Friends have accused me of having a special dislike for Tim O’Reilly.  That’s not really the case.  He seems like a nice enough guy and there is a lot I agree with him on.  For example, we’re both opposed to SOPA.

My problem with him is his arguments never seem to be well thought out.  Which makes it seem like well thought out arguments don’t exist (otherwise why would he use such weak ones).  And since he seems more than smart enough to think these things through that means he’s just being lazy.  Which annoys me. 

As proof of this I offer the quotes below from Colleen Taylor’s interview with Mr. O’Reilly on GigaOm. 

The way I see it, there’s a lack of need for any legislation at all. As a publisher, I have a very deep experience here, and the fact is that piracy is not a significant problem. Yes, there are people who are pirating my books, there are people who are sharing links to places where they can be downloaded. But the vast majority of customers are willing to pay if the product is widely available and the price is fair. If you have a relationship with your customers, and they know you’re doing the right thing, they will support you.

The problem here, and in much of the rest of his thoughts, is that he represents all media as being equal.  A movie with thousands of employees produced over several years is not the same thing as a technical book which requires a handful of people and can be produced in a fraction of the time.   Nor are their audiences the same.  Technical books are less likely to be pirated because they are career related.  Meaning many of them are purchased through companies and not with an individual person’s money.  Whereas entertainment media comes out of people’s disposable income. 

Finally this statement…

“the vast majority of customers are willing to pay if the product”

Is impossible to prove without knowing how many people pirate.  Because you don’t know how many people make up “the vast majority”.

The people who are pirating are most likely the people who would never give you a nickel to begin with. Piracy serves people on the fringes who are not being served adequately by legitimate markets. Frankly, if people in Romania can download my books and enjoy them, more power to them. They weren’t going to pay me anyway.

Let me ask you this: Would you risk your entire business on a “most likely”?  Beyond that his opinion doesn’t apply to a lot of the media he criticizes because pirating HD movies and music requires a high speed connection.  People with such a connection can probably afford to pay for content

I also don’t see “they wouldn’t pay anyway” as a valid argument for throwing away the rule of law.  I’m all for prices mirroring their economies.  If the average salary of a worker in Romania is 1/10th that of an American then the average price of a book should be 1/10th as well and free markets tend to make those adjustments.  Because companies can cover their costs from the more affluent markets and once they’ve done that there’s no reason to leave any money on the table.  So it makes sense for them to price media so it can be purchased by people in less affluent economies. 

Don’t get the wrong idea.  If Tim O’Reilly wants to give his books away in Romania he should do so.  But he shouldn’t be able to force other people to do so based on his opinion.

I talked with Nancy Pelosi about SOPA the other day, and she said that the experience with piracy is different for people in the movie industry. Maybe — I’m not a movie producer. But I do know that right now the entire content industry is facing massive systemic changes, and to claim that declining sales are because of piracy is so over the top. Any company that is providing great content online in a way that’s easy to use with a fair price has a booming business right now.

Look at the first few sentences here.  He essentially says…

- I admit I might not understand the movie industry

- But I’m going to group them into “the content industry” so I can make it seem like I do understand their industry

- Then I’m going to pass judgment on them as if I understand their industry

And again he’s passing off opinion as fact by saying….

“Any company that is providing great content online in a way that’s easy to use with a fair price has a booming business right now”

Says who?  What statistics do you base that on?  Are you really willing to say there isn’t one single undiscovered artist out there who is producing great content and isn’t managing to make money off it?  And if you concede there might be one wouldn’t you have to concede there might be more than one?  And if there’s more than one wouldn’t you have to concede you don’t know exactly how many there are and they could be the majority for all you know? 

So here we have this legislation, with all of these possible harms, to solve a problem that only exists in the minds of people who are afraid of the future. Why should the government be intervening on behalf of the people who aren’t getting with the program?

I don’t have much to say here because again it’s all opinion.  I just find this sentence funny coming from a man of his political bent who is a big supporter of the President.  So bail out the banks, car companies, and investment bankers but don’t you dare intervene to enforce copyright law. 

I’m not criticizing the political bent.  There are plenty of valid arguments for an interventionist government.  But if you’re a person who asks the government to intervene when you want something you shouldn’t be surprised when it intervenes for other people who want something you don’t want. 

If you look at it from a historical perspective, the American book publishing industry as a whole began with piracy; there are lots of documents of Charles Dickens and the like taking a stand against these American pirates who were stealing their work. But America went on to become the largest publishing and copyright market in the world. Once the market matures, the pirates go away. They always do. Legitimate markets work better than pirate markets.

I wish someone had asked him “how do you know Charles Dickens held these beliefs?” The answer is “because he spent a large part of his life lobbying for copyright reform in the United States.”  AND HE WAS SUCCESSFUL!  America went on to become the largest publishing and copyright markets in the world AFTER the copyright reforms Dickens wanted were enacted. 

More recently you can see this in what happened with the music industry. For a while, music companies were fighting peer-to-peer file sharing. But once Apple came out with iTunes, which was an alternative that was easy to use and fairly priced, it became a huge business.

Saying “it became a huge business” is a bit misleading because it changes the question.  The question here is about piracy and whether pricing your product fairly and making it easy to purchase prevents piracy.  Mr. O’Reilly admits iTunes is priced fairly and is easy to use but fails to address consistently falling music sales (8.4% in 2010 alone).  So iTunes seems to invalidate his point at least as much as it helps it.

But there’s a larger point

So what’s going on here?  He’s against SOPA and I’m against SOPA so how can we disagree so much?

Because he’s conflated two different issues: Copyright law in general and SOPA in particular.  Which is dangerous because there is a large swath of people (myself included) who believe in copyright law but who don’t support SOPA and many of them won’t think the topic all the way through.  They’ll see Mr. O’Reilly’s arguments, recognize their weaknesses, and assume SOPA is a good thing. 

In my perfect world I’d like to see anti-SOPA people make this simple argument instead…

Good law is a fair arbitration between two parties who each want something.  Sometimes that arbitration is simple as in the case of a violent person who wants to assault whoever he pleases and a society that wants to be free of violence.  And sometimes that arbitration is difficult as in the case of copyright law.  But it should always be fair.  Even the violent person is allowed to hit inanimate objects, scream at people, and so on.  He’s just not allowed to inflict actual, physical pain.

So the question is whether SOPA is fair to both interested parties.

It isn’t.  SOPA is weighted entirely towards the content providers.  So you get situations where an individual content provider can shut down a whole website based on a single claim (which may or may not be valid since the shutdown occurs before a fair hearing of the facts).  That alone is reason to oppose SOPA.

Once the battle against SOPA is won society can turn back to the issues of copyright law in general.  But for now we shouldn’t confuse the two issues.