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

Fair use, copyright, and overbearing corporate stooges.

By Will Offensicht  |  June 17, 2009

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 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.