Copyright lobbyists love to use words like ‘stealing’ and ‘piracy’ to describe sharing copyrighted materials online. ‘Theft’ is another word commonly applied by these copyright protectionists to what is already a widespread practice. The expression ‘copyright theft’ is a paradox: it is impossible to take away a person’s right to copy information or ideas. ‘Theft’ is used to misinform the public, media and, most importantly, lawmakers, in order to outlaw what many see as perfectly normal behaviour.
We are taught from a very early age to share, and in the Information Age, where sharing information, ideas and culture is incredibly easy, it is only natural for people to continue to do so.
This ability is being hampered however, as groups such as the Australian Federation Against Copyright Theft (AFACT, whose name is ironically a paradox in itself) continue their efforts to protect the failing business model of an industry too complacent and comfortable to adapt. Whenever a new technology comes along that facilitates the dissemination of knowledge and culture on a much wider scale than before, the content industry – the copyright owners and their representatives – complain that it will destroy them.
The video cassette recorder (VCR) was famously condemned in 1982 by Jack Valenti, the then president of the Motion Picture Association of America (MPAA), who claimed that “the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.” Clearly the VCR did not kill the film industry. People did not suddenly stop paying for content. The industry adapted and moved on.
We are facing much the same scenario with the Internet. It is a tool that allows an egalitarian ‘information society.’ Access to content has never been easier or cheaper than now.
Yet this poses a dilemma for the content industry. Producers of content are forced to choose between fighting to maintain their old way of doing business or adapting to the ‘brave new world’ that the Internet is creating. Rather than be innovative and embrace the new technology, they seek stricter enforcement of the old ways of doing things.
What we are witnessing is an abject market failure. Consumers are forced to buy licenses to content that they have no real rights over, that are crippled with digital rights management (DRM) restrictions and are not easily accessible or conveniently delivered. When contrasted with the ‘pirate’ versions, where licenses are redundant, there is no DRM, and content can be accessed 24/7 on multiple devices, is it so hard to conclude why piracy is a popular way of accessing media?
Exorbitant losses are claimed as results of ‘piracy’ or ‘theft’ when litigating, without evidence as to whether those ‘pirates’ intended to purchase the content they accessed. Organisations such as the UK Intellectual Property Office express doubts regarding the methods of calculating ‘losses,’ offering the view that an item is only worth the value a consumer ascribes to it in the digital economy.1 Copyright holders must find a way of making their content valuable to the consumer – reasonable pricing and unfettered access might be good places to start.
Instead, they support the introduction of legislation that threatens the very civil liberties the Internet is capable of providing – to protect their copyrights they will gladly impinge upon our rights to freedom of speech and expression, not to mention the cultural rights enshrined in international law.
Neil Gane, the managing director of AFACT, is uninformed when he claims the Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA) would not go beyond preventing ‘large scale theft’. The wide provisions contained within SOPA and PIPA raise concerns regarding who is responsible for policing the Internet, and who has the authority to take down websites that are claimed to infringe copyright. There is also concern over false claims against competitive websites, as the Digital Millennium Copyright Act (DMCA) has already been abused by rights holders.
Gane fails to address the concerns that the international public have about the Anti-Counterfeiting Trade Agreement (ACTA). He ignores the fact that it does not delineate between commercial and non-commercial copyright infringement, which could allow for criminal liabilities to be taken against file-sharers.
He also ignores the grave concerns that the strict patent enforcement provided by ACTA would prevent medicines reaching those in developing countries who desperately need them. But as he is concerned with protecting the ability of content owners to empty our wallets in the developed world, perhaps it is unfair to expect him to think of those less fortunate.
Regarding the claims that ACTA’s negotiations were transparent: anyone who believes that is deluded. Any transparency achieved was the result of leaks, and it is clear that only industry lobby groups received copies of the negotiating texts.
What the content industry fails to acknowledge above all is that it is cannibalising itself.
The Swiss Government have found that while file-sharing is popular in Switzerland, the budget these ‘pirates’ reserve for entertainment remains constant. People are simply supplementing their ‘cultural consumption’ with file-sharing because they do not have the money to purchase everything. Content is being created too fast for incomes to keep up, and copyright is lasting longer. At life + 70 years, the amount of content people are expected to purchase far outweighs their disposable incomes.
If the content industry and their representatives want to remain competitive, they must understand this, and adopt new business models that aren’t reliant upon squeezing every last dollar from us, but from offering reasonable, affordable and accessible services.
1. Intellectual Property Office (UK), ’Guide to Evidence for Policy Update 2013’, ARS Technica (online), 5 December 2011.
Streaming services have been gradually increasing in popularity as the cost of data decreases. In Australia, for example, one can obtain a connection providing unlimited data for $60 per month. One of the major arguments regarding ‘piracy’ is its convenience. Offer a way of getting content more conveniently than piracy – make it available in less than five clicks, guaranteed quality, legally and easily accessible on multiple devices at no extra cost – and piracy suddenly dries up. Who wants to spend time fiddling with torrents, hoping that a lone seeder holds on long enough for you to get your copy? As such, it has been posited that the best way to solve the “piracy” issue is to offer a cheap, convenient, guaranteed service.
However, streaming services are not the alternative to sharing.
The true power of P2P file-sharing is in the ability to remix. The media shared can, to an extent, be deconstructed and used to create new content. YouTube puts this capability on display: fan-made video clips that combine original footage with pre-recorded music, or original music that samples cultural snippets (sound-bites for example) with pre-existing footage. The ‘remix culture’ is growing rapidly as more and more people appropriate content outside the notions of copyright. Sharing and remixing is nullifying the perceived notion of content ownership. There is only content, and what you can do with it.
The shift we are seeing, and it is one that has been emerging over the past decade, is from the passive consumer to the active producer. Roland Barthes’ The Death of the Author claims that the author’s role in the meaning of content is being diminished, as meaning, significance and value is increasingly determined by the audience. The new era into which we are moving involves consumers taking the material that exists and making changes to produce new derivative works. Culture is created, duplicated, withdrawn, modified and put back. This process is endless, and it’s how our world changes.
Hollywood knows – and this is something I will cover in a later essay – that they cannot possibly recoup their ‘losses’ from ‘piracy’. There is simply too much content out there for everyone to purchase. With copyright being constantly extended, more and more content is expected to be bought. At $10 a DVD, how many people are going to buy one hundred DVDs per year? One thousand DVDs? The funds simply aren’t available for the majority to consume the vast amount of content in existence, but they consume what they can.
A new report by the Swiss government argues that unauthorized file sharing is not a significant problem, and that existing Swiss law—which allows for downloading copyrighted content for personal use—is sufficient to protect copyright holders. It considers and rejects three proposed changes: a French-style “three strikes” law, Internet filtering, and a mandatory collective licensing regime that would impose a fee on all Internet users that allowed unlimited file-sharing.
Drawing on statistics from the Netherlands, which is similar to Switzerland in terms of demographics, Internet infrastructure, and copyright law, the report estimates that a third of those over the age of 15 in Switzerland share copyrighted works without permission. That may be because, despite the best efforts of copyright holders and government officials, the majority of Swiss Internet users can’t distinguish between legitimate and illegal sources for copyrighted material.
Yet the report argues that the spread of file-sharing is no great cause for concern. It argues that consumers spend a roughly constant share of their disposable income on entertainment expenses. Money saved on buying CDs and DVDs are instead spent on “concerts, movies, and merchandising.”1
The MPAA and RIAA must acknowledge this. Surely they cannot be so ignorant as to rubbish these studies? Assuming that they do accept this, why do they still insist that every copy be strictly accounted for? The answer, I will venture, is “control”. They can control what you watch, how you watch it, and how you interact with it, by enforcing their copyright monopoly strictly.
Streaming is merely a continuation of this. You return to being a mere observer. There is no opportunity for you to remix the content. It is static. Fixed. Controlled. Don’t even think. Just watch it, hear it, shut up. You can’t make it better. You can’t mould it into a different shape.
The fact that the 4 major phonographic companies have taken a participation in Spotify … while allowing it to provide access to their catalog, should act as a warning. This behavior can be seen as an effort to retain, in this new channel, the same strong control over which works reach the attention of the public that they have in classical publishing. Furthermore, if streaming becomes the dominant form of access to works, individuals would be turned into passive receivers.2
Streaming may improve access, but it is merely a compromise. Free access to culture, with revenue being generated through advertising, is not a substitute for ‘piracy’. The issue is not in how people access information, but in how that access allows them to interact with the content. Interaction is a two-way street. We must never forfeit our ability to interact with media, even if that means rejecting services that allow free or cheap access. Streaming is great for passive consumption, and it should work alongside peer-to-peer sharing, not replace it.
Free content is great – modifiable cultural building blocks are better.
1. Timothy B Lee, ’Swiss government: file-sharing no big deal, some downloading still OK’, ARS Technica (online), 5 December 2011.
2. Philippe Aigrain, Sharing: Culture and the Economy in the Internet Age, (Amsterdam University Press, 2012) 46.
In late September, the Australian Attorney-General’s Department met with internet service providers and representatives of content rights holders.
The copyright lobby and its many faces and fronts are being given an audience with the Attorney General’s Department and platform on which to pressure ISPs into an industry code for ‘dealing’ with file sharers.1
Serkowski, the then president of Pirate Party Australia, requested minutes and documents relating to the meeting under the Freedom of Information Act 1982. After considerable delay for a request of this nature, the documents were finally released. Pirate Party Australia will be releasing a press release after they have finished analysing the documents, however we have noted the following:
This is what freedom of information looks like in the Twenty-First Century.
1. Rodney Serkowski, ‘Lack of Transparency & Inclusion Raises Questions About Integrity of Democratic Process’ on Rodney Serkowski, Serkowski.net (13 September 2011).↩
The Internet is ours.
For many it’s a hard concept to grasp, and for others it’s something to be afraid of. The Internet is a marketplace, it’s a cultural phenomenon, it’s a library, it’s a video depository. The power of the internet is almost limitless. It breaks down barriers of communication, opens new channels of communications, allows you to embark upon new and exciting projects with people from all over the world. It’s big. And it’s been big for a while. But the single characteristic that makes the internet stand out from most human endeavors is that it’s ours.
We make the rules.
The Internet users make the rules for the net. To understand the gravity of the above statements, we must embark on a brief history lesson.
In the very late 1960s, the Advanced Research Projects Agency (ARPA) began work on a network of computers that would by the early 1980s have linked more than two hundred computer terminals across the United States and beyond. Its purpose was to share information. It was a paperless xerox machine designed to give people with the ability to connect the capacity to copy and share data. There was no central point. Users could connect directly and share information with whoever they wanted, without needing the permission of an administrator middle-man.
‘ARPANet’ was the precursor of the internet. Its purpose was to copy and share information.
The internet is a common law jurisdiction by default. Common law arose in England in the Middle Ages, and was based on customs, cultures and traditions. Judges would travel around the nation resolving disputes and use their resolutions to create precedent for following decisions. The internet is self-regulating. There are codes that must be followed, actual hardware and software protocols required to network, but also behavioral protocols, or ‘netiquette,’ that must be observed. Disputes are resolved within communities so that while there might be problems from time to time, the internet largely exists as a jurisdiction that needs little extra help. Rules get established through precedent, and therefore the internet is a common law jurisdiction.
This is not to say that the internet is perfect. In the “real world” there is murder and rape and all sorts of debased behavior. This is not the fault of the system but the fault of the humans involved in it. Much the same goes for the internet. Pedophiles, cannibals, kidnappers, people who access, manufacture or distribute “kiddie porn” and used car salesmen also exist online. None of this would happen without human input. However, the majority of internet users, as in civil society, are not the ones at fault, and in fact many individuals and even groups react strongly to such behavior (perhaps “hacktivist” collective Anonymous are an appropriate example of a group reacting against those members who bring shame to the largely well-mannered internet society).
One of the most astounding things about the internet is its liberating power. Lola Voronina makes the point that a nine year old girl in Paraguay is able to communicate with the same rights as any other internet user. Whose opinion is more valuable? Neither. Because they are both on an equal footing. There is no one around to make value judgements about what should and shouldn’t be published: everything can be published. Everything can be shared. One of the biggest problems that has been faced by literary and artistic works is the issue of distribution. Only the most popular works could be distributed, because the time and money was not available to finance the publication of books, music and films targeted towards niche markets.
The record industry, for example, had to make choices, and they can’t be blamed for it. They outlaid vast amounts of monetary resources to build recording studios, and the capacity to record absolutely everything just didn’t exist. There was limited amounts of time and money. Vinyl cost a lot to press. Distribution was expensive. It was more economic to record what could be a big hit than to record a less popular artist. Until now.
The cost of a digital audio workstation is currently so astonishingly cheap that it is not impossible for an artist to record and produce themselves in their own home. The concept of ‘value judgements’ has largely been removed, and what music gets distributed is no longer in the hands of the record companies. It has been returned to the hands of the artist. The recording industry enjoyed their period of control over music, and now the sun is setting for them.
A dilemma is then created. If it is affordable to produce and distribute record, there are few limits on what can be heard. In Australia, the German band Die Ärzte will not be found in any mainstream record stores. The internet alleviates this issue: we can import music direct from Germany with minimal cost. The internet has freed our culture, removed barriers of value judgements, of commodification, and of distance. Thus we can share our culture with whoever wants it.
Furthermore, art is not a one-way conversation. The musician calls, the audience responds. The audience calls, the musicians responds. Musicians are dependent on a culture to contribute to – they do not live in a vacuum. The dialogue that occurs is them plucking inspiration out of the culture, interpreting it, and putting it back. They are partaking in a discussion that has few, if any, rules.
The notion of intellectual property has changed this. Suddenly you can own a slice of culture. You have exclusive rights over a piece of art, inspiration from which came from a pre-existing culture. Does the artist pay royalties to God for the landscape he is painting? Copyright is an artificial construct, intended originally to reward the artist for their hard work in forming a creation from the raw materials provided. It has since evolved into a way of establishing a monopoly over culture to build one’s fortune, a fact proven by the continual and unnecessary extension of the copyright term to where it is not given back to the culture from whence it came until seventy years after the ‘owner’s’ death.
From the above, several conclusions may be drawn. Firstly that the rules of the internet are made by the users; secondly that the internet is a technology that facilitates copying and sharing en masse; thirdly that art is not produced away from culture, but is shaped from the existing cultures; and fourthly that the creators have not much more right over their work than those who contributed to the climate from which they could be hewn.
The fight against piracy is lost. Why? Because the internet is ours, and the culture is ours. We make the rules, and if you aren’t going to play by them we don’t want you. If you refuse to share, we don’t need you.
The BitTorrent network alone accounts for anywhere between 43% and 70% of the internet traffic in any given region. The internet users have chosen what they want. They want to utilise the internet to share. They want to use it as it was originally intended. Culture is not, and never will be, a commodity. Culture is the backbone of society. Music existed long before the record industry, and it will continue long after it. Hollywood might fall, but films will still be produced.
At the core of the human existence is love. Culture will flourish not from self-interest, but from genuine love, and a desire to share without restriction. We need to reclaim the internet and reclaim our culture.