How piracy became mainstream(ing): An analysis of the moral positions in the conflict around piracy and a search for solutions

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How piracy became mainstream(ing)

An analysis of the moral positions in the conflict around piracy

and a search for solutions

Master Thesis: Television and Cross-Media Culture University of Amsterdam, June 24th₂₀₁₆

Author: Babette van der Sluis

First reader: Dr. T. (Toni) Pape Second reader: Dr. J.A. (Jan) Teurlings

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Page | 2 Abstract

Many see the conflict between the file-sharer and the copyright holder as irreconcilable. Where creative industries see file-sharers as ill-bred and selfish pirates, the file-sharers see the creative industries as moneygrubbing power abusers. What is missing in this debate are the human motives that drive economic behaviour and the effort of listening to both stories. This study investigates two sides of the moral economy of creative content: the moral considerations of the copyright holder and the file-sharer. Once the two sides are understood, solutions that fit both parties can be found. This study argues that we have to look into the history of television to understand the future possibilities of streaming services.

Keywords Piracy, File-sharing, Moral Economy, Copyright, Streaming, Television

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Introduction

The Dutch newspaper De Volkskrant recently published an article about the death of the downloader (Ammelrooy 8-13).Herein Ammelrooy shares the news that the Brein foundation, protector of film and music rights in the Netherlands, had several successes in its fight against illegal downloading. The foundation receives more user data from Google to track illegal downloaders and in court they try to make a criminal offense of amateur subtitling (9). Although Brein is able to successfully fine big distributers of illegal films and music and some individual users, Ammelrooy states that it is still fighting a digital hydra, a multi-headed snake monster that keeps growing new heads every time one is cut off (13).

The downloader might be dying, but the streamer seems to be a new-born snake head that’s willing to strike back. Streaming is the new downloading and thus forms a new challenge to copyright holders. However, there is an enormous gap between the world of the legislator and copyright holder and the world of the user. On the one hand, copyrights laws are tightened (by parties like Brein) while on the other hand illegal streaming and downloading normalises in society (Newman 474; Jenkins and Green part 2; Rojek 365; Vonderau 114). According to Ammelrooy, 35% of the Dutch population downloads film or music without paying. When I tell peers about my research on piracy, I often mention the illegal streaming service Popcorn Time. It offers a free alternative to Netflix and HBO by using a friendly interface and by offering a wide range of films and series. Several times already, my peers’ reaction was filled with astonishment: “I did not know Popcorn Time was illegal!” They did not wonder how it was possible that they did not have to pay for all this intellectual property. They did not feel like having to pay for content they take online.

The Internet is changing fast, but into what is not sure. There is a constant innovation of digital technologies and an interconnected change in user behaviour. Legislation and business models are less flexible and have a hard time in keeping up and letting go of old ideas. In order to know to what extend the copyright laws should adjust to or prevent these changes, developments should be better understood. Are the current copyright laws still realistic in a society of constant access and availability? To better understand this question, I propose to look closer into the sociocultural aspects of the media landscape and the ethical underpinnings of piracy. There seems to be a dialogue of the deaf between the copyright holder and the file-sharer, who refuse to understand the other’s interests and moral grounds.

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Page | 6 Unfortunately, this dialogue also seems to have affected the academic debate. Copyright laws are currently much criticized for overlooking the interests of society at large. As a result, most studies on this subject mainly focus on the copyright policies; on the right that the copyright holder does or does not have to claim full ownership and financial profit. Other studies try to understand motives for piracy, but hereby exclude the interests of the copyright holder. This study is one of the few to investigate the relation between the copyright holder and the file-sharer. We have to find out why there is a clash between the copyright holder and the Internet user. What are their interests and why do they seem so incompatible (and are they really)?

Moral economy

Where creative industries tend to see file-sharers as ill-bred and selfish pirates, the file-sharer sees the creative industries as moneygrubbing power abusers. What is missing in this conflict is a full understanding of the human motives that lie behind economic behaviour. Therefore, this study is focussed on the so called moral economy behind this conflict. ‘Moral economy emerges as an

alternative perspective in which economic, social and human dimensions work together in necessarily complex ways: navigating the dense web of varying motivations, norms and values whilst placing the agent and his/her needs and capacities for suffering and flourishing at the core’ (Bolton et al. 123). In other words, the questions to start from are: why are stricter copyright policies justified according to the copyright holder? And: why is not-paying for content becoming morally accepted among consumers? These two parties within the moral economy of creative content (including film, music and television) are explored.

In 2008, Jenkins and Green wrote about the ‘moral economy’ of Web 2.0. A moral economy is about ‘the social expectations, emotional investments, and cultural transactions which create a shared understanding between all participants within an economic exchange’ (Jenkins and Green part 1). To better understand the disputation in the economic exchange between file-sharers and copyright holders, I approach them as existing within one moral economy.1_{So the question becomes: what has to be done, to make these two participants within} this economic exchange understand each other again? What makes the moral economy-approach so interesting, is the fact that it enables us to see the two parties as interrelated instead of irreconcilable antipodes. By looking for motives, values and wishes, the consumer and the

1_{Other parties within this economical exchange are technology industries and legislators. They will not be} addressed in this study.

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Page | 7 creative industries can grow back together within new economic models. I look at the justifications that the file-sharer and the copyright holder themselves use instead of at the general justifications for piracy or copyright laws. This distinction is important, because this makes this study not about whether piracy or strict copyright laws are morally right or wrong, but about what goes wrong between the two worlds that seem to have grown apart ever since the so-called digital revolution.

The first chapter looks into the moral foundations that motivate the behaviour of the copyright holder. What makes the copyright holder want to have full control over her creations? When speaking of the ‘copyright holder’, only the copyright holder that is in actual conflict with the file-sharer is meant. It is the copyright holder that supports the current or a stricter copyright policy, in order to fight piracy (the ones that do not support these policies will be addressed in chapter three). Four moral foundations that are most commonly expressed by the copyright holder are emphasized in the first chapter: 1) copyright leads to greater welfare and happiness, to greater social utility; 2) it is crucial for personal development; 3) it is based upon just reward; and 4) it is based on natural law (Papaioannou 86). It becomes clear that some of these foundations have become problematic in our digital society. Intellectual property laws are necessary for innovation and social progress, but they may also be harmful when used to control information access, consumption, and expression.

In the second chapter the moral economy of the file-sharer is investigated. In order to understand the full picture of why so many people are downloading and streaming without paying, we need to dig deeper into their experience. Why does piracy not feel as immoral as physical theft? What happens to morality if next to every charged product, a gratuitous option lies within reach? The term ‘file-sharer’ is used to indicate the user who downloads or streams illegal content without having commercial interests. It is the consumer who has grown accustomed with piracy. The distinction between commercial and non-commercial piracy is often overlooked by copyright holders and legislators. Lawrence Lessig, one of the most prominent scholars on copyright, does address this distinction and calls for a better understanding of non-commercial piracy (62). Piracy is about more that just not paying for things.

The moral considerations that the file-sharer makes are based on four main aspects in their experience: 1) more average consumers have become active fans; 2) sociability or the social acceptance of piracy; 3) the claim of availability; 4) appreciation of products or the willingness to pay. These four discourses around user agency encourage illegal behaviour, as they allow for it to be perceived as empowering choice rather than theft. I show that both the user’s stance towards

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Page | 8 the producer and her notion of property have changed significantly by the shift from commodity economy to experience economy (Gilmore and Pine 1999) and towards a digital society. While the user is getting used to more availability, access and freedom to express herself, governments and industries are trying to maintain control over user behaviour.

Positions in the moral economy debate

The Internet made it possible to break the previous monopoly that intellectual elite had on cultural activities and formed a challenge over the existing order of governance (Zhang and Fan 94). This caused a conflict between official discourse and civilian discourse. ‘The power of the state or government is gradually decentralised, while power of the society or citizens is gradually expanded’ (94). Ostensibly, governments and producers are sticking to traditional moral views of the law while citizens are getting used to the rapidness, freedom, openness and file sharing online (95). On the one hand, the Internet offers a wide space of possibilities. Freedom to express oneself, to be creative, to be informed, to be free from physical boundaries. On the other hand, this unbounded space has its downside, as there is false information, illegal pornography, and all kinds of abuse and theft.

How far should governments go to counteract this dark side of the Internet, without impeding the citizen’s freedom and privacy? We live in an economy wherein a growing portion of people makes a living out of ideas rather than out of commodities. To what extend should these ideas be property of the creator or be accessible to all? These questions on freedom and control add a complex layer to the conflict between file-sharers and copyright holders and are important to keep in mind while reading this study. Although I will not be able to answer these questions concerning politics, I look into alternative business models that keep a balance between freedom and control in the third chapter.

Let us first go into the different scholarly approaches of the moral relation between copyright holders and file-sharers. In the debate on copyright right and piracy, there are roughly two approaches. The first can be called the prohibitionist approach, that sees the Internet user as a

threat to the control over the circulation of, and production of meaning around, content (Jenkins and Green part 4). The parties on this approach argue that the Internet causes a risk for moral behaviour. They may praise the possibilities of the Internet, but state that this only flourishes when immoral behaviour is diminished (Zang and Fan 2015; Keen 2007; Moore 2005). As Keen phrases it: ‘Our goal should be to preserve our culture and our values, while enjoying the benefits of today’s Internet capabilities. We need to find a way to balance the best of the digital future

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Page | 9 without destroying the institutions of the past’ (Keen 185). The prohibitionist approach advocates that moral boundaries should be consolidated or reassigned. It often is based on a market logic of commodities that considers file-sharing to be mainly about not paying for copyrighted content.

The second approach sees a more positive change in user behaviour and can be labelled as the collaborationist approach (Jenkins and Green part 4). The user gained agency as a result of

the Internet revolution and should be seen as an ally instead of a threat. This approach accepts the fact that the role of producer and user is blurred (into ‘prosumers’ or ‘produsers’) and that consumers are no longer the end point along an industrial chain (Jenkins and Green part 2). The networked society caused a shift towards a gift economy wherein participation and experience become more important than consumption. In other words, this approach advocates the view that industries (and legislation) that retain old market logics, should adjust to the changed moral and behavioural standards of the user (Anderson and Frenz 2010; Lessig 2004; Jenkins and Green 2008).

This thesis is positioned mainly on the side of the collaborationists, since it seeks to find a compromise between both the file-sharer’s and the copyright holder’s interests. Technological innovations and changed user behaviour cannot be easily rolled back, like some on the prohibitionist side would like to see. Therefore, the possibilities that these developments offer should be taken into account in new legislation and business models. Chapter three is a search for new distribution models that both comply to the interest of the file-sharer and the copyright holder. As Lessig puts it: we have to find new ways in which the artist gets paid while keeping an eye on future technologies (298-299). Instead of seeing the ‘pirate’ as an enemy that needs to be punished, file-sharing could become an opportunity to make profit in new ways. The file-sharers form a group that, with the right strategy, could become a loyal fan base.

File sharing and television

The majority of studies on piracy and copyright focus solely on the film and music industries. Those were the first who had to deal with piracy and had the most trouble fighting it. However, since streaming is growing to become the new main technology of (illegal) online distribution, it is worth taking into regard television (Holt and Sanson 8-9). Television has become a major part of online content. The streaming of series has gained enormous popularity and television also makes up for a great part of pirated content on this moment. Half of the downloaded content on BitTorrent is television and in the UK, television is more often downloaded than film (Newman

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Page | 10 466, Evans and McDonald 165). Notice that these results only cover downloaded content, so content from illegal streaming services has to be added up. Since streaming services have great similarity to television and television is migrating to the Internet, it is time to involve television studies into the piracy debate.

Television adds an interesting perspective on piracy, since carries a different notion of property than film and music do. Film and music industries tend to compare piracy to the theft of physical goods and see piracy as a substitution of legal physical purchases (Andersen and Frenz 719-720). Think of the short warning video at the beginning of DVDs one could see ten years ago (see image I). In a gangster style video, we see a thief stealing DVDs, a television and a handbag. These images are supported by the alarming words: ‘You wouldn’t steal a movie. You wouldn’t steal a television. You wouldn’t steal a handbag. Downloading pirated films is stealing. Stealing is against the law. Piracy. It’s a crime’. For film and music industries this line of thought makes sense, because they actually offered tangible content in the form of CDs, DVDs and cinemas before it became digitally available. Their first reaction to piracy was an angry and hostile one, they plead for the criminalisation of costumers who shared and copied their songs online without their consent.

Television, though, has a longer history of intangibility. Broadcasters offered cable subscriptions or free advertisement based distribution to access a wide range of content (news, music videos, shows, series), similar to online streaming services like Netflix and Spotify. The consumer paid for the access (the technology or a subscription), rather than for the content itself. Television ran into similar problems as the film and music industries did, but solved it differently. When television was losing loyal customers to the online alternatives, they much easier shifted to online services. ‘Far from being eclipsed by digital start-ups, television engaged and even welcomed the threat’ (Caldwell, Convergence television 42). This might be because of

television’s likeness to the Internet, since it is ‘electronic, ubiquitous, round the clock, and ostensibly (like the Net) free’ (70).

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Page | 11 The similarities that streaming shares with television could teach us a lot about the morality of the file-sharer. The illegal downloading or streaming of television is seen as less unethical than film and music is (Newman 474). By looking at the past of television it will become clear that in the future, streaming can either be the resolution for piracy or an incitement for it. Which way this will go to, depends on new business strategies (discussed in chapter three). Since 2010, streaming services like Spotify and Netflix have been growing in popularity. Legal streaming services seem to offer an alternative for piracy, since they answer some of the most important needs of the file-sharer. The file-sharer wants to be able to access whatever she likes, everywhere and at any time, for low prices. However, streaming might just as good be the factor that will make the normalisation of piracy definite. Chapter one and two both end with a section that links theories on copyright and piracy with streaming and television. How does streaming differ from downloading and what does this mean for piracy? Chapter three makes these findings more profound by looking for solutions that will make streaming a success.

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1. The moral economy of the copyright holder

‘Take away from English authors their copyrights, and you would very soon take away from England her authors’ (A. Trollope qtd. in Stokes 11).

In J.K. Rowling’s Harry Potter & the Deathly Hallows, there is a conflict between the wizards and

the goblins about the sword of Gryffindor (417-418). Both parties claim that the sword is rightfully theirs on different grounds. The wizards think that the sword is rightfully theirs because it was given to them. The goblins on the contrary, think that the sword is eternally theirs, since it came from their hand. For them buying is merely renting, because the sword will always stay their property. In this conflict both parties have, to their own regard, moral grounds for claiming ownership of the sword. This is because they hold different property ethics, they have different conditions for something to be legitimate private property.

This example reflects on what seems to be the essence of the conflict between the copyright holder and the file sharer. The creative industries hold a property ethic that is based on ownership, that stems from the economy of commodities. File sharers, on the contrary, are increasingly getting used to a property ethic that is based on an economy of experience and access. For the property ethic of the consumer, owning becomes less important than having access and the possibility to share. They claim the right to access and share property freely and tend to deny the right of the author to have control over their actions. The copyright holder claims the right to control his creation even after it has been purchased by the consumer (Rojek 359). The way in which the product is distributed or customised and shared after the purchase is restricted by copyright laws. Even though the consumer bought the creative content, it stays the intellectual property of the creator.

The debate on copyright laws in media studies and legal philosophy is dominated by the view that current copyright laws are outdated and not morally justifiable. Some argue that copyright laws are untenable and others argue that they should be more flexible. Boyajian sees four main angles of critique: failure of copyright laws to account for the consumer’s interests, the stifling of second generation innovation, the length of copyright terms and the complexity of the laws (623). I accept these critiques in some aspects, but see the importance of having a better understanding of the foundations of these copyright laws first. So instead of saying that current copyright laws are wrong, I try to understand them first. Like the goblins and wizards both have a point, both the copyright holder and the file sharer have a point.

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1.1 From physical goods to intellectual property

Copyright laws are rooted in the English legal system, in the Statute of Anne (1709; Moore 14). This statute was brought into existence because too many books and other printings were reprinted and published without the consent of the author. It granted a fourteen-year protection of the author’s control over his creation (15). Copyright laws are designed to protect the author of intellectual property to be able to profit from his product. Others are prevented from copying or distributing his creation, unless he would be compensated or was asked for permission. The creator is given control over his own product, but not unlimited control (Litman 13). ‘Copyright laws in the United States and elsewhere begin with the principle that neither the creator of a new work of authorship nor the general public ought to be able to appropriate all of the benefits that flow from the creation of a new, original work of authorship’ (15). A balance has to be found between the interest of the author and the public. Digitalisation seems to have disrupted this balance, where now ‘fans and consumers believe media companies are expanding their efforts to police intellectual property just as media companies believe fans are exploiting new technologies to steal content’ (Austin et al. 12). The more piracy becomes a threat; the more copyright policies focus on protecting the author. To find a way to recover the balance in copyright laws, we first have to understand what went wrong.

Digitization changed notions of property by making the tangible intangible and by making content and information freely and globally accessible. ‘Intellectual property is to the digital age what physical goods were to the industrial age’ (Litman 116). Western economies are increasingly based on the global distribution of information rather than of physical commodities. The technological developments created a wide gap between those who try to make a living out of intellectual property and those who want to make free use of technologies to share and access. Patents, copyrights, trademarks and trade secrets are getting more important to increase innovations and boost economic growth, because western economies rely more on intellectual property than ever before. ‘Pure information assets produced by the music, motion picture, print media, and software industries are considered some of the most vulnerable to online piracy’ (Sudler 149). Piracy meant a great loss of income. Although it is difficult to accurately calculate, music crime, for example, reduced annual U.S. gross domestic product by 12.5 billion dollars in 2007 (Borja, Dieringer and Daw 70). But it is not all about income. Piracy caused economic, legal, and social distortions, and market inefficiencies (70). In 2012 piracy accounted for 42% of

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Page | 15 all online transactions (Sudler 149). It is not surprising then, that companies and artists prefer strong copyright laws.

The digitalisation of products like music and film lead to easier ways for the public to share, copy and access. For most creative industries this felt like a loss of control over what happens with their products. In reaction, they tried to regain control. Before the digital era, consumers were able to copy CDs, share DVDs with friends, and make mix tapes without being seen. But since this interaction was brought online, copyright holders were able to monitor and meter the private use of their products (Litman 13). What first was invisible now became visible and takes place on a much larger scale. To make sure this fast growth of illegal copying and sharing would not get out of hand, they fought for the copyright laws to be extended to online uses. This happened in 1998, in the Digital Millennium Copyright Act, wherein copyright laws were expanded over online distribution (14).

However, this new copyright law lead to much resistance. The interests of the copyright holder might be secured by this law, but it does not answer enough to the interests of the digital citizen. Not only is the unauthorised copying of products illegal, but now also some of the private uses that where accepted before. In the next chapter it becomes clear that the morality of the public has changed (the normalisation of piracy). The principles of the copyright holder, however, have not changed as much. So what are the moral assumptions that underlie the behaviour of the copyright holder within the moral economy?

1.2 Four moral foundations

In studies on copyright law, a distinction is often made between economic and moral foundations (Stallberg 2008; Towse 2010). But since I look at the moral economy, the distinction will not be as strict. There are some differences between Western copyright laws. European copyright laws for example are stricter than American copyright laws (partly because European copyright law does not have a ‘fair use doctrine’ that gives space for unforeseen exceptions on the law).2_{However, Western copyright laws share the same moral foundations. These moral} foundations are at the base of the behaviour of copyright holder, in the conflict with the

2 The Dutch government took up these European laws only in 2015 and with some resistance. The Court

of Appeal in The Hague, amongst others said: ‘Downloading from illegal sources for personal use […] is permitted under Dutch law, because […] the Dutch government expressly and repeatedly declared that downloading from illegal sources for personal use is not prohibited’ (Schermer and Falot 8).

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Page | 16 sharer. Copyright holders and legislators strive for one goal: the protection and stimulation of creations of the mind. The Dutch advocate of copyright, Brein, disseminates its ambitions under the slogan: ‘the art of protecting the creative’. The United States Copyright Office is similarly devoted to stimulate creativity and freedom of expression. Both parties see copyright laws as an indispensable aspect of our digital society to stimulate innovation and economic growth.

Over the span of 225 years, U.S. copyright law has promoted the role of creative expression as a public good. It has taken us from the colonial printing press to the digital economy, from a country of books, maps, and charts, to a connected world of music, movies, images, and software. Today it is impossible to separate copyright law from the fabric of everyday life. It fuels entertainment, information, and innovation, and is, in the words of the Supreme Court, “the very engine of free expression”. (USCO Strategic Plan 11)

The US Copyright Office aims to meet ‘the diverse needs of individual authors, entrepreneurs, the user community, and the general public’ (3). On the whole, copyright laws are based on intellectual property right, that is, the right to own the creations of your mind. Western copyright law only offers control over these creations in tangible form. They do not protect ideas, but only the embodiments of these ideas.

The moral foundations that copyright holders build on, can be divided into four categories. According to Theo Papaioannou these are the moral assumptions that copyright 1) leads to greater welfare and happiness (to greater social utility); 2) is crucial for personal development; 3) is based on just reward; and 4) is a natural law (86). Papaioannou argues against these foundations and concludes that stronger protection of intellectual property right cannot be morally justified (85). However, this will not be the focus of this chapter, since I solely explore what makes these foundations morally justifiable for the copyright holder. The foundations will be placed in the context of contemporary issues concerning copyright.

Firstly, most Western systems of intellectual property can be justified on utilitarian grounds. When authors of intellectual property are remunerated for creating things, society at large will benefit from this (Moore 15). This is based on the idea that when authors are not able to profit from their creations, they will stop creating and society will be without creative and innovating ideas. Copyright is therefore seen as crucial for protecting society from losing valuable cultural products and for the stimulation of creative minds. At the moment file-sharers do not seem to realise the great impact of their behaviour. Creators that depend on the financial support of investors are having difficulties offering the certainty of being able to pay back.

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Page | 17 Making a movie (especially fiction) is expensive and an increasingly insecure investment. What if no one comes to the theatres and everyone watches the movie on Popcorn Time? The lack of certainty and control over creative creations is demotivating the copyright holder. This is not only about financial certainty, but also about his artistic integrity that is threatened by users who modify and share his creations without his consent.

Papaioanno, however, stands for a deontological approach rather than a utilitarian approach of copyright (83). So instead of looking at the results, the intentions should be taken into account. This is to make sure copyright laws are indeed serving the greater welfare and happiness of society. Copyright are by some seen as entities that are used to control information access and consumption in the interest of the privileged and economically advanced (Moore 15). The interest of the public is too often disregarded. When copyright law would focus on the intentions of the copyright holder, the interest of the public could be better protected. So in this case, an author of a book might be protected because he needs the copyright to be able to earn a living, while a big company that tries to keep a product for itself in order to hold a monopoly does not qualify for protection. This can be seen as the distinction between the ‘editorial logic’ and the ‘market logic’ that Jenkins and Green make (part 2). The editorial logic is held by the creative, who seek protection of their artistic integrity. The market logic is held by the business side, that seeks to prevent others from taking something they made without paying for it. Of course it is problematic to decide which logic has the right to protection and which does not. Should copyright holders who only hold a market logic and not an editorial logic have less right to protection?

This leads us to the second moral foundation is that intellectual property right stimulates personal development. Intellectual property right protects the moral necessity of developing an individual’s personality (Papaioannou 78). As Simon Newman points out, the individual’s intellectual creation is considered to be part of his personality. To infringe the copyright law as regards his work is to violate his moral right to personality development (22–23). In his Philosophy of Right (1942) Hegel sees private property as a right that is crucial for human needs and freedom.

He argues that both freedom and personality must be translated into the external world through private property (78). This moral foundation is explicit in copyright laws. The US Copyright Office sees copyright as an essential tool to grant freedom of expression. One should be able to express one’s personality in something tangible, without others that try to publish, steal or harm it.

One could however wonder how much individual personality is put into commercial goods. Should more personality imply more protection of intellectual property (Papaioannou

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Page | 18 78)? I would like to add another question that becomes important in the context of our digital society: should copyright holders have the right to protect a product that does not contain much personality, by limiting others to use it for intellectual creations that are part of their personality? Fan subtitling (‘fansubbing’) for instance asks for much personal effort and is an important part of fan identity. Fansubbers are generally motivated by a strong affection for one genre, mostly anime, the wish to share it with other fans, the sense of community with their viewers and fellow subtitlers and a strong desire to support the local film industry by promoting their culture and widening its accessibility. Fansubbers are involved in productive activities that enhance their knowledge of a genre and improve their skills (Lee 1131–1147). However, since they mostly obtain and distribute the films illegally, they are crossing copyright boundaries. Does copyright law in this case still operate according to its own moral foundation of protecting personal development and thus also act in the interest of society at large?

The third moral foundation of copyright law is that of just reward. This implies that authors morally deserve to be rewarded for their qualities and talents (Papaioannou 80). People have the right to benefit from exchange by selling and buying creations and ideas. Just distribution can only take place in a free market where ideas are justly acquired and based on talent and ability (81). This is protected by copyright laws and forms the economic justification of copyright law. According to Simon Stokes, the economic justification for copyright law has both a ‘static’ and ‘dynamic’ element: ‘‘static’ in that the owner has a positive benefit as a result of ownership of the property right, and ‘dynamic’ in that it acts as an incentive to invest in creating the work on the basis that only the author or his/her assigns can exploit it’ (Stokes 13).

‘Even marginal reforms of copyright law can affect producers, distributors, consumers, authors, and retailers in ways that significantly increase or decrease their expenses or revenues’ (Stallberg 334). This is one of the main reasons why it is challenging to adjust copyright law to new societal circumstances. These are new circumstances wherein consumers ask for lower prices, technologies change production and distribution (costs), and copyright holders try to secure their income. At the moment the latter try to keep copyright law in their interest and are therefore much criticized, they would slow down innovation and refuse to move along with irreversible developments.

The fourth, and final, moral foundation is that copyright is a natural right. ‘It states that [intellectual property rights] are moral-claim rights that each individual naturally has independently of the laws and government of civil society’ (Papaioannou 74). It is seen as natural because intuitively everyone would say that when you create something (with your hands or mind) it is your property and it seems unfair if someone else takes it from you to profit from it.

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Page | 19 It is similar to private property, which is also seen as a natural right, according to John Locke (116-119). He states that when you add labour to a product (for example a piece of land), it will be properly yours. Also, there should be enough of the product left for others to profit from (so you can’t occupy all the land and prevent others to grow their own crops). When this theory is applied to intellectual property we could argue that if a person puts labour into ideas by making a book or a film, they are properly his.

Since the introduction of digital society the equalisation of private property and intellectual property is much criticized (Moore 15). When something is digitally distributed it does not add extra production costs for the creator. It does not seem so natural anymore that the creator can control his property on such a wide scale as the Internet. It is seen as a limitation of the possibilities that are left for others, for new artists and for the public. ‘The question […] arises as to why other people should be legally prevented from using a naturally unlimited good because of an artificial scarcity created by copyright law’ (Stallberg 336)? This critique grew with the introduction of the Digital Millennium Copyright Act that offered copyright holder this wide control (15). Copyright is criticised for not being a natural law. It was just promoted to look natural in order to cover up its commercial intentions (Papaioannou 73).

What is striking though, is that with the formation of the American systems of intellectual property rights, the natural rights foundation was expressly rejected. It was not designed to secure the natural rights of creators, ‘Rather, it was a reward, and inducement, to bring forth new knowledge’ (Moore 15). There are the copyright holders that use the law just for keeping monopolies and far-reaching control over distribution. But most copyright holders want this control in order to have a just reward and keep artistic integrity. Copyright law is mainly based on the rewarding of labour, the creator should be stimulated to write more books or make more films, because this is regarded important. The risk in seeing copyright law as a natural right, is that it might be forgotten that it is an incentive rather than a natural power to control your creative works. Therefore, the balance between the incentive for the creator and the accessibility for the public should be watched carefully.

The copyright holder wants to achieve self-development in creating and inventing. He wants a just reward, so he can feel encouraged to continue creating. He wants his artistic integrity and his financial income to be protected. Copyright laws offer this protection, by giving the copyright holder control over his creations. However, as Stallberg concludes, ‘copyright is not socially accepted in the same way other legal institutions are, e.g., private property in tangible goods. On the contrary, these days piracy of songs, movies, software and the like is hardly

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Page | 20 morally contested’ (335). The moral foundations of copyright are very reasonable; the question remains how they should get shape in copyright laws that suit this digital society.

1.3 Copyright law in the streaming era: following the television model

As we have seen in the introduction, the downloader is dying out, but the number of streamers is on the rise. This is a development that might reinforce the normalisation of piracy in western society, because streaming is a manifestation of the property ethic that already was hidden at the base of downloading. Where downloading still can be seen as the first step out of physical owning

to a digital owning, streaming is the next step, that drifts away from property as a right to own,

towards a notion of property as the right to access. Streaming feels like borrowing rather than

infringing content, since you will never own the content. Illegal services like Popcorn Time and

Prime Wire have become the standard among file sharers. So have legal services such as Netflix or Spotify among paying consumers. These kind of services show a new property ethic. At the push of a button, series and music start playing. You can’t be caught anymore with thousands of illegally downloaded music and film files on your computer. You did not steal the content, you just borrowed it.

Streaming differs from downloading in this sense of ownership. In the early days of downloading, you would go to the dark corners of the Internet to find illegal films or music. You would visit websites like the Pirate Bay (a name that suggests shady business), where you would encounter naked women in porn adds and where you were at risk being infected with computer viruses. In other words, there was an appeal to the downloaders sentiment of doing something illegal and of breaking (moral) laws. By downloading content, you would own the files on your

computer illegitimately. The legal alternative were services like iTunes, where you could pay per song or album or online film rental services. Piracy is frequently compared with the stealing of physical goods, since the digital thief refuses to pay for something in order to own it. This comparison is possible because it lies within the same notion of property: that you have to compensate the creator of content, in order to own the content. The pirate disagrees with this property ethic, for several reasons (which are more extensively discussed in the next chapter), but in streaming, the property ethic is more considerably different than that of the industries.

In this study it is claimed that streaming services like Popcorn Time form a big step towards the normalisation of piracy, because they fit in with the current property ethic of the consumer. Only if this property ethic is acknowledged, copyright laws and policies can be

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Page | 21 adapted and piracy might regress. The consumer is getting used to a consumption model that is subscription- and access-based instead of pay-per-product. Illegal streaming services do barely appeal to the sentiment of acting immorally, because it does not feel like stealing. These services do not have the feeling of being a shady place on the Internet, but rather look like any reliable website where you can access content as you please (see image II and III). Therefore, the copyright holder who points at the copyright laws and claims that all ‘pirates’ are criminals, do not understand what has changed in the minds of consumers. They came to hold different property ethics.

By showing the similarities between streaming and television, it will become clear why the property ethic that underlies illegal streaming differs so greatly from that of copyright laws. Here begins the study of the conflict between the file-sharer and the copyright holder. Most research on this moral economy is based on the distribution of film and music, products that

Image II: Website of The Pirate Bay: ‘Hide your IP now.’ (The Pirate Bay.)

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Page | 22 once were tangible. But research from television studies essential to better understand the current developments in piracy. Television now makes up for a great part of pirated content and online television gained great popularity (Newman 466). From the perspective of a medium that has a longer history of intangibility, it will be easier to understand the property ethic of the file sharer, in contrast to that of creative industries that support the intensification of copyright laws. In this paragraph I propose that the property ethic that lies behind copyright laws differs in some aspects from the property ethic of the file sharer.

A range of institutional players attempting to manage and make sense of the “inevitable” shift to digital – both industrial (the computer and entertainment industries and Hollywood and the film industry) and academic (cultural theory and film studies) – all failed to recognize one persistent and nagging bridge between old media and new media: television. […] television brought to the table of technological “revolution” a set of principles that proved to ground the Internet as well: television is electronic, ubiquitous, round the clock, and ostensibly (like the Net) “free”. (Caldwell, Convergence television 70)

The shift towards the digital was less of a struggle for television than it was for film and music industries. This might be because television learned from the solutions of film and music industries, but it might just be the other way around. Television can be seen as the base of streaming models, because of three main similarities: 1) it is either advertisement or subscription based; 2) about access rather than ownership; and 3) used mainly within the private sphere. It will become clear that these are aspects that lead to the lower moral objection to the file-sharing of television content and will later appear to be reasons for a lower objection to file-sharing via streaming.

The first resemblance between television and online streaming services is the fact that it has always been free and over the air. ‘Television has been free since its earliest days of broadcasting, following the advertising-sponsorship model of radio to gather up audiences whose attention could be sold to companies eager to spread commercial appeals. Despite the penetration of subscription services, DVD, and other forms of distribution dependent on consumer expenditure, many millions of viewers still receive their television content as a free broadcast signal’ (Newman 463). In his article ‘“Darn that pay tv!”: STV’s challenge to American television’s dominant economic model’ Gunzerath shows what sentiment was felt when the access to free television was threatened (see image IV). In 1964, Subscribtion Television, Inc. tried to

launch multichannel subscription television in California, better known as ‘pay TV’ (Gunzerath 655). Instead of depending on advertisements, this new economic model would depend on

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Page | 23 Image IV: Pay-per-view broadcasting (Howe 124)

subscription fees. They offered three separate channels which would air big sport events, first-run motion pictures and several educational and cultural programmes (659). All without commercials.

The initiative caused a tumultuous period, in which a fierce opposition stood up against pay TV. They plead for ‘A LAW TO OUTLAW PAY-TV’ that would prohibit ‘any fee or charge to the general public for the privilege of viewing television in the home’ (Gunzerath 660). The sentiment that was felt among citizens was translated by the Citizens Committee in an advertisement called ‘Darn that pay-TV’: ‘What kind of a monster would do this to your child – would come into your home and put a padlock on his TV fun? What kind of a monster would force you to feed your tv set bucketfuls of dollars – or suffer the humiliation of being labelled a “cheapskate” in the eyes of your children? There is such a monster. It’s a greedy thing called Pay-TV’ (668). This sentiment can still be felt among file-sharers, who claim the right to have free access to online content in their private sphere. This sentiment is further discussed in the next chapter.

What makes this example interesting, is that it is a moment of history that shows what role television had (and to a large extend, has) in society and how television can be seen as one of the first streaming services. Television, just as streaming, forms a flow of content to which one has permanent access. Regardless of whether one pays subscription fee or not, it is about access and not about paying per product. One buys the technology in the form of a television set or an iPad and an Internet or cable connection, to have unlimited access. When a consumer is asked to

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Page | 24 pay per product online, especially for television content, this goes against his sentiment of having the right to access. File-sharers share the sentiment that downloading or streaming television is less unethical than film and music (Newman 474).

The third similarity between television and streaming is the intimate character of the viewership. Television was associated with the private sphere of the living room. Even though it became possible to stream series or films on portable devices, it is still an intimate and private activity. This sentiment is also seen in the example of Pay TV; the viewers share the feeling that corporations try to break into private uses. As discussed earlier, copyright holders became able to monitor online uses of their products. This caused a shift from pre-sale control to after-sale control (Rojek 359). Just as the opposition of pay TV in the sixties thought they had the right to watch television freely, the Internet users think they have the right to access (and share) Internet content freely. Disney’s CEO Michael Eisner, explained how Hollywood studios try to stay in control: “[they] spend enormous sums of money encouraging people to see their films and TV shows and then spend more money devising ways to control and limit how people can see their films and TV shows” (Curtin et al. 11). Viewers have difficulty in understanding this, and wonder how it can be that a commercial company claims the right to get money for something that they could always access freely? The viewer’s logic lies far from that of the copyright holder and in the same way far from the logic that was seen in the distribution of film and music.

Most of the copyright debate is about the film and music industries, but this leads to a one-sided debate on copyright. By seeing the shift from offline towards online consumption from the perspective of television, it becomes clear that the clash between the interests of the users and the industries does not have to be so dramatic as frequently is suggested. The historical view from television shows a more natural transition towards online viewership, and shows how streaming services are a solution for piracy that already lay in television services before the digital era. Since some of the film and music industries have developed towards streaming based services, the same sentiment develops for those products. Spotify, for example, has the same advertisement based model as television already had. The consumer does not have to pay for the product, but gets free access to a plentiful offer of all the music he likes. The consumer now is in the position where he can choose whether to pay one euro per song on iTunes or listen to music freely on Spotify.

Distribution models move towards a model wherein consumers unlearn the habit of paying for each product they lay their hands on. It is not about owning, but about access. Consumers unlearn the moral awareness of having to compensate the creator of a product, a

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Page | 25 basic moral assumption in copyright law. It is the distribution model (of Netflix and Spotify) that makes sure the artist gets his share, no longer the consumer. So the service, just like it works in television, takes the responsibility of compensating copyright holders. Only when the changed notion of property and morality of the consumer is acknowledged, copyright laws can be seen as ‘reasonable’ again by the consumer. Further models that solve the tensions between copyright holders and file-sharers will be discussed in the third chapter. Before that, the following chapter focuses on the moral judgements and the interests of the file-sharer.

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2. The moral economy of the file-sharer

‘If old consumers were assumed to be passive, then new consumers are active. If old consumers were predictable and stayed where you told them, then new consumers are migratory, showing a declining loyalty to networks of media. If old consumers were isolated individuals, then new consumers are more socially connected. If the work of media consumers was once silent and invisible, then new consumers are now noisy and public.’ (Jenkins 18-19)

Over the past decade, the moral justification of piracy has been investigated from different fields of study. Most are based on surveys among young file-sharers, often college students, and focus on finding out what drives their behaviour. To indicate on what scale the phenomenon of illegal file-sharing should be seen, let us look at a few statistics: in 2013 13% of US Internet users used peer-to-peer file-sharing sites, among the young (under 30) this percentage was 20% (Sang et al. 333); in 2016 35% of the Dutch population has downloaded film or music without paying (Amelrooy 8); and in the UK 30% of Internet users who consumed online content engaged in digital piracy in a three-month period, of which more than half were under 34 years of age.3_The studies that will be discussed here examine user behaviour in several Western countries.

What is notable, is that Ofcom (the independent regulator for the British communications industries) found out that only 5% of the British Internet users solely uses illegal services. This indicates that when we speak of pirates, we should not think of those that refuse to pay for all content, but instead of the users who are willing to pay, but sometimes do not. This study is chiefly focussed on the pirate that uses intellectual content for private use and non-commercial sharing only, i.e. that takes profit away from the creator. It is file-sharing as either a substitute for purchasing, as sampling before buying, or as the accessing of content that is no longer available for sale or too expensive because of scarcity (Lessig 68). This type of pirate, addressed as the ‘file-sharer’, is interesting because she has the potential to become a loyal user (who is more willingly to pay for content). The pirate that tries to earn money from the content is a case on its own, that will be set aside for other research.

So why do file-sharers break the law knowingly? What justifies their behaviour for them? Wingrove, Korpas and Weisz ask the same question in their research on legal compliance and attitudes towards digital music piracy. They examine the relationship between traditional

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Page | 28 motivations for legal compliance and online ethics. In 2003 the Record Industry Association of America (RIAA) started filing lawsuits against individuals. This caused a decline from 35 million to 18 million music pirates (Wingrove, Korpas and Weisz 261). However, Wingrove, Korpas and Weisz argue that the deterrence had its effect, but only on a short term (272). There were still 18 million people that kept on file-sharing, and the number started rising again shortly after RIAA’s menace.

What drove them to continue their illegal practices? The research among file-sharers pointed out a lesser endorsement for deterrence, social influence, personal morality and obligation to obey the law, in comparison with their moral behaviour in the physical world (Wingrove, Korpas and Weisz 271). Besides, most participants do not support the copyright laws, since ‘they grew up with the Internet and expectations of open access to all kinds of information and media’ (274). The most striking outcome is the fact that the frequency of illegal downloading has little to do with respect for the industry (273). So where deterrence, social influence, personal morality and obligation to obey the law were weaker in a digital environment, respect for the industry did not change. This is an important point that comes back in the third chapter, where social ties between copyright holder and users are seen as essential.

So, what is the moral economy from the user’s point of view; what is the user’s stance towards the industries? Moral economy is about the judgement of the legitimacy of actions. Users want to ‘claim for themselves the right to judge the legitimacy of their own actions and those of the … property holders. (…) Each time a right-holder makes a choice that effects their audience’s enjoyment of or ability to use or access their content, they gain or lose legitimacy – and with it, the audience’s trust’ (Austin et al. 11-12). As Stallberg notices, the acceptance of legal norms rests upon extra-legal foundations, namely the belief that norms are morally reasonable (336).

P2P users rationalize their behavior in terms of costs and benefits, and justify their practices not only in terms of legal categories like fair use but also in terms of judgments about right and wrong, about the appropriateness of their actions in given contexts and in relation to the practices of media companies. For instance, they might reason that it is ethical (or should be) to download content not otherwise or legally available, or to sample a product before committing to it. Many believe that down-loading is justified when one has also paid for the content in another format. Some rationales for file-sharing, like “try before you buy” might justify any of the media accessed through P2P networks. (Newman 469)

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Page | 29 This chapter engages with the moral grounds on which file-sharers justify their illegal behaviour. Four moral grounds stand out: 1) more consumers have become active fans; 2) sociability, the social acceptance of piracy; 3) the claim of availability; 4) appreciation of products or the willingness to pay.

2.1 From average consumer to active fan

In their study on the moral economy of web 2.0, Jenkins and Green notice a blurring of boundaries between ‘average’ viewers and fans (part 2). Before the Internet, fans were a hidden subculture that existed outside the institutional frameworks of mainstream media. Digital technologies enabled them to produce and copy their own content, but only since the Internet, they were also able to distribute their creations on a larger scale. Think of fan fiction, blogs, music exchanges, collaborative news networks, and so on (Uricchio 4). There is a shift in the media environment that is characterised by ‘digitalisation and the flow of media across multiple platforms, the further fragmentation and diversification of the media market, and the increased power and capacity of consumers to shape the flow and the reception of media content’ (Jenkins and Green part 1). Fan culture has become more accessible, and is entering the area of mainstream media (part 2). Therefore, Jenkins and Green argue, media companies have to reassess the nature of consumer engagement and the value of audience participation (part 1). In a later work, Spreadable Media (2013), they add that only a small part of online users actually create

user-generated content. A fan is not by definition a creator, but can be a ‘passive’ viewer just as much (Jenkins, Green and Ford 154). ‘As people push DIY media making as the be-all and end-all of participatory culture, they risk reducing other kinds of participation – the valuation, appraisal, critique, and recirculation of material – to “consumptive behaviour by a different name”’ (154).

Tama Leaver explains, in his research on the fan community of Battlestar Galactica, the

problematic position that contemporary fans have within their exchange economy with creative industries. The creative teams of television shows engage with fans across the globe, building so called ‘loyals’ instead of ‘zappers’ (Leaver 5). They focus less on the number of viewers and more on keeping viewers loyal to their show. By offering extra content, room for co-creation and discussion, the viewer is addressed as an ally rather than a consumer. However, the primary audience of most US- or UK-produced media is not addressed on the same scale. This leads to a situation wherein some members of the worldwide fan communities are able to see the show,

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Page | 30 while others cannot because they live a country where the show is either not aired, or has a release window of at least one year (6).

The problem in this situation is explained by Jenkins and Green as a rift between the ‘gift economy’ of fan culture and the commodity logic of ‘user-generated content’ (part 1). In the latter companies try to maintain control over consumer behaviour, with the idea that ‘[c]ontrol over consumers and markets can best be achieved by providing managed and dynamic platforms for consumer practice which on the one hand free the creativity and know‐how of consumers, and on the other channel these consumer activities in ways desired by the marketers’ (Zwick, Bonsu and Darmody 165). Consumers are encouraged to write fan episodes, to invent their own product or think of a commercial, as a part of marketing strategies. This helps companies to manage uncertainties about market demand, by embedding consumption with production. Some say that they benefit from unpaid labour, by selling the fruits of user-generated content to consumers (179).

However, the consumer experiences these online fan activities as a way to constitute a social identity by creating and sharing. The fan is an active participant who sees co-creation as a social activity where creative content or information is shared with others (Zwick, Bonsu and Darmody 172). The sharing and creativity is seen as a constitution of the self by distinguishing oneself in taste and talent. The content they create is not exchanged for monetary value, but as a social dynamic. Peer-to-peer and open access platforms are typically used in gift economies. They show that the gift economy has a radically different conception of property, in comparison with the market economy. The original owner or creator does not need to be compensated (financially) when one uses or shares her creations.

This all leads to a justification for file-sharers to break copyright laws. ‘Involvement in file sharing has been widely legitimated as an extension of computer technology and active consumption, rather than as an act of theft’ (Rojek 365). Where copyright holders claim the right to control their property and ask for a just reward, the file-sharer does not feel like having to compensate the creator. They are not stealing, they are just sharing with their friends. The growth of fandom and active consumerism leads to a clash with laws that try to limit this freedom of expression of identity. It does not seem fair to consumers that they are only allowed to commodify and share content when it is in the interest of the industries. As Jessica Litman points out, current copyright laws do not go together well with consumer behaviour in a networked society.

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Page | 31 People do seem to buy into copyright norms, but they don’t translate those norms

into the rules that the copyright statute does; they find it very hard to believe that there’s really a law out there that says the stuff the copyright law says… The reason people don’t believe in the copyright law... is that people persist in believing that laws make sense, and the copyright laws don’t seem [to] make sense, because they don’t make sense, especially from the vantage point of the individual end user. (Litman 26)

So the file-sharer may agree with intellectual property right being a natural right: when you make something, of course it is yours. But for her, this does not mean that the creator can claim full control over distribution and always ask for a ‘just reward’ (that is seen as not so just, but as too expensive).

2.2 Sociability

Already before the digital era, sharing the same taste of music, film or television was a part of group identity. Last night’s TV shows were discussed around the water cooler and people exchanged their favourite CDs and DVDs with friends. Therefore, those ‘who attempt to convince people that sharing media is somehow immoral must deal with the fact that sharing media is a social imperative’ (Austin et al. 15). New technologies impacted these social dynamics greatly, partly by moving them to an online environment. However, let us first look at the off-line contact people have in the physical world. With the immense popularity of onoff-line series, an important social dynamic became prominent. Especially young people value the expression of personal taste as a part of one’s identity. In their study on the film and television consumption of students at two American universities, Tryon and Dawson explain in how this social dynamic works. According to them ‘social imperatives – and not the allure of free content – are what drive many […] to patronize peer-to-peer services’ (Tryon and Dawson 224). Students want to follow their favourite series, ‘but also to secure their positions within social groups defined in large part by their members’ shared cultural competencies’ (224).

Students do barely watch television, listen to CDs or watch DVDs anymore. They watch movies and television on YouTube or share accounts on Netflix or HBO (Tryon and Dawson 225). This is not only about sharing expressions of personal taste, but also a way of sharing resources. Just like people would lend DVDs or CDs to each other, they now share their log-in information to streaming services to be able to access the same content (226). (File-)sharing became part of a social dynamic and is increasingly accepted as normal. These youngster, who either share accounts or join peer-to-peer networks, defend their behaviour by saying that

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Page | 32 everyone is doing it and besides, the risk of being caught is very small (Borja, Dieringer and Daw 70).

How do social dynamics work in the online environment? ‘In contrast to the organization of most contemporary cultural industries, [peer-to-peer] networks thrive in a de-hierarchized, decentralized, and distributed organizational environment, and require collectivity and collaboration as a condition of existence’ (Urrichio 1). Leaver researched this online interaction and reveals several commonly used reasons for illegal file-sharing. One of them is avoiding the risk of one’s favourite show being spoiled in mainstream media (Leaver 6). When viewers are not able to watch the newest episodes on the same moment as others do, they will run into spoilers on the web. Since the sharing of experiences is an important part of viewers’ social identities, they will not be able to take part in the group, which might lead to social exclusion. When new episodes are not available to all fans within the community, fans often decide to share episode via YouTube or BitTorrent (5). They tend to see it as an arbitrary geographic restriction (6). Users are used to a global exchange scale and expect everything to be globally distributed on the same moment. When this is prevented, this is seen as unreasonable or unfair. Peer-to-peer file sharing is perceived as a novel form of resistant leisure that fosters social inclusion, empowerment and distributive justice (Lashua 233).

2.3 Availability

Contemporary Western society is characterised as a network society, wherein the Internet ‘revolution’ caused shifting relations between consumers and authorities like producers and governments. The Internet is seen by many as an emancipating technology, that enables users to gain agency and power. Some speak of a participatory turn, in which existing boundaries are blurred (Uricchio 1). These are the boundaries between production and consumption, but also geographical boundaries. This caused a shift in the frameworks for authority, control and citizenly responsibility to entities other than the nation’ (1). The Internet caused a subversion of established hierarchies of cultural value and authority. However, this view is often criticised as naively idealistic, since in the end, the power is still in the hands of big companies and governments (Uricchio 1; Zwick, Bonsu and Darmody 185). William Uricchio sees a sharp contrast between two forms of social organisation. On the one side there is the centralised and hierarchized state of media ownership, and on the other side there is the rapid speed of Internet-based participatory network (Uricchio 3). In other words, the consumer acts on a different scale

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Page | 33 and in a different type of organisation than most copyright holders do, which results in the conflict that is central to this study.

Where before the digital era, people would talk about television shows around the water cooler, now the water cooler became global (Jenkins 26). This shift caused a conflict with distribution models that are still nation bound. Television shows and films are often not equally distributed globally, because they are bound to geographical borders, by laws and licences. Illegal file sharing is justified by users because of the limited availability outside the VS and UK, that is either caused by long release windows or limited distribution. This limited distribution can entail the broadcasting of one episode a week that is only accessible with a subscription for a specific channel, or the unavailability of all seasons of a series online to ‘binge watch’. Long release windows or ‘geo-blocking’ prevents users in other countries to access newly released content (Newman 471). The content is often released abroad with an average window of one year (Leaver 6). Newman explains that Canadians or Australians who are geo-blocked from American content see this limitation of their agency as an obstacle to media consumption. It feels like the content that is blocked ‘is being dangled like a deserved treat before their noses, only to be yanked away at the moment users most desire it’ (Newman 472). Leaver calls this the ‘tyranny of digital distance’, of which the core problem is ‘the mismatch between aging models of broadcast dates and ideas of viewers being mainly passive and the technical possibility and viewer desire for near-synchronous distribution’ (7).

This desire is the result of the earlier mentioned social motives but also of new technologies. The promoters of ‘new connected viewing technologies have actively encouraged consumers to regard their products as a means of liberating themselves from the spatial and temporal confinement enforced by media such as broadcasting and cinema’ (Tryon and Dawson 221). The ‘legal, political, and economic rationales for geo-blocking may not be evident to the user, who at any rate feels deserving of access to popular culture’ (Newman 472). As a file-sharer on TV.com formulates it: “If your local TV stations don’t want to keep up with the latest episodes of whatever it is then shows deserve to be downloaded” (472).

2.4 Willingness to pay

The rift between gift economy and the commodity logic is one of the main reasons that file-sharers and copyright holders are in conflict. Only one party sees it as a monetary exchange process (Rojek 361). To the consumer it feels like an arbitrary decision when they are allowed to commodify and share the product of companies and when they are not. The one time they are

How piracy became mainstream(ing): An analysis of the moral positions in the conflict around piracy and a search for solutions