The New York Times (reg. req.) has written an article on the different approaches that pornography companies are taking with regard to P2P (The Pornography Industry vs. Digital Pirates). The responses range from "It's direct marketing at its finest" to tactics similar to those used by the RIAA. This is not surprising, however, due to the fact that music and pornography industries are structured very differently. After all, no one would be surprised that book publishers aren't going after filesharers, since ebook sharing isn't nearly as big a threat to book publishers as music sharing is to music publishers.
On of the key paragraphs for me was near the end of the article:
Pornography merchants say that they have the advantage over free file-sharing networks, at least for now. They say the networks are not well suited to the needs of their consumers, who like images and movies that push their very specific buttons for, say, blondes or cheerleaders.
Basically, you can still sell porn despite free P2P versions because there are other barriers to access that a legitimate site can easily overcome. Unlike MP3s, for example, images and many pornographic videos on P2P networks have atrocious metadata. Because MP3s are relatively metadata rich, it is easy for someone to search for particular artists or songs. If you had to rely solely on filename (as much pornography must), it would be much more difficult to find the music you want.
As the paragraph notes, people are often interested in particular types of pornography (i.e., foot fetish, smoking fetish). Finding such images would be as difficult as searching music only by genre. You can find it, but the search is much more burdensome than searching for specific artists. I think radio, for example, helps reduce search costs for music. There is no equivalent of radio for pornography.
Anyway, pornography and music are different markets and their responses to filesharing will be different. However, there are lessons for the music market. Number one, convenience is worth money. A site that can make it easy for me to find music I will like and get that music for me when I want it is more valuable than an inconvenient, hit-or-miss P2P experience. As a porn entreprenuer says:
"Free is very anarchistic and hard to deal with, and you don't know what you're getting," said a pornography entrepreneur who goes by the online pseudonym T. Lassiter Jones. "Cheap is more convenient."
The formula for the record companies to survive is simple: raise the cost of using P2P networks (through lawsuits, bogus tracks, etc.) and provide convenient, inexpensive legitmate access to music. Once the cost of the legitimate source is less than the costs associated with P2P, then P2P will no longer be a major threat. Percentages might fall, but the overall market will likely grow.
In this model, DRM is a mistake. DRM does not significantly raise the cost of P2P (the music gets on the network anyway), but does decrease the value of access to authorized music files.
It works for pornography.
Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
Ernest Miller's blog postings can also be found @
1. Cypherpunk on February 9, 2004 08:16 PM writes...
You're making a relatively static analysis here. There's no reason that porn can't get improved metadata as we go forward. People who are sharing porn can add tags to say whether it's for foot fetishists or has smoking or whatever. The tools to do this may be relatively primitive now, but software tends to improve with time. Today's music file sharing is infinitely easier than what was available five years ago. A few years from now, porn will be in as much trouble as music is today.
Of course you're right that ease of use is important. But these days, even a super-convenient site like Apple's music store isn't all that much easier to use than the modern P2P networks. And P2P has other advantages as well: besides the obvious one of price, the number of titles available is enormously larger than current music stores. Plus as this article indicates, you can get other kinds of data off the P2P networks besides music. There's tremendous utility in P2P which the legal services will have trouble matching. Your simple formula for success isn't going to be quite as easy as you make it sound. (BTW, I'm surprised to see you endorsing the lawsuit strategy, but I respect you for it.)
As for DRM, it doesn't have to have significant negative impact. Many Apple users are probably unaware that DRM is even present in their downloaded files. You can still share them with other machines on your home network, burn CDs, put them onto your iPod. By drawing the DRM boundary to encompass most of what people want to do, typical users won't even notice it. (The Unlimited Freedom blog has a new article on DRM at http://invisiblog.com/1c801df4aee49232/article/85eaeb13c6151d60fa610cfd2d0f210c ).
Permalink to Comment2. Ernest Miller on February 10, 2004 06:21 PM writes...
My comments were only addressed to the present situation as regard metadata and porn. Of course it is possible that there will be improved metadata for images and video in the future. Porn might be in more trouble than music in a few years, but it isn't as if porn hasn't been as readily traded as music. Porn was being widely shared on the net before music became the major concern.
However, I also don't think this great revolution in pornographic metadata is going to occur in the next few years. I don't think the sorts of metadata that porn consumers are interested in will necessarily coincide with the sorts of metadata that more mainstream photos and videos will provide.
As far as convenience goes, I believe that Apple's music store isn't there yet. Until you have open systems that will let the creativity flow and let people share, for example, playlists easily, cheaply and efficiently, you aren't going to have the convenience/price point that is going to be a major success.
My solution is difficult only because the current music industry has developed in such a way that they have made it hard to come to agreement. There are at least four different sorts of licenses necessary to deal with digital music. Of course it won't be easy for them to create the catalog that is necessary for a legitimate solution to work. However, the industry has only itself to blame, and I shed no tears for the difficulties they themselves created.
Many Apple users probably aren't aware of DRM, yet. However, many who don't use any of the downloading services are aware of DRM and it probably is one of the main reasons they haven't tried these services. In any case, in 2-3 years as people replace their computers and music devices, they will find that the music they "bought" from Apple won't be easily transferable. They probably won't be too happy when that happens. It is also likely we will see a shakeout in the music selling sphere, and those companies that go under will likely leave their customers in a lurch when it comes time to service the licenses for whatever reason. So, DRM is highly likely to have a significant negative impact for customers down the road (if not sooner).
Permalink to Comment3. Ernest Miller on February 10, 2004 06:22 PM writes...
Btw, I've always supported the "sue individual copyright infringers" practice. It is entirely consistent with my views of the matter.
Permalink to Comment4. Ken on February 10, 2004 08:36 PM writes...
Hmmm; it has always been possible to search on Kazaa and the like for "blonde, foot fetish, etc."
What happens on such sites is that, since people KNOW you will search as such, they metatag their files and "false advertise."
Personally, I thought the pull quote from the NYT article was:
[T]he entertainment industry is making a mistake by taking a different approach, he replies: "I haven't spent much time thinking about it. It's like asking Henry Ford, 'What were the buggy-whip guys doing wrong?' ''
and I suspect Mark Cuban, for one, would agree.
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