from the likes of altbookstore. The twist on this example is that while Amazon could only control the differentiation of their own offerings, media companies can use anti-piracy regulation to impact the differentiation of their pirate competitors’ offerings as well. Thus, media companies can use iTunes and Hulu to improve the convenience, quality, and reliability of their paid products, while also using anti-piracy regulation to reduce the convenience, quality, and reliability of the free pirate competition.

Smith points to empirical evidence that this is indeed what happens when anti-piracy regulations are adopted. Smith’s takeaway is that they “don’t have to be perfectly effective to get the job done. In that way, anti-piracy interventions may be less like ‘Whac-A-Mole,’ and more like horseshoes where you can score points just by getting sufficiently close to the target.”

But attitudes like Bilton’s persist.

One strand of thought seems to embrace the idea that antipiracy efforts are all or nothing. You have folks like angry sci-fi author Cory Doctorow pounding on the podium that efforts to make piracy harder are just the first step in a “war on general computing.”

You have Pirate Party founder Rick Falkvinge saying, with a straight face and clenched fist, “The only way to even try to limit file sharing is to introduce surveillance of everybody’s private communication. There is no way to separate private messages from copyrighted material without opening the messages and checking the contents. Gone is the postal secret, the right to communicate in private with your lawyer or your web-cam flirt, or your whistle-blower protection if you want to give a sensitive story to a journalist.”2

And a recent documentary from al-Jazeera claims that debates over copyright are “about centralized control versus ‘the ability to share information across the world without traditional boundries or regulations'” and recent legislation was “not about pirated entertainment but how do we live in the digital age and who gets to decide what we do.”

This line of thinking is, to put it bluntly, insane. It would be like saying the only way to stop tax fraud would be to allow government access to everybody’s bank accounts, or the only way to prevent speeding would be to require that speedometers broadcast data to the feds. No one seriously contemplates these solutions, and we somehow manage to enforce these laws without 100% compliance. The same is true with copyright.

On the flip side, legal options need to be more easier. Here, the failure of creators to adopt legal alternatives has been overstated.

Just yesterday, the MPAA noted “there are more legitimate avenues available today to watch movies and TV shows online than ever before: Hulu, HBO Go, Vudu, Crackle, UltraViolet, Epix, MUBI, Netflix, Amazon – and that just scratches the surface.” The RIAA reported in its recent IPEC comment that there are currently over 2,000 digital services offering access to consumers to over 20 million music recordings, a number that is growing. Countless other opportunities exist for emerging and indie musicians, authors, and filmmakers online. And the infrastructure continues to develop — for example, this past May, the RIAA, NMPA, and DiMA rolled out five new licenses that provide a “one-stop shop” for new online music distribution services.

Access to music, films, TV shows, books, and other works has never been easier or cheaper. Ever.

But, just like “eat more, exercise less”, “make piracy harder, make legal options easier” goes hand in hand; neither one is sufficient on its own. Legitimate options are better for the public in the long run, but they need a fair marketplace in order to thrive.


  1. See Caroline Scott-Thomas, Advice to Eat Less, Exercise More Still Trumps Diet Products for Weight Loss, Study Finds, April 16, 2012; Heidi Grant Halvorson, 5 Habits of Highly Successful Dieters, CNN, Mar. 19, 2012: “Eat less, exercise more. That’s the recipe for losing weight, and we all know it by heart”; Kristen Philipkoski, Stop Complicating a Simple Obesity Solution: Eat Less, Exercise More, Gizmodo, Mar. 8, 2012. []
  2. This argument is quite common. New America Foundation’s James Losey wrote in Slate last year, “If the United States decides that copyright infringement must be stopped at any cost, the required censorship regime will depend on ever more invasive practices, such as monitoring users’ personal Web traffic.” []


  1. This might be off-topic, but I’ve never understood the Whac-A-Mole analogy in the first place. It’s one of those phrases that someone said and everybody repeats, but no one thinks about it…

    The point of Whac-A-Mole is to get prize tickets, not to eliminate the moles from existence. The moles don’t only ‘disappear’ when whacked, they come and go at their own pace the whole time. The point is to be fast enough to hit them before they disappear back down their hole. In fact, ‘eliminating’ the moles would be counter-productive, because you’d be cutting off a source of more points/tickets.

    So when Bilton says, “Thus, whacking one big mole created hundreds of smaller ones,” I have to wonder if he’s ever been to an arcade. He’s describing Asteroids, Centipede, or Millipede, or maybe the Sorcerer’s Apprentice scene from Fantasia.

    Even more curious is that Bilton says, “In the arcade version of Whac-A-Mole, the game eventually ends — often when the player loses.” I know my arcade games, and no one loses at Whac-A-Mole. The game ends when the time is up, there are no “extends” on these machines. To be accurate, the players always win at least a few tickets. I doubt that’s the point he wants to make, though.

    Certainly I’m nit-picking. Still, I find it hard to take anyone seriously on complex matters when they can’t even get the simplistic game mechanics of an amusement machine correct.


  2. The only correct part of this catch-phrase is “Make legal options easier.” You cannot win/fight the war on piracy without making legal options harder. Take a look at DRM for software and games. It is always defeated within days of release, so the pirates have what they want, and guess what the consumer gets? DRM-ridden, confusing rules about when they can play, what they can play on, who they can play with…so they stop purchasing.

    In the case of music/movies, iTunes seems to be doing very well selling cheap songs/movies/tv shows and people love having a legal option. Pirating rates have gone down in the US as a result. So, now any more attempts at making piracy harder don’t impact the asian and european pirates very much at all, but they do impact the rest of the world who has no problem paying a fair price for content they can use how they want, when they want, and where they want. They did pay for it, after all.

    Also, consider the case of Radiohead, or Trent Reznor, or Louis CK, who put their content for sale DRM-free on the web and just ask folks to pay for it directly. Seemed to work out pretty well for those folks, didn’t it?

    Face the fact that the RIAA/MPAA and others like them are money-hungry greedy sob’s who really don’t do anything to produce good content. All they do is reap the majority of the profits and scream and yell and try to pass laws and sue children and the elderly, and the dead, whenever it appears someone might be listening to music for free…like people have all their lives on the damn radio.

  3. well why not get rid of the share/link/like buttons first, see how that works. Or reconsider what sharing is, instead of looking at everything as theft from a pirate, shared amongst bandits. If you are sharing/liking/linking content that is bringing folk back to its origin…… is that piracy? I think not, its free promotion/advertising, thats why brands love it, its free press. The million dollar question is how do we get everybody to love it, and profit as well? 1) you have to get the whistle blowers, .gov agenst/spys and hackers to pipe down…… which is impossible at this point I know. 2) stop overreacting, which is impossible as we see. 3) folks believe that, just because they are providing a service, for you to search the web, they are not profiting from the content…… but from the eye balls and time spent and your data not the music/photos etc. “content” 4) who put you incharge? are you a laywer, artist or creative type? 5) why do you really care? are you trying to get some attention? do you want a job in the war on cybor crimes? because you might be in the way of progress and not even know it. The web may need oversight and gatekeepers, but the wrong people seem to always be in the way of real change by fanning flames for tougher and stiffer penalties….. as a creative type myslef no innovation gets done with way to many sanctions, blocks and threats of not being freinded or followed, a true creative type could care less….. and this you should know by now, I see we dont.
    VP is Freshp2