This week a film distributor, Dutch film works, in the Netherlands announced that they have a list of IP addresses and will go after individual downloaders first with a warning and after multiple infraction with a “fine” or a court case. These strong arm tactics have been deployed elsewhere in Europe and are admittedly meant as a deterrent.
What is notable here is that these actions have been mostly undertaken by middleman in these industries like distributors not the authors or producers nor television and cinema companies. This is telling because it tells us something about the relation between the audience and the different parties involved in providing film entertainment. There is a very clear reason why a distributor would go after individuals whereas TV stations of creators rarely do so. Also, there is a very good reason why distributors like Dutch film works are in the wrong when they assume that they have a right to do so.
A distributor is not a copyright holder or creator for content. A distributor also isn’t the venue or the medium on which the content is consumed. The only thing a distributor is, is a party with a license to distribute other peoples copyrighted content for profit. In this role, a distributor has no relationship with the audience, only with the content copyright holders and the mediums exploitation companies. With no relationship to uphold with the audience, it makes sense that this party would be the first to directly go after the audience when it’s business-model is threatened.
The necessity for distribution companies in a pre-internet era is clear. The logistics of getting media from the creator to the audience was an expensive and complicated business. Not so anymore of course. Distribution in any form of content has been slowly but surely been cutting out these middle-men as they are simply not needed anymore. Automated distribution systems exist for written media, music, images and moving pictures. The few operating distribution companies like Dutch Filmworks are being threatened, not by downloaders but rather their own obsolescence. Eventually these business-models will fail not because individuals download movies, but because the content creators will bypass them and deliver directly to the various media.
But doesn’t this industry have a right to protect itself from unfair competition?
Of course they do, but you have to put unfair competition in contrast to this industries own business-model. The license, as stated, shows that the model consists on distributing material under license from copyright holders for profit. I.E, the distributor buys a license that allows them to make money of off content that they themselves do not own. Unfair competition in this case would simply mean anybody who would distribute the same material for profit without a license and the individual downloaders does not fit well into this group.
One could argue that the individual downloader is bypassing the distributor for financial reasons, namely not to spend money on content and while that could be a motive for downloading content, it is A. clearly not competing with the distributors business model itself and B. this act clearly falls well over the border where cultural (re-)appropriation weight more heavily than bypassing licensed distribution channels.
But isn’t this shifting the problem back to the content creator/copyright holder?
Yes! and that is the idea, and the point where the concept of cultural (re-)appropriation comes into play. Cultural expression in any form does not exist, nor is created in a vacuum. Culture and cultural heritage as an immaterial continuum is inalienable for our species. It can not be taken or given away (well it can, but generally we frown upon this). Any new cultural expression is by necessity a product of that which has gone before, be it a derivative, or contrary reaction.
The creator of content is, by adding to the cultural space also uses this cultural space and is thereby indebted to the culture (s)he builds upon. The content creator is also given a right. Copyright. The right to “own” not the cultural expression, but the means of distribution either with an element of compensation or not. If one however thinks that this grand them the right of the true owners of the cultural continuum to (re)appropriate the work, then one is mistaken.
Borrowing from earlier cultural expressions or appropriating them for your own media is the act of using a source of infinite value that is the inalienable property of everybody. Simply adding to this does not mean one can really own it. A lot of content creators understand this almost instinctively. That is why although often being a bit miffed about the subject of piracy, they don’t really take drastic actions like distributors do. Most creators would most likely rather see their content consumed without being compensated, than nog having their content consumed at all.
So the act by the individual of downloading a Disney fairly-tale simply is the re-appropriation of a piece of our inalienable cultural continuum. An act that not devalues the content, but actually solidifies it within this continuum. Disney and Disney alone have the right to distribute the work for profit, but they have no right to keep it out of the cultural continuum by disowning everybody from what is cultural heritage and right.
Then, if even copyright holders have no ethical grounds to stop individuals from participating in human culture in it’s most natural way, how the hell do these third party distributors this they have a right to do that? because clearly they do not.
It simply boils down to this industry not understanding what their competition is and their inability to see the distinct difference between cultural re-appropriation and for-profit re-distribution without a license. Bundle that with the fact that this dying industry has no real relationship to maintain with the audience at large and you have the explanation why these companies are mistakenly going after the people that effectively own the cultural entities Dutch Filmworks wants to sell for profit.