When Is A Pirate Not A Pirate? When He's Elected To Office

Fair use, copyright, and overbearing corporate stooges.

We've commented on the resurgence of piracy around the Somali coast and noted the difficulties that Western powers have encountered trying to stop it.  Piracy on the high seas is one of the oldest forms of international crime, and goes back millennia.  As such, it's built up a vast accretion of legend and no little romance.

There is another, entirely different victim group that wishes to piggyback off the legend of piracy; owners of intellectual property have appropriated the term to refer to unauthorized copying of music, videos, and other forms of content.

Lobbyists representing the businesses which make money selling music urged the Swedish authorities to prosecute the founders of Pirate Bay, one of the largest and most popular fire sharing systems in the world.  Pirate Bay has become so well-known that their first server is a museum exhibit in Stockholm.  BBC News reports that the recording industry won the first round; the court sentenced four defendants to a year in jail and a fine of $4.5 million.

"There has been a perception that piracy is OK and that the music industry should just have to accept it. This verdict will change that," he [John Kennedy, the chairman of industry body the International Federation of the Phonographic Industry (IFPI)] said.

Music pirates may have the last laugh, however.  Torrentfreak reports:

When the Swedish Pirate Party was founded in early 2006, the majority of the mainstream press were skeptical, with some simply laughing it away.  But they were wrong to dismiss this political movement out of hand.  Today, the Pirate Party accomplished what some believed to be the impossible, by securing a seat in the European Parliament.

With 99.9% of the districts counted the Pirates have 7.1 percent of the votes, beating several established parties.  This means that the Pirate Party will get at least one, but most likely two of the 18 (+2) available seats Sweden has at the European Parliament.

At least partially, The Pirate Party puts its increased popularity down to harsh copyright laws and the recent conviction of the people behind The Pirate Bay.  After the Pirate Bay verdict, Pirate Party membership more than tripled and they now have over 48,000 registered members, more than the total number of votes they received in 2006.

With their presence in Brussels, the Pirate Party hopes to reduce the abuses of power and copyright at the hands of the entertainment industries, and make those activities illegal instead.  On the other hand they hope to legalize file-sharing for personal use. [emphasis added]

It's Total War

The International Federation of the Phonographic Industry (IFPI) doesn't actually want to put all its customers in jail because you can't buy music when you're in the jug, although they often act as if that's their goal.  They want to keep selling music CDs, which cost them fifteen cents at most, for $15 and up.  The file sharers, on the other hand, seem to believe that anyone should be able to listen to any music at any time for free.

Both sides are waging total war - the IFPI is trying to jail people whom they think are stealing from them; the copyists want to copy anything they desire and state that "information wants to be free."  They also seem to be opposed to allowing a patent owner to restrict people from using the invention.

Total war makes very bad law.  When the United States Supreme Court handed total victory to the pro-abortion side in Roe v Wade, they touched off a low grade civil war in which people are still dying.  Some believe that abortion is murder and must be prohibited; others believe it's a medical procedure and the absolute right of every woman.  It's hard to "split the difference."

When any issue gets so highly politicized, mere facts get lost in the shuffle.  For example, abortion agencies such as Planned Parenthood vehemently deny that there are any bad effects from abortions even though the Japanese have recognized the emotional effects of abortions and have offered funeral-style post-abortion ceremonies for centuries to mitigate the resulting distress.

Similarly, it's difficult to suggest any sort of compromise between the "hang 'em high" IFPI attitude towards music pirates and the "it's no crime at all" position of the Pirate Party.  The Pirates are correct in believing that the music companies are acting like bone-headed business dinosaurs, but if artists, writers, and inventors have no way to make money on their creativity, our lives will be much less interesting and probably a lot shorter.

As with most disputes between fundamentalist groups, you're never going to get anywhere arguing with extremists on either side.  For the rest of us, though, let's explore the theoretical origins of intellectual property law - if we're going to be in a societal argument, it helps to have some idea what we're arguing about.

It's Not a Natural Right

The men who wrote the Declaration of Independence identified certain "inalienable rights" which, they said, came from God.  They listed life, liberty and the pursuit of happiness as inalienable rights - that is, inherent rights that you have simply by virtue of being a human being.  Such rights are not granted to you as a gift of any human agency but rather by God.

Ownership of intellectual property is not such an inalienable right.  It has an entirely different purpose as laid out in Section 8 of the Constitution:

8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; [emphasis added]

The Founders were entirely correct in regarding some sort of patent protection as necessary to promote the "useful arts."  They may have known of Rev. William Lee who invented a machine for knitting stockings in 1589.  Queen Elizabeth refused to grant him a patent because she didn't want knitters to lose their jobs; his invention went nowhere and the Industrial Revolution was delayed by nearly two centuries.

It's vital to remember that, according to our Founders, the sole purpose of patents and copyrights is to "promote the useful arts."  Clearly, if there is no protection for an Author or Inventor, useful arts won't be promoted - just as with Rev. Lee's unprotected invention.

On the other hand, our Founders wrote "limited times" because they recognized that if a patent or copyright lasted too long, later Authors and Inventors would find it difficult to build on earlier work without getting in trouble. Few indeed are the inventions that have absolutely no basis in anything anyone else has ever done; and with the pace of technology speeding up every year, an invention that depended on nothing invented within the last 21 years would be obsolete before it hit the desk.

The same is true in music and the arts, even more so now than in the past - think of "remixes" and music videos, which use small snippets of other works to concoct a work which is clearly new and distinct from its progenitors.  The legal barriers to marketing such works keep most of them in the back alleys of the Internet, or unrecorded public performances, except for the handful sponsored by powerful corporations with the clout to appease the lawyers.  Is this good for "progress in the arts?"  No, no more than it is for technology.

The Two Questions

Keeping in mind that the goal of intellectual property law is to promote science and the useful arts, IP protection boils down to two questions: 1) how long does protection last and 2) how much can the owner charge?

As with all issues, the major advantage goes to the side which makes the most money out of a situation and can afford to lobby.  The tomwbell.com web site points out that copyright owners and their associations keep lobbying to have copyrights made longer so they can keep making money; the adjacent diagram is from that site.

One could be forgiven for thinking that 100 years of protection is far too long and retards progress in the useful arts, but the US Supreme Court disagreed and let the extension stand.  The new law is named for Sonny Bono, a congressman who died some nine months before it passed.  One of its better-publicized effects was to keep Steamboat Willie, the very first Mickey Mouse cartoon, from coming out of copyright.  Opponents called the law the "Mickey Mouse Protection Act."

The question of copyright length isn't really relevant to the Pirate Bay trial - most of the music whose copying they facilitate is too new to be out of copyright even under the original, shorter copyright terms.  That leaves the question of what IP owners can charge for the use of their property.

Fair Use

The "fair use" doctrine came up as soon as books and newspapers could be copyrighted.  It was recognized that if someone writes a book or publishes a newspaper, other authors may quote from it provided that they give credit to the original author and don't quote "too much"; hordes of unemployed lawyers are eager to help you litigate the question of just how much is too much.  News organizations believe that Google violates "fair use" when the Google search engine displays computer-generated snippets of their stories without paying them; Google begs to differ and refuses to pay.

The copyright owners could lock Google out of their archives, but they'd have far fewer readers.  So for now, things stay as they are when it comes to news articles online.

The Pirates' position is that "fair use" includes making copies for personal backup and it appears that they want the right to include making free copies available to anyone.  We've commented on the attitudes in our schools which suggest that modern students have no notion of copyright or citations at all.  If it's OK to copy a research paper from the Internet and get graded as if you'd written it yourself, what's wrong with copying music from the Internet and playing it as if you'd written it yourself?

While "fair use" theoretically means the same thing today as it did when first codified into law, the effect is quite different.  A hundred years ago, a few paragraphs of another work was all you were likely to want to borrow.  It would be far too much trouble to hand-copy or re-typeset much more than that for private use, and if you tried to cover your costs by selling bootleg copies, the law would understandably put a stop to it.  As a practical matter, "fair use" didn't cost copyright owners much if anything at all, and may have helped them by making their works more widely known.

Today, on the other hand, copying anything is trivial.  Even books can be quickly scanned or photocopied; content that is digital in the first place, like CDs or DVDs, is even easier - and doesn't lose quality during the copying process.  What's more, thanks to the Internet, your "friends" can be thousands or millions of people all over the world.  When "fair use" was first developed, nobody could have more than a few dozen real friends at most, since that's all anyone had time to physically visit or correspond with regularly by post, to say nothing of mailing bootlegged intellectual property laboriously hand-copied.

Changes in technology have completely altered the practical impact of the "fair use" doctrine without changing the definitions one whit.

Market Price

The Apple iTunes store has sold more than a billion songs at $1 each. This suggests that music consumers are willing to pay for music downloads provided they don't feel ripped off.  If an album has 10 songs, the customer would end up paying $10 to get all 10 songs.  The copyright owner would not have to manufacture, ship, and supply a mutilated hunk of plastic to a store which had to pay rent, improving profit margins as well as benefiting the environment.

This should provide an opportunity for music owners - there's a limit to how many titles a physical record store can stock, but there's no limit to the number of songs which an online store can offer and an Internet store sells all over the world.  Sure enough, the New York Times reports that New York City, which used to have three music "megastores," now has none.

The way the Recording Industry Association of America (RIAA) is handling what it considers to be theft of intellectual property reminds us of a quote from Albert Einstein, "There are only two things that are infinite - the universe and human stupidity.  And some days, I'm not sure about the universe."

The American government, as a matter of political policy, seems to have decided that it doesn't want to bash down college students' dorm room doors and arrest file swappers.  The RIAA wants to do this because they think that harassing their customers will protect their income.  We have a law that the government does not wish to enforce, and which therefore logically should be abolished or relaxed, but which is hard to change because change is opposed by rich special interests.  It's an impasse.

RIAA has decided to try to use the court system and run their own detective service to collect evidence against file sharers.  Private vigilante justice never ends well; we see the RIAA and its music merchants being destroyed in the court of public opinion.

The same thing happened in Sweden - Pirate Party membership tripled in the aftermath of the Pirate Bay people being sentenced to jail and now they're represented in Parliament.  It's total war!  There is an up-side - it's gotten some generation X-ers interested in politics.

Will we manage to arrive at some sort of compromise that protects Authors and Inventors and which also satisfies the Pirate Party?  Or are we heading for another "all or nothing" culture war in which we all lose?

Dissent in the Ranks

While discussing this article amongst themselves, the contributing authors of Scragged discovered an interesting phenomenon: our opinions are more wildly differing on this particular issue than on any issue previously encountered.  In fact, not only were we not able to reach agreement, we were hard put even to agree on the nature of the fundamental issue being argued over.

This article is an attempt to start a discussion on the subject.  Surely we can all agree that the current situation regarding intellectual property law is both unacceptable and, in the long term, totally unstable; things are going to change one way or another.

The question is, how? And on what grounds?  If we as a society choose the wrong answer, there may be some very harmful consequences, and it usually takes a very long time to correct that sort of mistake.

Will Offensicht is a staff writer for Scragged.com and an internationally published author by a different name.  Read other Scragged.com articles by Will Offensicht or other articles on Economics.
Reader Comments
Thankfully, certain artists are already working towards combating this issue. What they have accomplished commercially is only overshadowed by what they have (most likely) unintentionally revealed about the music industry and the issues of intellectual property rights and piracy.

Take for instance the band Nine Inch Nails. In March 2008, NIN released the album Ghosts I-IV. Instead of distributing the album through a label, the album was distributed through a number of popular torrent sites, completely free. They also sold the digital version of the album directly on their site for $5, as well as offering special audiophile versions for upwards of $300 as well as distributing the digital album on Amazon.com

The results are illuminating. Despite having the entire album provided free via torrent, the band still reported an amazing 1.6 million USD in revenue within the first week of sales. Amazon even reported Ghosts I-IV as it's best-selling album of 2008.

While this does not truly answer the fundamental questions posed in this article, it does prove that there is a "middle ground" and puts to lie the assumption (or rather, doom-saying) made by the RIAA that freely distributed digital media is the death knell of the music industry.

Granted, NIN's status as a 'fringe' artist has garnered the band a loyal following and that loyalty certainly plays an important role in the success of their last two albums (both released in exactly the same way). But what they have done is prove that if you respect your fan base and have a strong grasp of today's technologies that you can still be incredibly successful and profitable.

SOURCE: http://www.wired.com/listening_post/2008/03/nine-inch-nai-2/
June 17, 2009 9:59 AM
RIAA didn't lose the music sharing fight; they won. It's a common misconception to believe that their filibustering and suing ended up marginalizing them.

Had RIAA never made a stink about Napster, iTunes would not exist today. There would be no market for it. Napster was a clean, simple user interface that supplied all the virus-free music iTunes has now but for free. It is rational to think that consumers would have kept right on downloading from Napster and never purchased the same thing from Apple when Apple was not only charging money but also affixing DRM restrictions.

(A file-sharing market still exists but it is vastly less friendly, clean and simple than what Napster used to have. A majority of the current stuff is obfuscated, virus-ridden or broken.)

RIAA pushed and kicked and screamed about Napster, suing bigs guys and threatening to sue little guys. iTunes was created as a solution for BOTH sides - the consumer wanting cheap, digital content (like Napster) and RIAA wanting reimbursement for its members.

RIAA is making money hand over fist now; I've seen some estimates that say they are trending past CD and radio licenses already. A lot of MP3 buyerswill re-purchase the same music several times because they use different websites and forget or lose the previous purchases.

Had RIAA never hung on and kept harassing people about their ownership rights, they would be riding the lonely CD market down the drain.
June 17, 2009 10:39 AM
World of Goo is a indie game that from all accounts is an amazingly fun game. I haven't myself played it, although Tower of Goo, which is free, was alot of fun.

This isn't some 'evil' major corporation, its just a bunch of guys that want to make video games for a living.

2D Boy, the maker of the game, is reporting that about 90% of the copies of their game are illegal.


That article poses an interesting question, whether or not sales went up or down because of the lack of a DRM. It is possible that the company made more money that it would have without that piracy. However, in any system when two people are receiving the same benefits for unequal input the person who is putting more into the system will inevitably ask themselves if their behavior is rational.

My friends and I have played with the idea of trying to start a company making video games and we decided against it. We don't believe that there is a viable market for video games because most people will simply steal them and we don't want to get into a legal battle. Now, perhaps I would not have succeeded in producing anything 'useful' for society but someone else would have and didn't because they don't believe that they can support them selves in a world with so much piracy.
June 18, 2009 2:40 PM
you guys may be overly alarmist, at least wtih respect to music. There are bands which give away their music with free downloads and hope to make money on concerts.

Researchers conclude piracy not stifling content creation at http://arstechnica.com/media/news/2009/06/researchers-conclude-piracy-not-stifling-content-creation.ars says:

File-sharing, to the (very large) extent that it involves copyright infringement, has affected the music business. But, as a pair of academic researchers happily point out in a working paper they've posted online, copyright law was never meant to protect the music business in the first place-instead, it is intended to foster creative production in the arts, which happen to include music. As such, they argue it's worth analyzing the deeper question of whether file sharing is putting a damper on music creation. Their conclusion is that this is a much more complicated question, but the answer seems to be "probably not."

This seems like a key point:

The authors construct a bit of a causal chain between file sharing and the intent of copyright law to foster creative works. First, you'd need to know that file sharing was harming music sales, and that the music industry wasn't finding alternative ways of generating income. Then you'd need to show that the loss of income provided a disincentive to musical creativity. They recognize that this calculus might seem a bit heartless, though: "It might seem curious to some of our readers that we do not consider the welfare of artists and entertainment companies in our calculus. Our approach, however, reflects the original intent of copyright protection, which was conceived not as a welfare program for authors but to encourage the creation of new works."

I can see how a complex invention would need protection or it won't happen. Do we need to think about many types of copyright for music, books, other writing, inventions, etc? Didn't congress extend drug patents because it takes so long to get them approved? Do we need to be more subtle?
June 19, 2009 11:31 AM
The "not stifling creativity" argument is somewhat of a red herring, I think. At least, it only speaks to half the problem. It's good to know what stifles creativity (or doesn't), but that should have no bearing over how owners are regulated during their ownership period.

To put it a different way... If a study found that abolishing copyrights entirely did not significantly stifle creativity, should we abolish them entirely?

There is also the matter of scale. My adamancies on ownership rights is not for fear that rock stars or movie actors aren't as rich as they could be. I see the what's happened with the music industry as a small experiment on a very bigger stage. How we mentally position ourselves now - with respect to what the seller and buying REALLY ARE selling and buying - is going to matter a lot down the road. Should we be surprised that towns are allowing private companies to take private homes for "the greater good of the town" when millions of people already dismiss the ownership rights of IP owners? The two may not be directly related, but I think the attitude of the buyer is.

June 19, 2009 12:57 PM
I just found another one!

Court orders Jammie Thomas to pay RIAA $1.92 million

Jammie Thomas-Rasset was found guilty of willful copyright infringement on Thursday in a Minneapolis federal court and must pay the recording industry $1.92 million.

In a surprise decision, the jury imposed damages against Thomas-Rasset, who was originally accused of sharing more than 1,700 songs, at a whopping $80,000 for each of the 24 songs she was ultimately found guilty of illegally sharing.

In 2007, the Recording Industry Association of America claimed in a lawsuit that Thomas-Rasset pilfered 1,700 songs. The RIAA eventually culled that number down to a representative sample of 24.

Penalty awarded by a JURY, no less.
June 19, 2009 12:58 PM
lfon, you hit the nail on the head, as follows:

"It's good to know what stifles creativity (or doesn't), but that should have no bearing over how owners are regulated during their ownership period."

According to the Constitution, you're dead wrong: the whole point of copyright and patents is purely for the purpose of promoting creativity. If it turns out that restriction of what otherwise would be the liberty of everyone else to copy, doesn't actually achieve that end, then they are unnecessary and unConstitutional.

Or, to answer your subsequent question, if abolishing copyrights entirely did not significantly stifle creativity, then according to the Constitution, YES, we should abolish them.

Obviously, as the Founders knew perfectly well, that's not the case: some level of IP protections are required as an incentive to the imaginative. But the precise tradeoff is the heart and soul of the Constitution's intent, and the whole reason for this debate's relevance.
June 19, 2009 2:48 PM

You're following a common misconception about Article 1 Section 8. Think through what you're saying...

Your position places the purpose of creativity as the impetus AND RESTRICTOR for ownership rights. Why must that be so? The impetus, yes. But why also the restrictor? The Constitution merely states that the purpose of such rewards is to promote creativity by granting ownership. Nothing more.

It does not go any further to say that ownership rights are ONLY to be used for promoting creativity.

In order to make that connection - impetus for creativity and restricting the rights ONLY for that creativity - you would have to do more than prove that abolishing copyrights didn't stifle creativity. You would ALSO have to prove that granting copyrights, of any kind, DID stifle creativity. You'd have to prove both. Only then would it be Unconstitutional to allow copyrights to continue once you found that removing them didn't stifle creativity.

Once you understand both sides, it's easier to understand why the IP debate isn't about copyrights at all. It's about ownership rights and selling/licensing mechanisms. The Constitution, as with most things, is way too vague on the issue other than to setup the foundation.
June 19, 2009 3:29 PM

I disagree with the idea that the Constitution is too vague about the issue. In my mind it's very clear. The purpose of patents and copyright is to encourage economic activity. By providing some protection for a limited time people have incentive to create new works knowing they'll be compensated for that effort. By limiting the time the works are protected it encourages NEW creativity--creators won't just stagnate on royalties.

What has happened, though, as the chart so nicely illustrates is that copyright terms have been extended beyond reasonableness. The terms extend well beyond a normal lifetime. Can Walt Disney create new works? Obviously not. He's dead. So, what does protecting his works do? They don't invite creativity...it's stifled because no one can build upon what he's created. The constitution has been circumvented.

Today, as has been stated, we have a perfect storm of technology and social change. The RIAA represents an industry not able to cope with either of those. I see what the RIAA is doing in the courts like I see the current government bailouts of banks and the auto-industry. The market is not being allowed to sort itself out.

We often don't let things work themselves out. We think we need to fix it all right away. 21st Century society has lost the ability to wait. We have no patience.

If the RIAA were restricted to damages in a reasonable range they wouldn't go to court. They would encourage their business to change or the business would cease to exist. It's not the first time technology has made industries extinct, nor will it be the last.

But, returning to my original point. If we look at the issue from a constitutional lens, it's clear both sides are wrong. The Constitution provides the guidance. We just have to stop mucking with it (or ignoring it altogether).
June 20, 2009 4:00 PM
We'll have to agree to disagree, I guess. I don't read anything in the C that implies that that ownership is stifling and is therefore only allowed within the context of specific purposes. If anything, the founding fathers were clear - led by the writings of Brit William Blackstone - that ownership rights were foundational to every aspect of law. THE most important tenet, if you had to pick. I think the C does not specify ANYTHING clearly about copyrights, except that ownership helps to promote creativity. Other than that, the onus should be left in favor of the owner, not against him.

This gets back to Basic Principles, I guess. Like I said, we'll have to agree to disagree on this one.

June 20, 2009 7:21 PM
Reuters says the $1.9 million award could backfire on the RIAA - even some legislators think it's a lot much.


While the recording industry claims strong support in Congress, with powerful champions including House Judiciary Committee Chairman John Conyers, D-Mich., and his Senate counterpart Patrick Leahy, D-Vt., the Minneapolis verdict could well lead to a legislative move to reduce the damages awards available against individual infringers like Thomas-Rasset.

Thomas-Rasset's attorney, Kiwi Camara, said he was "very surprised" by the size of the verdict and signaled a willingness to talk about a possible settlement with the labels. But Camara also listed a number of potential issues to appeal should the parties be unable to resolve the case, including a challenge to the labels' ownership of the copyrights at issue based on the argument that they were improperly classified as "works made for hire" in contravention of the Copyright Act of 1976.
June 21, 2009 9:43 PM
And now ASCAP wants to be paid every time your phone rings if you have a ringtone - because it's a "public performance" of their music.


These jokers are seriously begging for a political backlash.
June 22, 2009 11:19 AM

I don't know about music, but Piracy has all but killed the PC platform with the notable exceptions of online games that they can set up to function only if the game is legitimate.

When you're paying millions of dollars to produce a AAA game, its important to be paid for your labor. Perhaps the music industry can survive off of concerts intact, many other industries, such as video games and writing, can not.

June 22, 2009 12:03 PM
What ASCAP is trying to do is hilarious and stupid. However, this further reinforces the idea that ALL copyright sales should be subject to a license model. Had ASCAP said in their members' license agreements that users "could not play the ringer in public places" at the time of the sale, nobody would have bought anything. What cell phone user would buy a ringer that they couldn't turn on in public. that's laughable.

It is situations like this that show how copyright law is too vague. If you sell intellectual property, have a license that spells out what you expect from the buyer. End of story. Idiots like ASCAP could NEVER make these claims then.
June 22, 2009 12:11 PM
A cell phone ringer is clearly for personal use. You can play music for your friends, or at private gatherings without it being a performance.

Now when night clubs start using cell phone ringers for their music there might be a claim.
June 22, 2009 1:14 PM
The RIAA strikes again.


reports that they say that downloading is like stealing a CD, but you can sell a CD you own. The RIAA says you can't sell an MP3 you paid for. I guess they mean that you don't really own it or something.
June 25, 2009 6:17 PM
Forbes reports that the Pirate Bay site has been sold...

Andy Greenberg
As copyright-defying site grabs a buyout, users lash back at the prospect of going legit.

Did the recording industry win after all?
July 1, 2009 9:46 AM
Some interesting reading at Mises about the economic realities of IP law: http://blog.mises.org/archives/010217.asp.

Essentially, there is no evidence protecting IP has any economic benefit.
July 2, 2009 1:36 PM
The NY Times brings up an other point about copyright - Scribner has published a much-modified new edition of one of Hemingway's books and a writer who helped Hemingway with the original has objected to their changes which he calls "frivolous." Just another matter for academics to debate? Or does this go to the heart of what copyright is?

Don't Touch 'A Moveable Feast'
Ernest Hemingway's masterpiece about life in Paris was finished and certainly intended for publication, and Scribner should have protected it against frivolous incursion.

July 20, 2009 9:30 AM
Now the Times is saying that copyrights can be too long. A newly discovered trove of old recordings can't be distributed without changes to the law.

Free That Tenor Sax
Newly discovered jazz recordings show why copyright laws need to be revisited.
August 22, 2010 9:48 AM
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