For many of you, this post will seem a bit dull, but the implications from it are far reaching and profound. I'd like to state up front that this sort of topic is my forte' and I regularly advise on this to what often seems like an entirely baffled room full of executives (not to mention lawyers who are ready to grab pitchforks and torches) - but as I've often said in those situations: Bare with me, because what I'm about to say is probably the most important thing you could hear on the matter.
We live in a digital culture of sharing and mashup, where 1's and 0's are interchangeable and cheap. It doesn't matter to the prosumer culture whether those ones and zeros are configured in a manner that yields a photo, mp3 or streaming video - what matters is the sharing of ideas and media that pertain to their topic of interest at that moment.
On the subject matter, the best advice I can give stems from what I like to refer to as the Gospel of Virtual Environments, but for most you would know it as Lessons Learned From Lucasfilm's Habitat. Written by Chip Morningstar and F. Randal Farmer in 1991, this synopsis addressed the lessons they learned from running a massive multi-user virtual environment in the late 1980's on the Commodore system known as Habitat, and while the graphics were definitely paltry by today's standards, the lessons are just as important today as they ever were - because they address the underlying nature of technology as well as the attitudes of people that use those types of systems.
One of the most important lessons from that synopsis was simply:
Work within the system
And while this lesson is open to interpretation, the story that accompanied it really set the stage for understanding how not to address prosumers in a digital age if your goal is to protect IP, or system type mechanics/rules.
I won't go into the entire story here (it’s available at the end of the post as a link for reading), but I will address the fundamental understandings that came out it, and how they still apply today in the digital world context.
Essentially what it boils down to is this:
If you are a company with a brand and IP to protect, you have more options today in order to enforce it than you did twenty years ago utilizing traditional methods. The landscape has changed quite a bit, and the 1's and 0's of today are agnostic, while the mentality of the prosumers is that of simply sharing for the sake of conversation or furtherance of devotion to a particular brand or image. In modern context, this still holds true on a much wider basis than it did twenty years ago, and so our defacto arsenal of "cease and desist" and litigation often times is met with an outstanding backlash in the wider sphere of digital culture, causing more damage and loss than had the entity utilized the "Work within the system" lesson.
No better example of this sort of backlash (humorously named the Streisand Effect) can be given than that of the RIAA and MPAA with many years of fighting and litigation efforts to curb or eliminate the acts of piracy among Peer2Peer networks. It is now over ten years later and such an approach has not only cost those entities more than it's worth to enforce, but has had the opposite effect to curbing the "violations" worldwide - eliminating single file P2P systems like Napster, Limewire, etc but giving rise to massive file collection P2P systems like BitTorrent where no longer single files are shared but large quantities of files as a single "set".
Where the RIAA wanted to stop music piracy by shutting down places like Napster which offered single tracks per download, they ended up fostering a worldwide backlash that is BitTorrent where finding a single track is unlikely versus searching for the entire discography of the artist for download. Clearly, this is throwing gasoline on the fire and acting surprised that the fire did not go out.
The interesting thing about all of this is simply the fact that digital culture and mashup mentality often do a much better job at proliferation of ideas and content than even multi-million dollar marketing campaigns, creating new content from multiple sources that transcend the originals – beneficial to multiple entities all at the same time, as we see in the Gwen Stefani vs Britney Spears music mashup below titled “Tick-Toxic”.
Working within the system entails an unorthodox methodology, in that the proper approach to "infringement" no longer is a black or white scenario, but instead many shades of grey for the negative approaches (and in methods that offer mutual gain, 16.7 million colors of awesome) - often entirely dependent on the situational context. While cease and desist options and litigation are still a part of that arsenal of enforcement, it no longer constitutes the cut and dry option, and in fact should be the absolute last option to be enacted - instead of the first or only.
When you find yourself looking to protect IP or a brand, the first question that should be asked is no longer "How do we stop this infringement?" but instead should be "How do we monetize this situation, foster its growth and make it work for our own benefit?" - aka: Working within the system.
Working within the system entails a willingness to work with the people involved in that system on the same grounds and foundation that those people utilize within that particular system, whether that be business or individuals (prosumers) in order to foster a mutually beneficial situation while limiting the constraints that would cause a backlash and do widespread harm. Think of it like trying to disarm a nuclear weapon - you wouldn't go in and bash it with a sledgehammer for fear that you could cause a massive explosion. Instead you handle it delicately and with foresight for the bigger picture. Cease and Desist (litigation) is your sledgehammer, and should only be used as a last resort.
Instead we should first think about ways to work within the system at hand, for our own benefit (because we are still self-interested as companies) but also in a way that addresses the underlying and fundamental need of the prosumer mentality to spread and share IP, Brands and derivatives of those properties.
One of those many shades of grey happens to be simply allowing the proliferation of the IP or brand to continue while adding only monetization or supplemental marketing to the situation. This can be seen today in the general approach by Youtube where music in the user created videos is now more likely to come with a link saying who the artist is, the name of the song, and a direct link to purchase that music. This, in turn, offers a solution to working within the system and IP infringement in that the question answered was no longer "How do we stop this infringement?" and instead "How do we utilize this infringement to our own and their benefit?".
In the case of Youtube, however, while the approach is sound there is still no method to actually handle the mashup and derivative offerings that spawn in abundance from this culture – as we can see from the Tick Toxic video where both Tick Tock from Gwen Stefani and Toxic from Britney Spears is put together for a new take on two songs, Youtube only recognizes the Gwen Stefani part as the music to tag and offer for purchase (catching only half of the potential).
In the long run, prosumer integration of your IP or brand in derivatives or outright is the best form of free marketing for your brand or IP that you could ever hope for. You would never think to shoot down free marketing on your behalf, especially when things like videos on Youtube have this wonderful habit of "going viral" wherein hundreds of thousands if not millions of people share and view those videos, giving the brand or IP massive amounts of free exposure. The trick to all of this is to look at it from a marketing perspective and not a legal perspective.
Prosumer culture is the predominant force in the digital age, and we are best served by allowing that system of understanding to proliferate with little or no negative intervention. While this flies in the face of the crack legal team on call at most companies who want nothing more than to fight the good fight, the benefits far outweigh the costs in the long run - and only serve to offer additional revenue models, and widespread marketing and goodwill among this global system if approached properly with complete understanding.
What we have today are companies that essentially shoot first, and ask questions later (if they bother asking at all) with their DMCAs, Cease and Desists and litigation. This is detrimental on the whole because of the prior notion of the Streisand Effect, moreso because it fosters an "island unto yourself" mentality, cutting you off from the system in ways that would otherwise be beneficial on a massive scale, turning instead to a methodology that actually harms you and your brand/IP.
In order to succeed in the digital age, we must understand that we are not an island unto ourselves. This is true not only in social media of all types, but in the greater scope of the digital culture we rely on today. The rules of engagement here are different than we were taught traditionally, and we need to be willing to think creatively and innovate if we want to truly excel. While cease and desist, as well as possibility of litigation still remains, we need to keep our perspectives in check, resorting to that route only when all other possibilities are exhausted and explored in context.
Remember: Prosumers aren’t as Toxic as you think they are. They could very well be the fountain of youth to invigorate your brand and IP on a global scale.
Further Reading
Lessons Learned From Lucasfilm's Habitat: http://bit.ly/oPbUdr
The Streisand Effect (Wikipedia): http://bit.ly/r5FY8L
Prosumer: http://en.wikipedia.org/wiki/Prosumer#Producer_and_consumer
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