Piratenation PDF

To the Bean and the Bear
Pirate Nation
How digital piracy
is transforming
business, society
and culture
Darren Todd
4
Pirate Nation by Darren Todd is licensed under a Creative Commons

Attribution-NonCommercial-ShareAlike 3.0 Unported License.
Permissions beyond the scope of this license may be available at

http://www.piracyhappens.net.
CONTENTS
Acknowledgements 8
Introduction 9
01 The copyright players 14
The copyright oblivious 15

The copyright rich 22
The copyright poor 28
02 Copyright terms 36
Copyright terms in literature 37

All rights reserved alternatives for software 42
Perspectives on copyright terms in film 46
Copyright terms and short-lived media 49
Expanding copyright coverage in music 52
03 Piracy in the digital age 57
The move to digital media 58

Peer-to-peer networks 62
File-sharing and popular opinion 66
The rise of Pirate Party politics 70
04 Responses to the pirate problem 74
Rights-holder reactions 75
State-sponsored anti-piracy efforts 79
Copyright and internet business 84
Internet service providers 88
Literary defence of thick copyright 92
6 contents
05 Pirate economics 98
The first-sale doctrine in digital media 99

The economics of the music CD’s decline 107
Consumption patterns across media 110
Piracy’s economic impact 114
Corporate works-for-hire 121
06 Digital piracy in Asia 124
Discovering counterfeit causes 125

Tracing the bootleg source 130
Counterfeit pharmaceuticals 135
Brand hijacking and the consumer costs 140
The USTR watch list 144
07 The idea-expression dichotomy 147
Imitation and intimidation in literature 148

Tributes and disputes in film 152
Inspirations and borrowing in music 159
Patent coverage of computer code 162
08 Creative piracy 168
Fan fiction blurs the pirate line 169

Disparity in the modern hacker image 173
User-generated film 178
Remixing the music industry 181
User-generated modifications in the video game market 185
Reinventing cinema through video games 188
7 contents
09 New models for skirting piracy 193
Using piracy to grow business 194

Edge marketing meets with mixed success 198
Pornographic industry turns piracy into profits 202
Moving from static to streaming media 206
Food patents paint a bleak picture of IP control 210
Conclusion 214
Glossary 217
References 221
Further reading 236
8
ACKNOWLEDGEMENTS
N o book worth reading comes together without the author owing gratitude to
several people, a truth I freely admit now. First, I thank those reading these words.
Without your dedication (for a few pages or several read-throughs) any impact would
begin and end at the keyboard.
I thank all of those people who offered feedback or ideas, Chris, Greg and
Stumper especially, but also friends around the poker table or strangers at a yard sale.
Copyright and piracy remain issues about which one must pry opinions from some
while they flow freely from others. All have proven invaluable.
Hearty thanks to my blog readers, scant as they are at times, and for all the writers
at Tech Dirt, Ars Technica, Torrent Freak and Slashdot: comprising a fine dashboard
for all IP news.
To my co-workers at Carilion Clinic for enduring long and likely boring lunchtime
discussions of copyright.
I believe firmly in using the right tool for the job, and – sorry Bill – Word falls
short. So thank you to the hard-working and talented developers at Scrivener,
Evernote, Dropbox and OneNote (much better, Bill). All programs that – in full
disclosure – only received my money once they had proven their merit. They have
done so many times over, and have a customer and an advocate for life.
To artist Nina Paley for the hilarious and poignant comic strip, ‘Mimi and Eunice’,
preceding each chapter.
Sincere and deep thanks to Susannah Lear for helping me put together a great
proposal.
To my family: to Dad and Marcia for hosting the household and giving me
weekends of solitude. To my brother Brandon for being a media encyclopaedia. To
my cousin Debbie for reading while pregnant and insanely busy. To Mom, for several
late nights of reading and rereading, and overriding maternal approval to express
constructive criticism.
Lastly, I thank my wife Serena and my infant son Beckett. Without their sacrifice,
without having to leave me to the book for countless, priceless hours, this project
would have remained only and always in my head alone, doing no one any service, and
spreading no seeds of curiosity and doubt.
9
INTRODUCTION
W hen people asked – often with genuine interest – what my book was
about, I delivered a canned response: ‘It’s about copyright law and digital piracy.’ By
the end, many were already nodding off or peering at something more interesting
over my shoulder. Other times they retained some cordial interest, but seemed
unsure of how to feel about the subject.
Still other times, they congratulated me on tackling internet piracy, because
it’s clearly ruining culture, and nothing good comes from stealing.
So, a more accurate response would be that this book is about… well, those very
responses. It is my attempt to interject on water cooler dialogues, where only the
smallest, approved, pre-packaged opinions of piracy crop up amid more prevalent
topics. Because where copyright and piracy go now has become more important
than where they have been, though that history provides a revealing guidebook.
Some of our paths appear already beaten, but those warrant the greatest caution.
Because when it comes to controlling information – and let’s have no illusions:
copyright is control – herding to fixed paths can cause greater harm to the growth
and dissemination of our art and culture than blazing through an uncertain, wild
route without the same guides we’ve come to expect. Guides called law, government
and mainstream media.
The impression so many people have of copyright merits addressing straight
away. Historically, copyright did not act as a legal barrier so artists and inventors
received payment for their work. However, most people keep this impression about
copyright today, and for good reason. Rights-holders spend a lot of money creating
a copyright climate where infringement appears to hurt content creators – the
starving artists, the impoverished inventors, the musicians living in vans just to
bring their art to the people.
This is a dangerous misconception for a few reasons. Foremost, it begets the
view that the current body of literature, film, music, inventions and even computer
code is the result of a system that protects and incentivizes the creator. This is not
the case. Not historically, and not now.
10 introduction
Copyright began before it really began, at least before our modern idea of
copyright. Before the Statute of Anne protected English printers from Scottish pirate
editions of printed works, there was copyright absent the name alone. Protection
really began with royal patronage to select printing guilds (even before the printing
press). The guilds profited through stateenforced monopolies. The crown benefited
from being able to censor what the guilds printed. Where did writers come into this?
Nowhere, really. They lost their rights the moment the book was published.
Even after the Statute of Anne, copyright laws protected industry and business,
not content creators. Our ideas of protecting the writer are far more modern
than industry rhetoric would have us believe. It is dangerous, after all, for trade
organizations hinging on a continued public opinion of the virtues of copyright for
the public to discover that our culture arose without or even despite these laws.
That these laws benefited a few at the expense of the many, just as they do today.
Indeed, a legal response to technology that makes copying as simple as clicking
a button seems logical. But that legislators worldwide have resorted only to
extending copyright terms and coverage speaks to a shortfall in critical analysis.
Copyright remains a weighty, blunt instrument, one that governments should use
sparingly. Alas, these state-monopolies expand in uncertain times but fail to recede
when continued creation and thriving media quell such fears.
But what some have dubbed the ‘copyfight’ is as much a battle over semantics
as anything else, because colluding with citizens to control information means
cleverly using collective terms to apply blanket judgments. Both the copyright and
the copyleft use this, though it is safe to argue that the copyright stakes a clear
advantage, both in public acceptance of their terminology and the means to spread
such an agenda. Therefore, I want to clarify some common misnomers and weighted
terms surrounding copyright and intellectual property. This should promote a better
understanding of the book’s message.
1. The word ‘illicit’ is not interchangeable with ‘illegal’ since the former
implies not only illegality, but also immorality or acts counter to custom. Digital
piracy has nothing to do with morality, no matter how hard industry trade groups
try to make that connection. ‘Illegal’ simply means that it is against the law. Murder
is illegal, but so is jaywalking. In San Francisco, it is illegal to mimic an animal on a
11 introduction
public street, but no one would consider such an act ‘illicit’.
2. I will avoid talk of ‘benefiting the artists’ or ‘going back to the artists’
with the money that copyright monopolies bring. Because corporations own
most enforceable copyrights (either through transfer of copyrights or by funding
corporate works-for-hire), I feel it is a misnomer that produces feelings of suffering
artists instead of a corporation’s bottom line. There is nothing wrong with corporate
copyright, but to assume that all copyright infringement is ‘taking money away
from artists’ or ‘hurting the little people’ is to misunderstand the way that copyright
currently performs. For this same reason, I will avoid using ‘artists’ or even ‘content
creators’ as interchangeable with ‘copyright holder’ or ‘rights-holder’ since the two
groups are not mutually inclusive.
3. While copyright trade organizations would have people believe that all
infringement holds intimate links, there are many differences between
counterfeiting (bootlegging) and file-sharing. I will use the terms
bootlegging and counterfeiting interchangeably, and – more loosely –
the terms file-sharing, infringing and piracy (which – sans counterfeiting
ties – need not bear the negative weight typically assigned to it).
4. The corporations holding copyrights, patents, trademarks or other

intellectual property (IP) I will often refer to as ‘big media’, though most
often for the largest media conglomerates such as Viacom, Disney, AOL/
Time-Warner and Comcast. Much like the more typical terms ‘big
business’ or ‘big pharma’, I do not mean to present corporate copyright
holders negatively. I will also make clear the distinction between big
media and their partner trade organizations such as the British
Phonographic Industry (BPI), the Motion Picture Association of America
(MPAA) and the Recording Industry Association of America (RIAA). The
latter represent the former for a cut of profits, typically, but that does not
imply their opinions or actions dealing with IP infringement align.
12 introduction
5. Probably most complicated is the phrasing in making, receiving or

sharing a copy without holding the copyright. While the term ‘sharing’
may sound mollified, calling it ‘theft’ or ‘stealing’ is a misnomer, and
conjures images that simply do not apply to file-sharing. But while
‘sharing’ may sound soft, it is far closer than ‘stealing’, and until a word
for it becomes mainstream I will avoid the more criminalizing
nomenclature.
6. Fair use, clearly framed in section 107 of the US Copyright Act of 1976,
under fair dealings in the Canadian Copyright, and currently under
strong consideration by UK Prime Minister David Cameron (Burns,
2010), is often mistakenly called ‘fair use defence’. This makes fair use
appear illegal automatically, and only by the grace of courts is it
considered legal. In short, a privilege instead of a right, and privileges
may be taken away. Yet, if that provision of the copyright act holds no
legal power, then how can any other facet of the act? We cannot choose
to enforce one section while failing to enforce another.
7. For reasons clear to those who follow copyright debates, I will avoid the
word ‘free’ unless talking about this debate. While many misunderstand
this term, others use it as ammunition against those opposing thick
copyright. Industry lobbyists insist that this means the opposition wants
all content to be free as in free beer, not free as in free from control. To
avoid blurring such an enormous distinction, I find it easier to avoid the
term altogether, and will instead use ‘no cost’ or the like.
Semantics offer a single bone of contention in my attempt to dispel prevailing

copyright culture. The real copyfight wages over public opinion, to which laws,
prevailing business models and all media must kowtow. No one book
13 introduction
can challenge conventional wisdom everywhere intellectual property

touches, so instead I hope to create an acceptable lens through which to
filter copyright issues. Or – at the least – to encourage readers to discard the
array of lenses already firmly in place.
14
The Copyright Players 01
U nderstanding the current copyright culture means knowing who is involved.

Generically, they are the copyright rich, copyright poor and copyright oblivious.
While their numbers and influence vary, the groupings mostly reflect knowledge
and incentives. Few in Hollywood or other intellectual property institutions would
favour the same freedoms the copyright poor demand. Likewise, for someone who
creates art by building on copyrighted works, it would be irrational to want indefinite
copyright terms or broader patent coverage. For the largest group – the copyright
oblivious – staunch opinions on copyright should prove sparse, since neither their
income nor their creative endeavours are at stake.
However, hard facts seldom bolster a hard-liner stance. Just as the West remains
polarized on issues such as stem-cell research and gay marriage, copyright law
and digital piracy create strong opinions with little understanding. After all, while
laypeople are ignorant of the science behind stem-cells, they need only ally with
political party lines to enjoy the support and backing of millions of people. Piracy can
15 The Copyright Players
drudge relentless opposition or fervent support despite limited knowledge of IP law –

current or historical.
Many copyright oblivious harbour unduly orthodox opinions on copyright law,
usually to the conservative. Arguably, this reflects indoctrination by the copyright
rich of pro-industry propaganda. It could also stem from simply having no working
knowledge of what copyright covers. Fear replaces reason, and fear leads to
misguided and staunch beliefs. So here – with the copyright oblivious – we’ll begin.
The copyright oblivious
This world in which we pretend we’re not all copyright criminals is like the
Victorians who pretended that they didn’t all masturbate.
- Cory Doctorow, RiP!: A Remix Manifesto (Gaylor, 2008)
You are a pirate.

I can write this with full confidence without assuming that you have downloaded
this book from the internet or photocopied it from the library. I do not assume you
have shared music, ripped rented DVDs or bought bootlegs. Mostly, I apply this
negative moniker because copyright culture would have you believe that anyone who
has violated copyright laws is a pirate. Piracy is stealing, and stealing is against the
law.
How can I make such a claim without even knowing you? Well, I have to assume
that – if you are reading this – you are at least one year old. You have had at least one
birthday, and at that birthday someone sang a song that went something like this:
Happy birthday to you.
Happy birthday dear (your name).
And the self-proclaimed clever guy in the singing party said: ‘And many more…’
This song is copyrighted, and at birthday parties where anyone but family and
friends can hear, singing aloud is a public performance of ‘Happy Birthday’. Everyone
sings without permission from the copyright holders or having paid for proper
licensing. Warner-Chappell makes several million dollars a year from royalties on
‘Happy Birthday’ so do not fool yourself by saying that no one pays to use it. You might
also assume that this is simply too farcical a case, even when this century-old song
still makes money. Well, neither Britain’s PRS for Music (formerly Performance Rights
Society) nor the American Society of Composers, Authors and Publishers (ASCAP)
thinks so.
PRS for Music owns a laundry list of absurdity. While indeed a not-for-profit
organization, they respond to economic incentives just as much as for-profit
businesses. While non-profits conjure images of soup kitchens or emergency
aid organizations, PRS for Music’s sole concern is making people pay for musical
performance. This often means hiring ‘investigators’ to troll businesses for
performance violations, complete with bonuses for investigators able to sell enough
licences. In a vacuum, affordable licensing to play copyrighted music seems realistic,
but when applying the letter of the law on public or private performance, the world
becomes rife with pirates.
Creating a culture that supports music artists through licensing fees is one
thing, but trolling society for any performance right violation borders on predatory.
Consider some of PRS for Music’s less-than-glamorous moments of the last few years.
A bevy of PRS for Music investigators call small businesses – from hospitals to pubs
– and listen for music playing in the background. If detected, they insist the business
must buy a copyright licence if anyone else can hear the music, legally a ‘public
performance’ (Watts and Chittenden, 2009).
That PRS for Music allows negotiation of licence fees as one expects of debt
collectors bargaining payment for purchased debt speaks to a practice more akin
to extortion than licensing. One cannot negotiate the price of a driver’s licence or a
business license. Such dealings discredit an already shady business model.
Another case involved demanding food store stocker Sandra Burt pay £1,000
because singing to herself while working was a public performance for the store’s
customers. This came after PRS for Music ordered the store to buy a licence to play
the radio or suffer fines. Burt told the BBC: ‘I would start to sing to myself when I
was stacking the shelves just to keep me happy because it was very quiet without the
radio’ (BBC News, 2009b). PRS for Music threatened thousands of pounds in fines.
Of course, they have the legal backing to file such suits, and this affords them self-
assured browbeating tactics. No doubt, the only reason that PRS for Music recanted,
writing to Sandra Burt ‘we made a big mistake’ and sending flowers, was that the
public eye had turned on them (BBC News, 2009b). PRS for Music also eventually
withdrew demands of payment from a cattery and a dog rescue, originally told to get
a licence despite the only listeners being on four legs (Watts and Chittenden, 2009).
Obviously media exposure of such heavy-handed tactics begets looser enforcement.
But since more than a few of these cases have occurred, it is equally obvious that PRS
for Music is apologetic and reasonable only if their actions come under public scrutiny.
On the other side of the pond, in 1996, seeking payment for public performances
of copyrighted songs, ASCAP set its sights on summer camps. They warned the Girl
Scouts of America that they were violating copyright by not buying performance
licences for their scouts to sing protected songs while roasting marshmallows
(Bannon, 1996). Scores of campfire songs still bear all rights reserved copyright,
which protects any performance ‘where a substantial number of persons outside
of a normal circle of a family and its social acquaintances is gathered’ (Washburn
University, nd). So while you could get away with singing to a group of immediate
friends and family, doing so during a party at your favourite restaurant is illegal. They
imposed hefty fees per camp, or required that – on scouts’ honour – the girls could
only sing songs residing in the public domain. Despite this law being on the books
since 1909, ASCAP holds the honour of making sure everybody pays – even little girls.
Of course, this quickly became a media debacle, and ASCAP reneged, saying they
never planned to sue little girls. They also promised to return the money already
collected from camps fearing lawsuits (Ringle, 1996). ASCAP and BMI (Broadcast
Music Inc) are among the largest companies handling performance rights, and should
make licensing easier for everyone involved. If a radio station had to clear rights to
every song they played, they would spend all their time doing only that. Since ASCAP
represents several labels, they act as speedy intermediaries to ease licensing. Usually.
Economic intermediaries by day can mean irrational money-grubbers by night, it
seems. A more recent case saw ASCAP proposing that music ringtones of copyrighted
songs were violating artists’ rights by not having public performance licences for
each time the song plays (Elinson, 2009). Never mind that ringtones have become
a profitable business for artists, and represent a facet of music to which consumers
remain price insensitive. If people had to pay for ringtones each time a call came
in, quickly the only people with rocker ringtones would be pirates. Fortunately
US District Court Judge Denise Cote ruled against ASCAP, though such cases will
undoubtedly enter court again.
These are outlier cases, but they illustrate an important point: that current ‘thick’
copyright culture will not tolerate any violation. They will not give an inch, even to
little girls who just want to sing campfire songs. Because giving in – just a little –
admits that even when people violate copyright, movies still make money. Science
continues to thrive. Artists still make art. Writers write, and musicians still pour their
souls into music.
The result of a culture in which any infraction is criminal is that we are a society
full of copyright criminals. Consumers finger-wag at others for assumed infractions
while committing different infractions: condemning friends who rip their CDs while
using a copyrighted song to spice up a corporate slideshow. Ignorant of what is legal
and what is fair use, consumers often err on the side of accusation or refuse to do
anything but consume media for fear of infringement. The copyright rich are the only
benefactors when conventional wisdom says ‘when in doubt, don’t do it’.
What the oblivious do not realize is that everyone violates copyright, and
daily. Mostly, it is non-commercial and arguably harmless. The copyright rich want
consumers to believe that any violation does harm, and maintain this illusion with
propaganda and lawsuits. Consider a few more examples.
E-mailed poems, jokes or news stories shoot in and out of inboxes throughout the
work week. While many are wrongly attributed, completely false or hopelessly trite,
some can make the workday a little brighter. So people send them to a few friends
or co-workers for the same reason they came to them. However, they did not get
permission to make a copy of that material from the copyright holder. Forwarding
an e-mail with written material (credited or not; marked with copyright or not)
to nine buddies is the same as making nine illegal copies. Data gain copyright the
moment one fixates them to a tangible medium of expression, and a digital document
certainly counts.
Likewise when forwarding an e-mail with a funny or inspiring image – whether a
spring morning, a celebrity or a mock motivational poster. The sender does not have
the permission and therefore has no copyright to forward that message. And yet
people do forward copyrighted material all the time without believing themselves
copyright criminals. However, ignorance of infringement holds little weight in court.
Despite the cryptic and arcane nature of copyright law, the oblivious ostensibly know
these statutes and how to keep from violating them. A teacher reads aloud to her
students: fair use. A speaker at a funeral recites a Sylvia Plath poem: infringement. A
restaurant owner plays a radio in his office: fair use. The same restaurant plays the
radio over the loudspeaker to the dining room: infringement.
Many detest piracy because they believe it hurts the little people – the individual
artists, writers, musicians and inventors. Piracy of someone else’s creative
expression seems in bad taste, unoriginal and lazy. Why can’t pirates get their
own ideas? But there are a few complications when considering these points of
conventional wisdom.
The first widely held belief is that individuals hold most copyrights, trademarks
and patents, and the second is that those intellectual properties are original. In
reality, however, copyright protection has long benefited corporations as much as
individuals, perhaps more. In Britain and the United States the copyright term spans
the life of the copyright owner plus 70 years. For corporations it runs a comparable
95 years. Any works-for-hire people create while working for a corporation (so long
as it is within the scope of the creator’s job description) belongs to the corporation,
not the individual. The corporations have the money, resources and connections
that make production possible. Artists are free to create their work and then enjoy
their country’s copyright protection, but they seldom command the influence and
exposure that media corporations easily manage. So what seems more probable: that
artists create their work and enjoy personal protection, or that they see that working
for corporations on reliable salary remains the only way to make a living with their
art? Copyright protection then reverts to the corporation for which they work. As
Siva Vaidhyanathan writes in his work Copyrights and Copywrongs: ‘The creation
of [US] corporate copyright in 1909 was the real “death of the author.” Authorship
could not be considered mystical or romantic after 1909. It was simply a construct of
convenience, malleable by contract’ (Vaidhyanathan, 2003: 102).
Even though copyrights for musicians’ work may eventually revert to them,
a part of signing a recording contract is signing over rights. Even if artists create
independently, say, writing a book on spec or patenting a new design for the portable
fan, again the odds remain high that they will need corporations for exposure,
distribution and financing. This results in creators signing their rights over to
corporations to see their art succeed, the blowback being that one can expect the
corporation to reap most of the profits it generates. So while The Simpsons has been
around more than 20 years, it is not creator Matt Groening who reaps all the financial
rewards, but Fox Entertainment Group – the eventual owners of the copyright.
This is not to infer that corporate copyright is unfair – either to the consumer
or to the creator. Rather, the imbalance of corporate rights-holders compared with
individual rights-holders is a reality the copyright oblivious should understand. This
way, they can form their own opinions about what digital piracy means for the future
of media instead of buying the simple notion that all piracy hurts individual artists.
That industry trade organizations fund most anti-piracy propaganda tells against the
fallacy of IP resting solely in the hands of individuals. If piracy harmed small artists
and freelance media creators the way that industry rhetoric would have people
believe, then small artists would universally endorse such messages. They would
march on Washington and London demanding tighter copyright control. These ‘little
people’ would speak out against file-sharing, torrent trackers such as The Pirate Bay,
and get involved in the unending copyright infringement court cases. But the truth
remains: ‘little people’ seldom have their material pirated the way the mainstream,
corporate media are pirated. More importantly, only corporate copyright culture
views piracy as unequivocally negative.
In a press interview for his movie Sicko, film-maker Michael Moore, when asked
for his reaction to people pirating his film, said: ‘I don’t have a problem with people
downloading the movie and sharing it with other people’. He also added: ‘I don’t agree
with the copyright laws’ (Sciretta, 2007). His only issue is with someone making
money from his work without compensating him, a reasonable response.
Famed author JK Rowling shows similar acceptance toward fan fiction – non-
commercial, fan-written stories that take place in the Harry Potter world – even to
the point of tacitly encouraging it. When she announced in an interview on the series
that she thought of Hogwarts Headmaster Albus Dumbledore as gay, she joked: ‘Just
imagine the fan fiction now’ (Smith, 2007). No one – particularly fan fiction authors –
would expect Rowling to abide by someone writing an unauthorized sequel to Harry
Potter and selling it on Amazon. But it remains an important and telling fact that her
reaction to using her characters and concepts smacks not of exclusion and heavy-
handed protection, but of acceptance and even joy.
However, there are no nightly news specials or mainstream docudramas about
accepting piracy – only its consistent condemnation. So it is natural that most people
feel confused about digital piracy, both in their own lives and in their business
dealings. The hard-liner opinions of the copyright oblivious come from misgivings
on intellectual property issues. This makes sense, of course, since it would be as
illogical for someone unexposed to tax law to maximize tax breaks as it would for the
average citizen to understand fully the nuances of copyright law. The danger comes
when so many grow defensive at their understandable ignorance, and decide to
make the copyright rich’s fight their own. This, too, is no wonder, since big media and
their trade organizations have long fed citizens puppy-eyed propaganda about how
piracy hurts the little guy, stops art and media from being made, and costs hundreds
of thousands of jobs. If the copyright poor had the same budget for propaganda, no
doubt citizens would hold staunch views on the stuffy nature of thick copyright or the
potential dangers of food patents.
The copyright oblivious mostly respond to anti-piracy messages with distaste
for the pirates, if not for piracy, since such bombast does little to cut out passive
and everyday infringement in their own lives. They do not connect common, non-
commercial infringement and what alleged ‘pirates’ do. This is in contrast to big
media, which views all forms of copyright infringement as equally criminal and
immoral – often with undeniable flair.
The copyright rich
This is a loophole larger than a parade of eight-wheelers through which a

dam-busting avalanche of violations can rupture the purpose of your bill
every day.
- Jack Valenti, congressional testimony on internet service provider copyright
immunities (House Committee on the Judiciary, US Congress, 1996)
The copyright rich – rights-holders of marketable intellectual property – are a

lot like the financially rich. They care less about good or bad, creative or destructive,
but rather how to make the most money, and how to lose the least. You could say that
since the advent of digital technology, the copyright rich are not playing to win, but
rather playing not to lose.
Industry propaganda, news articles and interviews feature spokespeople claiming
that big media stands on the forefront of innovation. But rights-holders really want
things to stay the same, because ‘the same’ is where they are making money. And
this makes perfect economic sense; this does not make them bad people or shady
businesses. It is sensible to cling to a model that makes money and shy away from
models that may not. So the copyright rich ride the old models for as long and as
fervently as they can. Since innovating means going from a model that used to work to
one that will likely work, this tends to scare big media (and their shareholders).
Programmer Paul Graham, in his insightful book Hackers and Painters, describes
one such model for software. He calls web-based applications ‘an ideal source of
revenue. Instead of starting each quarter with a blank slate, you have a recurring
revenue stream… You have no trouble with uncollectible bills; if someone won’t pay,
you can just turn off the service. And there is no possibility of piracy’ (Graham, 2004:
73).
Preceding this description is the assertion that ‘Hosting applications is a lot of
stress, and has real expenses. No one will want to do it for free’ (Graham, 2004: 73).
He wrote those words in 2004, and in 2011, already we have seen the rise of free
online productivity applications such as Google Documents, Evernote and Zoho.
Granted, these companies make money from advertising or premium packages.
However, where Graham was off on the free part, he was spot on with this software
evolution. So if established software makers refuse to move away from fervently
protecting a client-side product, more agile companies will slide past them. Already,
financial software and proprietary databases in healthcare and banking have
become the norm over housed databanks. But many companies still condemn piracy
and yet refuse to employ new models. While digital delivery is often available for
new versions of popular software, this is as forward thinking as many mainstream
software companies have grown.
Graham goes on to write how some degree of piracy is even a boon to software
developers. ‘If some user would never have bought your software at any price, you
haven’t lost anything if he uses a pirated copy. In fact you gain, because he is one more
user helping to make your software the standard – or who might buy a copy later,
when he graduates from high school’ (Graham, 2004: 73).
Even as far back as the late ’90s, industry giants such as Bill Gates understood this
connection. Gates did not decry piracy of Windows software in Asia, but recognized
that it meant they were at least Windows users, telling attendees of his speech at the
University of Washington: ‘As long as they’re going to steal it, we want them to steal
ours. They’ll get sort of addicted, and then we’ll somehow figure out how to collect
sometime in the next decade’ (Grice and Junnarkar, 1998).
Now options for change are more stable than ever. Ubiquitous internet has
birthed myriad successful free-to-premium models such as DropBox and Evernote
and a thousand private companies creating reliable revenue with hosting applications.
Even piracy of the offline market often acts as a long-term economic boon. So why
are software companies still hanging their heads, enacting fiercer digital rights
management (DRM), and making convicts out of customers?
Unfortunately, even when the big elephant in the room is technological
advancement, the industry refuses to change. Unlike an elephant, they have short
memories and forgot that the last time they finally embraced new technology, they
made money. Instead, they claim outrageous losses, personal hardships and rampant
suffering by using colourful metaphors and wild, incredible scenarios.

Emotional language is hard to ignore. Consumers are human, after all. No matter
how different their backgrounds, if people can tap into their hearts, fears and
prejudices, then they need no facts, data, sources or even credibility. Few know this
better than lobbyists, and fewer still better than those speaking for big media.
Consider these emotional means of arguing used against thick copyright,
specifically against the golden calf of big media: the celestial jukebox. The idea is
simple: a device in each home through which any media may flow. It charges per use,
and ownership remains with the rights-holder. This cuts out lending, piracy, secondary
sales and even libraries. The downsides of such a device are legion. For one, it would
deal remix culture a devastating blow. With no endowment effect coming from owning
physical media, some consumers would lose interest. And such a service would cater
to only the wealthiest of nations, depriving poorer countries of global culture.
But instead of providing facts, what if the only messages were laden with emotion
and rhetoric? If objections compared pay-per-use over ownership as ‘Odysseus bound
to the mast, hearing the siren song only when the money was flowing’, then they would
solicit a much more emotive and impulsive disdain for it. Or to scare those consumers
concerned for privacy by saying that: ‘when all data flows through one spot, that will
be the very spot through which hackers will glean every detail of your credit cards,
bank accounts and all they need to hijack your identity as if holding you at gunpoint
and demanding it outright’. The library becomes a ‘collection of dusty books old
enough to be in the public domain, but of little value for research, study or current
events’ and online retailers ‘the last bastion against imprisoning monopolies’.
While such phrasing sounds convincing, it conveys no information, only emotions.
While the celestial jukebox indeed would cause a shortfall of creative material and
easily control information, it would no sooner hold its customers at gunpoint than it
would bankrupt them. Alas, this is the language that big media mouthpieces use to
turn a business agenda into a set of values.
Consider an excerpt from US Supreme Court transcripts during an appeal
Lawrence Lessig made about Congress’s further extension of the term for copyright,
an extension that few could argue reflected any real incentive to content creators but
much to the copyright rich.
Chief Justice: You want the right to copy verbatim other people’s books,
don’t you?
Lessig: We want the right to copy verbatim works that should be in the
public domain and would be in the public domain but for a statute that
cannot be justified under ordinary First Amendment analysis or under a
proper reading of the limits built into the Copyright Clause (Lessig, 2004:
240).
The more astute and complex verbiage is obvious. The false dichotomy of
arguments meant to provoke emotion instead of reason is equally obvious. The chief
justice portends that leaving the already grossly over-ex tended copyright law without
further extension is tantamount to allowing people like Lessig to copy books word
for word. His is the same tired argument: that extending the copyright term protects
creativity and stymies piracy.
The logical often find themselves on the other end of ignorant and rhetorical
balderdash like the chief justice’s statement. Suggest that Britain and the US should
leave Iraq and you’ll hear: ‘You want to let the terrorists roll right into our front yard?’
Propose that police traffic stops are to produce revenue and you’ll hear: ‘You want
drunk drivers all over the road killing everybody?’ Point out the flawed logic of anti-
piracy campaigns and you’ll hear: ‘You want them to just give everything away?’
It is difficult to argue with absolutes. Rhetoric – by nature – undermines facts and
reason. Its use in all the above examples, of course, is little more than drivel, but with
a likened thread: all fear change. Though Lessig argues for something to stay the same
(the term of copyright), he is still arguing for change (curtailing Congress’s freedom to
grant such extensions).
We could only benefit from a shift in the conventional wisdom about copyright
law and digital piracy. A shift from condemning piracy and whatever trade
organizations assign to this moniker. A shift from absolute and blind trust of the
government, politicians and corporations when it comes to the purpose of copyright.
Were citizens to question these organizations with the veracity with which they
vilify digital pirates, the smoke and mirrors would falter, and reason would take over.
Congress is no more looking out for individuals and creativity by extending copyright
terms than the pirate is harming them by creating mash-ups, sharing information
and bypassing copy protection. Every group answers to incentives – economic and
otherwise – and none proves surprising when these incentives are scrutinized.
No one has proven able to manipulate language so masterfully to get the US
Congress, Hollywood and the American people to rally against the pirate as Jack
Valenti, the former President of the Motion Picture Association of America (MPAA).
A congressional lobbyist, Valenti embodied the pontificating, bombastic speech that
made films like Mr Smith Goes to Washington classics. Never without a colourful
metaphor, Valenti turned piracy into a four-letter word. His language resembled
a sensational daily newspaper. One session, he might offer a rant so riddled with
horrors, ultimatums and bleakness that all of Congress bows to his wishes. The
next session, when his eloquently described fears have not come to pass, he would
not recant. Rather, he presented new horrors demanding the world’s attention and
citizens’ deepest loyalty.
In a 1982 testimony to the House of Representatives, he said: ‘I say to you that the
VCR is to the American film producer and the American public as the Boston strangler
is to the woman home alone’ (Corliss, 2007). This imagery stimulates the imagination,
and plays off a societal fear to present an economic one. Valenti did not want to ban
the VCR, just as he had no desire to ban the internet. He just wanted to squeeze as
much money from them as possible. For the VCR, this meant a proposed tax on all
blank tapes and VCR units that would go to the Major Motion Picture Society (MMPS)
under the assumption that consumers would use the VCR to ‘pirate’ content. And yet
the aftermarket VHS tapes soon proved more profitable than theatres. So much so
that Valenti himself said: ‘It’s the... aftermarket where you make your profits’ (Rojas,
2004), 22 years after assuring congress that VCRs were ‘a great tidal wave just off the
shore’ (Committee on the Judiciary House of Representatives, 1982).
Another testimony to congress reads: ‘[It is] a huge parasite in the marketplace,
feeding and fattening itself off of local television stations and copyright owners
of copyrighted material. We do not like it because we think it wrong and unfair’
(Corliss, 2007). This sounds like the same language Valenti has long used to describe
bootleggers, but in this case he is talking about the cable industry. The industry that
brought billions of dollars to Hollywood – again, after they embraced the technology
instead of fearing it.
More recently, the language remains the same, with Valenti calling the internet
and file-sharing ‘mysterious magic’, as if a sharp, intelligent man such as Valenti could
not grasp it (House Appropriations Committee, 2002). The victim of such magic and
sorcery becomes the underdog for the American people to rally behind, fostered by an
attachment to old ideals, values and the mythical ‘simpler time’.
No stranger to Valenti’s inflated arguments, Tarleton Gillespie, in his book Wired
Shut, writes: ‘This kind of rhetorical strategy replaces rational debate with the politics
of fear, and replaces discussion with a flight-or-flight response’ (Gillespie, 2007: 125).
Indeed, during a debate with the founder of Creative Commons, Lawrence Lessig,
Valenti did little to shed the showmanship that made up his rhetorical style. Missing
Lessig’s argument, Valenti said that ‘it seems to me that if Larry had the fortitude of
his convictions, he would have told his publisher to give [his book] away’ (A Debate on
‘Creativity, Commerce and Culture’, 2001).
Valenti by no means has the monopoly on hyperbole, however. In the Canadian
documentary On Piracy, an interview with Graham Henderson, the head of the
Canadian Recording Industry Association (CRIA), also reveals emotive rhetoric
when dealing with the complicated nature of digital information (McArdle, 2007).
Henderson says sampling is like going into a store and stealing a sweater, going
into another store and stealing another sweater, and then finally buying a third
sweater somewhere else. Of course, if someone steals a sweater, the shop is less one
sweater. They are less what it cost them, and the cost of stocking, pricing, moving and
advertising it. If you download a song on a file-sharing site, no one is less anything.
That is a fact that is difficult to argue with, no matter what inane real-world analogies
one uses.
Henderson goes on to assert that piracy has full responsibility for declining CD
sales. His sole reason is that file-sharing was the overwhelming answer Canadians
gave when surveyed about why they are buying less music. He falls back on pathos
and ethos, not empirical evidence. An on-the-street poll is simply not accurate enough
to determine causality, as other industry spokesmen admit. In an interview for BBC
documentary Attack of the Cyber Pirates, John Kennedy, then president of Universal
Music International, responds to the proposal that sampling music leads to buying
music, saying ‘whilst opinion polls suggest that it’s true, I simply don’t believe opinion
polls’ (Monblat, 2002).
Valenti actually had a slew of figures at his fingertips, but they were either from
studies the MPAA or other trade groups had funded, or from thin air. For example, he
claimed the rating system is no less prone to giving the dreaded NC-17 rating to action
films than films with sexual content, saying: ‘As a matter of fact, there’s probably less
violence in movies today than before’. But when asked ‘Where do you get that from?’
said: ‘My own assessment. Where does anybody get anything from?’ (Bernstein,
2006).
In many ways it is worse to present data out of context. This leads to the question
of whether something represents correlation or causality. Big media cares little
for this distinction, however, and offers piracy as a scapegoat simply because of a
questionable correlation. They show no interest in proving causality. Alas, so long as
big media lobbyists and trade organization campaigns employ emotion, rhetoric and
hyperbole, the copyright oblivious will likely favour their message. After all, it is the
only one most ever hear.
The copyright poor
Everyone has been bombarded with media enough that I think we’ve almost
been forced to kind of take it upon ourselves and use it as an art form… If they
were passing out paints on the street for free every day, I’m sure there’d be a
lot more painters out there.
- DJ Girl Talk, Good Copy, Bad Copy
Few would argue that piracy stems from need. Of course, people do not need to
be creative, either. We do not need art and music and poetry to survive. Yet piracy
has become systemic, affecting every facet of society in all economic strata. Perhaps
what people ought to consider alongside industry arguments about starving artists
and economic hardship is whether piracy developed because of copyright, or

copyright itself made pirates of people who – regardless of law – would unfailingly
avail themselves of any available information. Most piracy represents wants even if it
means creating something that would not otherwise exist, or projects that eventually
benefit many others. So why would people who do not need something risk civil and
even criminal prosecution?
Consider the risks for a moment. These include not only the legal repercussions
of violating copyright, but also the social and moral stigma that comes with piracy.
This judgement – contrary to reason – has little to do with economics. People do not
tie greater social stigma to higher-priced products. The associations are much subtler
than price.
One parallel is to look at other illegal acts that have accrued (or been assigned)
moral and ethical judgements over time. Considering how and why we assign
or withhold judgement is key to understanding how copyright law works. Take
jaywalking for example. Jaywalking is against the law. If police officers see someone
jaywalking, they can stop the person and write a citation. But we do not place any
immoral or unethical stigma on jaywalking. If we see someone jaywalking, we do not
pass judgement. There is not even any social stigma that goes with jaywalking. You do
not think that a jaywalker is being rude or acting criminally. And yet the jaywalker has
committed a misdemeanour that arguably everyone knows is against the law.
Exceeding posted speed limits is similar. Not much moralizing; almost the reverse,
where other drivers even feel sorry for the guy pulled over. There is rarely an attitude
of preconceived judgement, or the declaration that the driver deserves whatever
the officer is going to dish out. We feel kinship with those caught speeding because
– at some point – we have sped too. Speeding bears a fine, though it depends on the
infraction. It can easily lead to arrest if the person is intoxicated, driving too far over
the limit, or does not treat officers with what they perceive as due respect.
But what are the social impacts of these ‘analogue’ crimes? Jaywalking kills
several people each year. When you read about a jaywalking fatality you often read
about how tragic the accident was or whether the driver will be charged with a crime;
perhaps some rhetoric about the dangers of jaywalking, but nothing moralizing
against the jaywalking ‘criminal’. Speeding kills many more people – 40,000 a year in
the US alone. But it remains free of any moral judgements.

Let’s turn this back to piracy. We obviously moralize some crimes and not others,
whether in terms of social impact or monetary punishment. Digital piracy crimes
work the same way. It is acceptable to loan a CD to a friend who did not pay for
it. It is equally acceptable to rip your CDs and put them on your iPod. Yet it is not
acceptable to download music you did not pay for. But what if you download songs
from a peer-to-peer (p2p) file-sharing network for CDs you already own and then
put them on your iPod? The same physical act as the previously accepted scenario,
but tying in a morally unacceptable act. Perhaps this is why the music industry has
brought successful lawsuits against companies providing exactly this service. In UMG
Recordings, Inc. v MP3.com, Inc., a company allowed users to upload their ripped CDs
and listen to them from the site. Despite no decisive evidence of lost profits, the judge
awarded UMG Recordings $53.4 million, even though mp3.com did not earn anywhere
near that amount from its service (Samuelson and Wheatland, 2009: 13).
When patrons check out CDs from the library, rip the songs, and put them on their
iPods, it is the same logistically as getting them from a p2p site. Someone on the p2p
site paid for them, just as the library did. But the library patrons or file-sharers paid
nothing. Perhaps the anonymity ripping CDs provides in contrast to monitored file-
sharing sites decriminalizes the act. No one sends cease and desist letters to library
patrons after all. The lack of potential punishment makes infringement seem natural.
Apply this logic to the moralized, controversial downloading of pirated movies.
Copyright allows people to have friends over for movie night, even though they did
not pay for the film. The courts consider this a ‘private performance’. The only needed
performance right is for public performances. Projecting the film on an abandoned
drive-in theatre screen for anyone to watch obviously meets this definition. But
having eight friends over to watch a film is indistinguishable from those eight friends
downloading a pirated copy and watching it. Logistically and economically, the same
action occurred: nine people saw this movie and only one paid for it. And yet how
would people feel if they discovered their friends pirated movies and were collectively
destroying the movie industry?
Video games offer another excellent example. It remains legal for stores to rent
games, even if this means fewer retail sales. Consumers may also loan games to
friends, even though the friends did not pay for them. And yet if those same friends
downloaded games instead of borrowing them, they would be committing an illegal
and immoral act. They would be putting hard-working video game makers out
of work and ensuring that soon there will be no more video games made, at least
according to industry rhetoric.
But how would conventional wisdom change if the gaming industry could stop the
game resell market? Long have game manufacturers loathed the idea that consumers
can buy games that sell new for $60 as ‘previously played’ for $30 just a month later.
This is the real reason for DRM in games. Under the guise of stopping piracy, game
manufacturers have even embedded limits on the number of times owners can install
games, despite the first sale doctrine ensuring this right. DRM has largely affected
the PC game market, but may well spread into the console market. If copyright law
made it a violation of copyright to resell a game, then immediately trade organizations
would work to moralize and criminalize the act to society. People would eventually
begin to ascribe the same criminalization to reselling.
Just as with the ‘analogue’ examples, the difference is in what mainstream
media tell consumers to moralize, despite legality. There is no gimmick or mascot
for jaywalking, just as there is not for speeding. And yet people openly detest those
who drink and drive: they are the most irresponsible, terrible people to get behind
the wheel of a car. They deserve jail-time, to have their licences taken, and to pay
hefty fines for what they could have done. But then, that is how we are told to feel
about them. By that same token, there are no mascots speaking out against pirating
AutoDesk’s $2,000 software suite. Thus, few pass any moral judgement. Yet the guy
selling DVDs on the city corner is an immoral man committing an illegal act – he is the
one putting people out of work, and making prices so high, right?
So why would people who do not need what they are pirating risk so much? It is
only perceived risk that pirates skirt, quickly filtering and ignoring moral and legal
ambiguity. Pirates make it their business to understand what the proselytizing and
propaganda are all about. This makes the pirate ambivalent to the moral, ethical and
legal ramifications of digital piracy. Western mores on this issue are as liquid as the
law, which alters continuously what courts can and cannot punish. Neither act as an
effective guide for right and wrong because copyright crimes are so relative. Burglary
and violent crimes – crimes that deal with what did happen, not what could have
happened – are far easier to judge.
Another issue that muddies the waters for the copyright poor is the advantage
in remaining ignorant of IP law. Obviously, the industry prospers from collective
ignorance of such laws, but consider who loses for knowing the laws and still going
against them. ‘Some unquestionably wilful infringers (eg counterfeiters) have been
required to pay fairly minimal statutory damages,’ write Samuelson and Wheatland
(2009: 12) ‘while other ordinary infringers, including putative fair users, have found
themselves held liable as willful infringers, and subjected to maximum awards in
circumstances when a rational assessment of damages would have been minimal to
non-existent, and hence, a minimum award would have been more appropriate’.
This causes two effects simultaneously. First, by putting copyright infringement
(wilful or not) on a par with counterfeiting, there is no margin for the fines associated
with the crime. This causes a leapfrog effect where courts find counterfeiting is worse
than infringement, and the cap for counterfeiting fines increases. When a judgment
again considers wilful infringement the same, the fines match those of counterfeiting,
and on and on.
Second, this spells out that actual damages are inconsequential to the industry. If
courts treat those who have – knowingly or not – shared music on a p2p site the same
as those selling bootleg CDs in the street, then courts cannot argue that the matter is
actual damages. While bootlegs could conceivably result in lost sales, there is scant
empirical evidence showing causality between p2p sharing and declining CD sales. In
other words, the idea that someone selling a bootleg CD represents the same threat to
industry profits as someone downloading 12 or 13 songs on a p2p site is ridiculous.
A subset of pirates ignored both in industry rhetoric and in many legal actions are
those who endure all the potentially negative outcomes of copyright violation in order
to create. These ‘creative pirates’ resemble the artists and inventors that copyright
law purportedly protects far more than most modern rights-holders. They are small-
time, independent artists – the same artists that anti-piracy propaganda would have
people believe are the main victims of piracy.
The free-to-download documentary Good Copy, Bad Copy follows two such
creative forces in music: pirate DJ Girl Talk and the Brazilian remix phenomenon
Techno Brega (Johnsen et al., 2007). Girl Talk weaves scores of songs together into
fast-paced, energetic techno that smacks of familiarity. But as he notes in the film: ‘You
can hear people with their songs on the radio right now with riffs that sound just like
Black Sabbath. More so than me cutting up Bachman-Turner Overdrive will sound like
Bachman-Turner Overdrive’. The film creators visit Bridgeport Music, the copyright
holder for ‘Get Off Your Ass and Jam’ among many other rap titles and winners of the
watershed legal case Bridgeport v Dimension Films, which decided that ‘If you sample
get a licence’ (Lemire, 2007). Janet Peterer of Bridgeport Music shows little concern
either for public opinion of the case or what the infringed artist (George Clinton)
thought about the outcome. And for someone in the business of copyright her reaction
is understandable, but she is not an artist, or creating anything.
Girl Talk knows how to license a sample. But his mixes use such tiny portions
from so many songs that to license a single track could cost millions of dollars. As
he says during an interview in Good Copy, Bad Copy, even if he could license so many
samples, it would take years. What good is that for a song mixed on Friday to debut
on Saturday? By the time he could license the songs for his remix, the remix would be
artistically irrelevant. Organizations such as ASCAP are meant to ease licensing. But in
terms of price and ease, within our current copyright climate Girl Talk simply cannot
make art.
In Brazil, public markets sell bootleg CDs at cut-rate prices. These contain songs
mixed from existing international pop music as well as local artists. The result is
a unique mixture of techno and cheesy, funky beats called Techno Brega. While
the CDs only make money for the vendors selling them, they act as a means of
marketing enormous outdoor events. Here, DJs, local artists and even sound system
manufacturers make their money.
Those mixing Techno Brega use the same p2p file-sharing sites popular on
college campuses and in homes worldwide. The difference is that whatever remixers
download, they turn into something else – another final product. In other words,
there is no difference between – as the film shows – a Brazilian downloading a copy
of Gnarls Barkley’s ‘Crazy’ and him ripping the song from the CD. Either ends in the
same place: blaring from huge speakers adorning a Techno Brega dance party. The
difference is in what the remixer adds to it, takes away from it and mixes into it. The
result sounds familiar, but represents a new product, much like how last season’s
runway debuts are this season’s K-Mart specials.
That is not to say that creative pirates have no desire to make money. Girl Talk
charges to DJ a party just as it costs to attend an event playing Techno Brega music.
The creators feel that they are selling another product entirely, one made with the
same amount of creativity and hard work that it took to make the original, protected
works they sample. But so much remixing remains free from any profit motive that
arguments calling remix culture purely capitalistic falter.
In this vein, video game modding (modification) is almost exclusively pro bono.
Modders spend countless hours poring over lines of code to tweak the smallest facets
of gaming experience, all to release it to fellow gamers free. While textbook copyright
violation, and without a fair use exemption, modders take the risk and skirt the law to
create, and often improve, copyrighted work. To be fair, modders suffer far less legal
backlash, arguably because they give away their creations and encourage game sales.
Such is also the case with fan fiction writers, who write unique, independent
works of fiction based on copyrighted works and trademark characters. There is no
lack of originality in fan fiction, merely a tribute to an existing work that already has a
fan base. For small-time or hobbyist writers, fan fiction offers an attentive, interested
audience for their work based on subject matter, setting or character alone. Is it
legal? Certainly not. But since it stays nearly all non-commercial, many authors and
publishers turn a blind eye.
The life of a pirate is not without its dangers. Infringers can lose their internet
provider, receive legal threats, and even suffer fines or imprisonment if picked as an
example to others. Public opinion may rally against them, and yet pirates enjoy many
unique benefits as well. Despite critics claiming that the digital age is killing creativity,
the pirate knows differently, with every creative endeavour simply waiting for its turn.
The fields of music, movies, publishing, hacking, linguistics, architecture, drafting, art
and photography wait at the fingertips of all pirates. They need not wonder if they
have enough money or even desire to follow through with learning a new craft or art,
but can simply experiment at will using the finest tools in the industry.
Other pirates would probably bear a different name in an age less concerned with
criminalizing them. As author Paul Craig notes of some game crackers: ‘Successful
crackers possess a common semi-autistic personality. The process of cracking involves

thinking in a highly illogical, almost backward manner. The process is so confusing
that even the most experienced computer programmer can fail to understand the
principles. You must be born a cracker; it is impossible to be trained to think like one’
(Craig, 2005: 62). This remains problematic for mainstream society to understand:
that some pirates are born. That external causes or individual choice may have little
to do with it. What is potentially even more disturbing is that piracy is the result of
making the most of one’s development and potential – that, without piracy, a fertile
mind would lie fallow and fail to flower at all.
After all, what is the alternative to piracy? Consuming media in a traditional
fashion does little to further development, but remains a passive act. Most consumers
relegate themselves to viral videos, e-mail and social networking, none of which
border on the potential even the meanest of pirates may enjoy.
A pirate may learn new languages and gain an understanding of photography,
non-linear video editing, music mixing, graphic design, game creation and writing.
They do not squander their lives, living in their mothers’ basements where they grow
fat on Redbull playing pirated video games and looking at pilfered porn. The fact
remains that pirates – at whatever orthodoxy and under whatever set of rules they
have chosen – lead lives enriched by easier access to information.
36
Copyright Terms 02
A mong the most contested facets of copyright law is the term for which
protection applies. Arguably the first copyright legislation was the Statute of Anne
in 1709. It gave rights-holders a 14-year copyright term, with a possible 14-year
extension if they were alive to renew it. So no matter what, a work fell into the public
domain (which then simply meant that others could print it) after 28 years. Even this
protection, short compared with today’s ‘life plus 70 years’, was more about control
than ensuring just compensation for an author’s work. Printing companies were
as powerful then as trade organizations such as the BPI, RIAA and MPAA are today.
Had they not contested ‘unauthorized’ copies of the books for which they enjoyed a
monopoly on printing and pricing, it is unlikely any such statute would have existed.
And perhaps it did not need to exist. After all, the world benefits from stores of
literature written before 1709.
Though the United States historically adopts European copyright practices, the
right people can indeed incite stricter copyright legislation. While today a hodgepodge
37 Copyright Terms
of media conglomerates and trade group lobbyists fight for protection from the
digital age, historically lobbyists were not only printers and distributors. Once
marquee authors realized that market demand for their works extended beyond the
original copyright terms, they voiced a vested interest in furthering the terms as far
and as broadly as possible.
Instead of presuming that current copyright models make a good fit, some
content creators build their own licences. Other media simply dissolve long before
copyright ends, so rights-holders have to feel out a reasonable solution. In film,
copyright terms draw poignant criticism, and in music, copyright’s growing footprint
means hardship for new artists. The only certainty with copyright terms is that their
potential benefits bear steep costs.
Copyright terms in literature
Wouldn’t creativity flower if unfettered by fears of petty lawsuits by relatives

who contributed nothing to the creative process in the first place? What
public interest does it serve to enrich the heirs of Irving Berlin, Vladimir
Nabokov, Martha Graham, or Gilbert O’Sullivan? Which system would better
promote art: one in which anyone with a good idea for a James Bond story
could compete in the marketplace of ideas for an audience or one in which
those who control Ian Fleming’s literary estate can prevent anyone from
playing with his toys?
- Siva Vaidhyanathan (2003), Copyrights and Copywrongs
If you make a dollar, I should make a dime.

- Dexter Scott King, on licensing his father’s ‘I have a dream’ speech (Firestone,
2000)
Few sought to alter copyright terms as drastically as Samuel Clemens, better

known as the beloved Mark Twain. Source documents such as letters and essays,
38 Copyright Terms
both published and unpublished, speak of Twain’s strong but contradicting opinions
on copyright throughout his life. But his final word on the term for which copyright
should extend was clear: he wanted author’s rights to hold indefinitely. He proposed
several sensible ideas about why this should happen and how, such as mandated
discount editions after so many years at premium prices.
One cannot regard as coincidence, however, that Twain grew more keen to extend
copyright toward the end of his life. He became concerned about taking care of his
children – wanting to see his writing provide for them, and their children, and so on.
However, these natural emotions do not lead to good and fair practice. No more than
the frustration that older authors express today when talking about the unauthorized
reproduction of their works. Fundamentally, such ideas oppose the free market – the
crowning force in dictating price.
Indeed, while Twain’s work sells many volumes even now, he was a rare and
popular writer. For every Twain there are thousands if not tens of thousands of
writers whose work holds little to no market value after their deaths – particularly a
century after their deaths. In those cases, what would unending copyright do?
Enter the lawsuits and the droves of lawyers willing to push them. If no work
went into the public domain, the number of available idea expressions would so
quickly become protected by unending copyright that any expression would mean
copyright violation. Under this idea, Disney would likely not exist in its present
form, since most of the early works (and even many today) are retellings of Grimm’s
Fairy Tales, which are in the public domain. If these remained copyright protected
and the brothers Grimm’s family had demanded excessive payments for the use of
their forebears’ work, it is likely Disney would never have created movies such as
Cinderella and Snow White.
The more obscure a protected work, and the wider the net of protection it casts,
the more dangerous this idea becomes. Imagine writing a book, publishing it and
then having an author’s family demand that you retract it or pay royalties because
your book is clearly a retelling of their forebear’s copyrighted work from a century
ago. A work so obscure there is nearly no probable market value. So long as such
work remains ‘all rights reserved’ it becomes irrelevant whether defendants have
even read what they are accused of violating.
39 Copyright Terms
And yet, what many modern supporters of thick copyright also overlook when
citing Twain as an avid supporter of copyrights is context. Twain enjoyed enormous
popularity, but – for good or ill – the copyright climate undermined his monopoly in
a few ways. Notably, while he set his US works at premium prices, he competed with
works from England with little or no copyright protection. Thus, US readers could
buy Hardy or London at a fraction of what it cost to buy Twain. Publishers did not
have to pay Hardy or London for those copies sold. The reverse also held true. While
Twain sold for a premium price in the US, presses bootlegged his works mercilessly in
Canada and England and the books sold at a fraction of their US price.
So let us be clear: Twain opposed bootlegging – hard goods piracy – not our
modern interpretation of copyright violation, which includes sampling, remixing and
mashups. Twain himself admitted many times to using ideas, stories, phrases and
concepts not his own. Even by today’s definition, expressing those ideas made them
his. But at times Twain committed what today’s copyright climate would find criminal.
His honestly-titled ‘A True Story, Repeated Word for Word As I Heard It’ was the
story of a slave woman during the Civil War. The woman held no copyright because
she did not fix her oral story ‘to a tangible medium of expression’ and so received no
compensation, while Atlantic Monthly paid Twain more than they had ever paid for a
single piece (Diffley, 2002: 23). In this way, Twain was as piratical as Walt Disney, Elvis
and Stan Lee, or any creator working from existing ideas. It is debatable if there are
any original ideas – only original (and valuable) expressions of ideas.
So while it is understandable that Twain would oppose hard goods piracy – the
exact duplication of his work for sale at a discounted rate while he received nothing
– this differs from our concept of copyright violation. Now rights-holders demand
$10,000 for a four-second background shot of The Simpsons in a documentary that has
nothing to do with The Simpsons (Ramsey, 2005). Musicians face lawsuits for using
a one-second sound byte that resembles a one-second sound byte from an earlier
work. These are not cases of piracy, but of imitation, retelling and remixing. These are
examples of taking what exists and making something new, not of taking something
that has an existing market demand, copying it and selling it without paying the
creator.
As with many of today’s thick copyright proponents, Twain admitted seeing no
difference between intellectual property and physical property. Speaking to Congress,
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he said: ‘I am quite unable to guess why there should be a limit at all to the possession
of the product of a man’s labor. There is no limit to real estate’ (Congressional
Joint Committee on Patents, 1906). This reflects both the MPAA and RIAA’s ideas
of IP as physical property. Author Mark Helprin (2009), in his pro-thick copyright
work Digital Barbarism, also thoroughly exhausts the real estate analogy. It is more
understandable for Twain, however, since copying of work implied a physical, wilful
act to put a cheap product on the market by sidestepping payments to the creator. For
media today it becomes much more difficult to view intellectual property as physical
property – by right or by definition. A computer’s Random-Access Memory (RAM)
copies information the moment users access it. Peers copy data millions of times on a
file-sharing site, often without anyone profiting.
So despite Twain’s good intentions toward authors and their lineages, there is
no way that he could have foreseen the current corruption of copyright law that we
commit today – even without his proposed unending copyright term. While his ideas
may have suited his purposes, they would prove restrictive and heavy-handed in a
culture where so few are able to create market demand that extends beyond a few
years (if they can create demand at all). Many of this week’s New York Times best-
selling authors will be complete unknowns 20 years from now, let alone 100 years.
Twain himself recognized this, saying: ‘It is only one book in 1,000 that can outlive the
forty-two-year limit’ (Congressional Joint Committee on Patents, 1906).
British author Charles Dickens suffered the same fate of having his books
bootlegged in the US, while still having to compete with cheap bootlegs of Twain
and other US authors in England. Like Twain, Dickens called for an international
copyright, and even asked his US readers to buy genuine copies of his books. That his
work was so quickly bootlegged in the US even affected his subject matter, as with the
serial novel Martin Chuzzlewit, where he portrayed US customs and mores negatively.
Again, Dickens grew more fierce in his stance against piracy the larger loomed his
family’s need for money. Smacking largely of Twain’s concern for leaving his family in
good stead, it was not until Dickens earned large sums from his reading and speaking
tours in the US that his anger abated.
And yet, were it not for the cheap copies of his books available in the States,
Dickens would not have enjoyed the fame that allowed him to tour in the US so
successfully. While no one expects that Dickens should have thanked piracy, just as
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today no one expects Bill Gates to laud piracy of the Windows operating system, the
benefits that piracy gave both is clear. Fame for the former and familiarity for the
latter both spell financial gain and mass exposure in the long term.
For the US, the Constitution clearly states that copyright terms shall have limits.
So unending copyright was never, and is not currently, at stake. But even copyright’s
present length should prove a testament to how dangerous extending the term
or inclusions of copyright further would be. Instead of one creator holding one
copyright, multiple family members and multiple corporations would share the
copyright, and must agree to terms of use. And with copyright term extensions in both
1976 and 1998, infinite copyright is nearly in place already. All Congress need do is
continue to extend copyright terms, and protection grows indefinite. If an individual
produces a work today protected for life plus 70 years, it is historically predictable
that Congress will extend the copyright terms again within that time frame. So new
work never makes it into the public domain. But because it is still technically for a
limited time, Congress can claim compliance with the constitutional decree of limited
copyright.
With derivative rights, excessive rights-holders both individual and corporate
loom inescapable. A creator must spend time and money contacting these multiple
holders, which will invariably increase over longer periods of time. Already this has
made the idea of using a portion of a well-known, older work, which is still under
copyright but has become increasingly popular, impractical for all but the most
staffed and well-funded projects. For example, using Tolkien’s Lord of the Rings
would demand far more effort than simply contacting the person to whom Tolkien
bequeathed the copyright. It would mean negotiating with multiple family members
and media groups, all wanting money and each with veto power over the work.
Of equal importance is when Twain and Dickens lived and what media meant at
the time. They lived before ubiquitous theatres and the ambiguous, troublesome ideas
of author compensation for derivative works such as movies made from books. They
lived before widespread recorded music, which has undergone enormous changes
with every musical media and progressing technology. They lived before computers
and programs, digital media, and point and click duplication. And yet the industry
has reacted to each of these changes in largely the same way that Twain and Dickens
reacted to literary piracy: by extending the scope and term of copyright. Yet every step
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– every change to copyright law – needs the same debate and consideration about
what possible effects extension has not only on the public then, but also on those
who create thereafter. Because changes of media and dividing pre-existing copyrights
have made copyright alter from protecting the author to protecting the rights-holder.
This remains true whether the copyright holder creates or not. Whether they are
individuals, or faceless corporations seeking only monetary gain while neither
contributing anything of cultural value nor ensuring the progress of content creation.
Indeed, making any changes to terms has historically considered only the
customers and sellers of media, not future content creators. Today, the customers
are the creators, making any copyright conversations centred solely on consumption
problematic.
All rights reserved alternatives for software
There is… a myth that innovation comes primarily from the profit motive,
from the competitive pressures of a market society. If you look at history,
innovation doesn’t come just from giving people incentives; it comes from
creating environments where their ideas can connect.
- Steven Johnson, Where Good Ideas Come From (2010)
The FBI or Interpol piracy warning has appeared before consumers so often that
its message is lost, even when DVDs forbid skipping it. The warning assumes that the
media on which it features bears ‘all rights reserved’ copyright. The message tells
viewers that the ‘unauthorized reproduction, distribution or exhibition’ of media
can mean prison time and enormous fines. What it does not cover is what makes up
authorized uses. Consumers must guess at their rights instead of feeling certain about
what they can and cannot do with their rented, bought, borrowed or even created
media.
So when the internet allowed for file-sharing, modding, remixing and new
distribution models, the limited, cloak-and-dagger method of the all rights reserved
protection scheme began to grow impractical. Rights-holders continue to uphold
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this restrictive model, even in societies where so many create, contribute and share.
But during the 1980s the first alternatives to this heavy-handed protection scheme
began to emerge. These alternatives did not begin for film or music, however, but for
software.
The General Public License (GPL) was created in 1989 by a coder named Richard
Stallman. The gist of the GPL is that one cannot impose stricter limits on any later or
derivative works than the licence for the original work entailed. One must also reveal
the source code for the program this licence protects. This is the licence the Linux
operating system employs (and many other software applications).
Despite then Microsoft CEO Steven Ballmar telling the Chicago Sun-Times in June
2001 that the licence (as it works for Linux) is ‘a cancer that attaches itself in an
intellectual property sense to everything it touches,’ one must consider the source.
This came from a company that historically makes money by restricting access and
forbidding code sharing. Neither is ‘right’ because copyright is not a moral debate.
They simply represent two different business models.
Three of the six main GPLs are non-commercial, but still allow making money
or suing for licence infringement, such as a ‘downstream’ company using the code
and then failing to release the source code for their work. Non-commercial GPL code
can still make money from donations, consulting work resulting from the product’s
release, download fees, or user options such as installing the Google Toolbar or
Google homepage supporting the software’s creator. The GPL spells out how and
when others can use a program or the code behind a program. There are several
different iterations that have occurred since 1989, and many combinations of licences
one can impose on a work, while still fostering creativity, remixing, and a virtual
public domain of code.
The GPL is largely the product of the ‘copyleft’ movement, which built on top
of the existing copyright model to ensure that whatever creators release under the
GPL remains free from restrictions such as closed source code. In this way, it accepts
the power of current copyright controls, but uses them to ensure perpetuation, not
limitation. One need only look to the Linux operating system to see the licence’s
power in action. While Microsoft may publicly scoff at the operating system, Linux
runs Tivo, Google, Amazon and many hand-held devices.
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As Kenneth Rodriguez notes in the Journal of High Technology Law, GPL has
little to no legal precedent (Rodriquez, 2005). This could eventually spell disaster
for companies using Linux if, for instance, courts decide that Linux (and thus other
GPL-licensed software) do not have a legal leg to stand on. The upshot remains that
if software licensed under GPL continues to eke into popular technology, companies
that depend on that technology could rally behind it in court. So long as both sides
have equally deep pockets, GPL may well hold up despite not forcing the rigidity on
users that all rights reserved copyright and closed source codes currently employ.
Similar to the GPL, the Creative Commons license is an overlay of current federal
copyright. It was developed and spearheaded by renowned copyright lawyer and
writer Lawrence Lessig (among others) in 2001. Again like the GPL, the Creative
Commons bevy of licences do not imply that the works they protect are not-for-profit.
Content creators can use the licences in many ways. The main purpose is to forbid
exploitation through bootlegging, unauthorized copying (say, for distribution or sale
without compensation to the copyright holder), and anything that would bind the
work more strictly than the original licence. The positive outcome is that if creators
want to allow non-commercial remix, mashup or derivative works, they could do it.
If they want the licence to mandate contacting the creator before any commercial or
non-commercial use takes place, it can act that way as well.
What Creative Commons is not is the all rights reserved model, which defaults
to a resounding ‘no’ when any following creators want to use the copyrighted media
without a licence. The federal copyright automatically applies to works in a tangible
medium of expression. But this binds a restrictive licence on all new media. Combined
with the ever-extending copyright terms and the unavoidable increase in the volume
of created works, this model ensures a zero-sum game. The longer the current
copyright schema remains in place, and the more media created, the more difficult
creation without costly and permissible sampling will become. It is this idea – that
creation could become more difficult the more copyright law supposedly looks out for
creators – that the Creative Commons presumes to buck.
Creative Commons extends beyond the States, as well. More than 50 countries
have created Creative Commons licences, including Britain, Australia, Brazil, India
and China. Though using US copyright law as a starting point, each country shares in
developing and progressing their suite of Creative Commons licences. It is difficult
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to predict how useful the licence will become in every nation, since countries such
as Nigeria make money from their media without any copyright law, and China has
shown little regard for such laws, international or otherwise. However, just beginning
from a point of inclusion and with the creators in mind will surely meet with greater
acceptance than the all rights reserved model. Such a model does less to protect
foreign works from piracy than to force fixed prices on behalf of copyright-rich
countries. Countries currently reaping the most benefit from intellectual property and
that enjoy superior law enforcement.
The all rights reserved model has other pitfalls. Creators without an existing
customer base will likely have to surrender to a corporate entity eventually, to
see their creative work gain notoriety, especially so long as the current model of
distribution and consumption remains in place. That also means that an all rights
reserved copyright implies a surrender of control by the creator to the eventual
copyright holder – the corporation they go to for distribution, publishing and
manufacturing. This – among many other reasons – has led to the rise of Pirate Party
politics.
A point of concern remains whether the Pirate Party agenda would clash with
the values of the copyleft movements of the GPL and Creative Commons. The first
wants copyright all but dismissed, while the others are essentially overlays on
current copyright. It is debatable which would prove easier to manage: a new set of
laws written according to the intricacies of the digital age, or a new model that acts
on top of the laws already in place, even if copyleft values oppose the hard-line and
aggressive stance of all rights reserved copyright.
Both GPL and Creative Commons licence suites also work to preserve what
the United States calls ‘fair use’. While the pillars of fair use are well known and
well publicized, fair use currently acts as a legal defence. That is, when accused of
copyright infringement, one can claim fair use, but it does not prevent the accusation.
It also does not bypass any complications, losses or delays inherent in the legal
process, since it still means the courts settle the matter. Big media has deep pockets
and treats most legal cases of copyright infringement as a public deterrent of piracy,
so fair use defences remain impractical for many individual creators. Law is a long,
costly avenue for resolution.
As communication and awareness of intellectual property’s importance increase,
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so will the copyright rich’s attempt to exert greater control. But thanks to greater
communication and the explosion of user-generated content, alternative licensing
should increase in parallel. While few would expect media conglomerates to adopt an
alternative to the all rights reserved model, the more content creators employ such
freer protections, the stronger they will become.
Perspectives on copyright terms in film
It is good that authors should be remunerated; and the least exceptionable

way of remunerating them is by a monopoly. Yet monopoly is an evil. For the
sake of the good we must submit to the evil; but the evil ought not to last a
day longer than is necessary for the purpose of securing the good.
- Lord Thomas Macaulay, Speech to British House of Commons
against copyright term extension, 1841
Thank God for the residuals.

- Ingrid, Uptown Girls
One benefit of fair use is that satirists can criticize protected works without
clearing rights. Otherwise, they would meet refusal at every turn. But sometimes
criticism erupts from the industry itself. Despite trade organizations such as the
MPAA upholding total resistance to any copyright infringement, those in the industry
have often parodied the impact of intellectual property laws gone awry, and in self-
effacing and comical ways.
One such allegory of how living off another’s creation inhibits personal growth
and social contribution is the story of Molly Gunn, played by Brittany Murphy in the
film Uptown Girls. Molly is a spoiled and directionless young woman in her early
20s. Her father was a famous musician who died, leaving heaps of royalties to Molly.
She lives lavishly off these until a lawyer given power of attorney makes some bad
investments and skips town. Molly faces the reality that even future residuals will
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only go to clear the estate of its now enormous debt.

This forces her to find a job babysitting young but mature-beyond-her-years
Lorraine Schleine, played by Dakota Fanning. Viewers could interpret that it is
Lorraine who causes Molly to grow up and face the adult world, just as Molly makes
sure that Lorraine learns how to enjoy being a kid. However, it is the loss of her
unearned, never-ending income that forces Molly to grow up and develop as a person
and a designer. Only then – through fashion – does she contribute anything and move
on with her life. While this is similar to other ‘rich girl grows up’ stories, it is a telling
portrayal of the dangers of living off another’s creation.
In a similar thread in Mark Twain’s life, he admits: ‘I can get along; I know a lot
of trades. But that goes to my daughters, who can’t get along as well as I can because
I have carefully raised them as young ladies, who don’t know anything and can’t do
anything. I hope Congress will extend to them the charity which they have failed to
get from me’ (Congressional Joint Committee on Patents, 1906). It is likely that with
Twain’s indefinite copyright, he would have several ‘Mollys’ living off his work, and
perhaps not to their own or society’s betterment.
Similarly, consider the book-turned-movie About a Boy. In it, Will (played by Hugh
Grant) not only lives well off his father’s music, but from a single song. A Christmas
tune so ingrained in British culture that it plays everywhere, and represents the sole
source of Will’s income. He adores his lifestyle, but feels shame when others ask
what he does for a living. He must admit that he does nothing but live off his father’s
creation. His father had not worked hard his whole life to provide for his family,
but rather got lucky by making a single song that took off. That it plays everywhere
several months a year means royalties continue to flow indefinitely (or at least until
the end of the copyright term).
Will looks only to this money for all he needs and therefore becomes an
emotionally stunted human being who contributes nothing to society. When he meets
12-year-old Marcus – no doubt his emotional equivalent – he begins to understand
what little this has done for him. His money does nothing to help Marcus’s life, just as
it has not helped Will. Expensive shoes he gifts to Marcus to make him more popular
get him robbed at school, aggravating his problems just as they have Will’s. When he
finally grows up and outside the shadow of his father’s intellectual property, his life
improves.
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In Finding Forrester, Sean Connery’s character preserves a life of solitude, living

off his royalty cheques from his only novel, Avalon Rising. Until a young writer, played
by Rob Brown, forces Forrester out of his shell, the money from his creation decades
before has left his life without purpose or reward. Once he moves out from under his
former success, he completes and releases his second novel (though posthumously).
Alongside meta-theatre portraying copyright law as arcane, restrictive and even
silly, others communicate the idea that temporary creativity begets permanent
rewards. In Law Abiding Citizen, Gerard Butler’s character, Clyde Shelton, is able to
compose his expensive plans not through hourly wages or continued creative efforts
(he is a machinist), but through patents on designs he created long before.
In Made of Honor, Patrick Dempsey’s character, Tom Bailey, lives lavishly and
does not work because he invented the cardboard coffee sleeve. Living off IP in Romy
and Michelle’s High School Reunion seems far easier and more practical than working
for a living. In the film Red Belt, actor Chiwetel Ejiofor’s character Mike Terry seeks
a quarter of a million dollars in compensation for an idea that adds an element of
chance to a fight. He borrows the idea from the culture of his fighting style, so it is no
more his property than the property of the organization that takes it from him.
It is debatable what this says to viewers; whether living off intellectual property
is a simple plot device, a way of explaining wealth without having to resort to more
complex reasons. It could also represent a misconception by Hollywood writers. For
instance, the abnormal amount of movie characters who are successful freelance
photographers and writers when – in reality – these are often gruelling, competitive
and poorly compensated professions that few endure for long and at which fewer still
excel. The result, intended or not, is that intellectual property appears simple: you
create, and society compensates. In reality, this is rarely the case, and that playing
field grows larger and flatter every day of the digital age.
In essence, it is clear that the current issues surrounding copyright terms,
compensation and creativity have leached into film. That such expression in film
skirts an all-in-favour view of copyright’s terms and conditions speaks of the
issue’s complexity. It is clearly more complicated than ‘if you sample you licence’, or
responding to the ease of copying in the digital age with broader patent laws and
longer copyright terms. These are arguably the band-aids of the outgoing model, and
not the pillars of the model yet to develop.
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Copyright terms and short-lived media
Kang: And over here is our crowning achievement in amusement technology:

an electronic version of what you call table tennis. Your primitive paddles
have been replaced by an electronic…
Bart: Hey, that’s just Pong. Get with the times, man.
- The Simpsons, ‘Treehouse of Horror’
Video games differ from other entertainment media. This manifests in how people
use them, why, and through what platforms. And yet current copyright law does not
distinguish between games and other media such as books, movies or music. The
result of this parallel treatment for unparalleled media means that copyright litigation
remains a choice even when the purpose of copyright has long passed.
The US Constitution shaped copyright laws to ‘ensure progress in sciences and
other useful arts’ so innovation and motivation remained intact. As with other facets
of shaping the nation, the founders knew what needed protection, and to what
degree – hence setting copyright terms as ‘limited’. The way that copyright culture
has interpreted this small constitutional passage is that copyright should ensure that
creators or the corporations who hire creators can make money without fear of direct,
detracting competition. This implies that copyright should be in place so long as there
is a market for the copyrighted product. Any protection after that makes little sense
because the copyrighted work stops making money while still forbidding successive
derivative works.
The same applies to rights-holders refusing to offer supply where there is market
demand. In gaming culture, fans have long met demand where there is no supply.
For instance, Sony released the PSP as a portable gaming platform meant to play the
proprietary Universal Media Disc (UMD), whether games or movies. The ‘universal’
part of UMD is an almost comical misnomer, since consumers had no way of writing
to UMDs or even reading them other than on the PSP. The unit also used a proprietary
format removable memory card – the memory stick pro duo – which owners could
employ for pictures or music. Quickly, hackers found a way to make the PSP play
ROMs (Read-Only Memory) games through an emulator installed on the machine’s
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memory card. The popular duo Pox and Ragable aired their ‘PSP Hacking 101’ videos
all over the internet, showing gamers how to install the emulator, load ROMs and play
games. The various emulators could play ROMs from several older game consoles,
including Neo-Geo, Nintendo, Super Nintendo, Sega Genesis and Amiga. While Pox and
Ragable did not endorse playing licensed games on the PSP emulator, the program’s
creators left out licence verification or other protective measures from the emulator.
The likely result was that most gamers who loaded the emulator onto their PSPs
played copyrighted games illegally.
And yet Pox and Ragable were meeting a demand that the market failed to
address. Sony did not sell memory cards with emulators preloaded and then sell
licensed versions of these ROMs either as direct download or from their website. They
did not sell UMDs with ROM games, though the console could obviously handle the
computations and graphics. Possibly, clearing the necessary licensing on all of those
games proved too taxing and costly to warrant investing the time and money. Pox and
Ragable and the creators of the emulator negotiated no such legal barriers, and so
delivered to the gaming public something people wanted, and efficiently.
At every turn, the PSP needed firmware upgrades that disabled the emulators,
only to have rogue coders release a new emulator version the next day. However,
there are still notable differences in what Sony and the rogue coders provided to
users. Anything Sony sold was relegated to UMD format. These were disks that, when
inserted into the PSP, had to spin to play. Compared with the memory stick, this meant
that UMDs used much more battery life than memory stick emulators. There was also
no chance that UMD game packages of older games would have contained as many
as the disk could hold. The UMD could hold 1.8 Gbs (dual layer), which is more than
enough to hold every Atari, Nintendo 8-Bit and Sega Master System game ever made.
But licensing would never allow it; filling a UMD with as many ROM games as it could
hold would be a logistical nightmare and far more expensive for licensing than Sony
would reap in profits.
Eventually, the PSP became the platform for gamers wanting selection and playing
experience that no single unit provided. Thus, while this meant the units sold well,
the games did not. This, among other reasons, saw the PSP fall short of the long-term
success of Nintendo’s rival portable system, the Nintendo DS. Indeed, the following
release of the PSP, called the PSP Go, allows downloads onto flash memory, and does
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away with UMD games altogether. Sound familiar?

The main reason emulators and ROMs receive so little flak from the gaming
industry is that they simply do not compete with what currently makes money. While
books, movies and even software from the late 1980s can hold market value, games
simply do not have the shelf life of other media. Fortunately, the gaming industry
seems aware of this truth and – while still employing lengthy copyright terms –
seldom prosecutes rogue gamers. Though reasonable, this still leaves rights-holders
the ability to prosecute later. Indeed, waiting to litigate is key in some copyright
claims, where rights-holders wait for the infringing company to make it big before
seeking a settlement. Of course, waiting for Pox and Ragable to balloon is futile, since
neither aspire to compete with the gaming industry in economic terms.
Even better than turning a blind eye, however, is the way that some game
manufacturers have gone a step further. Bethesda is arguably one of the most
respected and popular game companies today. With big titles such as Elder Scrolls 4:
Oblivion and Fallout 3, there is little argument that Bethesda is at the top of their game
and still making successful, popular releases. And yet, in 2009, Bethesda released
their 1996 game Elder Scrolls 2: Daggerfall at no cost, even sponsoring the download
on their website. This was not some cast-off title with no solid history or market.
Daggerfall enjoyed an enormously successful run, and remains the most expansive
episode of the popular Elder Scrolls series, with several hundred hours of game play
(a feat unheard-of at its release). So why allow users to download, mod, adapt and
generally do as they will to a game that had more than 80 years left on its copyright?
Or how about the Source engine, developed by game company Valve for Counter-
Strike: Source and the legendary game Half Life 2? Valve made Source available for use
by game modders while still making money on games using the Source engine. Several
offshoot mods appeared, all using the engine. The same was true when id Software
allowed nearly unlimited use of the hugely successful Quake 3 engine.
This is a boon not just for PC gamers, but for Mac users as well, where often
clever coders have to port games to work on the Mac. Hackers can make anything
work on the Mac, but have historically done so from the shadows. With no-cost
releases or free-to-use engines, Mac gamers enjoy the same capabilities with legal
freedom. That someone will make a Mac port is a given. But whether game companies
allow modders and hackers some creative freedom decides how gamers view these
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companies in the future.

Other countries have already come to realize the futility of applying a traditional
media model to games. South Korea has debuted myriad Massive Multiplayer Online
Role-Playing Games (MMORPG) that are free to play. They make money by selling
items in the game, such as better weapons, spells or abilities. Companies call these
microtransactions, and while games such as The Sims 3 use this to supplement
revenue, other games make money solely using this method. The volume of these
games in recent years shows the rampant creativity and drive to create and embrace
new models of monetization. It also means that South Korea’s copyright terms of life
plus 50 years (or 50 years for corporate copyright) is futile and even silly to consider
for such games. These games have little use without players and the servers on which
the game runs. This ensures that once the game has lived its life and its graphics and
content become dated, its presence in the gaming world dissolves. Some games might
still enjoy a small following years later. The 1997 hit Blizzard release Diablo still
enjoys popular online play. But it is more likely that game companies will not tie up
resources and server space for a title even ten years old.
Knowing this, it seems absurd to employ the same term of protection for games
as for books, movies or music, since the market for older games steadily declines. A
consequence of current copyright terms for games is that the foundations of older
games remain unused by fledgling game coders for fear of reprisal, even though
the game no longer makes any money. Indeed, releasing the engine for a past-its-
prime game is an excellent start, and shows clearly that many in the gaming industry
understand that such lengthy terms as are applied to other media make little sense
for video games.
Expanding copyright coverage in music
You’re a slave to the money then you die.

- ‘Bittersweet Symphony’, Richard Ashcroft
(credited to Mick Jagger and Keith Richards)
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Just as the range of copyright has grown, its breadth has increased as well. More
media enjoy copyright protection than ever before. Often this means legislation
protecting unprecedented media, such as computer code or video games. Other times
extending protection comes not from Congress, but from the courts. With so many
copyright cases each year, inevitably absurd cases set a precedent for further frivolous
suits, either through forced settlements or through plaintiff victories. Nowhere is such
absurdity clearer than with music.
Creating artificial scarcity by confining music appears throughout Western
history. People do not need costly equipment to enjoy music, they consume it
repeatedly, and music has spread virally since long before the internet. So it seems
a logical fulcrum for control. After all, consumers react to price premiums, impulse
buys, loss aversion and other gimmicks all the time. But if rights-holders want
customers to pay for easily pirated content, they have to tweak the price, modernize
delivery and set the content free from limits of time, space and format.
Adrian Johns suggests that the digital age has no real antecedent (Johns, 2009).
This rings true for communication, copying and media availability in even the
remotest corners of the globe. However, the shift of business models from premium
prices to a technological levelling owns at least one precedent, and with a happy
ending. When pianos became affordable for more people in 18th century England,
consumer demand for sheet music rose sharply. At the time, an oligarchy of printers
controlled and price-inflated most sheet music. Piracy met market demand, and
copies of sheet music began cropping up at every street corner at significantly
reduced prices. The industry began a propaganda campaign to convince consumers
that pirated sheet music would put hard-working artists out of a job, and mean an end
to sheet music creation altogether. They lobbied their legislators for protection and
enforcement, with limited success.
Finally, after peaking with Gestapo tactics that rallied the public against them,
the printers accepted the truth: they would have to change their business model or
lose the fight. They made sheet music cheaper and more available, and consumption
shifted from pirated music to legit. The only difference was that a few wealthy people
at the top of the rights-holding pyramid got a little less from consumers or had to
discover another means of collecting a premium.
Today, the propaganda is all about the innate evil of file-sharing. Sampling
54 Copyright Terms
between artists – supposed or certain – has little to do with file-sharing, but results in
litigation just as vicious and leaves public opinion just as scarred. When the first suits
against rap artists sampling older music began, a strong legal precedent followed –
for good or ill. When the smoke cleared, cases such as Bridgeport v Dimension Films
made sampling even three notes require licensing. ‘Courts and the music industry
could have allowed for limited use of unauthorized samples,’ writes IP professor
Siva Vaidhyanathan ‘if they had considered taking several tenets of fair use and free
speech seriously – especially the question of whether the newer work detracted
from the market of the original. In fact, as has been shown repeatedly, sampling often
revives a market for an all but forgotten song or artist’ (Vaidhyanathan, 2003: 144).
But Bridgeport Music Inc owner Armen Boladian’s reason for filing more than 500
lawsuits against 800 artists had nothing to do with reviving George Clinton’s music.
Boladian wanted money.
This increased girth of musical copyright protection extends to lyrics as well.
Michael Bolton found himself facing a multimillion-dollar lawsuit for using the phrase
‘Love is a beautiful thing’ in both the title of a song and the chorus. The phrase is
common enough, but courts found Bolton liable for plagiarizing the Isley Brothers’
tune of the same name. Despite several Isley Brothers’ songs topping the charts, ‘Love
is a Beautiful Thing’ did not even make the Top 100. It simply falls short of their best
work. Bolton claimed his work was original and that he had been unaware of the
same-titled tune, which debuted when he was 13 years old, in 1966, as a single on a
45 record. The original debuted on CD in 1991, the same year as Bolton’s Time, Love,
and Tenderness album containing ‘Love is a Beautiful Thing’. Courts referred to famed
infringement case Bright Tunes v Harrisongs, where George Harrison ‘subconsciously’
plagiarized The Chiffons’ ‘He’s so fine’ and paid a hefty toll. Setting an aggressive
precedent, the courts awarded the last living (and quite bankrupt) Isley Brother $5.4
million against Bolton and Sony. The sum supposedly reflected 66 per cent of royalties
from the song and 28 per cent from the album (Three Boys Music v Michael Bolton,
2000).
Such cases ensure a bevy of trivial lawsuits remain on the dockets. This is why
musician Samuel Bartley Steele sought a laughable $400 billion from Bon Jovi for
allegedly plagiarized lyrics in the hit song ‘I Love This Town’ (Perone, 2008). Why
Richard C. Wolfe filed suit representing Lil Joe Wein Music against rapper 50 Cent’s
55 Copyright Terms
song ‘In Da Club’ for using the common phrase ‘It’s your birthday’ (Alfano, 2006). It
does not matter that such suits fail more often than not; they garner media attention
for the supposedly infringed, as plagiarism claims against Coldplay and Avril Lavigne
showed. If case outcomes suggest that suing pays better than creating – through
publicity, settlements or favourable judgments – such litigation will only continue.
Imagine such strict court rulings with other media. Stephen King uses the phrase
‘sank gum-deep’ to describe a severe bite in his short story collection Just After Sunset.
What if any later users of that descriptor had to license through Stephen King’s
attorneys or face a lawsuit? Or how about copyright for a single line of computer
code? Coders with access to source code could possibly go on to use it in their own
for-profit application. Should not each line receive protection and require licensing?
With this increased breadth, music went from an environment where ‘a hundred
different people can sing songs about Stagger Lee or John Henry, but the person who
sings it best gets rewarded most’ (Vaidhyanathan, 2003: 13) to one where clearing
rights precedes and restricts creativity. This wider coverage did nothing to incentivize
creation, but in fact taxed it, often into non-existence.
Going through proper licensing channels does not ensure protection anyway.
While current artists forget historical imitation, they grow stricter and more litigious
toward any new music that resembles their work. A shocking example of this was a
song entitled ‘Bittersweet Symphony’ by British band The Verve. The Verve bought
rights to sample from Rolling Stones song ‘The Last Time’, using a part of the song
not even included in the original release of ‘The Last Time’. But after ‘Bittersweet
Symphony’ began to gain popularity in the US and the UK, ABKCO Records –
representing Mick Jagger and Keith Richards – claimed The Verve had sampled too
much, and began a legal coup d’état. Not only did ABKCO gain 100 per cent of the
royalties from ‘Bittersweet Symphony’, courts ruled that the authorship of the song
now goes to Jagger and Richards, though they had nothing to do with the lyrics. The
Verve’s Richard Ashcroft wrote every word of the song. One can imagine all manner
of ridiculous parallels with other intellectual property: George Lucas green-lighting
a novel about the Star Wars universe, and then suing for all royalties and to have
his name on the cover when the book grew popular. Or if a US remake of a Japanese
horror film borrowed too much, and the original director demanded credit as director
of the remake.
56 Copyright Terms
The undeniable trend with sampling music is that older, settled artists impede
younger, upcoming artists. Where they sampled willy-nilly from blues and jazz
musicians, they now demand excessive royalties for licensing, despite often having
no claim to originality. As with every matter of copyright, there is a middle ground
between profiting from another’s work (competing or not) and a freeze on further
creativity for fear of litigation. Perhaps part of the solution lies in recognizing that
just because music copyrights have grown as wide as they have long, does not mean
this recent breadth incentivizes artists or harms the market for the sampled work. UK
band M/A/R/R/S sampled seven seconds from the Stock, Aitken, Waterman (SAW)
song ‘Roadblock’ for their hit ‘Pump up the Volume’. The case only came about after
co-producer Dave Dorrell mentioned the sample during a radio interview. So despite
M/A/R/R/S distorting the sample to the point where the rights-holder could not even
identify it, in an open letter to the press Pete Waterman called it ‘wholesale theft’ and
filed suit.
Copyright’s growing midsection affects more than music. The degree to which
copyright protects computer code, the written word and ‘sweat of the brow’
collections of data expands at an increasing rate. While the copyleft and other
reformist movements voice constant concern over copyright’s elongated term, its
expanding breadth warrants the same anxiety and closer consideration.
57
Piracy in the Digital Age 03
A s important as understanding the players in the so-called copyright wars

is knowing what place piracy holds in the digital age – in business, culture and
even politics. In many ways, modern digital piracy was shaped by the way that
governments deal with copyright issues and businesses profit by state-enforced
monopolies. In other ways, digital piracy represents a game-changer, both with the
‘crime’ of copyright infringement and its potential impact on the future of media.
For 100 years, music – just a series of vibrations through the air – had tangible
form on the record, tape or CD, just as film had in the reel-to-reel, VHS or DVD.
Copying usually meant a loss of fidelity. Media lacked portability in both content and
platform. Now, more digital information than one could consume in a lifetime lives
on the internet for all with an interface and access to enjoy. And such interfaces have
moved from room-sized machines to personal media devices small enough to fit into a
pocket and cheap enough to deploy worldwide.
58 Piracy in the Digital Age
When formerly bound information throws its corporeal form, sharing becomes
unavoidable. The only question becomes whether content creators or pirates will
facilitate such sharing. Because of the ebbing nature of bureaucracy and law, user-
generated platforms for file-sharing are not only inevitable, but also may well best
legal, sanctioned platforms in speed, ease-of-use and variety. Such platforms beget
witch-hunts with the power of law behind them.
History is riddled with government-sanctioned, corporate-sponsored propaganda
both to persuade citizens of the path of virtue and to demonize those who act outside
the law, ignoring state-enforced monopolies. But the citizen must decipher the
validity of these smear campaigns, and discover each party’s incentives: economic
or otherwise. Consumers must consider how closely the media-driven image of
pirates and piracy answers to scrutiny and either find it fitting or dismiss it as
misinformation.
What governments and corporations prove willing to do to force their monopolies
is too close to censorship and unjustified surveillance for some citizens to accept,
particularly given piracy’s lack of obvious societal harm. When copyright issues enter
the political fold with all the subtlety of a group calling themselves the Pirate Party, it
becomes clear that intellectual property disputes hold more complexity than media
trade organizations would have consumers believe.
The move to digital media
I go to Tiffany’s and steal a diamond necklace and put a picture of it on the

internet and promote it, does that mean I didn’t steal, because Tiffany’s
became more well known after I stole their necklace? See, some of the
arguments make no sense.
- LL Cool J (Committee on Governmental Affairs, 2003)
Internet piracy is theft, pure and simple.

- Cindy Rose, Managing Director, Disney, UK and Ireland (Monblat, 2002)
Author and essayist Malcolm Gladwell discovered a ‘theft’ of his work when the
Broadway hit Frozen took specific lines from a piece he had written for The New
Yorker. His first reaction echoed the industry’s canned response: punish as swiftly and
severely as possible. The play was discontinued. The author, Bryony Lavery, suffered
disgrace not only for lifting Gladwell’s work, but also for taking many details from
Dorothy Lewis’s autobiography, Guilty by Reason of Insanity, for use in the same play.
In hindsight, Gladwell came to realize that many of the ‘stolen’ portions smacked
more of typical, factual, less stylized phrases (Gladwell, 2004). One example was the
phrase ‘The difference between a crime of evil and a crime of illness is the difference
between a sin and a symptom’. He not only found evidence of this phrase in prior
writing, but also saw it used afterward in another work, again without attribution.
He even came to feel that this was more tribute to him (accredited or not) than it
was a merciless theft of his efforts. Gladwell’s conundrum reveals the enormous
rift between physical and intellectual property. While Gladwell comes across as
a compassionate man in his writing, it is unlikely that he would have shown such
understanding if Lavery had broken into his home and stolen his flat-panel television.
Or – if applying the legal price tags to IP – Lavery stealing Gladwell’s car, art collection
and antique furniture would be more comparable. This is more than just confusion
about the true value of IP. Rather, reactions such as Gladwell’s reveal misgivings about
to whom IP belongs, and to what degree – a greyness seldom seen with larceny.
This is why – among several other reasons – piracy began to rise with digitizing
formerly physical media. The music industry and their trade organizations would
have consumers believe that file-sharing music is the same as going into a store and
stealing a CD from the shelves. But there are clear legal, social and semantic contrasts.
From a purely legal standpoint, those who commit larceny often spend time in jail
with fines of no more than a few thousand dollars. Larceny is a criminal charge.
Digital piracy, in contrast, could mean a £50,000 fine in the UK or $150,000 fine
in the US for each infraction. Yet infringement cases rarely see the accused spend time
in jail because it is most often a civil matter. ‘Theft is theft’ – a favourite slogan of the
copyright rich – holds no legal power. A robber who wrenches a bag from an elderly
woman cannot compare himself to a kid stealing bubble gum by simply stating ‘theft
is theft’ in court.
Every society’s courts have varying degrees of theft, and what one nation
considers theft often fails to align with another’s definition. Historically, Saudi
Arabia did not punish stealing a book as it would theft of property, because the
book contained ideas, and ideas were no one’s property. As Lewis Hyde points out,
however, one nation’s ideas of property can infect and overtake another’s. Western
ideas of intellectual property now make stealing a book in Saudi Arabia a bad move
(Hyde, 2010).
Her Majesty’s Revenue and Customs (HMRC) in the UK and the Internal Revenue
Service (IRS) in the US hold conflicting views on physical and intellectual property
as well. If IP is the same as physical property, then why do content creators not pay
a tax on their IP holdings as one pays taxes for physical property such as a home or
car? Just as with property tax, the government could scale an IP tax according to the
market value of the property. One cannot argue that income tax alone answers, since
sellers pay the tax (as buyers do sales tax) on sales of either physical or intellectual
property. The reason is clear: IP is not the same as physical property.
Socially, too, there are myriad differences in physical and digital goods. Few
newspapers or media outlets would defend thieves of physical goods, yet journalists
often defend those sued for file-sharing music or movies. They portray them –
accurately or not – as victims of copyright trade groups such as the BPI, RIAA and
MPAA. This holds especially true in cases where the accused claims ignorance (an
elderly woman indicted for downloading rap songs), where the fine is abnormally
high (a middle-class mother of four sued for millions of dollars), or where the
defendant makes a fair use argument unsuccessfully (creating a program to allow
DVDs to play on Linux machines).
In addition, one cannot exercise fair use of private property. A teacher could no
sooner steal a coat for a demonstration of insulators than a satirist could hijack a car
as a part of a parody skit. With personal property, the law calls trying to penetrate
security breaking and entering. But fair use allows and encourages this with digital
media to bolster copy protection. It is important to understand the dangers of the
hard-line verbiage big media uses. It leaves little wiggle room for interpretation or
case-by-case judgement, but treats all levels of infringement as inherently criminal.
Of course, copyright infringement existed before digital media. Even a few
years ago, consumers would use two VCRs to make copies of rented movies, or use
tape decks and turntables to make mix tapes for friends. These acts saw almost no
social and little legal backlash. Now file-sharing has gone digital, and copying data is
easier and of a higher quality than ever. But is it a lack of respect for ‘property’ that
drives infringement, or the absence of social values in today’s youth? Or perhaps
infringement has merely grown alongside available media, and the technology with
which one may copy, remix and distribute it.
The industry views the physical/digital problem too pragmatically. They believe
that if consumers get the same media for which they once paid $20 (a CD of 13 songs,
for example), then they should be willing to pay the same price for having it digitally
delivered. This ignores the savings to the manufacturer and distributor implicit in
such a model. Occasional industry-driven stories claim selling digital media costs
as much as its predecessor. But it is unlikely that a CD from a store could or should
cost the same as bits moved through cable. After all, Shawn Fanning certainly could
not claim that it cost millions of dollars for Napster to work, and it was the largest
compendium of music ever created. The difference lay in e-commerce and copy
protection, which – for the consumer willing to pay for content – is not their problem,
but a problem of updating business models.
Another effect of digitization is that people who have used p2p programs to share
media have a high digital recidivism rate. That is, once they have tasted of the p2p
apple, they are unlikely to return to the old model of consuming media. Someone who
did not grow up with mp3 players but bought records, tapes and then CDs often has
solid, sometimes immutable ideas about enjoying media. In effect, ripping, burning,
copying and sharing – legal or not – are often lost on such people. But to others, file-
sharing has revealed that media can go anywhere. That they can store, organize and
play it in countless ways. That the most effective of these distribution models happens
to be illegal is of no consequence. Of course, the success of iTunes proves that such
models do not have to be illegal and can still turn profits.
Today, consumers – especially youth – also have different ideas of ownership,
just as they have different ideas of the value of digital information. The RIAA tries
to tap into the base part of our nature that covets physical objects, but now music
and information is not physical, but ethereal. This manifests not only in rampant,
thoughtless sharing, but in altered views of loss as well. How many consumers have
lost 100 CDs’ worth of songs when their iPod or other mp3 player was lost, stolen
or broken? Even when the loss is monetary, it simply is not the same as losing 100
physical CDs. And nor would anyone treat this the same. A police officer taking a
report about stolen property would not consider a fully loaded iPod the same as
several hundred CDs being stolen, though the two containers hold the same data.
Neither do insurance companies handling property claims.
The same holds true for movies as for music. Though a DVD’s contents are similar
to what one can download, the physical product is not the same. With a store-bought
DVD come plastics – the case, the transparent cover and the DVD itself. There is cover
art and often silkscreen art on the DVD. These represent several costly efforts that
are not applicable when downloading a movie. The DVD had to be shipped, handled
multiple times, and the store needed paid employees to sell it, which all factor into the
price. Even the rent and other operating costs of the business selling the DVD alter the
price.
Perhaps the biggest irony lies in the mixed messages trade organizations present.
On the one hand, theft is theft, so any unlawful copying mimics stealing a DVD or
a jacket. On the other, licensing agreements on consumer media pound in the idea
that consumers do not own media. They only own a licensed copy that bears several
restrictions with severe penalties for violation.
It remains problematic for big media to insist that consumers are only licensing
media and enjoy no ownership, and then expect them to value the media as personal
property. A lesson many car buyers have learned is to avoid buying used cars from
rental companies. Consumers simply do not treat rented material as they would
their own stuff. Digital media will overtake physical media in time. If rights-holders
continue a crusade of licensing as a means of limiting the number and the means of
usage, the view of intellectual property as physical property will continue to diminish.
Peer-to-peer networks
It’s this peer-to-peer technology approach that basically has formulated

opportunities for people like never before. And we’re moving more and more
into peer-to-peer technology.
- Senator Orin Hatch, Introducing Napster creator Shawn Fanning at a Senate
Judiciary Committee (Refe, 2009)
Napster was so clearly wrong that we should have been able to close it down
overnight.
- John Kennedy, President, Universal Music International (Monblat, 2002)
The advent of digital music was unavoidable. The only variable was whether it
would spawn from piracy or from the music industry. While the film industry had no
direct involvement in the debut of the VCR, the MPAA and film production companies
could have seized the opportunity for home videos right away. Instead, they fought
against allowing the VCR at all; another in a long line of resistances to technology
that continues just as vigorously today. When the first mp3 players hit the market,
industry trade groups fervently clung to the CD, forgetting the recent lessons of the
VCR and VHS tapes, and insisting that mp3 players only encouraged digital piracy.
Then-president and CEO of the RIAA Hilary Rosen claimed that they wanted to work
with companies to release digital music in a way that ‘protects the rights of the artists’
(Business Wire, 1998). But the RIAA filed suit against mp3 player pioneers Rio,
claiming that their player violated the Audio Home Recording Act. The BPI responded
in much the same way, petitioning ISPs to penalize known p2p users before a viable,
legal download service was available.
The increasing number of homes enjoying broadband internet by the end of
the 20th century also meant that digital music would make its way onto a sharing
platform. Again, the music industry had a real opportunity to be at the forefront of
such technology and ensure that it launched in a fair and efficient way. This did not
happen. Instead, with no legal alternative for sharing and downloading mp3s, piracy
met market demand.
In 1999, Napster debuted as the pet project of Shawn Fanning, a college student
who created a file-sharing platform that reached 25 million users and contained 80
million songs. It was the largest and most complete collection of music that has ever
been compiled before or since. Despite Fanning trying to negotiate with artists to
pay them for the music on Napster, the industry considered the amounts too low and
eventually saw the site shut down in 2001 (Ingram, 2000).
Ten years later, still nothing compares to the original Napster, and the industry
– after failed attempts laden with DRM – continues to indict Napster p2p offshoots
for projected losses. In an editorial written for the BBC Geoff Taylor, the CEO of BPI
record label in the UK, calls Napster the ‘Rosetta Stone of digital music’ (Taylor, 2009).
Yet he also recognizes that such a platform could never have turned legal because of
the difficulties of licensing and royalties. Napster was easy to use, safe and offered
unparalleled variety. No wonder it became so popular. And yet the music industry
still – more than a decade later – tries to clear rights to create something as profound
and functional as Napster. Even with sites such as Limewire meeting threats of
cancellation from ISPs and RIAA lawsuits, people still flocked to it. In 2010, when a
court order saw Limewire shut down, users simply began using Frostwire or some
other program tapping into the Gnutella network. Are such programs popular because
the content costs nothing or because Napster presented a model of what digital music
could be, and still is not?
Napster showed that a compendium of music could work logistically, and – if left
to flourish – may well have shown it could work commercially. Peter Jenner of Sincere
Management frames one such model in Good Copy, Bad Copy (Johnsen et al., 2007).
If 600 million people (a fraction of the total number of people currently consuming
music) paid $50 a year to subscribe to a total music compendium, the music industry
would match its current over-the-counter market – all with digital distribution. There
are problems with adding an externality charge to internet service, but to illustrate
the point, this would mean adding a few dollars a month and avoiding immeasurable
legal battles and an enormous grey area in modern media consumption. While the
logistics seem endlessly complex, Fanning created this in mere months. One single
college student compared with the research and development of the entire music
industry.
Such a platform would provide 80 per cent more music than a record store, since
only 20 per cent of all music is for sale at a given time. It would mean a safe, legal,
diversified means of enjoying music, pulling most retail customers and those now
trolling p2p sites to this compendium. So why has the industry not embraced such
an idea? Again, it is supposedly a logistical quagmire. Graham Henderson, head of
the Canadian Recording Industry Association (CRIA), responds to this idea in an
interview for the documentary On Piracy (McArdle, 2007). Emotionally, he posits the
rhetorical question of who would decide what to do with the money – where would
it go? This is a tacit acknowledgement that such a model would prove financially
successful, but logistically difficult. However, this would be no different from the
complexities of the current model, where labels, artists, distributors, retailers and
trade organizations calculate cost and profit division. The challenge of building a new,
digital infrastructure is hardly justification for clinging to the CD retail market, to
DRM, and to suing customers.
Perhaps the continued failure to monetize the Napster model is less a matter of
logistics as it is a fear of change. Only the naive would figure current conflicts over
copyright have to do with creativity or even piracy; they are about change.
Digital film piracy is a more recent issue than music, simply because of the
need for a broadband connection to download a full-length film in any reasonable
amount of time. While p2p programs such as Grokster and KaZaA could handle
film downloads, it was the bit torrent protocol that made digital movie sharing
mainstream. Without an internet connection, consumers could digitize their DVDs
using a decrypting program such as DeCSS or (later) DVDShrink. Portable movies
then became a reality. Sure, portable DVD players quickly became affordable, and
despite the drain on battery life, people could always take DVDs on the go via laptop.
However, with the rise of portable digital players such as the Archos and iRiver
players, the allure of portable film grew. Once the iPod Video entered the picture,
consumers wanted their movies as portable as their music.
Yet the same problems occur now with films as in 2000 with music. No legal
substitute for digital movies compares to what people can download using bit torrent
or p2p technology. In 2005, iTunes began selling films for the iPod, but with a catch.
The film prices remained high – as high as one might expect to pay for a DVD in a
retail store. And yet, iTunes made transferring movies difficult. Consumers could
not enjoy a purchased film in any way and on any media they wanted (called ‘space-
shifting’). Later, renting films from iTunes offered a lower-priced alternative, but
compared with $1 RedBox rentals or unlimited views via Netflix’s streaming service,
these alternatives arguably only compare to piracy in the loosest definition, and
mostly appeal to price insensitive consumers.
Often, instead of versatility, the market responds with exclusivity: the BluRay and
now-defunct HD-DVD technology. Sure, low-priced BluRay players and disks coupled
with price insensitive consumers’ wish to supplant their DVD collections will create a
heyday for BluRay – for now. But refusal to accommodate the price sensitive and more
on-the-go consumers with a digital alternative means that film downloads will only
continue.
This needs no other proof than the slew of sites making money from
memberships and adverts showing low-quality, camcorded films. Not all consumers
care about HD or 3-D technology; price and ease of use are still giant motivators. In
fact, most films available for download on popular torrent tracker site Demonoid are
700 MB or less (ostensibly to allow users to burn the media onto a conventional CD
instead of the more expensive DVD). Those touted especially for the iPod are often
even smaller – as low as 400 MB – since the definition can be much lower when the
film plays on a small screen.
Executive Vice-President and Secretary of Viacom Michael Fricklas is correct in
wanting to lower the costs of digital distribution through renting films instead of
selling them outright (Fricklas, 2009). But if iTunes prices for film rentals and the
inherent DRM of iTunes media management are any indication, such models have a
long way to go.
File-sharing and popular opinion
Captain Norrington: You are without doubt the worst pirate I’ve ever heard of.
Jack Sparrow: But you have heard of me.
- Pirates of the Caribbean: Curse of the Black Pearl
It is a mistake to quash the pirates’ purpose simply because they are pirates.
Indeed, a prevailing ignorance of pirate principles and values has made the industry’s
War on Piracy a failure – at least at dissuading infringement. Much copyright
infringement resembles licensed use. Both use existing ideas, media and content to
create something new. Often the difference is merely that the latter paid the copyright
holder and the former did not. If looking at the act of using another’s work, NWA’s
use of a riff from George Clinton’s ‘Get up and dance’ is indistinguishable from Jay-Z’s
use of ‘Hard Knock Life’. But the former was sued for sampling without payment; the
latter paid and was not sued.
Often a creative pirate – that is, one who remixes media regardless of copyright
or pirates software to aid in that creation – has the same ends as content creators
doing corporate works-for-hire. Pirates also want exposure for their work and the
satisfaction that comes with creating it. They want unfettered access to what has
come before, as well as the latest tools for media creation. Such pirates show universal
disregard for copyright: once at the back-end, when they borrow others’ media or
pirate programs for content creation, and then again at the front end, when they
release their work to the world. They seldom seek protection for works created from
protected works, for instance. Were it the norm to try to claim copyright on, say, a
song that clearly borrowed illegally from a copyrighted tune, and then to profit from
that song in a marketplace in which it competed with the original, then the current
industry response would be warranted.
However, the only possible way in which a no-cost remix competes with the
original is with empirical proof that fans of the remix then refused to buy the
original. And that is only if they intended to buy the original to begin with. Yet the
exact opposite has often come to pass: remixes create interest in the original works,
as shown by DJ Danger Mouse’s The Grey Album. Not only did it not hinder sales of
its forebears – Jay Z’s The Black Album and The Beatles’ The White Album – but it
increased exposure and interest in both earlier works. No one expected The White
Album’s copyright holders EMI to contact Danger Mouse and thank him for infringing
on their copyright, but threatening to sue – while standard fare – seems poor practice
here. Were Danger Mouse blatantly charging for his creation or doing some harm to
either inspirational work through market competition, then a cease and desist order
would make more sense.
Of course, not all pirates create. Many openly and wilfully violate all copyrights,
not for money, but rather for the freedom of information and ideas. No-cost
information, even in the digital age where it is so cheaply shared and perused, runs
counter to the dominant model of IP. Media bear a price, no matter how subtle; this
is the schema under which the information age now performs. Even if that price is
watching a 20-second advert preceding a 10-minute video or enduring pesky banner
ads to read formerly pay-for news content.
And yet, for pirates determined to enjoy freedom of information, the idea that
one would wilfully limit information for the sake of profit is as absurd as giving media
away would be to Time-Warner. Complete freedom – just as complete information
lock-down by magically granted ubiquitous copyright protection – becomes a polemic
issue for the pirate. It seems impossible to imagine a Hollywood blockbuster without
a good chance of high return on a studio’s investment. The pirate ignores this.
Despite evidence that quality, independent film on a shoestring budget can
entertain, enlighten and still preserve motivation for the makers, modern movie
studios might ask: what is the film industry without $300 million movies? Pirates
give little regard to budget, return on investment, or the ‘sweat of the brow’ inherent
in film when they share it online or download their own copy instead of buying one.
However, they would do the same for the independent film as they would for the
multimillion-dollar blockbuster: the lack of adherence to copyright principles is
identical.
The industry responds according to the money they wish to recover from a
project, among other measures, of course. The pirate responds precisely the same in
all cases: information wants to be free. One has to ask too what motivates pirates to
suspend their efforts. Mainstream media tell them that if they keep pirating, no one
will make music anymore. No one will make films or write books or invent. And yet,
year after year, this assertion proves false. In fact, with a lower financial barrier to
entry in many fields such as film and music, more people are creating now than ever
before. User-generated media will always fall behind blockbuster budgets, staffing
and technology, but that gap has grown smaller in the digital age. Now, game-inspired
fan-films look and feel as real as multimillion-dollar B-movies. Perhaps they trail
industry blockbuster quality, but they run close enough behind to earn favour from
the public.
The message to today’s pirates is that any day now, they will cause the end of
media. To the pirates creating media, this assertion must ring even more hollowly
than it does to much of the public. Only scant and unreliable evidence even suggests
declines in media investment and production. While industry rhetoric tells sob stories
of formerly prolific artists now forced to tour longer or jobless film industry workers,
it overlooks the growth of media creation as a whole. Now growth occurs more among
creators seeking payment in different ways. A band that pays the bills with CDs sold at
concerts instead of at retail stores may not make record labels wealthy, but they still
create income by making music. And their fans – doubtless riddled with pirates – who
come to shows but refuse to rush to Virgin Records to buy the CD push less money
through the RIAA, but still keep the bands rockin’.
The industry-driven image of pirates as loan rogues, organized crime syndicates
or even terrorist rings ignores the fact that much copyright infringement falls
to legitimate businesses. Recently, powerhouse Google, Inc fell under the pirate
umbrella, pushing for greater access to copyrighted works. Before looming as the
business behemoth they now represent, Google was already trying to fill their servers
with information. Public perception – especially among writers – held that Google
was scanning all written works, protected or not, and pasting them online for all to
see. This was indeed the case with works in the public domain in both England (in the
University of Oxford) and in several university libraries in the US.
Google limited the scans of protected works to a few lines based on user searches.
Opposition argued that because Google made a copy (redacted or not) they violated
copyright, no matter what the result, and also that public domain works in one
country might retain copyright in another. Perhaps a simple agreement whereby
site visitors selected their country (or more exclusively, where code checked the IP
address for the visitor’s location) could have solved the latter issue. But no one could
argue with the first point – the program did make a copy, even if limited on the front
end.
But is this another case of copyright culture shooting itself in the foot? Wouldn’t
widespread but redacted access to publications mean more exposure and thus sales
of those works? Alas, just as the MPAA is unlikely to admit that the unauthorized pre-
release of X-Men Origins: Wolverine increased its box office bottom line (Parfitt, 2009),
copyright holders denied that Google’s scanning project could increase exposure and
sales while still clearly violating copyright. This would be tantamount to admitting
that copyright law contains fundamental flaws, particularly in the digital age. That
every moviemaker’s worst nightmare – the leak of the film to pirate networks before
it even premieres – could prove a boon for return on investment. That an author could
benefit from allowing non-paying eyes a glimpse at their magnum opus.
Even the supposed paragon of anti-piracy, the MPAA, has admitted to illegal
copying of a film. When film-maker Dick Kirby submitted his documentary This Film
Is Not Yet Rated, he received word from an MPAA attorney that they had indeed copied
the film for distribution among MPAA rating board members. ‘It’s pretty disturbing,’
Kirby says in an interview with Slant Magazine ‘because here’s an organization that
spends all this time on anti-piracy, and their own definition of piracy is “any single
unauthorized duplication of a copyrighted work”. Which is, of course, my film. They,
by their own definition, have engaged in piracy’ (Schager, 2006).
In all of these examples, the industry image of the pirate fails to align with
copyright infringement reality. There are indeed counterfeiting rings and consumers
who pirate what they might otherwise have purchased, but this is only part of the
picture. So many infringers create in the same way as licensed content creators, or
use piracy as a means to create. Other cases of infringement are not the product
of ostensibly recalcitrant consumers, but rather businesses or even the same
organizations that otherwise vilify infringement.
The rise of Pirate Party politics
The arguments for every individual step towards a monitoring society may
sound very convincing, but we only have to look at the recent history of
Europe to see where that road leads.
- Pirate Party manifesto (Jones, 2006)
Intellectual property issues are irreversibly conjoined with politics. So long as big
media can afford more lobbyists, the copyright climate remains unlikely to thin out,
and prone to favour only corporate interests. Considering this rather bleak scenario,
forming Sweden’s Pirate Party seemed fated.
The Pirate Party’s politics are only radical when compared with the current
copyright and patent laws. If introduced to someone with no exposure to the current
way that information flows in post-industrial nations, the party’s ideas about shorter
copyright terms and revision (or even dismantling) of patent law would not seem so
radical. After all, we live in a time when the rise of stardom bears a distinct bell curve
over an ever-increasingly short period of time. It was obviously important for Hanson
to retain protection for their one hit ‘MMMBop’ while it was rising in popularity, at its
peak, and during its certain decline. Now, however, there is much less ground to argue
that a label should be able to sit on the copyright to that song for another 85 years.
On the surface, the only reason would be to collect a little money here and there if
someone used the song in a film or other media.
This same idea holds true with patent law. While a patent offers all sorts of
protections, it does not require the filer of the patent to take any action. What could
be the possible motive in completing the lengthy patent process and doing nothing to
put the design to market? Again, the ability to troll the current market in search of any
technology that might be infringing on that patent has now become a market in itself.
People need not create anything if they can simply sit back on a stack of patents and
wait for others, busy creating and trying to bring fresh ideas and innovations to the
world, to infringe on their patents and then force settlements.
One of the central platforms of opposition to the Pirate Party (largely from
industry trade groups) is to dismiss it entirely. They claim that no party with so
moderate and specific an agenda can possibly become a political force worthy of
attention. Director of anti-piracy operations for Warner Bros Entertainment for
Europe, the Middle East and Africa, Christian Sommer, offers such a waving off,
saying: ‘Their current agenda is too narrow to attract a broader electorate,’ and that
‘if the Pirate Party widened the scope of its political agenda, it would lose its identity’
(Meza, 2010: pA4). That Sommer thinks he can so easily dismiss the party is rather
convenient. It seems all one need do is pretend IP law is a small issue, and that each
nation’s current legislation deals with it just fine. Then opponents can banter about
arbitrary issues such as abortion, the death penalty and religion – the softballs of the
bipartisan systems. But IP is no softball. The information age will only grow in speed
and importance, outstripping moral, hot-button topics such as abortion that have
little bearing on a society’s economic or artistic contributions.
The Pirate Party gained a seat in the European Union in May 2009, gaining
more than 7 per cent of Swedish votes. This won them worldwide clout as a political
platform, no matter how many some try to marginalize them. When the Lisbon Treaty
was ratified in December 2009, the Pirate Party received a second seat. The party
itself – while still fledgling, even in Sweden – has begun a steady rise that has seen it
surpass several other parties to become the third largest in Sweden.
In purely logistical terms, ignoring whether the party is politically effective,
the party appeals to an age group of voters tired of partisan agendas. A group
that copyright culture treats as little more than consumers, despite being among
the largest contributors. The Pirate Party is sure to increase in power and pull so
long as it can keep a foothold and retain the attention of young voters. For others,
public support of The Pirate Bay (TPB) by the Pirate Party is their chief rationale in
favouring the party. While the copyright rich universally condemn TPB, file-sharers
worldwide know of and benefit from the large volume of files TPB represents. They
remember how political and economic pressures saw US law enforced on Swedish
soil from a streaming security camera during the raid on TPB servers in May 2006.
Sites such as Napster and Supernova have become so much legal chaff in their
current forms. But TPB refuses to go away, and that a political party not only refuses
to condemn them but lauds them publicly is refreshing, no matter what the other
implications.
While any political party must kowtow to online privacy to some degree, the
Pirate Party has made protecting privacy a leading issue. Continued widespread
surveillance in the UK, despite enormous costs with little empirical proof of return on
investment, and egregiously severe legislation such as the Patriot Act in the US, make
privacy an ever-growing undercurrent in the digital age. The Pirate Party’s concern
for protecting individual privacy while touting administration transparency appeals
greatly to voters tired of carte blanche legislation for defence or crime control.
In Germany, the Pirate Party quickly gained a foothold when former MP Herbert
Rusche, also co-founder of the German Green Party, joined the Pirate Party in 2009.
While still falling short of what Reuters calls ‘the five per cent hurdle needed to enter
parliament’ it is the fastest growing party in Germany. Even considering an aging
population, youth concerns over Draconian copyright laws and privacy could mean a
swell in political clout in short order.
More than 30 countries now have Pirate Parties. As UK Pirate Party leader
Andrew Robinson puts it, the various parties are ‘structurally and financially
independent’ (Espiner, 2009), but that they are cropping up worldwide shows a
common desire to see copyright laws reformed. As Robinson said: ‘The government
is saying that there are seven million people that share files in Britain, and that
file-sharers should be punished with a maximum fine of £50,000. The fact that the
government has threatened to bankrupt up to 10 per cent of the population shows the
need for a party that understands technology’.
Perhaps it is not news when the Pirate Party spreads to other nations. After all,
most nations have communist and anarchist parties that offer little threat to the
established, often bipartisan groups. The US has a party to bring back prohibition
that has little chance of passing any agenda. However, the short-term growth of Pirate
Party supporters and election to legislative bodies could speak of an inexorable rise in
their numbers and influence.
74
Responses to the Pirate Problem 04
N o single response to piracy transcends all players. With so many economic

incentives, business strategies and even ideologies at work, reactions to copyright
violation remain varied and often polemic. The copyright rich – industry rights-
holders – expect broad compliance to their government monopolies, even at others’
expense. Alongside constant legal action against businesses, a more personal, drastic
set of lawsuits targeted individuals. Here, the unfortu`nate digital pirates act much
like the hanged pirates outside ports of old – as a sign of intolerance and punishment.
Amid industry pressures and an overall failure to police piracy to the degree big
media might like, rights-holders turned to governments – their own and those of
foreign states – to enforce their copyrights. With tax money and trade leverage, both
nationwide and international laws governing IP were passed by legislatures, often
with less thought for the effects on civil liberties than for corporate bottom lines.
75 Responses to the Pirate Problem
With the rise of internet business came the threat of accountability for the pirate
problem. Industry concerns over bootlegs, file-sharing and copyright violation
spawned finger-pointing at internet businesses for allowing any violations. Costly,
heavy-handed and often automatic controls debuted to keep lawful internet
enterprise from becoming a haven for roaming pirates and bootleggers. But as piracy
continued, the focus also extended to ISPs for supplying the bandwidth by which
pirates could share files, upload infringing content and even sell bootlegs. With the
threat of lawsuits proving an ineffective deterrent, the industry-led governments
promised to take internet connections away from repeat offenders, even with scant
proof of copyright violation.
Content creators responded as well, some with fervent opposition not only to
piracy, but also to the digital age. Such reactions solidify the already hard-line stances
on both sides of the pirate issue. The only common thread through all of these
reactions is self-interest, leaving no one able to claim the moral high ground.
Rights-holder reactions
We know that we will never stop piracy. Never. We just have to try to make it
as difficult and tedious as possible.
- Dan Glickman, former Chairman and CEO of the MPAA (Johnsen et al., 2007)
Average people with average resources were finding themselves on the other
end of… very expensive lawyers and unlimited resources, and it felt like
terrorism.
- Michael Fricklas, Executive Vice-President and Secretary of Viacom
Litigating for what the industry now calls intellectual property crimes is nothing
new. Since the advent of patents, there have been patent lawsuits. Since widespread
book printing, authors and printers alike have used the courts to enforce their
monopolies. Historically, however, copying media was outside the ability of most
individuals, let alone the average consumer. Copying needed distribution channels
and cost-prohibitive equipment, and remained the work of pirate rings selling knock-
offs. Creating bootlegs for personal use proved impractical until well into the second
half of the twentieth century with the arrival of photocopying, magnetic tape and
personal video equipment.
The difference in the digital age is that copying has become so cheap, fast and easy
that no real barrier remains. The result is that now individual consumers may commit
copyright infringement several times a day with no intention of either depriving
content creators or rights-holders of money or monetizing the copied media.
Litigation against businesses or economic sanctions against nations remain an oft-
used if ineffectual means of punishing infringement. But industry-sponsored reports
from groups such as the Business Software Alliance (BSA) and the International
Federation of the Phonographic Industry (IFPI) show billions in supposedly lost
revenue not only from bootlegs, but also from individual file-sharing.
The RIAA decided to take the fight to the individual infringers in hopes of creating
a clear legal deterrent and effectively scaring consumers back to the retail CD. This
would make more sense if suing individuals made money that then went back to
rights-holders and – ostensibly – the artists. Even after many sticky fingers reached
into such a pot, that some compensation reached musicians might glean public
approval, even if under seemingly predatory circumstances.
As cases went, those not settled out of court (as the overwhelming majority
were), often garnered much media attention, most of it negative. The lawsuits that
immediately created flashbulb memories in consumers’ minds and typified the
individual lawsuit scheme may have been outliers. More importantly, though, is that
they all fell well within the bounds of current copyright laws. Such lawsuits nested
into one of two categories: socially predatory or financially absurd. In 2003, Brianna
LaHara was a 12-year-old living in a New York City Housing Authority apartment
with her 71-year-old grandmother. The RIAA sent out a bevy of letters threatening
legal action for file-sharing copyrighted tunes, and LaHara was among the unlucky
261 recipients. Eventually, the RIAA agreed to settle out of court for $2,000 (Borland,
2003a). Despite the size of the settlement reflecting a price tiered for LaHara’s age,
the case became a beacon for anti-lawsuit sentiment and the heartlessness of the
music industry.
P2P United, a trade organization representing Limewire, Grokster and other p2p
platforms, even came forward to pay LaHara’s settlement. P2P United’s Executive
Director, Adam Eisgrau, said: ‘Someone has to draw the line to call attention to a
system that permits multinational corporations with phenomenal financial and
political resources to strong-arm 12-year-olds and their families in public housing’
(Borland, 2003b).
At the same time, the RIAA accused senior citizen Sarah Ward of file-sharing
songs on KaZaA, despite her owning a Macintosh for which the p2p program did
not exist. Moreover, many of the songs were rap (Borland, 2003c). The RIAA later
dropped both cases, but the damage to public opinion remained. Despite the industry
view that anyone who violates copyright is a criminal, the public did not have little
girls or senior citizens in mind.
Long after the LaHara and Ward cases came those not settled out of court, which
traversed the full legal gamut through a federal trial by jury. A jury found Jammie
Thomas-Rasset guilty of file-sharing 24 songs and ordered her to pay $1.92 million.
The Native American mother of four worked as a natural resources coordinator, with
no assets to pay such a judgment. That the plaintiffs eventually offered a settlement
of $25,000 – far more reasonable than nearly $2 million – failed to stick in people’s
minds or appear in later news stories (McHugh, 2010). Similarly, when Sony BMG
sued Joel Tenenbaum for file-sharing, the jury award of $675,000 stuck in news
stories and public discourse, not the decrease to $67,500 – still considerably inflated.
The music industry made Tenenbaum a martyr, refusing his efforts to settle out of
court. This inexorably led to making Tenenbaum a cultural icon of us versus them.
One serious problem with music industry lawsuits is that suing individual
infringers results in a net loss. The only people profiting from suing music fans are
the lawyers and companies such as SafeNet who do the investigations to identify
file-sharers. Despite thousands of lawsuits, the resulting balance sheet looks grim.
The RIAA spent $64 million only to recover $1.3 million, while watching their public
approval plummet (Kravets, 2010). If anyone has become the poster child for how not
to deal with piracy it is the RIAA, and this sacrifice did nothing to fill their coffers, but
actually represented a sharp loss. If file-sharing is the music industry’s Moby Dick, the
RIAA is clearly Captain Ahab. Just like Ahab, the RIAA lawyers abused the resources of
their supporters to try to stop an indefatigable and spectral enemy.
With the money spent on lawsuits, the RIAA could have researched alternative
models for their clients’ music. Their supposed justification for stopping individual
lawsuits – a drop in piracy and an increase in digital music sales – likely had more to
do with available DRM-free alternatives at affordable prices than with the efficacy of
such suits.
Jonathan Lamy, Senior Vice President of Communications at the RIAA, said:
‘Before we announced the lawsuits, we spent years on various educational campaigns.
PSAs. Magazine advertisements. Artists speaking out. Instant messages to millions of
KaZaA users. You name it. We made extensive efforts to engage fans and inform them
about the law. It made a little difference’ (Ernesto, 2010).
For the RIAA, the singular goal is to stop music file-sharing, not necessarily to
create marketable alternatives. But the RIAA chose to view money pit lawsuits as wise
investments based on the file-sharing such cases deterred. In contrast, they might also
view every dollar that legal digital platforms earn as funds that might otherwise not
have come in at all. Every file sold, a file not downloaded and shared. In other words,
when dealing with a perceived threat and estimated losses, a countering approach
(legit digital music services), impacts just as much as a legal deterrent that bleeds
valuable public approval.
While individual lawsuits have slowed because of popular opinion and trade
group policy, the absurdly bloated judgments are unlikely to lessen, especially in
the US. Of the members President Barack Obama assigned to the Department of
Justice (DOJ), five are ex-RIAA lawyers, despite dozens of public interest groups
asking Obama for more non-biased appointments. While supposed to avoid conflicts
of interest, the DOJ showed quick support of the maximum fine of $150,000 per
copyright violation, and made the controversial Anti-Counterfeiting Trade Agreement
classified. Despite a more balanced appointment to Intellectual Property Enforcement
Coordinator or ‘Copyright Czar’, lawyers notorious in high-profile cases against file-
sharing platform Grokster and Capital Records’ case against Jammie Thomas-Rasset
assumed high-ranking roles in the DOJ.
Lawsuits against businesses will continue until a fundamental change in
intellectual property law occurs. Suing individuals, however, has never proved an
effective reaction to piracy, either by deterring file-sharing or recovering supposedly
lost revenue. As author and pirate DJ Matt Mason notes: ‘If suing customers for
consuming pirate copies becomes central to a company or industry’s business model,

then the truth is that that company or industry no longer has a competitive business
model’ (Mason, 2008: 59). Sensational and absurd judgments against individuals for
millions of dollars may have seemed a sound method for making other consumers
afraid to violate copyright and continue consuming by approved platforms. But such
cases also make victims of copyright infringers, and heroes of the copyleft.
State-sponsored anti-piracy efforts
At this critical time for our economy, it’s important to send a message that
the jobs created and maintained by the protection of intellectual property is a
national priority.
- Dan Glickman, former CEO and President of the MPAA (Albanesius, 2008)
See, in my line of work you got to keep repeating things over and over and
over again for the truth to sink in, to kind of catapult the propaganda.
- Former US President George W. Bush
Unlike businesses, governments often act contrary to the citizenry’s wishes. For
the copyright rich, having the state push down anti-piracy policy is preferable to
angering and alienating their customers.
When French President Nicolas Sarkozy was told he had illegally used a piece of
music in a UMP national congress meeting, his party amiably offered to settle for one
Euro. This is what a copy of ‘Kids’ by US indie rockers MGMT cost to download legally.
MGMT lawyer Isabelle Wekstein said: ‘This offer is disrespectful of the rights of artists
and authors. It is insulting’ (BBC News, 2009a).
Later, Sarkozy and the UMP chose to impose the three-strikes ruling, which would
give internet users two warnings from their ISPs about file-sharing or other copyright
violations and then stop their connections after the third infraction. The UMP settled
with MGMT for 30,000 Euros, enough to claim they respected copyright laws to their
fullest. Sarkozy’s one-Euro gesture made clear that he thought the 53 Euros he paid
for licensing was enough, no matter what the nature of later uses of the song online.
The resulting settlement did not come out of his pocket, though it is large enough
to prove cost-prohibitive for most people. If Sarkozy’s settlement represented the
norm, pirate DJs would owe countless sums, and everything from baseball parks to
corporate PowerPoints would become grounds for millions in settlements. While
France’s three-strikes tactic came after other government responses to digital piracy,
it embodies a fundamental flaw: when your own president thinks copyright is a joke,
how can citizens take government copyright enforcement schemes seriously?
Historically, governments defend businesses even at the expense of their citizens.
Perhaps this is because citizens have little say in whether to pay taxes, but businesses
can leave countries they find unfavourable for more obliging nations. Many nations’
legal reactions to the digital age fall in line with this historic schema: in defence of
current big business, laws can exploit individuals or stymie new businesses.
The recent Digital Economy Act in the UK, passed in 2010, is another government
effort to minimize file-sharing. The act enjoyed only modest support, coming from
the typical bevy of trade organizations and copyright holders. It endured political
opposition from the liberal, green and pirate parties. Britain’s two largest ISPs, BT
and TalkTalk, opposed the act for obvious reasons, since it relies heavily on ISPs for
enforcement. Once rights-holders contact them with lists of IP addresses committing
potential copyright infringement, the ISP must send out notices to their customers,
tally the number of notices, and report to the copyright holders periodically.
The act uses a graduated response, where the ISPs and rights-holders meet
subsequent violations with ever-increasing penalties. The ISP may cut off service, and
the rights-holders will fall back on lawsuits. Of course, a negative result of this is that
otherwise law-abiding citizens will have copyright violation act as a black mark on
their identities. Personal information has already grown cheaper and more accessible,
with little regard for privacy or outcomes such as identity theft or harassment. When
‘pay-up-or-else’ law firm ACS: Law demanded personal information from BT, the latter
sent it in an unprotected Excel spreadsheet later leaked online by hackers dipping
into ACS: Law servers (Halliday, 2010). When ISPs offer up customer information for
copyright enforcement, whether because of government acts or threats of litigation, it
spells danger for personal privacy.
Other than from economically vested entities, the only support for the act
was from the Design and Artists Copyright Society and the British Association of
Picture Libraries and Agencies. These organizations got on board because the act
was supposed to allow greater access to orphan works: media where the copyright
holder is unknown and cannot be found. This part of the act (Clause 43) was not
included in the wash-up session to pass the act, ostensibly because of opposition from
organizations with their own economic incentives. Photographers and other content
creators believe that allowing anyone to use orphan works after a search for the
rights-holder would threaten their current market demand (Coulter et al, 2010: 29).
Government collaboration on enforcing IP law has historical precedent. Now,
however, when everyone is a potential copyright criminal, the effectiveness of such
legislation and cooperation should remain suspect.
The international Anti-Counterfeiting Trade Agreement (ACTA), which entered its
final draft phase late in 2010, reads as more concerned about international trade and
hard-goods piracy than individual copyright infringement. However, what has many
people concerned are the changes to border control. While dramatics by mainstream
media portray ACTA as allowing border agents to seize, sift through and potentially
destroy iPods that may have pirate media, in practice it will prove far tamer. That
does not mean, of course, that it will be any less a violation of personal privacy, or that
border agents are any judge of fair use. They will certainly err on the side of caution,
seizing and destroying private property, even if only in outlier cases.
Canadian copyright activist Michael Geist suggests that it is the almost complete
lack of transparency of ACTA that has allowed the rumour mill to create a dystopia
of copyright enforcement (Geist, 2008). The US claims that releasing details of ACTA
before passing the act would compromise national security. In effect, impressions and
guesswork about how the act will perform default to a wary, reluctant scrutiny, and
with good reason.
Observing the act may be voluntary, but that does not mean that countries
refusing to recognize it will suffer no penalties. As with prior trade acts, ACTA will
benefit the copyright-rich countries by making copyright-poor countries (mostly
developing nations) enforce foreign copyright controls with limited benefit. In short,
ACTA may well be to developing nations what the Digital Economy Act is to ISPs. What
the DMCA (see below) is to software developers. What the copyright laws themselves
are to new content creators.

Above all others, one piece of government legislation stands out as purportedly
well-intended, but with decidedly negative outcomes. Passed into US law in
October 1998, the Digital Millennium Copyright Act (DMCA) forbids bypassing any
copy protection scheme or Technical Protection Measure (TPM) that safeguards
copyrighted information. This means anything from bypassing DVD encryption to
reprogramming consumer electronics. Consequentially, it blurs a legal line between
commercial and non-commercial use of media, especially fair use.
Corporations quickly adapted the new DMCA protection to ensure greater profits
through proprietary formatting. Since the DMCA impeded not only bypassing TPMs
but also whatever TPMs protected, companies began to use the DMCA to secure the
aftermarket. For example, Lexmark claimed that when a rival ink cartridge maker
created a cheaper cartridge, it had bypassed Lexmark’s TPM (Calandrillo and Davison,
2008). The competing cartridge had to fool the printer into thinking it was a Lexmark-
brand cartridge to work, and thus had bypassed a TPM used for authentication.
However, the only reason Lexmark would employ such a TPM would be to sell price-
inflated cartridges, not to protect against piracy.
But the DMCA goes beyond obstructing commercial innovation. The Sony Aibo
was an electronic toy dog made from 1999 to 2006. The Aibo responded to certain
voice commands and even visual cues via an infrared sensor. A hacker calling himself
AiboPet pushed the technical boundaries of the toy to find something he could
improve. AiboPet began to make tweaks to the Aibo’s coding that made the pet reach
beyond the scope of the early design. He posted these on his website, but left out
the Aibo source code. Alas, despite the success of the site and the implication that
such success meant site visitors owned an Aibo, Sony did not appreciate someone
bypassing their TPMs. So, despite no commercial intent and the site positively
affecting Aibo sales, Sony Entertainment Robots America ordered that AiboPet
remove all hacks and mods from the internet, telling him that he had violated the
DMCA. Yet when Sony suffered immediate public outcry over forcing AiboPet’s hacks
off the internet, they reneged and even released an Aibo programmer’s pack that
owners could use for non-commercial purposes. So what began as a case against
bypassing copy protection ended with encouraging it.
By making it illegal to bypass copy protection, violations became removed from
infringing copyright and more concerned with averting TPMs. The only legal battle
rights-holders had to win involved bypassed TPMs, not copyright infringement. The
DMCA forbidding technology to overcome copy protection in effect sidestepped fair
use. Stopping technology that bypasses protection may prevent pirates from making
perfect copies, but this cannot be separate from a program that allows for making fair
use backup copies. Similarly, when no reason warrants bypassing TPMs, it weakens
the foundation on which the protection stands. Then, even bypassing TPMs for
security purposes becomes suspect.
In a popularized case, Ed Felten and his team accepted a challenge presented
by Secure Digital Media Initiative (SDMI). They had three weeks to remove the
watermark from an audio file, and they succeeded. They had refused to sign the
confidentiality agreement with SDMI so they could then publish how they removed it.
When Felten was to present the paper at a conference, however, SDMI and the RIAA
threatened legal action (King, 2001). The irony was that because of the ambiguous
nature of the DMCA, Felten did not know if he had a legal leg to stand on. He did
not present the paper or publish it until a year later, when the justice department
assured him that doing so would not be illegal. So a team encouraged to employ a fair
use bypass of DRM could not share findings with the academic world, despite what
SDMI inevitably learned from their research. Duke University law professor James
Boyle created a fitting farming allegory where the produce is digital media: ‘By using
digital barbed wire, the content companies could prevent citizens from making the
“fair uses” the copyright law allowed… Cutting barbed wire became a civil wrong, and
perhaps a crime, even if the wire blocked a public road’ (Boyle, 2008: 87).
Thankfully, the US Congress stepped up and voted in legislation amending the
DMCA. It is now permissible to bypass TPMs so long as the purpose falls under fair
use. So, stripping the copy protection from a DVD is sound so long as consumers
intend to make a legal backup copy, and not because they want to create copies to
sell for profit. Also, these changes legally allow for software companies to release
programs that remove such TPMs. They work with the understanding that their
customers are using the software for fair use purposes and not violating copyright.
Before these amendments, courts could hold a company whose product might have
led either to bypassing TPMs or violating copyright accountable for their customers’
actions. This could have resulted in statutory damages capable of bankrupting the
software companies, and inevitably meant that few were willing to take the chance.
Thus, creativity and innovation suffered. Now, courts cannot hold companies liable
when customers use their products to violate copyright if violations are a potential
happenstance of the product and not its only use. These amendments also extend to
web services such as Google, who claim they are not infringing copyright by posting
thumbnails of images. Sites such as eBay do not hold sole responsibility for housing
infringing content so long as they respond to takedown notices within a reasonable
amount of time.
Callandrillo and Davison (2008) point out that even though legislation has
come forth to ensure that fair use can still reign over TPMs in the digital age, these
proposals have all but fallen by the wayside. A daily scan of IP news reveals copyright
holders’ continual attempts to thwart these new fair use allowances. Perhaps so
long as companies can sell programs to bypass copy protection for fair use, Congress
believes that all is well. But it is the conventional wisdom of society that matters here,
not what those immersed in copyright culture understand to be their rights. Just
because the minority knows they can strip copy protection for backups, education,
parody or other fair use purposes does not mean the average citizen understands
this. Without a clear, resounding voice telling the public their rights, they will err on
the side of conservative, restrictive uses for fear of legal backlash. Consumers are well
versed in what they cannot do, but have little understanding of what they can do. And
so long as that remains true, limitations will prove the overwhelming default.
All of these examples are about restriction, not freedom. That is not to say that
they will not incentivize some creation, but they will undoubtedly prevent other
creation. With IP, it is always a matter of balance. And so long as governments remain
to some degree the servants of the people, the balance may teeter from control to
freedom when incentivizing the few turns to restricting and criminalizing the many.
Copyright and internet business
The decision whether to buy a pirated Louis Vuitton bag is not a moral one,
but one about quality, social status, and risk reduction.
- Chris Anderson, Free: The Future of a Radical Price (2009)
Piracy funds organized crime and will destroy our film and video industry.
Piracy costs jobs and will destroy our music and publishing industry. Piracy
funds terrorism and will destroy our development and your future enjoyment.
Don’t touch the hot stuff.
- Australian anti-piracy advertisement
Much as copyright-rich governments use economic sanctions to persuade

copyright-poor countries to enforce their IP laws, so rights-holders in each country
make policing piracy the problem of business platforms that handle copyrighted
content. Trade organizations and governments put just as much pressure on
businesses they believe to be violating or allowing copyright violation as they do
12-year-olds and senior citizens. Policing the internet has many fulcrums of leverage,
and chief among them is the constant threat of lawsuits. The popularity of an internet
business directly affects its importance as a target for anti-piracy lobbyists, not
necessarily the nature of the infringement.
The enormously popular auction site eBay offers a fine example. When a US
District Court judge in Los Angeles rejected film-maker Robert Hendrickson’s attempt
to sue eBay for copyright violation for selling purportedly bootleg DVDs, it marked
a notable turn of events. The judge ruled that given the nature of eBay as an auction
intermediary and not a liable seller, it fell under DMCA protection, just as ISPs enjoy
protection. In short, the ruling considered eBay not responsible for pirate goods on
their site, just as ISPs were not responsible for file-sharing. But eBay did not then
become an auction site for all manner of fakes. Such a move would mean great legal
pressure from rights-holders far more powerful than Hendrickson, and the DMCA
would not protect eBay in every case.

eBay’s answer to addressing auctions or sellers who violate copyright was
Verification Rights Owner (VeRO), a program to report infringement and for
rights-holders to create ‘about me’ pages regarding permissions. Especially with
infringement of an individual creator’s work, the several-day lag time on addressing
claims met intense dislike. It may have come across as a double standard, since any
large corporations sending takedown notices likely met no such barriers.
And yet, from another angle, eBay might seem a bastion of copyright, pulling any
auctions that even approach infringement. They employ hundreds of people who
traverse thousands of auctions solely to stop sellers from hawking infringing material.
eBay also relies on buyer and seller finger-pointing. A customer receives a bootleg
copy of a film instead of the original, reports the seller, and eBay stops their auctions
or even cancels their seller accounts. Unfortunately, the result is that merchants
selling competing items will stop smaller sellers from taking hold by claiming that
their auctions violate copyright. Having eBay paint a seller with the pirate brush
begets varied and unpredictable outcomes. Not only can eBay pull auctions, but if they
suspend an account, accounts that follow bearing any ties to the one that purportedly
violated copyright will eventually and erratically suffer suspension as well.
Alas, there is little technical support with a service as automated as eBay. There
is simply not enough time to consider copyright issues on a case-by-case basis, so
the default is to cancel any auctions that someone says may violate copyright. For
instance, some sellers auction paintings based on others artists’ work. Anna Conti is
an independent artist who makes her living selling her original paintings as well as
prints. Her originals, of course, carry a premium compared with prints of the same
work. She found artwork on eBay where ‘the underlying structure of the image is
an exact duplicate’ of her work. She theorized the seller had ‘downloaded a copy
of the image from the web, printed it on canvas, and did a quick paint-by-numbers
kind of thing over the surface’ (Conti, 2004). Even if the case, this comes far closer
to plagiarism than to copyright infringement. The latter is against the law and eBay
policy; the former is regarded as unethical and unprofessional, but not illegal. To
punish the two with the same penalty (removing the auction and eventually banning
the seller) seems heavy-handed and runs contrary to eBay policy.
In other cases, eBay enforces not copyright but the supposed violation of software
licence agreements. Sellers have long auctioned freeware, software that is free to use.
Most freeware enjoys protection under a licence agreement that forbids anyone from
selling what are supposed to be no-cost programs.
But does enforcing copyright law provide eBay sellers and buyers with a better
environment? Few would argue that unfettered content – bogus or not – would do
the most good for the most people, not when so many buyers value authenticity
and view owning bootlegs as passively criminal. It seems likely that fewer bootleg
items will reach customers with this takedown model. Of course, so long as someone
wants to sell bootlegs and another wants to buy them, counterfeiting will remain
nearly impossible to wipe out. Such internet bootleg sales are safer on smaller sites,
however, and eBay likely loses little business for enforcing copyright in this way.
But what about cases such as the supposedly plagiarized art? Or auctions where
already no-cost software would enjoy greater exposure? Would such high-handed
penalties not easily extend to a photographer claiming that stock photos selling on
eBay were too near his intellectual property, only to guarantee less competition in
his chosen market? Or to a legal sale of a used copy of Microsoft Office, protected by
the first-sale doctrine, being pulled when Microsoft claims a violation of their licence
agreement?
But should it be eBay’s responsibility at all, and what does this do to eBay’s
operating costs? Obviously, despite the expense of the hundreds of employees tasked
with removing infringing material, eBay still manages to turn a profit. Indeed, since
eBay cannot stop all infringement, it is safe to assert that eBay profits from pirate
sales and copyright infringement, though likely nowhere near enough to cover their
anti-piracy expenses. This alone should convince content creators that eBay has as
little desire to carry infringing material as the rights-holder does.
eBay is not alone in having to ensure copyrights remain intact. The popular
personal ad site Craigslist presents a tempting platform for bootleggers. But with
the absence of eBay’s volume of sales, and since Craigslist makes no money from
the exchange, these are not so contested. There are few ‘power sellers’ on Craigslist,
which means less peer finger-pointing. Taking down possibly infringing material is
more complaint driven, or the responsibility of the rights-holder to ask Craigslist to
remove the ad. The site has no automatic code to detect possible infringement, but
sticks to its dated but effective format.
The Google-owned video site YouTube, while a haven for user-generated content,
also inevitably houses copyrighted material without permission. A video in which
film-makers embed copyrighted songs to play in the background is different from
selling bootleg copies of expensive software. Often, this does not mean that rights-
holders act any more practically. Even if videos contain copyrighted material as a
complement to something else, they are often still removed by rights-holder request
or even automatic code.
However, YouTube now uses a program called Content ID that allows copyright
holders to search for their content and either remove it by sending a cease and desist
letter, or something much more reasonable. Instead of taking down creative content
that contains copyrighted material, why not monetize the video by embedding an
advert to sell the song playing in the background? This is the power of Content ID: to
allow user-generated media that violates copyright, but still makes money for rights-
holders.
Media companies view Content ID with mixed emotions. Warner Bros remains
sceptical, and would still see infringing material taken down instead of monetized.
But most copyright holders embrace at least the choice of monetizing content, though
insist on having the ability to take down content as well.
When internet businesses must survey, remove and police copyright content,
their countermeasures should remain second to their business dealings, even if they
make money from such content. Just as a factory could go broke trying to enforce
every health and safety rule, internet businesses tasked with playing copyright cops
have to default to the path of least resistance. Often this is responding to cease and
desist letters or creating effective code to deal with and even monetize content. But
assuming any complaint justifies removing content, or that code can act judiciously,
will result in removing content that does not fall under copyright protection or that is
clearly fair use.
Internet service providers
The Internet’s gatekeepers, the ISPs, have a responsibility to help control

copyright-infringing traffic on their networks. The court has confirmed that
the ISPs have both a legal responsibility and the technical means to tackle
piracy.
- John Kennedy, Chairman and CEO IFPI (Efroni, 2007)
An ISP has no responsibility for what the customer does on the net.
- Internet Service Provider IKT Norway, in a letter to IFPI (Khoo, 2008)
File-sharing can mean a more individualized, direct form of copyright

infringement than selling bootlegs on eBay. And just as rights-holders have looked to
businesses to enforce their copyrights, they look for upstream accountability to force
anti-piracy leverage. Effective or not, ISPs offer an ideal pivot point on which to focus
their legal pressure.
Naturally, ISPs realize that even customers sharing copyrighted files are still
customers. So ISPs have grown reluctant to shut off internet service to individuals
reported for violating copyright. Such reports are often letters sent to the ISP with
details about the purported infringement, and the fated ultimatum. The ISPs may
simply ignore notices, pass them along, or actively address the infringement by
temporarily or permanently disabling the service.
Ignoring the letter seldom occurs because no ISP wants lawsuits, no matter
how badly they want to keep customers. Directly addressing possible infringement
can scare straight some customers while angering others. It could mean losing
subscribers to ISPs less concerned with anti-piracy tactics. Thus, sending a cease and
desist form letter has become the standard. Fear of losing their internet connection is
supposed to keep consumers from file-sharing, but is it working?
To answer this, consider a typical cease and desist letter from Cox
Communications. It comes by e-mail, a form letter with an ambiguous ‘Dear Customer’
address. It details how, for example, the Adobe Corporation has discovered that one
of the ISP’s customers has downloaded and shared what they assume is an unlicensed
copy of their product. In the letter, Cox is forthcoming with the choices. The accused
can simply leave the program in a shared folder and continue allowing peer access.
This means facing potential prosecution by the Adobe Corporation, or providing
evidence that the accused has a legal right to share a copy. This is mostly legalese,
since ‘all rights reserved’ implies that only the rights-holders may sanction copying.
The other choices are suspending use of the p2p program, or simply removing the file
from the shared folder.
For protocol, the message remains ambiguous as to whether to tell Cox, Adobe
or the security officer whose number is at the bottom of the form when choosing
an action. The path of least resistance, of course, is simply taking the file out of the
shared folder. Calling Cox to straighten the matter admits infringement, and the Cox
help desk has no protocol to deal with such notices.
Further infringement can mean another letter. It reads the same, with nothing to
distinguish it from the first save for the details of the infringed material. At this point,
some users might grow wary, wondering if three strikes means harsher action.
Here again, ambiguity creates fear and doubt, both of which beget a tacit
obedience to the law. And yet, the notices are little more than forwarded e-mails. Cox
gets the notice from the rights-holder and then sends it along. The copyright holders
suggest steps that Cox should take, such as making sure the infringer removes the
offending material and that they scale punishment for repeat offenders. There is
nothing in the notice that implies when Cox intends to stop internet service. This
could mean that Cox considers the looming, ambiguous threat of losing internet
service as an effective deterrent. It could also mean that Cox harbours less concern
for infringement, but concerns themselves much more with keeping customers by not
shutting off their service. Cox’s subtle and ‘good enough’ actions are reasonable and
make no demands with which customers cannot quickly comply. So, is it working?
It is likely that cease and desist letters dissuade most people from file-sharing,
leaving only an unavoidable percentage of further sharing by pirates unconvinced by
such deterrents. The question then becomes: is it worth the effort it takes to punish
the small percentage of internet users who will infringe on copyright no matter what
the penalties?
We have already seen that suing file-sharers is cost prohibitive, unpopular and
ineffective. But what about graduated responses such as France’s ‘three strikes and
you’re out’ tactic, which shuts off internet access after three infringement offences? Is
the threat of losing their ISP a reasonable, effective deterrent for those unmoved by
letters alone?
As with any anti-piracy measure, the price is restricting information, invading
privacy and losing customers, while the rewards remain ambiguous. There is no way
of knowing if those cut off from the internet begin to buy what they used to pirate,
or if their absence from p2p sites creates a measurable decrease in available pirate
media.
Even the threat of turning off internet services holds a couple of flaws. First, it
assumes that the accused will take no pains to find a more anonymous means of file-
sharing. If file-sharing on the Gnutella network netted two cease and desist notices,
switching to the bit torrent protocol could mitigate the dreaded third strike. The
accused could also use any number of public or business wifi signals to share files.
While the industry has tried to make p2p traffic the responsibility of the wifi provider,
this is a more difficult battle to fight. When hundreds of customers each day use the
wifi signal of a coffee shop, where internet protocol addresses are assigned on the
fly, users enjoy almost total anonymity. Even arbitrary sign-in pages offer little for
tracking infringement. But the use of such wifi signals is so overwhelmingly legitimate
that courts could find the infringement de minimis.
The second flaw is that booted customers go to a competing ISP and create an
account to replace the one they lost. Making such changes is difficult. It could mean
more expenses or slower speeds, and there are not an infinite number of ISPs from
which to choose. However, no matter what government legislation comes down, if
people lose their internet connections and want access badly enough, someone will
meet that demand.
ISPs are almost universally protective of their customers’ private information, but
this does not dissuade trade organizations or rights-holders from trying to get at such
data. Requests for personal data may well put ISPs in the hot seat, unsure of what to
hand over and how. Copyright holders take no responsibility for what ISPs eventually
release, but will ask for and gladly accept private customer information that ISPs have
no right or requirement to disclose. The unprotected spreadsheet of customer data
that BT sent ACS: Law provides an excellent example (Halliday, 2010).

Denying internet access might delay sharing, and persuade some either to
abandon file-sharing or to stay away from any action the industry might believe
violates copyright. But there is no concrete evidence that threat of internet
disconnection stops piracy any better than lawsuits. Consider a parallel example: the
library.
The library holds vast amounts of information, much of it still under copyright
protection. Anyone with a library card may use this media, even if that use violates
copyright. No one can stop library patrons from checking out movies, CDs or audio
books from the library and then ripping them at home. They could even share this
media online and no one would know the source. And while the libraries offer copy
machines for fair use, there is nothing stopping patrons from copying entire books,
magazines or periodicals. And yet, patrons who violate copyright likely use the library
for many legal purposes as well, just as online file-sharers use the internet for much
more than violating copyright.
Forbidding access to the library for copyright violation becomes invalid when
there is no way to identify infringers, though no one is arguing that the primary
reason for library use is infringement. Taking internet access from infringers echoes
the library scenario in every way but detection. The relevant question becomes
whether the file-sharing stopped by forbidding internet access justifies what it
takes away: all the other information and services of the internet. Within the web
are of course media and other for-sale items that even those accused of file-sharing
certainly bought. As long as the number of those who lose internet service because of
infringement remains low, the file-sharing networks will continue to contain stores
of data as if no one were missing at all. Yet those missing also no longer visit Amazon,
eBay and any other online retailers they would have patronized. Even if cut-off users
migrate to a coffee shop to download some music, it remains unlikely they will seek
out wifi to spend money online.
Literary defence of thick copyright
If you put your hand in my pocket, you’ll drag back six inches of bloody stump.
- Harlan Ellison, on file-sharing copies of his work (Rich, 2009)
While many content creators have embraced the non-commercial, unauthorized

use of their content, others hold onto a fervent belief that piracy will beget nothing
positive. That user-generated content, licensed or not, contributes nothing to culture
and is a reflection of a distracted, immature generation without morals or values.
Speculative fiction writer Harlan Ellison takes any infringement of his copyright
as an ad hominem attack. While it is unclear whether his infringement lawsuits
against ISPs and individuals have proved financially profitable, Ellison has filed
hundreds of them (Rich, 2009). Ellison’s stance on originality speaks volumes as well.
He filed suit against James Cameron and the film-makers of The Terminator claiming
the story drew from his work, despite the idea of a robot uprising and time-travelling
soldiers appearing throughout science fiction (Sanford, 2010).
Other times, a pro-thick copyright stance manifests in statements about piracy
filled with both anger and resentment at file-sharing, remix and the subcultures in
which they perform. Uber-famed fiction writer Stephen King said: ‘My sense is that
most of them live in basements floored with carpeting remnants, living on Funions
and discount beer’ (Rich, 2009). When someone leaked Twilight author Stephanie
Meyer’s newest work-in-progress Midnight Sun, she called it ‘a huge violation of my
rights as an author, not to mention me as a human being’. She even threatened to
cancel the series, writing on her website: ‘I feel too sad about what has happened to
continue working on Midnight Sun, and so it is on hold indefinitely’ (Meyer, 2008).
Often, these sentiments parrot big media rhetoric: that theft is theft, any
infringement is harmful, and piracy will beget an end to content creation. Few
examples reflect this rhetoric like Andrew Keen’s The Cult of the Amateur (2007).
Keen lambasts remix culture. He calls the artists releasing their work for remix ‘rather
like an expert chef who, instead of cooking a fine meal, provides the raw ingredients
for the diner. Or the surgeon who, instead of performing the surgery, leaves the
amateur in the operating chamber with some surgical instruments and a brief pep
talk’ (Keen, 2007: 59). Keen holds narrow ideas on what makes someone an amateur
or professional, though it is debatable whether he qualifies as a ‘professional’ writer.
Making an argument against today’s remix culture and user-generated content in
favour of media made and mixed only by established channels holds one important
flaw: that others, years earlier, made the same argument against the current,
outgoing model in favour of an even older model. Each generation thinks the previous
generation is tired and old-fashioned. Then later, they think the new generation has
no taste, values or appreciation.
Keen’s logic remains popular among the uninformed – those who despise piracy
because they cannot understand piracy’s place in our culture. Keen offers myriad
data about how piracy and the digital age create job losses while ignoring the natural
order of progress and technology. Indeed, the decline of CD sales and increase of
iTunes downloads and file-sharing has meant the closure of independent record
stores. But are people to mourn them any more than the closure of paediatric hospital
wings because of Jonas Salk’s perfection of the polio vaccine? Robotics has become an
integral part of any auto manufacturer’s line. Are people to protest lost jobs despite
the speed, quality and safety of robotic labour and automation? Curing cancer would
cost countless jobs, but we cannot delay distribution of a cure just to keep people in
work.
Arguing against automation and digitization for the sake of creating more jobs is
an act of fear, not reason. Keen’s view of piracy as no less than an ‘industry-destroying,
paradigm-shifting dismantling of 200 years of intellectual property law’ (Keen, 2007:
140) surely means to invite the same fear-laden head nods the rest of his drivel
invokes.
And yet, in some odd reversal, Keen devotes the last 30 pages of his book to
challenging everything he so emotionally and fiercely argues in the previous 200
pages. He condemns DRM, lauds digital music downloads, and recognizes that the
‘professionals’ he previously claims are so disenfranchised are seeing the light and
moving their writing, media and art to the digital world. Perhaps he spent a year
making what he believed was a rock-solid case against technology, but then, just
before going to print, saw solutions popping up before his book could hit the shelves
claiming the analogue sky is falling.
Alas, his foresight ends there, as Keen lists, among these ‘progressive’ ideas, anti-
piracy lawsuits. He cites a case in which Universal Music Group filed suit against
MySpace users allegedly swapping music, granting that ‘a significant percentage of
the site’s 140 million users are probably in violation’ (Keen, 2007: 199). He overlooks
the social impact of taking a platform like MySpace, which has become a boon for
new and fledgling artists, and trying to sue them into compliance or non-existence.
He writes that ‘the more that companies follow this example in protecting the rights
of their authors and artists, the more effective they will be in deterring digital piracy’
(Keen, 2007: 199).
Of course, forbidding sharing nullifies MySpace’s new role as the band and music
social network. It is Keen and his ilk’s trust in government and distrust of individuals
that makes this thinking so destructive. ‘We need rules and regulations,’ he writes
‘to help control our behaviour online, just as we need traffic laws to regulate how
we drive in order to protect everyone from accidents’ (Keen, 2007: 196). But just as
it remains debatable to what degree traffic laws prevent accidents, the same holds
true for internet law and other legislation that protects us from ourselves. Any case
in which the result of ‘protecting’ one group allows another to reap enormous profits
(law enforcement with traffic laws, and corporate media with copyright) should
remain suspect.
Also on the polemic against remix culture and piracy is author Mark Helprin,
whose book Digital Barbarism (2009) takes aim at any opposition to thick copyright.
Helprin elicits nostalgia of some past, bucolic, beautiful time before the internet
and digital piracy. A time that ‘was friendlier to mankind than is the digital age,
more appropriate to the natural pace set by the beating of the human heart, more
apprehensible in texture to the human hand, better suited in color to the eye, and, in
view of human frailty, more forgiving in its inertial stillness’ (Helprin, 2009: 12).
Helprin joined the copyfight after an editorial spawned slews of opposition. He
asks about his decision to write on the subject ‘who thinks about copyrights other
than the few who hold them?’ (Helprin, 2009: 27). This alone shows the detachment
that Helprin clearly longs for, and has certainly achieved. His idea that an opinion
piece on copyright was safe because no one would care reveals a wilful ignorance of
how important IP issues have rightly become. Helprin argues that there is a major
difference in copyright requirements since the drafting of the US Constitution,
because so few then relied on written works for their livelihood. But he assumes – in
spite of the enormous rise of IP as an economic force – that citizens would uphold a
wilful ignorance about it.
‘Would it not be just and fair,’ writes Helprin on copyright terms ‘for those who try
to extract a living from the uncertain arts of writing and composition to be freed from
a form of confiscation not visited upon anyone else?’ (Helprin, 2009: 30). And yet no
one will force ‘confiscation’ on him or any other current content creator. His words
sound as if creators have their work wrenched from their hands at the peak of their
popularity. But as copyright now stands, authors will not see the end of their own
copyrights, not by many decades. Helprin will never see his copyrights expire unless
he comes back 71 years after his death as a curmudgeonly ghost.
The fact of most importance here is that Helprin’s reaction to copyright terms
falls directly in line with his profession, and has financial implications. This hinders
a closer consideration of copyright terms, since it would be paradoxical for him to
question an ever-changing law so long as that law consistently changed in his favour.
When he addresses copyright issues directly, Helprin falls back on two popular
misconceptions. First is that those who question and seek revisions to current
copyright law, and want to mitigate any further IP controls, want all copyright laws
abolished. ‘And although they say what they want is ease of access, the revivification
of dormant works, and a reduction in costs,’ he writes ‘the opponents of copyright
view these mainly as useful auxiliaries to their argument, the heart of which is that
they want to abolish all forms of intellectual property’ (Helprin, 2009: 160). His
evidence for this statement is two quotes from a single source: a blog about copyright
issues. Some copyright opponents indeed favour abolishing copyright laws, but many
more seek rational, progressive thinking when applying IP laws, and not merely a
well-buttered legislature passing laws written by big media.
The other misconception occurs when Helprin confuses free content with no-cost
content. ‘Why must one seek not to pay for music or television shows that come over
one’s iPhone?’ he asks. ‘Why must content be free?’ (Helprin, 2009: 201) There is of
course a great difference between free from control and free of cost. When copyright
revisionists such as Lawrence Lessig and Wired magazine’s Chris Anderson author
books entitled Free Culture and Free: The Future of a Radical Price, the impression
becomes that they want all IP to have no cost. This is not the case, as both mentioned
titles have differing ideas of free, neither of which fits Helprin’s thick copyright ideas
about IP without cost or profit potential.
Helprin lumps the new wave of ‘barbarians’ who have no respect for copyright
in with people who ‘freely compromise their privacy as if there were no such
thing’ (Helprin, 2009: 19). However, if pirates own a passion other than copyright
reformation, it is the continuation or reclamation of privacy. Sites reporting news
on IP developments – Slashdot, Techdirt, Ars Technica and Torrent Freak, to name a
few – are just as rife with concern over digital privacy, and with good reason. Often
government-sanctioned law enforcement fights counterfeiting and piracy at the
expense of personal privacy and liberty.
If any anti-piracy authors harbour goals of ending file-sharing, however, writing
inflammatory books is a poor inception. Journalist C. Max Magee interviewed an
admitted e-book pirate with the handle ‘The Real Caterpillar’, who said: ‘One thing
that will definitely not change anyone’s mind or inspire them to stop are polemics
from people like Mark Helprin and Harlan Ellison – attitudes like that ensure that all
of their works are available online all of the time’ (Magee, 2010). Perhaps such strong
anti-pirate behaviour has become an identity for some writers, and having their
works shared – even works specifically favouring thick copyright and demonizing
file-sharing – is so much self-fulfilling prophecy. What it is not, however, is effective at
combating piracy, changing minds or furthering discourse.
98
Pirate Economics 05
I t is as important to understand the economics of piracy as it is any other effect.

Even when anti-piracy rhetoric frames monopoly enforcement as looking out
for artists, stopping organized crime and terrorism, or upholding social morals,
economics underlie all IP matters. Even those who oppose thick copyright often
harbour economic incentives.
Today, the copyright rich’s incentives are largely extrinsic: money. The copyright
poor’s incentives are mostly intrinsic: the reward lies in the action or creation. One
path is no more morally or ethically superior to another than it is clearly good for
society; they both respond to different incentives, and this is the source of their
incongruence. This means that no matter how much big media wivshes to demonize
piracy, that they believe it an obstacle to their economic survival remains the most
telling fact. It also means that when remix artists or file-sharers rally against the
copyright rich as oppressors, they oppose an incentive barrier, not a supreme evil.
99 Pirate Economics
Behind the economic curtain, however, reside the most revealing of piracy’s dark
secrets. The supposed smoking guns of piracy’s harm. The purportedly obvious evil
of corporate copyright. In reality, the pattern of chasing incentives and slandering
the opposition is independent of morals or ethics, and seems more like a business
model. It is more difficult to rally public support for something as sensible and stale
as a business plan, however, so the rhetoric continues. Key to understanding this
symbiosis is what the copyfight has caused, what it has allowed to happen, and where
it is going. This chapter goes beyond ‘piracy means greater exposure’ on the one hand
and ‘theft is theft’ on the other; beyond the surface rhetoric that mainstream media
presents as the complete story. It is a tale both older and deeper than most have been
led to believe.
The first-sale doctrine in digital media
DRM can encourage the best customers to behave slightly better. It will never
address the masses of non-customers downloading your product.
- Eric Garland, Chief Executive of peer-to-peer research firm Big Champagne
(Greenberg and Irwin, 2008)
HAL: I’m sorry, Dave, I’m afraid I can’t do that.

Dave: Why not? What’s the problem?
HAL: I think you know what the problem is just as well as I do.
- 2001: A Space Odyssey
Many mistakenly look at the current copyright climate and believe that it reflects
a purposeful balance between the interests of largely corporate rights-holders and
both new content creators and consumers. More often, however, any leniency in copy
protection, any wiggle-room in format, price or access reflects no altruism by the
copyright rich, but rather a court case narrowly lost, or a statute fervently opposed.
To turn a favourite patriotic phrase: ‘Copyright freedom isn’t free’. The small and
100 Pirate Economics
often shrinking privileges consumers and content creators enjoy and take for granted
represent hard-fought battles against the copyright rich. What today big media touts
as a feature or benefit to their products was yesterday’s gruelling court battle to
forbid such features or rights.
What the USA calls the first-sale doctrine and the EU calls exhaustion of rights
presents a fitting example. First-sale doctrine means that rights-holders only control
how the first sale of their intellectual property occurs. They get no say in how
following sales happen, just as long as the seller does not make a copy or violate the
patent. This is why online auction site eBay sells thousands of used DVDs, games,
books and other media without the copyright holder’s permission. Why libraries,
video rentals, and game stores can rent (or lend) IP without prosecution.
Most would consider these rights understood; of course we can resell, lend or
give away a game or movie. But rights-holders have tried to limit and even destroy the
first-sale doctrine since its inception in 1908. The digital age has only increased such
efforts.
Landmark case Sony Corp. of America v Universal City Studios, Inc found that the
VCR held enough non-infringing potential for courts to consider it legal and without
tacking on a fee for each blank VHS tape. But this was also about allowing consumers
to bypass the hefty prices for VHS films. With widespread VCRs came the demand
for videos, but with the prohibitive prices of major studio movies, few could avail
themselves of a home theatre. Instead, thanks to the first-sale doctrine, the video
rental store met market demand. The studios sold copies at a high premium to the
video stores, who then rented the tapes to consumers at affordable prices. Despite the
seemingly happy ending, this is not what movie studios had in mind. They were still
clinging to cinema revenues so tightly that their main advocate (Valenti) compared
the VCR to the Boston Strangler (Corliss, 2007). Consumers should not mistake movie
studios now riding the home theatre wave for all it’s worth as early compliance or
innovation. No, it was technology dragging the industry to the next evolution in film
kicking and screaming.
The first-sale doctrine also allows owners to sell their media at any price, even
if much lower than the retail price of a new copy. Think of the consequences of
this otherwise: a movie studio forbidding sale of their DVDs for less than $15 – the
amount they charge for a new copy. The owner would be stuck with them forever,
since no one would be willing to buy a used DVD for the same price as a new copy. A
yard sale with fully priced used books, CDs and DVDs would fare poorly. This would
also have a harmful environmental impact, since it requires far more hard goods to
meet demand. Those who buy used media may have bought less at retail, but they
would have bought some.
Now the same battle continues with video games, where major game labels
despise resale markets such as GameStop. They no sooner want gamers to buy used
titles than rent them. Neither adds directly to rights-holders’ profits. Ideally, media
manufacturers set prices with an understanding that a resale market exists and
that not all copy-holders bought their copy new. But while the copyright rich have
grown notorious for considering negative ripple effects from piracy, they often fail to
consider the positive ripples from resale and rental markets. These create interest in
games and keep gamers eager for the next generation consoles. They also push new
releases through taking reservations.
Alas, fighting piracy in other media has historically allowed all manner of anti-
consumer behaviour, and the game industry shows little difference. Game companies
tired of losing sales to the resale market have begun to skirt the first-sale doctrine in
several ways, largely under the guise of fighting piracy. The first is to embed DRM into
games that creates problems for resale, for instance only allowing users to install the
game so many times before the serial no longer works. Such was the case with the
hit title Mass Effect, causing widespread opposition (Marco, 2008). This dissuades
buyers who only want to save a few bucks when buying used, and do not want to
deal with the hassle of calling the company to try to get a new serial number. If this
countermeasure worked solely for fighting game piracy, then why make getting a new
serial number so tasking? To dissuade resale.
Another method is limiting gamers’ ability to register and enjoy online benefits
tied to the game if they bought a used copy. The game might have a unique ID, which
may only allow the first buyer to register and play online. Later buyers cannot unlock
these features simply because they bought the title used.
Embedding other copy protection, such as mandating the game disk be in the CD-
ROM for the game to play, seems a clear anti-piracy measure. But the result seeps into
blocking the right to resell as well. It prevents gamers from buying a copy, loading it,
and then selling the game used while still being able to play it. At the least, this delays
the number of used games on the market, since most gamers who bought the title
new will play it until they tire of it. The further effect here is that disks grow scratched
and worn. This negatively affects playability and reliability, and thus resale value.
And no matter what DRM game companies use, false negatives occur, locking paying
customers out of their legally purchased game.
Game giants such as Electronic Arts (EA) need not wonder whether heavy-handed
DRM can foster deleterious effects: they have seen it first-hand. When the hyped,
long-awaited game Spore debuted, gamers had to activate it online, and were only
allowed three installations. So much for allowing resale. While EA communications
manager Mariam Sughayer claimed: ‘We simply changed the copy protection method
from using the physical media…to one which uses a one-time online authentication’,
gamers remained unconvinced (Greenberg and Irwin, 2008). Spore quickly became
the most pirated game of 2008, and comments on file-sharing forums and Amazon
alike abounded with anger over the game’s DRM.
Conflict over the first-sale doctrine is just as fierce when dealing with reselling
software. Software manufacturers have devised a deceitful way of skirting the
doctrine, however – by using the ubiquitous and wholly ignored End User License
Agreement (EULA). This is the agreement that even US Chief Justice John G. Roberts
Jr admits ignoring (Weiss, 2010). It is written in legalese so thick and tangled as
to appear gibberish to most. ‘The convoluted legalese of the “end-user license
agreement” or EULA,’ write Gantz and Rochester (2005: 18) ‘seems designed to
discourage the customer from actually reading it and simply accepting the terms’.
Other companies opt for length instead of complexity, both to bind buyers’ hands and
to dissuade customers from reading it before agreeing.
The gist of these agreements is that customers only license the software, they
do not buy it. Therefore they have no legal right to resell it. Despite the first-sale
doctrine’s appearance in the US 1909 Copyright Act and again in the 1976 Copyright
Act, the courts have made contradicting decisions on first-sale doctrine cases when
dealing with digital-only media. In MDY Industries, LLC v Blizzard Entertainment,
Inc the court considered consumers mere licensees of software, while in Vernor v
Autodesk, Inc, such cleverly-worded EULAs had no power (Rotstein et al, 2010). This is
infinitely more complicated when considering other countries’ copyright laws. While
many have some form of first-sale doctrine, such as Exhaustion of Rights in the EU for
patents, when factoring in what constitutes a legally binding contract, the licensing
issue grows more complicated. EULAs, in other words, are more specific to a nation’s
contract laws than their copyright laws, making undermining the first-sale doctrine
more effective in some countries than in others.
In response, consumers have fought back against EULAs for the right to sell their
copy of the software they protect. Such disputes often end in the highest courts,
where it becomes a matter of semantics. Anne Loucks caused a stir online when she
created a cardboard overlay to have her cat Simba agree to any EULAs by stepping on
the keyboard. Legal hair-splitting abounded.
It seems the more ethereal the media, the more consumers forget about their
rights under the first-sale doctrine. This has been the case with digital music
downloads on the popular platform iTunes. As with many Apple products, the
premise is simple: the same program that plays music is also a private shopping mall
for more media. Celebrities touted the technology as easy, fun and freeing. No more
being bound to a CD case or home stereo.
So with millions spent convincing consumers that iTunes is so easy and versatile,
why is it almost impossible to control the music? Notably, users cannot share music
because of the syncing feature, since iTunes deletes all files on the iPod if the user
wants to sync it on another computer. The program enables syncing by default, and
syncing appears necessary even if adding a single song. With many earlier mp3
players, computers simply saw them as mass storage devices, onto which users could
drag and drop anything from audio books to music to pictures and documents. But
this did nothing to discourage file-sharing, so such devices met with legal fire from
the music industry.
When consumers downloaded a song from iTunes, few understood what they
were not buying. They bought the rights to listen to the song, to put it on their
portable device, even to burn it to a CD. But the freedom ended there, unlike when
ripping a music CD. iTunes songs came in a proprietary format called Advanced Audio
Coding (AAC). This disabled certain choices: notably, the ability to make copies or to
edit or sample iTunes songs, and what devices users could play their music on. Apple
spun these controls as benefits, calling the format ‘high-quality’ and the platform
‘quick’ or ‘convenient’. Apple portrayed songs forever remaining in iTunes as a boon
– far better than a CD collection or even a collection of DRM-free mp3s. The iTunes
EULA also included rules such as only using purchased media on up to five ‘Apple-
authorized’ devices and burning playlists only up to seven times (Apple, 2010).
Eventually, consumers grew tired of DRM on their music, of hitting a wall when
trying to share the songs, load them to a non-Mac mp3 player, or change computers.
In response to demand for DRM-free music, Apple charged a premium to convert the
songs, removing DRM for 30 cents per song. This was on top of the 99 cents each song
already cost. Apple did this when they introduced tiered pricing (79 cents to $1.29
per song), which many record labels had wanted for some time. Supposedly allowing
varied prices was the compromise Apple had to make so they could sell DRM-free
tracks. Repairing the DRM mistake, it seems, only hurt for consumers stuck paying
twice for their music.
iTunes DRM and the EULA still undermine consumer rights to resell purchased
tunes. A $15 CD with a dozen tracks can fetch a few dollars, but those who have
tried to sell their iTunes music have met with heavy resistance – legal, logistical and
technical. eBay watchdogs quickly pull auctions trying to sell iTunes songs. Now-
defunct online service Bopaboo tried to create a platform for selling ‘used’ mp3s and
even compensating the music industry from the resale profits, but quickly suffocated.
George Hotelling, despite the logistical nightmare, sold a single iTunes song
successfully. ‘I was able to transfer the song,’ he said. ‘I documented it, and Apple even
said it was probably legal. I think the biggest success was raising the issue in a lot
of people’s minds.’ In response to Hotelling’s actions, Apple’s director of marketing
for applications and services said: ‘Apple’s position is that it is impractical, though
perhaps within someone’s rights, to sell music purchased online’ (Hansen, 2003). This
runs counter to Apple CEO Steve Jobs’s assertion during the iTunes store opening in
April 2003 that people do not want to rent their music, they want to own it (Martell,
2007). But what is ownership without the option to lend, give away or sell your
property at any price?
Digital technology has affected first-sale doctrine in publishing as well. As more
print books spawn e-book counterparts, the first-sale doctrine creates grey areas. Part
of the challenge with e-books is figuring out how to adapt book-lending. Most people
have received a book after a friend or relative has finished reading it and have lent
books themselves.
Such an act with an e-book presents two obvious problems. First, if the e-book is a
simple, stand-alone file, then lending will likely not be lending at all, but copying. Why
give a friend the only copy of an e-book when you can easily make an illegal copy and
then you both have one? In fact, readers can make copies indefinitely and give them to
scores of people. This would surely cost sales eventually, though it might also create
interest in a book or series.
Second, lending regular books holds physical limits. One could not lend a book to
a friend in another country without expensive and time-consuming mailing. E-book
lending nullifies the costs and delays, but then where does the sharing stop?
E-book reader manufacturers know well the potential pitfalls of digital
distribution. Historically, Amazon effectively locked e-books into the Kindle with
proprietary formatting, no PDF or e-pub support, and no lending. With the arrival of
Barnes & Noble’s Nook, which reads e-pub files and allows lending, Amazon changed
their tune in October 2010, opening up a lending option. Alas, lending is limited to
two weeks and by rights-holder discretion. Not at all how hard-copy lending works,
but a start. The emerging Google Editions could easily allow for resale based on
managing titles in the cloud instead of having client-side files. However, since e-book
resales do not degrade the quality or necessitate shipping (as with used physical
copies), it is certain publishers will try to impose a clickwrap licence forbidding use of
the first-sale doctrine. Just like computer program manufacturers, they will claim the
licence allows use of the e-book but does not constitute sale of the item. But this could
meet the same end it did with software. In 2008, Timothy S. Vernor v Autodesk Inc
upheld that just because you call something a rental does not mean it is. McDonald’s
could claim its customers were merely renting their drinks and must return them
only to McDonald’s urinals, but that does not mean it would stand up in court or work
in practice.
Governments have not recused themselves from this debate, either. In the US, a
2009 decision in the Ninth Circuit banned the first-sale doctrine on overseas items.
This affects the ‘grey market’ where retailers buy items overseas for resale in the US
at prices lower than the manufacturer’s retail price. Supposedly resale creates an
unfair advantage, but the penalty is arbitrary control over the free market. Consumers
buying Omega watches in Switzerland cannot legally sell them in the US, for instance.
So where does piracy come into all of this? Are limits to the first-sale doctrine
having any effect on piracy? In short, no. Pirates have no wish to play by the rules
of either first-sale doctrine’s limits (such as not copying a work) or clickwrap
contracts. Pirates’ movies often come at no cost, and digitally, so they do not worry
about country codes or whether they may resell their DVDs. Release groups pride
themselves on sending only perfectly cracked games to torrent sites, so pirates need
not worry about keys, serials or online play. They do not concern themselves with
keeping their game disks in perfect shape, on-hand and activated, since they seldom
bother with physical media or continuous validation. Their music is in an open
format, not restricted in how many times they may burn, copy or move it. Pirates
glean songs from p2p file-sharing sites, already free from DRM and in whatever
format they want. They use the freeware program Floola for music management,
bypassing iTunes’ controls completely. They check out CDs and DVDs from the library
and rip them as easily as putting them into the computer. They know what plays on
their equipment, how best to share with others, and how to transfer between devices.
Their e-books are in PDF or e-pub format with no controls to prevent copies, lending
or cross-platform use.
In short, just as with so many other media restrictions meant to combat piracy
and ensure copyright stays intact, no countermeasures to the first-sale doctrine
– EULA, access bottleneck, format or platform – either mitigate piracy or harm
the pirates’ freedom. They only affect paying customers, and almost exclusively in
negative ways.
In fact, as long as the industry responds to digital media with greater controls
and no further benefits, piracy may well become the de facto means of reclaiming
that control. One could argue that DRM exists not to keep pirates out, but to keep
customers in. Keep them from infringing copyright, regardless of consequence. Alas,
most DRM schemes punish the legal users while doing nothing to inhibit or penalize
piracy. Companies cannot scare off the latter without alienating the former. When
consumers discover they cannot share music with friends as they used to swap mix
tapes, cannot lend e-books like they could their paper counterparts, cannot watch a
movie on a neighbour’s television, and cannot resell any media because of licensing
issues – well, the freedom, ease and control of pirated media will begin to shine, and it
will have nothing to do with the price.
The economics of the music CD’s decline
Home Taping Is Killing Music

- 1980s BPI anti-piracy slogan
Anti-piracy arguments claim that the steady decline in CD sales provides the
smoking gun for the damage piracy causes the music industry. However, closer
consideration begets scepticism. It is far more likely that consumers’ money is
spreading across the various media now at everyone’s fingertips, marginalizing music.
Or that artists now reap financial rewards beyond recording contracts or royalty
cheques.
There is plenty of evidence that musicians enjoy enormous success touring and
selling merchandise. Naturally, trade groups favour CD sales because it makes them
more money. So while trade organizations bombard consumers with anti-piracy
rhetoric about decimated CD sales, people hear little about the success of touring
artists or merchandising. They hear nothing about how other media – from video
games to internet social networking sites – imply that consumers are spending less
time and money on music.
According to industry-funded studies, all media suffer sharp losses because
of piracy, and yet only the music industry claims a steady decline in sales over the
last decade. Logically, this raises a red flag. If piracy is the only reason for an overall
decline in CD sales, then why is it not also declining long-term DVD, book or video
game sales? Video games in particular are a booming industry despite massive piracy.
This runs counter to music industry doom-saying.
In reality, there are only so many hours in the day, and so much money consumers
are willing to spend. With many other entertainment media, music and movies now
have stiff competition. Surely this comes up during industry board meetings and
strategy sessions, but it evades the public discourse. Publicly, piracy is the sole reason
for declining CD sales.
When research is examined beyond industry-funded studies, the waters grow
murky. Felix Oberholzer-Gee of Harvard and Koleman Strumpf of the University of
Kansas conducted an intricate study of file-sharing to discover its relationship with

decreased CD sales. They determined that ‘the estimated effect of file sharing on sales
is not statistically distinguishable from zero’ (Oberholzer-Gee and Strumpf, 2007: 3).
So perhaps this is a case of correlation, not causality. Just because file-sharing has
risen at the same time as CD sales have fallen does not mean the former caused the
latter. In the same way, teen video game use has increased alongside ADHD diagnoses,
but arguments for causality need much more than timing.
As Oberholzer-Gee and Strumpf (2007) point out, in the US ‘households without a
computer... report that they reduced their spending on CDs by 43 per cent since 1999’.
This study also found that, not surprisingly, the popularity of an album (measured
in CD sales) meant a proportional increase in downloads, and that the p2p network
the study used (OpenNap) closely reflected songs on the playlists of the top 40
radio stations. This opposes what the RIAA would have people believe: that more
downloads mean more lost CD sales. Clearly radio playtime, advertising and a band’s
popularity dictate CD sales, not illegal downloads.
The study also found that ‘there is no evidence that albums with more
concentrated downloads suffer disproportionately from file sharing’ (Oberholzer-Gee
and Strumpf, 2007: 33). This implies that more people download albums with better
songs, but consumers buy these albums more too. In fact, many albums may only have
one or two songs that show up on a p2p site. So when the RIAA suggests that each
downloaded song represents a lost CD sale, common sense suggests otherwise. Many
songs on Michael Jackson’s Thriller album became hit singles, but few people share
or show interest in songs other than ‘MMMBop’ on the Hanson Brothers’ same-titled
album.
‘It is worth stressing,’ write Oberholzer-Gee and Strumpf (2007) ‘that extended
sales slumps are common in the music business, even prior to file sharing. While real
revenues have fallen 28 per cent over 1999–2005, real revenue fell 35 per cent during
the collapse of disco music in 1978–83. Real sales also dropped six per cent over
1994–97.’ This does not even consider the other elephants in the room: how iTunes
sales have increased during this slump, and how the Western world still reels from a
global recession.
So who is to blame for declining CD sales if not pirates? While the BPI and RIAA
have their red herring in file-sharing, there are many other causes to consider. The
economics of CD sales have been the subject of huge numbers of journal articles in
respected publications, with little resembling a common thread appearing. Interested
parties need only sift through these studies long enough to produce enough evidence
for their own argument, whether for or against file-sharing. Some argue that file-
sharing has a direct correlation with declining sales, others that sharing stimulates
sales, and still others that it is only one of many reasons, and probably not the most
significant.
This ambiguity even amid respected, researched and intelligent articles sends
an important message: there are no definitive, bulletproof links between file-sharing
and declining CD sales. Indeed, one could say the same for file-sharing contributing
to greater sales. Instead, consider a few of the other researched culprits for declining
sales:
1. The sale of other music formats, such as vinyl records, especially in the UK. No
doubt if trade groups collated all music formats instead of isolating their cash cow
CDs it would make the decline in sales less pronounced.
2. Online music sales. So often, gloomy projections and supposed losses presented
by trade groups leave out the definitive growth of digital music sites such as iTunes.
This is like claiming that buggy sales have dropped because of horse thieves while
ignoring the advent of the automobile.
3. The rise of other entertainment media such as video games. While annual
income and consumer debt have risen in the UK and the USA, so have the available
means of entertainment. The same people who used to watch three hours of television
a day and listen to the radio cannot now also play video games for three hours a day
or watch a DVD a day. The math does not add up. Newer forms of entertainment will
inevitably invade older media’s time.
4. Effective resell markets, such as Half.com and Amazon. Thanks to the first-sale
doctrine, consumers can resell most media, and many companies have risen to meet
the demand for such business. Formerly, physical stores selling used media were scant
and consumer demand heavily favoured buying new. But the limited number of trade
paperback stores and record exchanges were nothing compared to the powerhouse of
today’s used media sales online.
The only certainty with media sales, whether CDs or e-books, is that no one
format, platform or type can reign forever. Whether through emerging technology,
consumer behaviour or market competition, the peaks and valleys of media sales
remain unavoidable. Looking to piracy as the crowning cause may rally some
consumers to choose a side, but will eventually bring disappointment. When the
music industry finally unmasks its villain, it is unlikely to reveal a be-patched
swashbuckler, and by then everyone else will have moved on.
Consumption patterns across media
The costs associated with Internet2 are so exorbitant… that it would likely
take an act of Congress to make it freely available.
- Josh Brandon, PC World (2008)
Since the birth of the internet, trade organizations such as the MPAA have
continued their historical predications of impending doom for the film industry.
Recently, this apocalypse became certain once consumers gained broadband speed
connections. At the turn of the century, as more ISPs began to offer broadband speeds,
the fear mounted, culminating in gloom and doom news coverage such as the 2002
BBC documentary Attack of the Cyber Pirates (Monblat, 2002). Ostensibly to add
timeliness to an otherwise objective programme, it mentions the rising broadband
threat. How ‘the industry believes that the next few months will be crucial in their
battle against the cyber pirates’ since ‘the cyber pirates think they’re gaining the
advantage over the industry’. Cindy Rose, Managing Director of Disney in the UK
and Ireland, said in the programme: ‘We’re really at a crossroads, and what industry
players and the government does next could very well determine whether the
internet ultimately becomes a place for illegitimate commerce or a place for legitimate
commerce’ (Monblat, 2002). While this doom-saying remains mild compared with
Valenti’s ‘tidal wave just offshore’, it represents another in a line of empty threats
by industry lobbyists. The next few months did little to affect the current copyright
climate, just as nearly a decade later, the following months will also not decide the fate
of the internet as a business or personal communication technology.
Of course, broadband meant users could download more films in less time, but
studios kept making films. In fact, the average investment for a film saw no decrease
after high-speed internet, but continues to increase, as it has for decades.
Also humming in the background looms the threat of FAST or Internet2. Valenti
cited demonstrations he witnessed at Caltech, where ‘supersonic download speeds
being developed right now’ could ‘download a DVD quality movie in five seconds’
(Levy-Hinte, 2004: 73). This demonstration took place in autumn 2003, and the
technology was supposedly rolling out in the next 18 months. In September 2003,
he told the US Senate Committee on Governmental Affairs that ‘we are under attack’.
Of his efforts in response to this attack, he said: ‘We have embarked upon a public
persuasion and education campaign with TV, public service announcements, trailers
in theatres, and an alliance with Junior Achievement with one million kids in grades
five through nine studying what copyright means and how it is of benefit to this
country, and to take something that doesn’t belong to you is wrong, and that no nation
long endures unless it sits on a rostrum of a moral imperative, and that is being
shattered’ (Committee on Governmental Affairs, 2003). Yet now, many years later, no
FAST, no Internet2, and internet speeds that few would describe as ‘supersonic’.
Other thick copyright supporters argue that it is the exact duplication of media
that has them concerned. Viacom lead lawyer Michael Fricklas, in a speech given
at Yale University in October 2009, said: ‘My issue is with the exact copy’ (Fricklas,
2009). This was after – in complete contradiction to the MPAA’s doom-saying about
broadband meaning the end of the film industry – Fricklas admitted that p2p movie
downloads are on the decline. Of course, he went right into setting up the next big
threat – streaming video. Ironic, since no industry-endorsed music service ever
rivalled Limewire, and yet Netflix arguably offers a streaming service superior to sites
streaming pirate content.
Even Valenti historically showed far more concern over ‘perfect’ copies. Often
the film industry sniffs at ‘camcording’ as merely the chaff of shady ne’er-do-well
bootleggers, uncommonly regarded with the same anxiety as exact copies. Indeed,
as DVDs (5–7 GB in size) make way for BluRay disks more than 20 GB, the ability to
make exact copies for digital distribution has grown more difficult and costly. Even
bootlegging hardware needed to make exact BluRay copies costs far more than for
DVDs. This means that sharing perfect copies online has grown more difficult as the
size of films have exceeded the speed of internet connections. To be sure, connection
speeds will increase in time, but so too will film sizes.
It remains unlikely that films of high quality will ever become as simple to
download, store, access and manage as music tracks. And no matter how many times
people compare downloading films to file-sharing music, there are fundamental
differences to consider. In addition, as the ease of copying increases, so too does the
potential ease of distribution. Big media seldom embraces opportunities to profit by
new distribution models, however. What stopped the music industry from embracing
Napster instead of shutting it down was adherence to the current licensing and
legal schema. The result of that adherence means no industry-sponsored platforms
compare with the ease, efficiency, selection and sheer number of users that Napster
created, even now.
These differing consumer habits affect so-called ‘hard goods piracy’ as well.
Bootleg DVDs are everywhere from British boot sales to US flea markets to Thai street
vendors. If fakes represent such a threat, it seems counter-intuitive that film studios
would invest millions in films that must rely on almost 80 per cent of their revenue
coming in DVD and other aftermarket sales. So which is it? Has the internet and the
widespread availability of near-perfect counterfeit copies destroyed the film industry?
Or do studios still invest millions of dollars per film, with a huge part of a film’s profit
coming from cinema openings and genuine DVDs? The answer is obvious to anyone
who visits the cinema or rents DVDs.
James Boyle presents another notable difference. ‘The movie industry’s doom-
saying aside, there is no exact movie equivalent of Napster and there is unlikely
to be one in the near future. This is not just because movies are longer and harder
to download than songs. It is because most people only watch a film once. Most
people do not want a library of two thousand films to play again and again. Music
is a repeated experience in a way that movies simply are not, and that social fact
profoundly affects the likelihood of downloading as opposed to rental’ (Boyle, 2008:
102). Implicit in this observation is that those who would download a collection
of 2,000 films are not the same consumers who would have bought those films,
especially movies of a degraded quality.
When considering distribution, adding controls and assessing potential losses,
rights-holders must consider the time it takes to consume the media as well. Not only
do people not consume films in the repeated fashion that they consume music, but
it is impractical to assume they could. Songs are about 4 MB compared with 4 GB for
films (ie 1,000 times smaller), and last four minutes compared with two hours. In
today’s fast-paced world, consumers simply do not have the time to consume films
at the same rate as songs, let alone the storage space. But even space matters little
sometimes.
Consider the tiny size of a typical e-book in e-pub format. Many are only about
500 KB, meaning that a 1 GB jump drive could hold 2,000 e-books. With the arrival
of affordable e-book readers, and with free, easy-to-use e-book reader applications,
the ability to enjoy such books is commonplace. So, with such a small file size and so
many media able to read e-books, why have all the Waterstones and Barnes & Nobles
not shut down? Where is the Napster for e-books?
The answer lies in the time needed to consume a typical book. Reading a book
takes days, whereas movies take hours, and music minutes. Also, many readers still
prefer the tactile feel of a physical book. They may dislike reading digital text, no
matter how easily they could find pirate e-books. So despite the occasional gloomy
news story about piracy affecting the publishing industry, it remains debatable that
the limited availability of e-books on p2p networks affects sales at all. The most
common e-books remain enormously popular titles such as Harry Potter or Twilight;
books with derivative movies, merchandise and offshoot projects.
To whatever degree consumers pirate e-books, the ‘sampling effect’ is more
likely than with other media. Critics hotly debate whether file-sharing begets more
or fewer music buys. But downloading music playable on any media is different from
downloading an e-book. Reading an entire e-book, especially for consumers without
an e-book reader, is less likely than sampling the work and considering buying the
hard copy. And research shows that consumers who do have e-book readers buy
more e-books than they used to buy hard copies (Frisch, 2010). This has not stopped
the publishing industry from playing Chicken Little, much like the film industry.
Mainstream media coverage offers the same bleak predictions about the advent of the
e-book reader as when the VCR debuted.
The video game industry similarly ignores how people consume when
considering anti-piracy strategies. ‘PC games are massively pirated because you
can pirate them,’ says Brad Wardell, chief executive of game manufacturer Stardock
(Greenberg and Irwin, 2008). By this logic, the ease of use, small size and universal
format of e-books would mean no reader would willingly buy an e-book. It ignores
how people consume games, but also any strategy to use copyright other than as
control. Wardell goes on to argue that pirated games’ user-friendliness is a greater
factor than their price. But most games, regardless of DRM, have a reliable percentage
of copies pirated. If DRM (Stardock uses serial numbers) were an indicator, then
games with no protection such as Sins of a Solar Empire would not sell at all.
For big media, perhaps it is time to consider how people consume media, and
create the best possible revenue streams based on the technology of ease of use,
selection and distribution, not restriction and assumed infringement. Clearly,
consumers experience film differently from music, and games differently from
literature, so applying identical anti-piracy models will bear dissimilar results. That is,
if any industry’s anti-piracy tactics are worth emulating to begin with.
Piracy’s economic impact
Taken together with the value of domestically produced and consumed

counterfeits and the significant volume of digital and fake products being
distributed via the internet, the global impact on legitimate business revenue
is well over US$750 billion.
- Business Action to Stop Counterfeiting and Piracy (BASCAP)
Health authorities fear this strain, or its descendent, could cause a lethal new
flu pandemic in people with the potential to kill billions.
- New Scientist report on avian flu H5N1, which killed 322 people over seven
years (Bradford, 2006)
A tenet of the fight against digital piracy is the supposed economic damage it
does to both producer and consumer nations. With trade groups such as the BPI and
RIAA, a key concern in winning over the public is to appear the victim in the War on
Piracy. To seem as if all litigation and countermeasures are in defence. No one would
sympathize with or show loyalty to a faceless organization that rakes in millions a
year but produces nothing without some serious sleight of hand.
A favourite tactic to rally public support is to claim that pirates steal money and
cost jobs. Citizens of post-industrial nations have a soft spot for economic fairness.
Stealing is almost universally despised, and jobs are a hot-button topic at every
election, so integral to a nation’s success that many economists treat unemployment
rate as a sure-fire marker for a country’s economic stability and where they are
trending. Hearing that piracy costs jobs is almost guaranteed to strike a chord with
the public.
The Business Software Alliance (BSA) is a private corporation that advocates for
their customers’ IP. That is all. They are not a government-inspected or approved
entity for claiming economic loss because of piracy. Their clients have IP that they
want protected from illegal use, so the BSA’s best interests are to rally public support
against piracy, and keep their clients happy.
The BSA presents many reports on the supposed egregious economic effects of
digital piracy. One annual report focuses on lost revenues and the resulting job losses.
Those writing on intellectual property issues often cite these BSA reports as valid,
objective data from which to make their arguments. However, there are fundamental
flaws not only in the BSA’s logic, but in any argument that claims economic impacts
from piracy, particularly domestic piracy.
For instance, the BSA claims that pirated software and games value at $51.4
billion annually and cost hundreds of thousands of jobs. This assertion has two
important flaws. First, it remains almost impossible to assess piracy losses because
software is an ethereal product. The only ‘loss’ is the money the IP owner could have
received from infringers had they not obtained an illegal copy of the software. In other
words, unlike a thief stealing a CD from a brick and mortar store, digital piracy is a
fluid and wispy thing to calculate. That does not stop organizations like the BSA from
asserting their findings are accurate, or anti-piracy advocates from using such figures
liberally.
How does anyone know how much those who pirated a copy of Photoshop were
willing to pay for it? Perhaps they only wanted it at no cost, unwilling to pay anything.
Perhaps they only downloaded it for amusement, as a challenge or statement.
Maybe they already owned a copy, and wanted a digital copy for backup. Possibly
they already had a digital copy, did not have it handy, and decided that downloading
another copy was easier than finding the old one. None of these scenarios suggests
someone willing to buy the software.
The BSA even admits that their calculated losses reflect retail software prices
scaled to each country. ‘It does not mean,’ the BSA 2009 report reads ‘that eliminating
unlicensed software would grow the market by $51.4 billion – not every unlicensed or
stolen software product would be replaced by a paid-for version’ (Business Software
Alliance, 2010: 9). Alas, anti-piracy rhetoric falls back on this magic number of
supposed losses as if they represent actual losses.
The numbers hold somewhat more reliability with bootleg sales. Vendors only
sell bootlegs to meet market demand for the software. This means consumers will pay
something, just not the retail price. Of course, given that bootleggers avoid licensing
fees, and that hardware to duplicate physical media is cheap, they can afford large
amounts of overstock. So raids on bootleggers inevitably produce bloated figures
on how much money rights-holders ‘lost’. Most media coverage of bootleg raids will
assume that every copy holds the same value as a retail copy, and will – in full earnest
– claim many millions of dollars worth of goods seized in a given raid.
Another oft-cited report of piracy’s negative impacts comes from the film
industry. In 2005, the MPAA hired LEK Consultancy to conduct a survey of their
supposed losses to piracy. They estimated $6.1 billion in losses in 2005, 20 per cent
domestic and 80 per cent international, with about two-thirds from hard-goods
piracy. Worldwide losses rang in at $18.2 billion. LEK calculated the losses by polling
‘movie watchers’ and deciding what they ‘would have purchased if pirated versions
were not available’ (LEK, 2005: 13). Despite the obvious and often enormous rift
between what people say they would do and what they actually do, copyright
supporters favour this highest figure when arguing economic impacts.
While the BSA covers Europe as well, the EU has its own studies explaining
piracy’s supposed economic externalities. The Business Action to Stop Counterfeiting
and Piracy (BASCAP) released a report in May 2010 with similarly gloomy figures:
more than one million jobs at risk in the EU by 2015, and G20 government losses
at more than $125 billion. Even 210,000 jobs lost annually to counterfeit auto parts
(Business Action to Stop Counterfeiting and Piracy, 2010).
Even as estimates, the BSA, LEK and BASCAP figures loom large and intimidating.
However, the second hole in their logic is that they fail to assert or even consider what
happens to this ‘lost’ money. That is, where does the money not spent on IP go? These
loss figures ignore some basic economic truths:
1. Consumers do not save money not spent on IP.
2. Even saved money has an economic impact.
3. Consumers spend money not used for IP in other industries, such as service,
clothing, food or entertainment.
4. IP as an industry has less positive economic impact than other industries.
Consider each of these truths. These studies claim that piracy costs many billions
of dollars each year. For these losses to have an economic impact, the money would
have to remain out of the economy. For instance, if third-party trackers determined
that 1,000 copies of Photoshop were pirated at an estimated loss of $400,000, this
could arguably have an impact on Adobe employees on the Photoshop team. It could
mean some one-off losses for stores selling the software, trucks moving the boxes,
sales representatives, and so on. But the $400,000 that might have gone to Adobe did
not exist, for one, since any person willing and able to pay $400 for Photoshop would
have done so. Also, even if it did exist, when people downloaded or bought bootlegs
of Photoshop instead, they did not then stuff the savings into a mattress where it did
nothing to aid other economies. Proof of this is legion in developed countries, where
consumer debt is at an all-time high. In some countries, citizens’ average annual
savings are negative percentages. So one can assume that any money consumers did
not spend on Photoshop, they spent elsewhere.
Even saved money serves an economic purpose. It allows banks using the
fractional reserve system (for good or ill) to make more loans. It means more
businesses will receive start-up capital if the money goes into a mutual fund or the
stock market. To pretend that any money not spent on software is money that could
have created jobs in IP, but had no other impact, is ridiculous.
The people who did not spend $400 on Photoshop may have spent $50 on
dinner and a movie, another $100 on a new outfit, and $250 on a new netbook. This
same logic counters anti-piracy arguments about lost tax revenue as well, since
money spent on dinner instead of DVDs still gets taxed. Even the money that goes to
bootleggers serves an economic purpose. Big media tries hard to align bootlegging
with organized crime and terrorism. Yet many bootleggers are individuals or small
operations that – legal or not, justified or not – have food on their tables and money to
spend elsewhere because of bootleg sales. Again, that money does not just funnel into
some mythical crime syndicate and disappear forever.
These economic impact reports make other claims that demand substantiation.
First, claiming massive job loss to piracy. This assumes that consumers who are too
price sensitive to buy Photoshop legally fail to create jobs in other sectors. But those
1,000 people who pirated Photoshop went on to support the service industry by
eating out, having a few drinks, or staying at a hotel. They bolstered the automotive
industry by getting new tyres, the electronics industry by upgrading their computers,
or the entertainment industry by going to a movie or playing golf.
Indeed, while the Adobe Photoshop team works hard and deserves the right to
sell as many copies of Photoshop as possible, it employs a few people who will create
a product with a high rate of return. The Photoshop team comprises a handful of
coders, engineers, PR specialists, copywriters and designers. But a few people at the
top of that pyramid see most profit from Photoshop sales. It is, after all, digital and
therefore cheap to reproduce.
These other industries often work the opposite way: many people work for little
return. So the real crux with BSA projections is that money put into the IP industry
creates fewer jobs than money put into, say, the automotive industry. Ford cannot
produce cars with a click of a button. They need raw materials, factories and scores of
labourers, salespeople and transporters.
The point is that the BSA cannot pick and choose the economic effects of piracy.
They cannot claim that it causes financial loss or job loss without addressing that it is
a livelihood for some, including hardware companies. After all, blank CDs and DVDs
hold copied data, and what are the odds that the person burning the media owns
the copyright? But most of all, they cannot pretend that consumers who pirate IP do
not spend that money elsewhere. Jobs and profits made from those sales are just as
deserving as the IP industry.
This counterargument applies much more to domestic piracy than international
piracy. However, all three studies show that despite the lower piracy rates in countries
such as the UK and the USA, these ‘mature’ markets represent disproportionate
percentages of those losses. Despite the USA and the UK only having around a 20
per cent piracy rate, because of the huge consumption of media and higher premium
prices, the estimated losses are greater than in many other countries, even China. This
highlights the weightier nature of domestic piracy.
Then there is the industry rhetoric on job loss. Not just those positions currently
filled, but jobs that might exist if this fictionalized money from piracy poured into the
economy (which – as mentioned – happens, but in other industries). This also ignores
a large elephant in the room: that piracy represents its own economic industry. It
borders on ironic that one of the largest divisions of the FBI fights piracy, pulling in
huge operating budgets, and necessitating hiring and training new agents and support
staff. Even trade organizations – beating their heads against piracy for decades now –
would have far smaller roles and budgets without piracy to combat.
In electronic hardware, one-off goods that meet pirate demand must enter this
debate. Blank writable media, burning hardware such as CD-ROMs, storage media –
all thrive because of copyright infringement. This even applies to mp3 players and
other portable media devices. Sony makes more money on their mp3 players than
on their media (Gantz and Rochester, 2005) and with iTunes only recently selling
unprotected mp3s and few other legal choices, it is certain that file-sharing and music
piracy fuelled Sony’s sales. The BASCAP report claiming hundreds of thousands of
jobs lost to counterfeit auto parts ignores a glaring fact: someone made those parts. Is
the difference between those employed making counterfeit auto parts and ‘authentic’
or ‘approved’ auto parts so large as to excuse leaving them from the equation?
Doubtful.
The BSA report also makes correlations between lower piracy rates and
increasing jobs, without addressing how rising piracy rates might create jobs. They
mention this for China and Russia in particular, again falling back on the decrease in
security and support for bootleg software as icing (Business Software Alliance, 2010).
But where are the figures on what happens to the money funnelling into bootleg rings,
or what happens to company and individual savings because of piracy, especially
of another country’s IP? It seems sensible that one can apply the same argument as
above. Russian rupees that consumers did not spend on IP (most of which would go
to the West) would funnel into the Russian economy in other ways, through other
consumer goods and services.
None of this would matter if both industry and governments viewed anti-piracy
reports with proper scrutiny. Alas, Western governments often look to such reports
when passing tighter IP controls, creating policy, passing legislation, making court
decisions and even affecting public opinion. When US Vice President Joe Biden says:
‘Theft of intellectual property does significant harm to our economy and endangers
the health and safety of our citizens’ (Federal Bureau of Investigation, 2010), it should
come from mountains of irrefutable data produced by non-biased investigators.
Historically, this is not what happens.
IP’s largest beneficiary, the USA, finally began to question industry-funded reports
claiming piracy’s destructive effects on the economy. In 2010, the US Government
Accountability Office (GAO) ‘observed that despite significant efforts, it is difficult, if
not impossible, to quantify the net effect of counterfeiting and piracy on the economy
as a whole’ (United States Government Accountability Office, 2010: 2). It did not help
that the MPAA’s commissioned report by LEK Consultancy contained a glaring error,
and could tell the GAO little about how LEK calculated losses (Anderson, 2008).
Hopefully, this will mean the beginning of further scrutiny into these studies and
greater openness. But so long as big media pays the investigators’ bills, expect the
same gloom and doom now pervading such economic discussions.
Corporate works-for-hire
I wept no tears for Napster, Grokster, and their ilk. I see no high-minded
principle vindicated by middle-class kids getting access to music they do not
want to pay for. It is difficult to take seriously the sanctimonious preening of
those who cast each junior downloader of corporate rock as a Ché Guevara,
fighting heroically to bring about a new creative landscape in music. It
is almost as hard to take seriously the record industry executives who
moralistically denounce the downloading in the name of the poor, suffering
artists, when they preside over a system of contracts with those same artists
that makes feudal indenture look benign.
- James Boyle (2008), The Public Domain: Enclosing the Commons of the Mind
The biggest enemy to freedom is a happy slave.

- Anonymous
Modern IP opponents and pirates alike harbour a strong contempt for corporate
copyright. It does not take an in-depth investigation to find that copyright protects
corporations and businesses more than individuals. No matter what the purpose
of its early design, this is the copyright climate in which we live. No amount of anti-
piracy propaganda portraying starving artists will reverse this. In reality, the media
corporations have the money, power and resources to produce, create, market and
deliver media in a way that few individuals could.
However, the idea that corporate copyright squashes creativity, hinders art,
or destroys innovation must bear the same scrutiny as anti-piracy propaganda
for one to form a balanced understanding of copyright. Corporate works-for-hire
may seem soulless to the idealist content creator. And few would argue that media
conglomerates do not green-light some truly horrible projects, either to cater to
the lowest common denominator among consumers or to make a quick buck off
successful advertising campaigns. But this does not mean works-for-hire offer
nothing to the creative compendium. As little as copyright reformists like to admit it,
corporate copyright may spread more work to more people than any state-sponsored
or individual endeavours have before.

The effects of this differ in the digital age. Where historically one author penned
a book, now teams of hundreds create software programs. While it is possible and
sometimes profitable for individuals to create software and reap all rewards from its
sale, it is far more typical for corporations to hire coders, designers and everyone else
to make works-for-hire. The occasional video game will rise from individual work, but
blockbuster games incorporate dozens of people who will have no control over the
copyright of the finished product. The older and more mainstream media becomes,
the more difficult it is for individuals to stand above corporate works.
Consider an example outside digital media. IP concerns and corporate takeovers
have infected the superficially placid world of yoga. Multimillionaire and world-
renowned yogi Bikram Choudhury upset the yoga community when he copyrighted
several poses (supposedly original interpretations of classic poses) and patented
doing yoga in a heated studio. Bikram has shown no qualms about suing studios that
he felt infringed on his IP, claiming that people were making millions off his ideas
(Philip, 2006).
At the same time, yoga has grown into an empire in the West. Its rise as an
alternative exercise, and the relatively low financial and professional barrier to
entry, have spawned countless studios to meet new demand. Entrepreneurs quickly
understood the money they could make by incorporating: enjoying greater exposure,
undercutting private studios and minimizing financial risk. Top-down, this is
‘McDonaldization’ of previously healthy, public domain exercises into mainstream,
commercialized and watered-down versions of the ancient Indian art. Such moves –
both by budding yoga corporations and Bikram – spawned the term McYoga.
But corporate-hired yogi, despite having to conform to a business model, differ
from solo-studio yogi in another way: they bear no responsibility for the success of
their company. Alan Finger, a yogi employed by the Yoga Works corporation, lauds
the corporate gobbling of smaller studios, claiming it is ‘adding stability to the yoga’.
He says that having others come in to handle the business and financials ‘allows us as
yogis to teach well and do what my vision was all along’. He says: ‘it’s really hard to be
in business and then switch over and try to be yogis… It’s really hard for me to just sit
there and really just worry about this individual and their spiritual growth and not
have to think about money’ (Philip, 2006).
This same relationship has kept self-publishing from overtaking conventional

‘big house’ publishing, despite a respectable rise in self-publishing worldwide.
While many writers easily don the sales, marketing or agent hat, they represent the
exception. For every writer by day and marketing guru by night, there are hundreds
of writers with no wish to ‘manage their brand’, blog, tweet, Facebook or make sales
calls to bookstores.
Works-for-hire are not without grave injustices, however. Lead singer of
alternative rock band ‘Hole’, Courtney Love, paints a grim and honest picture of what
many musicians still consider the brass ring: a recording contract. She mentions
revisions to the US Copyright Act of 1976 snuck into the verbiage of The Satellite
Home Viewer Improvement Act of 1999 (Love, 2000). Now some musicians will
create works-for-hire instead of signing over copyrights to their music for a limited
time. This short, concise and out-of-place addition to a bill covering cable broadcast
rights came care of the RIAA, an organization ostensibly looking out for musicians.
This has some musicians, like those in Love’s example, living off wages far closer to rat
race workers than rock stars.
Perhaps works-for-hire serve teams better than individuals and better suit
some media or markets over others. The point remains that IP abolitionists must
consider what it means to have corporate copyright handle the business side of art.
That works-for-hire, despite all their flaws, may employ more content creators than
individual copyright or no copyright laws at all. Sure, no doubt most of the money
media creates does not make it to the artists, but those artists might not have any
exposure without corporate backing. So if more content creators make works-for-
hire than would enjoy full-time employment from their own copyrights, then works-
for-hire can indeed prove a notable boon for such creators. Is this just happiness
in slavery? Possibly. But if the upshot of corporate copyright is steady employment
for artists and more media exposure, then any revisions must consider this when
promising a better tomorrow.
124
Digital Piracy in Asia 06
W hile hard-goods piracy remains under control in the West, counterfeit

goods abound in Asia and Eastern Europe. Rights-holders and trade organizations
may group all infringement under one pirate flag, but hard-goods piracy, to them,
represents a greater economic threat than file-sharing.
Despite media coverage and academic scholarship examining overseas piracy,
most of this only focuses on counterfeiting’s broad and fast growth. Naim writes that,
since the 1990s, ‘trade in counterfeits has grown at eight times the speed of legitimate
trade’ (Naim, 2005: 122). Common reasons include fast money, low overhead,
small risk and inconsequential legal backlash. But most coverage ignores why and
how counterfeiting occurs in favour of stories rife with organized crime and life-
threatening consumer goods.
The effects entail growing, coalescing, multinational law enforcement, and trying
to sort through the tide of foreign goods pouring into all nations and filter out genuine
125 Digital Piracy in Asia
products from the unavoidable fakes. As the corporations grow concerned, the
governments tighten controls, penalties and law. But what does counterfeit detection
do, and is it working? How did these pirate nations gain the means of counterfeiting
anyway? This chapter will examine such questions, and take a closer look at the
incentives involved on both sides of the battle.
Discovering counterfeit causes
China is a country where piracy has won.

- Chris Anderson (2009), Free
Father: Where did you get it? Answer me. Who taught you how to do this
stuff?
Son: You, alright? I learned it by watching you.
- US anti-drug public service announcement
Everyone knows that piracy runs rampant in Southeast Asia. Bootleggers peddle
their wares in plain sight to locals and tourists alike. Everything from music to movies
to video games is a copy of a copy, without a penny going back to the rights-holders.
But what remains far more important here are the unknowns, the holes in what we
think we know, and the varying incentives involved. When television covers bootleg
raids, people see well armed teams rushing in to seize pirated material with the
same expediency and aggression viewers expect when watching drug raids, hostage
situations or shoot-outs.
One such programme on Australian television sets a dark, intriguing tone to anti-
piracy raids in Manila. Laden with melodrama, the reporter claims that such raids
have resulted in violent opposition before, with everything from exchanges of gunfire
to acid poured onto law enforcement team members from floors above. The intended
message rings clear and is even stated: these are not ‘mom and pop’ operations. And
yet, when the raid is underway, a cadre of over-armed police burst into what look
like ‘mom and pop’ operations. No guns. No drugs. No acid thrown from balconies.
Not even a foot-chase ending in violent scuffles. Despite all attempts at making the
raid appear both dangerous and warranted, it comes across about as tense as Sunday
school.
Just as news coverage of raids on crack houses or meth labs ignore why they exist,
only that they exist, mainstream media does not represent the bootleggers’ viewpoint.
Few if any consider a top-down investigation of why bootleggers continue to peddle
fakes. Not why they do, but why they can. Following this up the chain, the first
implication in such rampant bootlegging is that it springs only and ever from equally
rampant demand for media. The warehouses shown in conspicuous police raids
contain 100,000 pirate DVDs only because bootleggers have thousands of customers
to buy them. Bootleggers do not invest in replicating hardware and burn truckloads of
fakes without knowing consumers demand their products. The media portray them as
parasites, but conveniently forget to mention that we are their willing hosts.
So why do consumers in Asia harbour such a fondness for bootlegs? Why do they
not buy their media from sanctioned retailers, like most Britons and Americans?
Alas, there are several details left out of anti-piracy rhetoric about Asia. First is the
assumption that Asians have just as many legal products available to them, and that
they must therefore choose to buy bootlegs instead.
No nation in today’s global economy wants to wait its turn. Not for media,
information or innovation. The same goes for movies. But in China, there is an almost
unimaginable cinema bottleneck. China allows only 20 foreign films in its cinemas
each year (Wu, 2006). There is only one cinema for every one million citizens. That’s
like having a single cinema for all of Phoenix, Arizona, or only eight for all of London.
The Chinese do not want to wait months to see the latest action blockbuster when the
DVD finally hits Asian markets. Instead, they buy bootlegs of films still in American
and UK cinemas and watch them at home. Quality does not matter as much as being
first to market, and bootleggers beat retail DVD sales by a wide margin. So people
must shed the impression that the Chinese have the same media available to them,
and that they choose bootlegs.
Other times, it is about choosing the bootleg. In a recent journal article about
game piracy in the Philippines, Jennifer Kim Vitale writes: ‘Entertainment from video
games is commonplace and since most of the population cannot afford to buy the
hardware, software or firmware at legitimate prices, individuals have no choice but to

purchase the cheaper, illegal copies… As the video game industry evolves into a multi-
billion dollar market in the United States and in other countries, the mass production
and selling of pirated software and hardware will have a detrimental effect on the
copyright holders as well as the entire industry worldwide as it precipitates massive
monetary losses’ (Vitale, 2010: 298).
These statements – from the same paragraph – contradict each other completely.
If Filipinos ‘have no choice but to purchase the cheaper, illegal copies’ then how is it
that piracy in the Philippines ‘precipitates massive monetary losses’? They either can
afford to pay for a retail copy, in which case buying a pirated copy may represent a
loss, or they cannot, in which case the paltry cost of a pirated copy has no economic
effect on Western IP sales.
One fact should ring clear: Hollywood does not need greater DVD or cinema
sales in Asia to continue making movies. The assertion is nonsensical. If an already
vibrant market began to decay into a market rife with bootlegging and with no
capacity for cinema releases, it could mean trouble for film studios. But no amount
of economic juggling can take nations with pirate rates in the high 90th percentile
and claim that their lack of patronage will spell doom for Hollywood. These are
booming economies, to be sure, so they represent a tempting market for Hollywood
and other rights-holders. However, as long as the piracy rate in the post-industrial
nations has stabilized (and even dropped some years), then there is no threat of film
studios throwing up their hands and stopping production. There exists only the threat
of losing out on growing economies, and the certainty that a nation growing richer
means consumption booms.
Look at the Nigerian film industry, often called ‘Nollywood’. Here is a country
that produces more films each year than either Hollywood or Bollywood in India.
It ranks third in film industry revenues (around $300 million yearly), and employs
a million people. Nigeria also casts not a blip on the notorious United States Trade
Representative’s (USTR) radar, not even on the ‘watch list’, let alone the dreaded
‘priority watch list’. The reason is clear: they have little need for Hollywood bootlegs
when their own films sell for $2 a pop. They do all of this without copyright law.
So why – without piracy – does a poor market for Hollywood not mean trouble in
Nigeria? Just as with smaller Asian nations, Nigeria represents a minute market for US
films and other media, legal or bootleg. So whether the nation respects international
copyright law matters more than the size of the market, it seems. This can mean
the difference between using economic sanctions against them and ignoring them
altogether.
Economics aside, the nature of Asian culture acts as an important factor in the
high piracy rates. In the West, people measure success by individual achievement.
Content creators and corporations sponsoring works-for-hire seldom create to better
society, but for monetary rewards. This typifies the capitalistic, pull yourself up by the
bootstraps culture of the West. And this culture has created a bevy of amazing works.
However, this also means Western – especially US – culture protects IP with ferocity.
When creators make art for money, interfering with the money undermines the art.
In Asia, the culture simply does not work this way, at least not at first. While
Japan has a history of adopting and adapting Western innovation, its industrial and
technical growth began years before many other Asian nations, such as China and
South Korea. So, one should expect that they have become a more fertile market for
Western IP. Despite some game piracy, Japan is no longer on the USTR watch list, but
their culture still views IP differently from the West. Their lower piracy rate simply
reflects national economic development.
In China, the social implications of piracy are far different from in America. ‘A
Confucius attitude toward intellectual property’ writes Anderson ‘makes copying
the work of others both a gesture of respect and an essential part of education’
(Anderson, 2009: 202). Piracy remains necessary in the Philippines, while in China
it both drives technology and fills the gaps in Chinese media. Copyright enforcement
and recognition is growing in South Korea and has remained high in Japan. So the
degree to which piracy permeates Asian culture reflects not only different values, but
also economic development.
An older publication, a guide to conducting business in Asia debuting a few
years after Southeast Asia began to impose IP protection, recognized an important
principle: that many of what the report calls ‘Asian Tigers’ – China, Indonesia, Korea,
Malaysia, the Philippines, Singapore, Taiwan and Thailand – do not have a history of
IP law or enforcement (Deng et al., 1996). To expect countries with a 20-year history
of IP law to respect and enforce it in the same way as Western nations that have had
some form of copyright for 200 years is ridiculous.
Not only are these developing nations new to IP law, they are still in the heat of
their development, enjoying double-digit economic growths each year. In that state:
‘The US refused to join the Berne Convention on copyrights in the 1880s, saying that
as a newly industrialized country it needed easy access to foreign works. In fact, the
US did not become a signatory to the Berne Convention until 1989. Similarly, in the
1950s Japan disregarded IPR legislation and adapted Western technologies’ (Deng
et al., 1996: 44). So to expect developing nations to adopt heavy-handed IP laws that
provide most benefit to IP-exporting nations runs counter to how today’s developed
nations acted themselves. A classic case of ‘do as I say, not as I do’.
During the 1990s in South Korea, Korean businesses could register a trademark,
but the nation showed little regard for other nations’ trademarks. This should sound
familiar. It recalls how, during the 19th century, the UK did nothing to enforce US
copyright protection and vice versa. This saw Twain bootlegs abound in the UK and
Canada, while Hardy and Dickens gained a large following in the US that did not see a
penny go back to the authors. The idea that post-industrial nations have the right to
enforce laws on other nations, which in their relatively recent history those nations
did not respect, continues a line of hypocritical thinking.
Asian content creators have adapted to this environment. In China consumers
have grown accustomed to music at no cost, so artists who try to charge might lose
many potential fans. If artists resist the flow of their music on file-sharing networks
or bootleg CDs, they actively stop new fans from emerging. Many artists in China use
piracy as a marketing tool for where the real money lies: touring, merchandising and
endorsements. As Anderson points out, this fame despite no legitimately-sold CDs can
even make money through phone ringtones (Anderson, 2009). He goes on to write
that: ‘In a world where the definition of the music industry is changing every day,
the one constant is that music creates celebrity. There are worse problems than the
challenge of turning fame into fortune’ (Anderson, 2009: 202).
It should be no surprise that models for selling games have changed most rapidly
in Asia, where game piracy is legion. Online games making money in different ways
from physical game stores is a billion-dollar industry in America, but is more than
twice as large in China (Anderson, 2009). So the same country responsible for
myriad copyright violations, from bootleg DVDs to pirated copies of Windows, is a
more profitable industry for online gaming than the USA, where IP remains fiercely
guarded.
Asian piracy still has effects, just different effects from what most believe. While
the impacts on rights-holders’ profits take some economic finagling, piracy has a
clearer impact on the host nation’s trade relations. Doubtless, IP will become further
entangled in Western production, from patented machines to patented food, drugs
and biotech. And doubtless Asian countries who still refuse or who cannot play nice
in stomping out movie or video game piracy may get much less of a crack at trade in
patented goods, such as medicine. If this seems like post-industrial, copyright-rich
nations leveraging vital trade goods to sell more DVDs, then the image is coming into
focus.
Tracing the bootleg source
Our economy is 30 years behind Europe. To us, this is perfectly normal.

- Merchant at Gorbuska Market, Moscow on selling camcorded films in police-
controlled shops (Johnsen et al., 2007)
Long have movies shot on camcorders in cinemas drawn ire from some and
jests from others. The idea is simple enough: someone sneaks a video camera into a
cinema, centres it on the big screen, and hits record. If the camera stays in focus and
the cinema remains docile, the product proves tolerable enough to watch, especially
compared to nothing.
Of course, the reality is a little different. Real cinemas mean crying babies,
whining kids, bathroom breaks, phone conversations, hearing-impaired viewers who
want every line repeated, and hundreds of other distractions. The camcorded film
captures these as well as the movie. So during the final fight in The Matrix, someone
stands in front of the camera or a glow comes from a nearby tween’s phone as she
texts her best friend. Perhaps first-to-black-market beats quality with camcorded
films, though recipient bootleg rings in other countries do not have to pay for shoddy
work. As one bootlegger describes in the documentary Good Copy, Bad Copy (Johnsen
et al., 2007), sellers send the first half of the film, and only if the recipient bootleggers
find it suitable will they send payment and receive the other half.
While many countries lack the equipment or even facilities to present cinema
releases as the UK and the US can, quality still plays a role in the behavioural
economics of bootleggers’ customers. If nothing but camcorded movies preceded DVD
releases, it is doubtful demand would remain so high. Of course, few people know
where exact-copy DVDs of in-cinema movies come from, and for good reason. The film
industry demands that taxpayer-funded law enforcement deals with bootlegging at
home, and expect government trade sanctions and international policing to regulate
bootlegging abroad. And yet the source of many high-quality pirated movies comes
from the industry itself: the DVD screener.
Screener DVDs are movies the industry sends out to critics, award boards and
media organizations before cinema release. They are high quality and, despite bearing
watermarks, basic TPM bypass equipment can rip and duplicate them. Bootleg DVDs
of in-cinema films that do not resemble a shaky mess probably came from a screener.
Since so many people receive screeners, at least one inevitably makes its way to
a release group. One is all any group needs. In a few hours a cracker will ditch the
watermark, bypass the TPM and have it ready for public download from torrent sites.
Speed isn’t everything; it’s the only thing. The faster a release group makes a high
quality film available, the more prestige they accrue.
Despite this, the industry still demands the government spend taxpayer money to
find, try and prosecute film piracy. This resembles leaving a wad of cash in the seat of
an open car and then demanding police spend time and resources finding any thieves.
With this metaphor, think of the bills as traceable, since the MPAA hires third-party
companies such as CINEA to watermark screeners. Despite this tracing technology
cropping up in news stories for the last decade, it remains inadequate. Bootleggers
remove or even crop out watermarks as fast as they come. Even if a bootleg is traced
to a particular screener, punishing one person, even severely, does not deter further
releases.
This is why former MPAA president Jack Valenti lobbied to forbid DVD screeners
for award boards and film reviewers before cinema release. Valenti claimed that
piracy stemming from screener DVDs justified the move. The proposal failed, but the
sentiment remained.
Screeners hold value for mainstream and independent film alike. Indie film-maker
Jeffrey Levy-Hinte writes that ‘the dissemination of pre-release copies of motion
pictures might provide the consumer with more information about the quality of
the product than is advantageous to the [film industry] to disseminate – think of it
as an early warning system for bad movies’ (Levy-Hinte, 2004: 92). There are some
reviewers who seem apt to give ‘two thumbs up… way up’ no matter how awful the
film, but others arm consumers with at least some forewarning about how bad the
latest special effects-laden blockbuster actually is.
Levy-Hinte wrote from another angle, however: that of the indie film-maker.
Stopping screeners, he argued, would cause irreparable damage to indie films
because such reviews are often the only means of advertising small films have. Unlike
their blockbuster counterparts, indie films have to survive off their own merits, and
cinema-goers would know little about such merits if screeners disappeared.
So what about perfect copy bootlegs that compete with retail DVDs? Instead of
reacting to film bootlegging with more protective measures or international copyright
agreements, perhaps Hollywood should look to media creation and distribution
instead of counterfeit rings or individual consumption. In his book Illicit, Moises Naim
points out that most bootlegs come from Asia (largely China and Southeast Asia). But
what he addresses only in passing is that the most efficient means of producing these
bootlegs are by using the same production lines the industry employs to produce
genuine products (Naim, 2005).
Jeffrey Scott McIllwain states this more directly: ‘The pressing process uses the
same DVD replicators that are used by the legitimate DVD production industry to
create high quality DVDs. These replicators are either owned by the client (at a cost
of approximately $1 million) or are used with the paid-for cooperation of a legitimate
DVD production company during off hours’ (McIllwain, 2007: 22). What McIllwain
essentially describes here is a process both economical and efficient; a model of
speed, cost and distribution that rivals the legal DVD market. And yet, because these
bootleg rings pay no content rights, they can undercut legal DVDs, even when the
‘real’ disks finally reach that country.
How do you compete with such a model? Certainly not through researching
greater digital control such as country codes, which bootleggers bypass as quickly as
the industry creates them. It seems logical that if the problem comes from security
vulnerabilities in the industry’s own production lines, then the industry should plug
those leaks at its own expense. But any money saved by off-shoring means money
made when the government pays for plugging your information leaks, even far
downstream.
The obvious irony here is that movie studios seeking legal protection from
piracy willingly have their products created in countries known for bootlegging.
This, like so many other dealings, smacks of an internal shortfall – a security breach
in industry process. Such a problem is no more the responsibility of US taxpayers
than ensuring a product’s success in the free market. Cheaper operating costs and
more lax environmental standards are among the primary reasons production has
moved to Asia. But with those savings comes the added responsibility of ensuring
that businesses deal with the predictable and obvious malfeasance such as nationally
centred and even nationally sponsored bootleg campaigns as with any other facet of
doing business. It is astounding that the burden put on US shoulders means not only
having to surrender countless jobs to overseas production, but also suffering the loss
of endless tax dollars spent combating counterfeits – a by-product of outsourcing.
Bootlegging is high in the nations that make the products. This point is one that
industries leave out of press conferences, rhetoric and propaganda railing against
counterfeits. Why is bootlegging so high in China? Because they make everything.
How indeed can rights-holders wag a finger at the developing world for counterfeiting
when they moved all of their factories there? Those factories churn out fashion
accessories such as handbags to company specifications. At some point, the line is
seeded with cheaper materials and another run begins the same as before, but now
Prada becomes Prado. The workers do not know the difference, and the factory
managers are simply moonlighting using the tools given to them.
According to counterfeiting documentary If Symptoms Persist, China manufactures
58 per cent of consumer goods and is responsible for 90 per cent of all counterfeit
goods (If Symptoms Persist, 2008). These numbers have a close kinship. China
provides corporations with cheap brand-name goods for which they may charge
a premium. For the vast parts of the world that cannot afford that premium, China
produces the same goods minus the quality control. That they do so in the same
factories should seem a problem, but not a surprise.
Knowing this, it seems audacious for industries to cry to the US government about
stopping piracy when bootlegs roll off the same assembly lines they build, oversee
and approve. It takes even more nerve to pretend the weight of creative endeavour,
the economy, and thousands of jobs are on the US citizen’s shoulders alone. Since
demonizing their own business and manufacturing would prove as foolish as it
sounds, they revert to criminalizing home-turf piracy, bootlegging and general lack
of consumer spending. The reasons for using overseas labour are obvious when
considering the pennies an hour workers make in developing countries compared
to US wages. Off-shoring also begets many tax breaks, and some big retailers such as
Wal-Mart even pressure suppliers to move factories overseas. However, it is curious
why industries profiting from IP show so little concern about how their overseas
factories are run.
Obviously mainstream media in the US refuses to hold Hollywood at all
accountable for leaks in its distribution channels. Objectivity flies out the window
when the 60 Minutes special ‘Pirates of the Internet’ begins with the weighted line:
‘It’s no secret that online piracy has decimated the music industry, as millions of
people stopped buying CDs’. There is no wish to find cause here, but a perfect and
unquestioning reliance on industry-pushed correlations. In blatant yellow journalism,
the special continues with cleverly cut footage of host Lesley Stahl first clearing
her name by saying ‘I think I’m the only person who’s never downloaded anything’,
simultaneously admitting complete ignorance of the issue. Then Stahl teams with
20th Century Fox’s Peter Chernin in lamenting how teens and college kids ‘know
it’s stealing’ and ‘don’t think it’s wrong’. They then turn their collective judgements
on Grokster’s Wayne Rosso, even introducing him as ‘Hollywood’s enemy’. Where
Stahl’s interview with Chernin seeps sympathy for his poor corporation’s plight, the
interview with Rosso is more the third-degree. Though how Stahl can claim to judge
what is wrong after admitting ignorance of it only further annuls the programme.
The only mention of where the pirate material comes from other than camcording
is in a short clip about screener DVDs. Chernin explain this by saying it is: ‘through
an absolute act of theft’ such as when ‘someone steals a print from the editor’s room’,
absolving any industry complicity. Forget that they send out the screeners, or that
they supply Asia with million-dollar pressers to mass-produce DVDs.
In truth, these industries must understand that even piracy happening at the
source is still just a symptom. The disease is that they cannot control ideas, whether
designs, music or movies, in the way that they control physical products. It is
inconsequential if one widget gets stolen from an assembly line. It is enormously
consequential, however, if one copy of software or 2D design of a garment is taken,
since it allows for endless reproduction. And as Paul Craig points out in his book
Software Piracy Exposed: ‘Being paid $7.50 an hour to shove a CD and manual into a
box is not an incentive to remain loyal to your employer’ (Craig, 2005: 39). Of course,
the effects do not necessarily represent lost profits. A pirate film enjoyed by millions
who would never have been able to buy it is an enormous consequence as well.
Even if security and the wages of industry workers increased, nothing would
completely stop piracy. This is not the message trade organizations and rights-holders
wish to convey, however. After all, anti-piracy propaganda does not depict scenarios
where piracy occurs organically, like on an assembly line. Instead, they portray it as
the work of organized crime and terrorism. Showing piracy stemming from industry-
endorsed and distributed screener DVDs, or from the industry’s own production
lines overseas, would garner little public sympathy. And so, the rhetoric falls to the
symptom level: the street vendors, the buyers, and the governments of countries in
which bootlegging flourishes. To claim that rights-holders in general and the film
industry in particular need some serious introspection holds as true as asserting that
if they created the problem, then they should try to fix it. Perhaps a failure to take
on the cost of fighting overseas piracy is not rights-holders skirting responsibility so
much as a tacit confession that any such fight can never end in victory.
Counterfeit pharmaceuticals
Patent rights typically cause the price of pharmaceuticals to triple.

- Deng et al. (1996)
And there’s winners and there’s losers / But they ain’t no big deal
‘Cause the simple man baby pays for the thrills, the bills / The pills that kill
- John Cougar Mellencamp, ‘Little Pink Houses’
Today, any attacks on counterfeiting lead quickly to pirate pharmaceuticals.

Bootleg shoes may fall apart, but pirate drugs can kill, the media say. Literature on
fakes (mainstream as well as respected journals) is almost exclusively negative.
Television coverage often features port authorities, undercover buyers and big
pharma representatives talking of consumer harm and governments unable to plug
the leaks. Naturally, such coverage turns immediately to bogus consumables. Products
people rely on to make them healthy and to stave off disease.
However, even counterfeit drugs’ dangers need more thorough investigation
than buying into branded drug companies simply declaring that pirate pills can kill.
Bottled water from the purest Artesian wells can kill. Dolphins can kill. The important
question is how they kill. While media coverage often focuses on pills containing boric
acid or trace particles of other dangerous chemicals, what fake pills do not contain
begets the greatest harm.
Poorer nations remain rife with malaria, tuberculosis and AIDS. When fake pills
contain no or (worse) only trace active ingredients, the sickness claims a far higher
death toll, with ‘rough, yet conservative estimates’ of up to 700,000 deaths worldwide
each year (Harris et al., 2009: 23). Countries react with tighter inspections or more
investigations into counterfeiting rings. Both are symptoms of the same disease,
however: a lack of affordable pills from reliable sources. So the victims die from
inaction, not action, since the overwhelming majority of those deaths – all but a
handful – are due to ineffective drugs, not poisonous drugs.
The consequences of demonizing the counterfeit drug trade remain minimal: who
would argue for those profiting from selling ineffective drugs to the sick poor? The
real potential harm, however, is tying reverse-engineered or hacked drugs in with
all other counterfeits. Few sources differentiate between fake pills and pirated pills.
So when the mainstream media, medical journals and government authorities all
condemn counterfeit pills in unison, the din is hard to ignore.
Big pharma often remains mute about both the extent of fakes and any benefit of
reverse-engineered drugs. Both dilute their premium pill market: the former through
causing consumer wariness, where ‘they’re [big pharma] often the first people to
identify fakes, but there’s a disincentive for them to declare that because it destroys
their market’ (Marshall, 2009) and the latter through generic drugs, which ignore
patents in order to offer cheap versions of premium drugs.
Pfizer in particular paints itself into the patent corner; much of their research and
development focuses on patentable or currently patented drugs, with little regard for
drugs no longer protected. Yet these are the drugs that developing nations desperately
need. If big pharma shows no interest, however, this leaves a powerful vacuum for
either fakes or reverse-engineered drugs. The former are deadly through inertness,
but the latter often give hope where little exists.
Mainstream media has no qualms about adopting an inclusive viewpoint
that lumps fake pills with pirate pills. When CNBC’s show Crime Inc. began their
programme entitled ‘Counterfeit Goods’ with the line: ‘This criminal underworld
puts our economy and our lives in peril’ (Todis, 2010), no one expected to hear about
the lives reverse-engineered drugs have saved. The programme has John Clark, Vice
President and CSO of Pfizer, talking about how bootleggers care only about money,
and not the safety of the drugs. How they ‘have no regard for the health and safety
of the end customer. They’re just looking for the money’. This seems somewhat
duplicitous given big pharma’s own death toll because of abuse, medication errors
and side effects, but it certainly edges out any arguments for pirate pills that help
people. How ‘In India, Brazil, Argentina, Thailand, Egypt, and China, private and state-
run enterprises are ignoring international patent laws written in the interests of
profit, churning out generic versions of vital drugs at a fraction of the cost, saving and
improving millions of lives as a result’ (Mason, 2008: 63).
In the same vein, Ghana’s non-profit pharmaceutical advocacy group mPedigree
produced counterfeit drug documentary If Symptoms Persist. It calls fake pill makers
‘merchants of death’ and ‘criminal masterminds’ who are ‘not the type to repent
of their foul deeds’ (If Symptoms Persist, 2008). Again, the programme makes no
mention of illegal generic pills.
Generic drugs in India provide a fine example of how a too-inclusive view of
pill piracy can cause harm. In 1970, then-Prime Minister Indira Ghandi dropped
patent coverage on ‘products’ and left ‘process’ coverage to stimulate an economy
too dependent on foreign chemicals for farming and medicine. The result was a
boom in reverse-engineering and generic drug sales, as well as cheaper pesticides.
This remained in effect until India reinstituted pharmaceutical patents in 2005 as
a provision of the Trade-Related Aspects of Intellectual Property Rights (TRIPS)
agreement. During that time, India made between 70–80 per cent of the ingredients
in US generic drugs and around 60 per cent of those for brand-name drugs (McNeil,
2000). So, while the USA and other developed nations benefited from cheap skilled
labour, India reverse-engineered all drugs, patent protected or not, for widespread
generic sales in-country.
Obviously, big pharma disliked India reverse-engineering their patented pills
and selling them at marginal prices. But the reason more than 20,000 drug makers
sprouted in India was that making generic drugs of patented pills still obeyed Indian
law. And while the industry claimed losses of $100 million a year, when the average
outlay for healthcare per Indian rang in at about $10 a year, it is easy to see why
knock-offs did well (McNeil, 2000). ‘India’s drug prices were among the highest in the
world,’ wrote Donald McNeil Jr in 2000. ‘Now they are among the lowest. Access to
drugs is one reason that average life expectancy has risen to 64 today, just as cheap
pesticides based on foreign formulas are part of the reason India now feeds itself.’
This does not sound like the ‘merchants of death’ who ‘have no regard for the
health and safety of the end customer’. But some still see reverse-engineering as
simple piracy, a view expressed in an article by the conservative, corporate-funded
American Enterprise Institute. They free big pharma from any shortfalls in needed
medicine and instead claim ‘rather, Indian patent law is what constricts India’s drug
market’ (Bate, 2007). Indeed, tighter patent coverage and pulling back the reins on
generic, reverse-engineered medicine might stimulate research and development in
India by foreign markets. What this new coverage will mean for effective drugs getting
to poor people remains unknown. But big pharma cannot spend billions on research
and still sell drugs as cheaply as pill pirates while pleasing their investors.
As long as the media portray large pharmaceutical companies as the victims of pill
piracy, however, rhetoric about the evils of reverse engineering and generic drugs will
prove successful. But realistically, either big pharma makes lots of money or it loses
lots of money; the two are mutually exclusive. They cannot treat unrealized income
from poorer countries as losses to piracy. And yet, is it moral or ethical to withhold
from these countries not only the data necessary to reproduce lifesaving drugs,
but also the ability to reverse engineer these drugs? It is one thing to refuse to give
something away, even if this means that many people will lose their lives. It is another
to manoeuvre prospering IP policies toward greater controls in nations that reverse
engineer or pirate drugs that help citizens, especially when such an impoverished
market would not benefit rights-holders to begin with. As McNeil writes: ‘It is only
when the newest molecules, often made in the same factories, are sold in countries
where a patent has not yet expired, that a “generic manufacturer” becomes a “pirate
counterfeiter”’ (McNeil, 2000).
Importantly, one cannot compare big pharma’s good works with doing nothing
at all. That will always make them appear heroic, kind and concerned only for the
welfare of the less fortunate. Instead, we must compare what they are doing with
what they could do. Not while going bankrupt, surrendering their IP or firing all
their employees, but while still preserving an effective, profitable business. As Indian
Minister of Health Dr Javid A. Chowdhury said: ‘If they can offer an 80 per cent
discount, there was something wrong with the price they started off with’ (McNeil,
2000).
The result of universal negative action against all pill piracy continues the game
of information keep-away. While no one wants ineffectual drugs mixed with lifesaving
antibiotics, the recourse becomes big pharma’s excuse for falling back on and trying
to extend patent coverage. The brand becomes the safety against fake drugs, so the
brand receives vast and growing protections, no matter what the costs. What bolsters
brand enforcement for the sake of excising ineffectual counterfeits, companies can
then use to combat reverse engineering.
People must understand the difference between pirate pills with no or bad
ingredients, and those that are reverse engineered and simply ignore patents.
The former can be a problem, the latter’s only ‘evil’ is in depriving corporations
of potential profit. If that is a result of saving lives, then few indeed would lump
such efforts in with piracy. That so many echelons of journalism and scholarship
display a universal opposition and negative regard for pill piracy reveals that even
the terms have grown too collective. Such stories typically leave out any caveats to
including reverse engineering in with drug counterfeiting or pill piracy driven only
by profit motive. When coverage of bogus drugs seeps with claims that pill profits
fund organized crime and terrorism, one can only infer that failing to separate
counterfeiting for profit from reverse engineering is by design; that the agenda of
media coverage of this problem is to present no separation between brand hijacking,
counterfeiting, reverse engineering and the basest crimes imaginable.
Brand hijacking and the consumer costs
Millions of consumers are now at risk from unsafe and ineffective products,
and governments, businesses and society are being robbed of hundreds of
billions in tax revenues, business income and jobs.
- Business Action to Stop Counterfeiting and Piracy (BASCAP)
In light of the current legal climate, it is prudent for companies that regularly
import goods from China to assess whether they have meaningful exposure
to future lawsuits and, if they do, to take proactive measures now to protect
themselves against, or at least limit, any future liability.
- The law firm of McDermott Will & Emery
The single feature of any product or service that allows counterfeiting to succeed
is the brand. Historically, there has been no shortage of knock-off Rolexes, bootleg
films or fake Nikes. However, just as fakes have increased with off-shoring, high-
quality media duplication and the internet, brand hijacking has become a pivotal part
of moving bootlegs.
A brand’s purpose remains straightforward: it communicates the quality,
price, maker and even desirability of a product. In this way, it serves consumers by
advertising what they can expect, and whether the good’s price is acceptable. Brands
allow for conspicuous consumption. They also serve manufacturers through ensuring
customer loyalty and recognition. As Bryan Murray points out, another reason brands
have become important in the digital age is that formerly tactile, in-person sales
have moved online, where consumers cannot judge products based on look and feel
as effectively (Murray, 2004). Since companies spend millions yearly on expanding,
bolstering and advertising their brands, they naturally oppose any misuse, whether in
smearing the company or in riding the brand’s coat-tails to sell knock-offs.
Adrian Johns (2009) tells how a counterfeit ring making copies of Tokyo
electronics manufacturer NEC’s products not only used the NEC brand, but also
had so fully assimilated the company’s operations that customers could not tell the
difference. Even the size of the two companies, the real NEC and the impostor, had
eerie likenesses. Johns writes that ‘operations often remained blissfully unaware that
they were dealing with impostors. After all, the outlaws helped themselves to the very
devices – affidavits, bills, forms, contracts – that are supposed to guarantee legitimacy
in modern capitalism’ (Johns, 2009: 3).
The irony of brand hijacking is that the closer bootleggers get to a respected
or popular brand, the more threat they pose to that company’s profits, but the less
consumers know or perhaps even care about the difference. It is laughable to think
that what Crime Inc.’s show ‘Counterfeit Goods’ used as an example of brand hijacking
– an energy drink called ‘Gold Cow’ – posed any threat to the popular drink Red Bull,
despite similar labels. But with NEC, customers could see no difference. Naim posits
that companies with low-priced products suffer most from hijacking. When he spoke
to an employee of a luxury timepiece manufacturer, the man said: ‘The person that
buys a pirated copy of one of our five-thousand-dollar watches for less than one
hundred dollars is not a client we are losing’ (Naim, 2005: 9).
Such knock-offs often come through the same channels as the legitimate products:
sea-borne containers from Asia. This puts the onus of detection on border and
port security, so it has become the responsibility of governments to enforce brand
legitimacy. And yet, who upholds brand legitimacy for consumers? Surely it is not
just businesses that have the right to know when they are dealing with impostors.
But this is precisely what happens when a company buys another just to exploit
brand recognition to push their own service or product, often to the detriment of
consumers. Consider what one could fittingly call post-fall Napster. When Shawn
Fanning created Napster, it grew into a recognizable brand, even if for a no-cost
product (other people’s songs). The name and the still-famous image of a cat wearing
headphones remained recognizable to consumers. When courts shut down the
file-sharing Napster in 2001, Roxio, Inc. bought the brand and logos and used this
to market what was formerly Pressplay music service as Napster 2.0. So for less
streetwise consumers only vaguely aware of Napster’s fate, the brand meant free and
open music. Of course, this is not what Roxio sold. Instead, they put out a shoddy line
of Napster-brand mp3 players that needed a Napster account and online access just
to add music. Napster 2.0 became just another mediocre ‘music service’ that turned
monthly subscription fees into a few, DRM-riddled mp3s. So a brand built up on
copyright infringement then deceived consumers into buying products and services
that had nothing to do with the file-sharing platform.
Similarly, the site mp3.com offered free, legal downloads mostly from smaller or
independent artists. After they launched Mymp3.com, which allowed users to upload
their CD collection for time-shifting the music, the RIAA pounced. Though time-
shifting falls under fair use, the watershed case UMG v MP3.com found the defendants
guilty, and UMG sued them into bankruptcy. Later, Vivendi Universal bought the site,
suspended its time-shifting service, and made it yet another mediocre online music
service. When it was later bought by CNET Networks, it became a site purely for
advertisements and music news, though the banner has a tab for ‘Free Music’. This
clearly uses the brand mp3.com had built to sucker consumers into entirely different
services.
No corporation uses branding against consumers like US-based retail monolith
Wal-Mart. It is no secret that since the death of founder Sam Walton, Wal-Mart’s
values have plummeted with their prices. Wal-Mart’s magic bullet for undercutting
any mom and pop shop is off-shoring. With thousands of stores all over the US,
Wal-Mart offers brands a strong incentive to do as they suggest, and what Wal-Mart
suggests is off-shoring. The purpose is clear: to sell known brands at rock-bottom
prices, with no concern for the inherent and unavoidable decline in quality that
off-shoring begets. Two US cutlery companies offer great examples. Both Buck and
Gerber created their high-quality, long-lasting cutlery in US-based factories. But when
Wal-Mart demanded the ability to sell their knives at lower prices or they simply
would not carry them, Buck and Gerber closed down their US-based factories to open
factories in China. This dropped the price dramatically, but consumers still believed
that the Buck and Gerber names spelled quality. They found out differently. Now, both
companies have US-made and China-made blades. Some loyal customers simply know
to look for the ‘Made in the USA’ stamp (and the higher price tag). Others abandon
Buck and Gerber after discovering that their China-made blades selling at Wal-Mart
do not live up to the historical standard of either brand.
A New York Times piece covers how even when some manufacturers can straddle
the price-quality fence, selling cheaper models through big retailers, others cannot
(Mitchell, 2005). Mower makers Toro found success selling lower-end models
through Wal-Mart and Home Depot after some bad quarterly losses, but even this
meant begrudgingly moving 15 per cent of manufacturing to Mexico. Other times,

formerly respected brands such as Rubbermaid are acquired and have their factories
moved overseas, and then cheaper products bearing their brand hit the shelves with
consumers none the wiser. Wal-Mart President and CEO Lee Scott, in a speech to
stockholders, admitted the company ‘has generated fear if not envy in some circles’
(Greenwald, 2005). As long as brands mean a little less to consumers than price, this
trend will continue.
Despite all of this, companies pretend that branding is everything and that
fighting fakes is tantamount to defending the only edge a company has: its reputation.
Author Bryan Murray symbolizes brand defence right on the cover of his book
Defending the Brand with a not-so-subtle image of a snarling German Shepherd. ‘Aside
from outright fraud and theft,’ Murray writes ‘there are scores of other abuses that
threaten brands in the twenty-first century. Propagation of false rumours, the online
sale of counterfeit products, privacy violations, unauthorized claims of affiliation,
and misrepresentation by partners are just a few examples. Left unchecked, all these
activities undermine the customer experience and destroy brand equity’ (Murray,
2004: 2). Murray leaves out brand self-mutilation and brands picked up by other
companies solely to trick consumers into buying sub-par products based on name
alone.
So who does the real brand hijacking? The supposedly egregious outcome of
counterfeit brands is cheap and ineffective products. Media and industry rhetoric asks
consumers to ignore the low prices and demand authentic goods. But then, cheap and
ineffective also fits the outcome of companies who drive their own or others’ brands
into the ground through off-shoring, cutting parts quality and selling through big
retailers known for low wages and predatory business practices. Perhaps the most
noteworthy difference in counterfeit brands and brands whored out by desperate
companies or acquiring corporations is that bootleggers avoid paying taxes. And
perhaps this fact alone justifies government intervention to try to stop bogus imports
and ensure brand integrity. But doing so under the guise of looking out for consumers
seems rather dubious.
The USTR watch list
I think that sometimes we Americans think that we are chosen by God to lead
the world. There are a lot of religions, there are a lot of languages, there are a
lot of cultures in this world that are different from ours.
- Jack Valenti, former president of the Motion Picture Association of America
(A Debate on ‘Creativity, Commerce and Culture’, 2001)
Jamaica had no intellectual property law, but they wrote one (with our help).
Similarly the Dominican Republic. I sat down with their lawyer and together
we wrote their copyright law.
- Former US trade lobbyist (Drahos, 2003: 87)
It should be no mystery that culture affects piracy, no matter what blanket

legislation IP-producing nations try to create and enforce. Universal policies
governing anything from politics to religion can never meet with simultaneous
approval in every nation because of cultural, ethical and even economic differences.
So it is myopic for multinational media corporations to believe that what works in
one country will do so in another. Or – with the Office of the United States Trade
Representative Special 301 Report – that fear tactics and lobbyist-perpetuated
legislation, mainstays of the UK and US anti-piracy arsenal, will work in nations with
dissimilar mores.
Each year, the 301 Report authors consider the endorsements and advice of
trade organizations such as the RIAA and PhRMA (Pharmaceutical Research and
Manufacturers of America). Among other items are the dreaded ‘watch list’ (orange)
and ‘priority watch list’ (red). The purpose is ‘to protect American inventiveness and
creativity with all the tools of trade policy’ (Kirk, 2010: 5). In the report are lists of
where each country falls, and a report card explaining why each country fell into its
respective bucket.
Already, South Korea no longer has films from the UK or the US on its shelves
because of rampant film piracy, and a supposedly soured market where movie
studios could no longer profit. Now, the same may happen in Spain, which also has
high internet film piracy (Tremlett, 2010). It is a mistake to assume the Spanish
people care nothing for creative endeavours or artists, or have an inflated sense of
entitlement. The reasons Spain is moving closer to mainstream media’s blacklist
should neither come as a surprise nor bear undue moralizing.
Foremost, the government simply does not have the hand in fighting piracy that
they do in the UK or the USA. Unlike in France, citizens suffer no immediate threats
of cutting off their internet. And yet, one cannot expect internet piracy to decrease
in Spain without legal alternatives. If the Spanish people refuse to buy DVDs or rent
movies from stores, then marketing a streaming service or setting up Redbox rental
stations seems more sensible than pulling all DVDs in the hope that this incites
change. In the US – despite news stories bemoaning Blockbusters and Hollywood
video store closures – the alternatives Redbox and Netflix enjoy enormous success.
For the USA, one recent priority watch list member hits close to home. Canada
recently became a ‘red nation’ on the 301 Report. This is not a nation where
thousands of years of history have shaped an entirely different set of values. So how
did the USA’s neighbours to the north make the bad-boy list? According to some,
instead of reflecting a pirate haven or soured market, this situation arose from greater
concern for personal privacy.
A tiered and timed release of culture on the world may once have represented
a successful business model, but no longer. Today, mass communication and digital
media means that withholding creative content is akin to putting out a forest fire by
spitting on it. In short, creating information bottlenecks will only ensure a flourishing
bootleg and file-sharing market takes the place of legitimate IP sales. Citizens of
blacklisted countries will not ask their government to play nice so they can buy
DVDs. They will simply hop online to download their media, or go to a market selling
bootlegs.
The real power of the 301 Report may be in allowing US industry groups to
influence drafting new copyright laws for other countries. Allowing a copyright-rich
nation to dictate those laws borders on imperialistic. Several Wikileaks cables out of
Spain show just this grim picture. As Cory Doctorow writes: ‘It’s an open secret that
[Spanish] law was essentially drafted by American industry groups working with the
US trade representative’. Doctorow claims that the Wikileaks ‘confirm the widespread
suspicion: the Spanish government and the opposition party were led around by
the nose by the US representatives who are the real legislative authority in Spain’
(Doctorow, 2010).
In this way, the 301 Report’s blacklist preserves an ideological and economic
barrier, and sends a message of superiority and exclusion. Trying to play at
information keep-away in a time when data flies across the globe in seconds becomes
a risky endeavour with little promise of reward. What the 301 Report has shown,
however, is that piracy is systemic. People cannot believe it is a problem relegated to
Southeast Asia or Eastern Europe. But there is real danger when the nations acting as
judge also happen to own the courtroom.
147
The Idea-Expression Dichotomy 07
J ust as any set of laws needs balance, IP courts must measure often the benefits of
enforcing copyright against unavoidable drawbacks such as freezing future creation.
This balance birthed what is called the idea-expression dichotomy. This means
that content creators enjoy copyright of the expression but not the idea of their
work. A picture of an Arizona sunset does not prevent other photographers from
photographing those sunsets, commercially or not. It only protects that expression –
the photo – from unauthorized copying. People can take their own photo and sell it to
a gallery, but they may not copy someone else’s photo for the same purpose.
As with many other facets of IP law, the idea-expression dichotomy grows more
complex in the digital age. With a low barrier to entry and multiple platforms, it
becomes as important for content creators to understand how copyright does not
protect them (in their ideas) as it does protect them (in their expressions).
More disturbing is the movement from protecting expressions to owning ideas.
148 The Idea-Expression Dichotomy
The benefactors of this greater protection are few: lawyers and corporate rights-
holders. Little evidence suggests that IP’s umbrella extended towards ideas has any
benefit for culture, society or new content creators, though its drawbacks remain
clear. In literature, the ‘stolen idea’ cases, with exceptions such as sue-happy author
Henry Ellison, often end quickly and add no disincentive for future creation. In film,
where once moviemakers considered any film a unique expression, legal action
against too-similar releases has been gradual. For music, however, the line between
idea and expression thins as musical and lyrical likenesses become easier to detect.
Whole musical traditions that borrowed heavily decades ago now want protection
from today’s musicians.
The dichotomy evaporates entirely with software and game patents, where
the smallest, simplest or – worse – broadest process gains protection and veto
power. Though each media type heads in its own direction, they all move toward
greater control. Yesterday’s content creators have forgotten their own influences
and borrowing, and they now team up with lawyers and legislators in locking down
culture for no one’s benefit but their own. And yet, no matter what degree of control
exists, content relies on a finite number of ideas to create an infinite number of
expressions. Nothing is so creative as to have come from thin air.
Imitation and intimidation in literature
It takes a thousand men to invent a telegraph, or a steam engine, or a

phonograph, or a photograph, or a telephone, or any other important thing –
and the last man gets the credit and we forget the others.
- Mark Twain, in a letter about Helen Keller being indicted for plagiarism
(Macy, 1933: 162)
Frankly, [Alice Randall] would never have written her book if Margaret
Mitchell hadn’t out of thin air conjured up this extraordinary book.
- Jack Valenti, on Gone With the Wind retold as The Wind Done Gone (A Debate
on ‘Creativity, Commerce and Culture’, 2001)
There is no shortage of ‘idea’ lawsuits, where authors who have found success
suffer a barrage of unfounded claims of stolen ideas. For Harry Potter author JK
Rowling, these claims are legion. One claimed that Rowling had borrowed significantly
from Willy the Wizard for her fourth Potter book Harry Potter and the Goblet of Fire.
Despite Rowling claiming she had never heard of or read the little-known series
by deceased author Adrian Jacobs, the Jacobs estate’s lawyer Max Markson says:
‘I estimate it’s a billion-dollar case’ (CBS News, 2010). Another suit involved the
screenplay for the film Troll, which features a character named Harry Potter who uses
magic to smite the troll (The Guardian, 2007). Yet another claimed that Rowling stole
the idea for wizard school Hogwarts from preceding novel Wizard’s Hall by Jane Yolen
(Springen, 2005).
Twilight saga author Stephanie Meyer endures similar claims, such as one
from Jordan Scott. Supposedly Scott wrote a book in her teens from which Meyer
borrows extensively (TMZ, 2009). It seems all lesser-known authors need do is have
a copyrighted work in the same genre written before literary powerhouses such as
Potter and Twilight to file suit and expect a piece of the fortune.
Unfortunately, such suits often do prove profitable, if not with legal settlements
then with exposure. When the media paint such claims as valid before they have
even gone to court, they provide a powerful publicity incentive. After all, story titles
such as CBS News’s ‘Lawsuit: “Harry Potter” Author Stole Ideas’ or TMZ’s ‘“Twilight”
Author Sued for Vampire Rip-Off’ leave little doubt that both the media outlet and
the plaintiffs want exposure above all. The titles suggest fault or even a favourable
judgment long before the suits actually reach court. The media fails in considering the
idea-expression dichotomy: ideas, borrowed or not, hold no copyright to begin with.
Over many decades, vampire lore has become a favourite topic in literature. With
a more human and romantic element that other classic monsters fail to capture,
vampire fiction has abounded since Hollywood created iconic images of Nosferatu
and Dracula, with Bram Stoker’s classic tale laying the foundation. The idea of love
between humankind and vampire runs as long and as deep. It represents the mother
of all romantic tales: unrequited love, a literary idea stretching to the beginning of
the written word. So 10, 20 or 30 years ago, readers could find books about a male
vampire falling in love with a human woman. Such books were largely retellings of
the same unrequited love in Stoker’s Dracula, but did not enjoy popularity to a degree
that shops stayed open waiting for the next book to launch. Nor did they spawn
derivative movies topping the box office. At least until 2005, when Edward Cullen and
Bella Swan came together in the fictional town of Forks, Washington.
Stephanie Meyer’s Twilight saga has risen to unprecedented heights retelling
the vampire-loves-human story. The books fly off the shelves. The films sell out. The
merchanise adorns tweens worldwide. The films’ cast enjoys instant stardom. All this
for a story that countless authors have told before.
Now, the shelves overflow with seemingly identical tales. Vampire teens in
hoodies have to endure the torture of high school and a thirst for human blood. Teen
girls no longer suffer the drudgery and disappointment of loving clumsy, shallow,
inarticulate boys, but have ancient, cultured, romantic vampires longing to sweep
them off their feet. Despite the implications of a pension-aged vampire falling in
love with a high school girl, such books fill prime real estate in chain bookshops
worldwide.
Meyer’s series still falls well under US and international copyright laws, so how
can all of these other authors write and sell books with the same idea? Simply put, no
matter how large the Twilight empire grows, Meyer owns no copyright on the idea of
a vampire boy falling in love with a human girl. Her protection lay in expressing that
idea. The expression means the names, places, dialogue and – to a degree – the plot of
that idea. It means no other writer may change a few words, or change Bella’s name to
Zelda, and publish it as their own.
This seems logical enough, but the concept still creates confusion among some
writers. Glorianna Arias, under the pen name Lady Sybilla, took fan fiction of the
Twilight saga told from proverbial ‘other man’ Jacob’s viewpoint and tried to publish
it for monetary gain in a novel called Russet Noon. The book tapped too deeply into
Meyer’s expression of the vampire loves girl idea. Fiction based on another story’s
characters remains a common and respected style of writing called ‘fan fiction’.
However, Sybilla drew ire from the fan fiction community, since a principle of fan
writing is that it remains non-commercial. Sybilla then tried a rewrite of Russet Noon,
claiming that she would turn it into a parody protected by US fair use statutes, saying:
‘I know my rights’ in a video response. Eventually, Twilight’s publisher, Hachette Book
Group, stepped in. They ordered a cease and desist on Russet Noon’s cover art, which
‘intentionally copied the Twilight Series trade dress in order to trade off the success of
Stephanie Meyer’ (Ramami, 2010). Sybilla has since published Russet Noon free on her
website, rejoining the more accepted tributes of other fan fiction authors.
Teetering on the edge of copyright infringement, the ‘parallel novel’ The Wind
Done Gone by Alice Randall tells the story of famed book Gone With the Wind from
the slave’s perspective. Despite being 65 years removed from Margaret Mitchell’s
classic, her estate wanted The Wind Done Gone not only stopped, but also burned (A
Debate on ‘Creativity, Commerce and Culture’, 2001). The case made it to the Eleventh
Circuit Court of Appeals, where – after enormous legal fees – courts said Randall could
publish the book as a parody. Indeed, the story does not use the names and places
from its predecessor, but alludes to them in fitting African-American vernacular.
More often, imitation and reuse of ideas is subtler. Stephen King’s recent short
fiction collection Just After Sunset contains a story entitled ‘N.’. The story dabbles in
ancient evils, long-forgotten rituals and other dimensions. While able to stand on
its own, fans of H.P. Lovecraft would immediately draw parallels. ‘N.’ is so obviously
a tribute to H.P. Lovecraft that it reads as if King had found a forgotten manuscript
of a Lovecraft story and published ‘N.’ as his own. And yet, in the back of Just After
Sunset, King credits not Lovecraft but Arthur Machen’s story The Great God Pan as his
inspiration. Of course, even a cursory look at Lovecraft’s life and literary influences
will surface Machen as a favourite.
Machen’s estate no sooner sought settlements from Lovecraft than the Lovecraft
estate has from King. Clearly each author offered readers unique expressions of the
same idea. Authors would find it difficult to present unique ideas for each work.
Even if ignorant of precedent, any ideas seep with influences stretching back through
writers’ lives, from books they have read to news events and the culture of where
they live. Imagine a creative environment where ideas fell under copyright protection
as well, where Cormac McArthy’s The Road never sees publication because Threads
or The Day After or any number of stories of post-apocalyptic journeys owns the
idea. After all, most nations’ copyright laws do not distinguish between short or long
works, or judge whether a work has artistic merit. Any broader interpretation of the
idea-expression dichotomy would allow people to copyright ideas, not to contribute
to the artistic canon, but to set up future lawsuits for gathering settlements from
subsequent creators.
Such broadening may seem far-fetched, but consider what the first film-makers
must have thought about derivative works: films made from books. The United States’
1909 Copyright Act spelled out for the first time an author’s right to restrict derivative
works. As Amy B. Cohen summarizes: ‘The copyright owner now could recover not
only against one who used the particular words or visual characteristics used in the
copyrighted work, but also against one who took some elements of the copyrighted
work and created a work that transformed those elements in some way, whether
by changes in medium, format or otherwise’ (Cohen, 1990: 205). For film-makers,
though, it surely seemed absurd to claim that a book was the same expression as a
film. Films must communicate differently from books or music. Film-makers must
account for every visual and audible detail. Though inevitably containing fewer words
than a book, movies often demand tighter messages, with only so many minutes to
play with. Where a book may vary from 100 to 2,000 pages, a film has a couple of
hours of viewers’ attention, if that, to convey the same amount of information. Books
take hours of face-time with readers; movies must use every minute.
While it is taken for granted today that a film adaptation of a book must receive
permission and pay hefty royalties, recent history saw such cases in court. And while
there is little doubt that today’s big movie studios would create a movie adaptation of
any wildly popular book such as Twilight, paying Meyer and Hachette Book Group is
likely not a pivotal decision. For the small, independent film-maker, however, clearing
rights is a full-time job, whether from other films, television or print media. So while
we take for granted the current state of the idea-expression dichotomy and all that it
covers, perhaps following generations will think it commonplace to clear rights before
blogging, giving a speech or creating an in-game superhero. They may consider a tax
on content an inescapable part of creation.
Tributes and disputes in film
For a town built on the power of imagination, Hollywood appears to be

terribly short of new ideas.
- The Independent, ‘Hollywood ate my childhood’ (2010)
In film, as quality, budget, effects, sound and even technique continue to evolve,
so too will the ability of film-makers to tell a visually compelling story. Classics such
as Rear Window have acting blunders and effects that today’s viewers might consider
cheesy, and such blemishes would not make it into today’s blockbusters. Even modern
films rife with trite plots and clunky writing have become technically superior to films
made even a decade earlier.
Driving this ever-evolving mark of technical film-making is writing, which
undulates in quality and popularity. Expecting superior film-making to imply superior
scriptwriting is a mistake. Having a Hollywood blockbuster with a $100 million
budget do badly at the box office because of poor writing creates wary investors. So
recycling older stories has become a staple in film worldwide. There are remakes:
films bearing the same name and the same characters, but with modernized actors
and effects, and then there are different expressions of the same ideas. When
Hollywood began, film-makers ‘wanted to have the law work both ways for them: low
protection of original printed works that they could exploit for dramatic adaptation,
and high protection for their own finished products’ (Levy-Hinte, 2004: 98). This
comes down to tweaking judgement of the idea-expression dichotomy. It means
finding a balance that supports content creation, freeing creators from fears of
litigation as well as fears of unjust use of their work. It means protecting original
works from exploitation, but not so much as to allow them to lock down further
expression. And it means finding the minimum protection needed to encourage
investment in film projects.
In this way, copyright coverage differs from patent coverage, which gives the
patent holder the right to forbid use of something. Copyright supposedly incentivizes
content creation through monopoly, but requires the protected work to exist, again
unlike patent law. Film-makers cannot forbid others from using the same concepts
and ideas in their own expression, and rightly so.
That does not mean that original content bears no advantage, however.
Sometimes moviegoers consider films too close to other films rip-offs. If a movie
borrows too heavily or adds nothing to an already overused idea, the film will likely
suffer from poor sales. Conversely, say a film uses the same idea as another – such
as the idea of a woman who has an affair with a man who turns out to be her new
brother-in-law – but it has a unique and inventive expression. It could prove more
successful than the first film. Compare this with academia. Consider a scholar who
also uses the same idea as earlier works (the argument that Shakespeare was a
noble’s secret identity, for example). His expression might earn him greater notoriety
than the idea’s originator or any other expressions of that idea so far. Jonathan
Bate was not the first scholar to examine ritual and mimesis in Shakespeare’s Titus
Andronicus. Yet his 106-page introduction to a reprinting of Titus not only made Bate
well known in academia, but also revitalized Titus as an important early play.
Just as in writing, a too-strict interpretation of what counts as expression does
little more than stop innovation and creativity. Copying and building on existing ideas
is the nature of creation. And there are so many ways that an expression is unique,
especially in film, that punishing a likened expression is tantamount to claiming
copyright on the idea. Legislation that blurs the lines between expression and idea
only results in stopping further expression. As Siva Vaidhyanathan writes: ‘Fear of
infringing can be as effective a censor as an injunction’ (Vaidhyanathan, 2003: 114).
Consider an example – a solid idea that could form myriad unique expressions.
War Games, starring Matthew Broderick, is the story of a computer linked into the US
defence network that becomes self-aware and makes life-threatening decisions on its
own. Later, Eagle Eye, starring Shia LeBouf, is the story of a computer linked into the
US defence network that becomes self-aware and makes life-threatening decisions on
its own. Later still comes Echelon Conspiracy about… well, you understand. These are
three different expressions of the same idea. The idea is not that unique, since stories
about the effects of computers becoming self-aware are as old as computers. But is
this copyright infringement? With the almost overlapping release dates of Echelon
Conspiracy and Eagle Eye, it sounds like someone working on the former overheard
a lunch meeting about the latter. Echelon even uses a female-voiced computer and
employs the same ‘surveillance camera’ shots. The protagonist is a white, male
underachiever out of his element who teams with a woman he falls for by the film’s
end. So why are the producers of Eagle Eye not suing Echelon Conspiracy’s producers?
Luckily, despite the similarities, these are two independent expressions with
similar foundations. When two films look to the same idea, use the same technology,
debut within months of each other, and seek to appeal to the same audience, striking
similarities become unavoidable. This may bring up the question of who is in the
right, if anyone.
An already functioning system actually deals with this potential problem without
involving the law: the consumer market. The market will dictate how unique and
appealing an idea’s expression is to the public. Forces such as advertising, budget
and the quality of the production can affect market success. But eventually a film’s
quality and value to viewers will decide its success. One might believe that, because
Eagle Eye came first, it would trump Echelon Conspiracy. But then consider The Last
Broadcast compared to The Blair Witch Project. Both are of supposedly found footage
of mysterious murders that occur in the woods when a small team goes out to shoot
a documentary about a local ghost legend. They have the same style (arguably made
popular by the show Cops), and similar budgets. Broadcast came out before Blair
Witch; it should be obvious which made more money. Blair Witch simply had better
advertising and marketing, and a more popular expression of the same idea, and
the market reflected this in the money the film grossed. This resulted in a sequel,
merchandising and several later movies of the same premise and style (Quarantine
and Cloverfield to name two).
Now imagine if the producers of The Last Broadcast had legal precedent to force
injunctions on The Blair Witch Project to stop production. This not only would have
meant that a genre-defining film went unmade, but would doubtless have spelled
lower profits for Broadcast (which benefited from the later release of Blair Witch).
Similarly, the low-budget runaway success Paranormal Activity uses the idea
that a poltergeist manifests in psychokinetic movement of objects and possesses
people (both effects cheap to produce on film). If this idea (or even the style of
camera work or special effects used to express the idea) gained protection, then
Paranormal Activity may never have existed; a film that made more than $100 million
out of $10,000. A decade earlier, little-known film 909 Experiment looks, feels and
progresses the same way, with strikingly similar effects. So much so that 909 writer
and director Wayne Smith said: ‘I believe my concept or premise was used in the
current hit film Paranormal Activity. There is nothing I can do about that, but I can
say mine was officially the first’ (Jokeroo, 2010). Yet while Smith recognizes that
taking an idea is not the same as cloning an expression, this does not keep others
from consistently pushing the idea-expression dichotomy further and further
toward copyrighting ideas, where expressions somehow cross over into copyright
infringement.
Rewinding to 1977, a watershed case that first blurred these lines involved
Sid and Marty Krofft (creators of the children’s television show HR Pufnstuf) and
McDonald’s. McDonald’s had approached the Kroffts about the rights to the Pufnstuf
‘magical land’ where speaking trees and other anthropomorphized wonders
abounded. The deal fell through, but McDonald’s still produced several one-minute
commercials set in a ‘magical land’ with similar figures, likely to appeal to kids
who watched Pufnstuf. However, the Ninth Circuit considered this more than just
another expression of the same ‘magical land’ idea, and ordered that McDonald’s pay
reparations for violating the Kroftts’ copyright. Yet the Kroftts were no sooner the
first to imagine talking trees and flying witches than McDonald’s were the first to
imagine French fries.
The victory for the Kroffts came in the minutiae of the case. The plaintiffs
successfully argued that while McDonald’s had formed their own expression, it
shared the ‘look and feel’ of Pufnstuf. Since the Kroffts, cases where copyright holders
seek to stymie any expressions stemming from the same idea have made the weight
of the Kroftts’ case obvious. Particularly for Hollywood, the ironies are legion. As
Vaidhyanathan notes: ‘Although the film industry has pushed for thicker copyright
protection to protect its dominant place in the global cultural marketplace, it should
be clear that thin copyright protection, a rich public domain, and a strong legal
distinction between ideas and expression made the American film industry powerful
in the first place. Bending all decisions on the legality of derivations in favour of
original authors violates the spirit of American copyright’ (Vaidhyanathan, 2003:
115).
Many films teeter on the brink of non-existence because of claims involving more
imitation than infringement. And imitation in the loosest sense of the word – hearing
an idea and turning it into your own expression. Imitation is how authors such as
Shakespeare created. And what was the Medieval revival of Victorian England but
a mass retelling of Arthurian legend? Yet the works of Shakespeare, Tennyson and
Waterhouse are supremely important to our culture.
Just as there are some benefits to UK and US common law, it holds undeniable
drawbacks. Common law has softened the oppressive Digital Millennium Copyright
Act (DMCA), but has opened a Pandora’s Box for cases against likened expressions of
the same idea. Cases where two expressions share a ‘look and feel’ loom unavoidable
when considering the nature of the expression. For instance, in India, Bollywood often
bases movies closely on US films. Sparse lawsuits have come about because of this,
and even then courts ruled the supposed infringement as falling on the idea side of
the idea-expression dichotomy. While it remains debatable whether Indian remakes
take away from US films’ market share, the chances of market interference drop
dramatically with remakes of older films.
Sure, there is still a small market for classic films such as Casablanca or The Bridge
on the River Kwai, but not only are these exceptions because of their popularity, their
primary delivery vehicle is the DVD as well. So how much market competition is a
Bollywood remake bound for the cinema presenting? In his article about purportedly
illegal Indian remakes, lawyer and author Rachana Desai mentions several Indian
productions that copied US films. Yet he puts the 2002 release Kaante (a copy of the
1992 Tarantino film Reservoir Dogs) on a par with the 1992 Indian release Dil Hain Ke
Manta Nahim (a copy of the 1934 US film It Happened One Night) (Desai, 2005). Even
though It Happened One Night might enjoy moderate DVD success, ignoring the vast
gap between its release and that of the Bollywood remake is absurd. Almost as absurd
as claiming the Indian market for a 1992 remake of a 1934 US film lessens the latter’s
market. If anything, remakes promote interest in the original.
While Hollywood or anyone else files few suits against Bollywood, lengthy and
unrealistic copyright terms always leave room for the possibility of litigation. Yet, as
Desai points out, there is a cultural divide between what Indian and US courts would
consider infringement (Desai, 2005). The Indian film industry holds a much more
liberal view of how the idea-expression dichotomy works. Who is to say who is right?
The strictness of Hollywood’s creative interpretation is not without its critics.
The introspective film Be Kind, Rewind starring Jack Black and Mos Def reveals the
problematic nature of ‘thick’ copyright. When Jack Black’s character, Jerry Gerber,
accidentally demagnetizes all the VHS tapes in an already-failing video store, he
leaves the business without a product. To avoid foreclosure, they begin ‘sweding’
films: re-enacting famous films with cheesy effects and amateur actors around
the neighbourhood. The effect is a warm cohesion that begins to emerge in a
neighbourhood dilapidated by poverty. This proves financially successful for the video
store, and uplifts a sad community sliding into entropy.
Alas, film executive Ms Lawson, beautifully played as over-the-top and heartless
by Sigourney Weaver, visits the store to enforce a cease and desist order. She tells the
video store employees that they owe the film industry more than $3 billion, to which
Gerber replies ‘I’ll write you a cheque’. Also, as penalty, they are told they must serve
63,000 years in federal prison, ‘which of course would have to be served before you
could reopen the store’. Especially telling is when Lawson says: ‘The entire industry is
crumbling because of pirates and bootleggers, and we intend to stop it right now, right
here’. As if a poor, rundown part of New Jersey could impact the mammoth revenues
of big media or crumble a multibillion-dollar industry.
So despite rampant, flourishing creativity in a dying corner of the US, perceived
lost revenue and the arbitrary heavy-handedness of copyright law stops any more
films from being ‘sweded’ – at least in the movie. In reality, small cinemas now host
Sweded film festivals, where they encourage independent film-makers to follow in
the creative footsteps of Be Kind, Rewind’s lovable characters – the cheesier the better.
The film’s director, French film-maker Michel Gondry, tells GQ: ‘Eventually, at the end
of Be Kind… they make their own movie. That’s really what it’s about. To make your
own what you want to watch. For yourself. Not to be part of a commercial system’
(Friedman and Finke, 2008: 94). This conveys the idea that while fledgling creations
know only imitation and mimesis, creativity with more autonomy often follows. There
is proof of this in music, film, writing and invention.
This echoes in other fledgling film-making. In the documentary film Welcome
to Nollywood, Nigerian director Mildred Okwo says that when Nollywood began
‘it basically was just a group of people just making films for people around the
neighbourhood to enjoy. They never envisioned that it would grow across the Niger’
(Meltzer, 2007).
Perhaps Hollywood has simply chosen to forget its piratical roots, where
according to today’s standards its films would suffer under countless lawsuits. They
have forgotten violating the patents protecting Thomas Edison’s movie projector,
and let the unlicensed creation of derivative films from popular books still under
copyright slip their memory. But the industry needs an environment where it is
okay for Channing Tatum’s Fighting to appear almost a retelling of Jean-Claude Van
Damme’s Lionheart. Where Chuck Norris’s Hitman debuted with so many likenesses
to Steven Seagal’s Hard to Kill, it seemed impossible they could have evolved as
independent, parallel expressions of the same ‘nearly murdered cop gets revenge’
story.
It should matter little that a few studios might benefit from tighter protection on
ideas. Of greater importance becomes possible harm to fledgling film-making both
in the West and in developing nations, where film remains in its earliest stages. Law
did not keep Hollywood from developing into the modern powerhouse of content
creation. Now law needs to step aside and give the next generation its shot, even if
Hollywood rights-holders believe otherwise.
Inspirations and borrowing in music
If the United States adhered strongly to the principle of authorial reward as

the sole function of copyright law, every rock-and-roll musician would owe
money to Mississippi Delta blues musicians.
- Siva Vaidhyanathan, Copyrights and Copywrongs (2003)
To do is to be.
- Socrates
To be is to do.
- Plato
Do be do be do.
- Frank Sinatra
Another pillar of anti-piracy rhetoric is that piracy harms from the bottom up,
making it difficult for smaller artists to eke a living, and only mildly affecting larger
artists. What this assumes, however, is that a small band will make most of their
revenue from CD sales instead of touring – an assumption that is completely untrue. A
smaller band’s songs are probably not even on a file-sharing network unless the band
themselves placed them there as a free means of upping their exposure. This is akin
to posting videos or songs on YouTube or MySpace. More established artists, however,
could lose more money from file-sharing, as could their label and trade group. While
an average artist makes around $1 per CD, much of the rhetoric about file-sharing
comes from the entities taking home the rest of that profit.
This rhetoric also ignores the nature of thick copyright. The blues artists of the
early to mid-20th century consistently borrowed from one another because the
originality was in expressing a song, not the song itself. Blues artists had no issue with
making money from singing their own versions of someone else’s songs. Later pop
and rock artists had no problems making millions adapting old blues songs to their
style and expression either.
And yet today, with copyright laws stretching further and wider, an upcoming
band cannot dip into a rich and current public domain to create and market their own
expressions. Now, an upstart band using any part of an existing, copyrighted song
must first get permission from the rights-holder. This is costly and time-consuming,
and largely unrealistic for upstart artists. Depending on the nature of the borrowed
song, they might fail to get permission at any price, as well. So, like most rhetoric, the
true case is the opposite of what the industry claims: thick copyright hurts upstart
artists by restricting expression, and file-sharing hurts only larger artists and can help
smaller ones.
Many would argue for implicit protection on all music, which forbids other
expressions without compensation. But consider for a moment what that means. One
popular example of the injustice of working off another’s creation is Elvis’s hit song
‘Hound Dog’. This is clearly a retelling of black blues singer Mama Thornton’s song of
the same name. Thornton and Presley were even contemporaries, though appealing
to different audiences. They were both popular, though Elvis more so, mostly
because he appealed to a larger audience. Siva Vaidhyanathan writes: ‘Presley’s
appeal transcended racial and regional lines and opened up several generations
of young people from around the globe to the power of African-American music’
(Vaidhyanathan, 2003: 119).
While some would see this as a landmark case for thick copyright, they ignore the
potential effects of such protection. Copyright can restrict expression when monetary
settlements precede creativity. We are looking back at ‘Hound Dog’ and saying that
Elvis should have paid tribute – and money – to Mama Thornton for taking her music
and making it his own. But we cannot assume that, were Elvis to have followed the
process under today’s thick copyright protection, that ‘Hound Dog’ would have found
the success it did. Perhaps it would not have existed at all. Indeed, applying today’s
protection back then, Thornton could have simply forbidden Elvis to use the song,
and the world would be poorer for it. Despite Thornton’s version growing popular
in blues circles, it did nothing to benefit the millions of people not listening to blues.
Vaidhyanathan goes on to write that: ‘Whether in good faith or bad, white performers
almost always reaped larger rewards than their black influences and songwriters’
(Vaidhyanathan, 2003: 119). With those larger rewards, however, came larger
exposure for those songs, which – under current copyright – may never have existed.
The legendary musician and songwriter Bob Dylan also has a history of sampling
from several others for his work. Just as with Presley, this borrowing did not mean
that Dylan offered monetary compensation or even acknowledgements to these
influences, but likely saw nothing of his final product as anyone else’s at all.
In a New York Times piece about Dylan’s sampling habits, a DJ shrugs off Dylan’s
borrowing, saying: ‘I think that’s the way Bob Dylan has always written songs. It’s
part of the folk process, even if you look from his first album until now’ (Rich, 2006).
A biographer of obscure southern writer Henry Timrod shows similar acceptance
of Dylan’s obvious line-lifting from Timrod’s work from the Civil War era. ‘I’m glad
Timrod is getting some recognition,’ he says (Rich, 2006).
Today’s rights-holders show far less generosity or forgiveness. In the offices of
licensing organizations such as BPI and ASCAP (American Society of Composers,
Authors and Publishers) are whole floors of employees scouring the internet,
searching for similarities to their clients’ music. They have no concern about whether
borrowing is ‘part of the folk process’ but meet even the minutiae of copyright
violation with legal action. In fact, Dylan’s similarities to the largely unknown Timrod
were uncovered by simple Google searches.
But modern indictments of both Dylan’s songs based on Timrod and Elvis’s
‘Hound Dog’ miss a key point: that it was Elvis who was able to bring that song to
legendary heights, not Thornton. That Timrod was unable to make those words echo
in millions of ears as Dylan was. ‘Hound Dog’ topped country, pop and R & B charts
at the same time, and has found use dozens of times in other creations, from movies
to art to satire. So while Elvis clearly took Thornton’s work and made money from
his spin on it, he still did what it took to make that money, to add that spin, to make
the song the immortal tune that it is today. Whether it is right for Thornton to have
received no money from the millions Elvis’s ‘Hound Dog’ made does not supersede
the fact that Elvis made something creative, transcendent and clearly marketable from
her creation.
The weight of following expressions cannot be ignored, nor should it teeter
between existence and non-existence based on the outcome of a legal dispute.
Lawyers and courtrooms do not create, and never will. Expressions may share as little
as antecedents or as much as every note with another expression; it does not quash
their creative value. All creation is inspired by ideas that already exist. We bind those
expressions with law and process at our own peril.
Patent coverage of computer code
$612 million is a big number, but when you look at overall life of patent, this
ends up being a relatively normal size settlement.
- Steve Maebius of Foley & Lardner, regarding NTP’s suit against Blackberry
maker Research in Motion (Kelly, 2006)
I don’t understand how someone can argue that high value patents inhibit
innovation.
- Russ Krajec, Patent Attorney (2011)
We have seen how the breadth of copyright has increased with its terms. Often
this reflects changes in media technology, such as extending copyright to photographs
after the invention of the camera. Occasionally, this new breadth results in far more
protection than is needed to secure works and incentivize creators. It then has the
reverse effect, where protection meant to encourage content creation freezes it by
granting too much control over content to the rights-holders. Not just those first to
market, but first to fix legal controls.
Such was the case when computer code became eligible for patent protection.
Copyright coverage of computer code makes more sense. It ensures that, say, code
released under the GPL does not end up cut and pasted into a commercial product
with a closed source code. Patent coverage works differently, allowing patent holders
to forbid other coders from using the outcome of the code, regardless of whether
they used the actual code. After all, businesses usually close their source codes.
Microsoft would no sooner offer the source code for Office than Adobe would for
Photoshop. That there are programs similar to Office and Photoshop reflects similar
code outcomes, not necessarily plagiarized code. In fact, someone can easily create a
program similar to a mainstream application writing in a different computer language
entirely. So the writing – the part covered by copyright – has little to nothing in
common.
‘Ask 20 people to write a program and give them the same specifications,’ writes
Jeremy Bowers, ‘and you’ll get 20 very different programs… If a patent was granted
only on the specific code written by the patent applicant, then software patents would
not pose a threat of any kind to anybody; the odds of exactly replicating somebody
else’s code are astronomical. Unfortunately, software patents are being granted on
effects of code, and not the code itself’ (Bowers, 2006).
The result of this protection is devastating to software development. At the
most base level, as revealed in the documentary Patent Absurdity, software patents
put a lock on mathematics. Such patents take an algorithmic means of solving for X,
assign variable names, and use mathematics to match up compatible people, perform
transactions or filter data. But Ben Clemens, author of Math You Can’t Use explains:
‘What we’re giving out is basically exclusive rights to use mathematics’ (Lucarini,
2010).
In 1953, the original terms in the US for patent coverage of a ‘product’ expanded
to include a ‘process’. This covers modern software, or more accurately and absurdly,
the ‘machine’ of users’ hard drives, which become ‘new machines’ once users install
software on them.
What this means in practice is that software companies began to file patents
in ever-increasing volume, not so much to protect output, but to prevent other
companies from forbidding the process for which they created software. Every
process patented was a process that new developers could not use without
permission. And every new process led to a debilitating fear of losing rights, and so
the creator sought a patent.
That software remains confusing in its process begets ambiguity in the patent
verbiage, widening the legal noose for the patent holder. ‘In the world of computer
software,’ says Eben Moglen of the Software Freedom Law Center, ‘there was no way
of defining what the unit was. I don’t claim a program, I claim a technique that any
number of programs doing any number of things could possibly use. The consequence
of which is that very rapidly we begin to build up as real estate that somebody owned
and could exclude other people from a whole lot of basic techniques in computer
program’ (Lucarini, 2010).
The patent grab did not even begin with the large corporations. Instead, it was
smaller patent holders suing these corporations that created a patent frenzy. As
James Bessen, co-author of Patent Failure, notes in the documentary Patent Absurdity
(Lucarini, 2010), after suits against large companies in the 1990s ‘industry attitudes
started changing’ and the feverish grab for patenting even the smallest process began.
By the end of the 1990s, about 25 per cent of patents filed were for software, and the
numbers have only increased from there.
Members of the exploding field of patent law, such as patent lawyer J. Michael
Jakes representing Bilski in the watershed case In re Bilski, harbour clear incentives
for this misuse to continue. Jakes offers as reasoning for software retaining patent
protection that it is ‘one of the greatest sources of technical innovation in this
country’ (Lucarini, 2010). But he skirts the important question: is it a great source of
innovation because of or despite software patents? People must not confuse growing
IP law with growing innovation. There is simply too much proof that software needed
no such protection to claim that today’s heavy-handed coverage has promoted any
further growth in development. As Ciaran o’ Riordan, director of lobbying group End
Software Patents, notes: ‘There was never a need to have patents in this field in order
for the activity to happen’ (Lucarini, 2010).
Because software patents represent a large percentage of the 3,500 patents issued
weekly in the US, patent trolling – patenting a process in the hope of suing content
creators who use the process – has itself become a business. Now hedge funds buy,
sell and trade patents for the sole purpose of suing content creators who violate those
patents. These are companies that have no dealings with content creation, innovation
or the public good. They merely manoeuvre a current legal folly to make money.
That this began to spiral out of control in the US does not remove any other
nation from its possible harm. As IP laws encompass more and more countries, the
forced respect of these patents will go along with signing any IP trade or enforcement
agreements. Then patented software processes will act as nothing more than a tax on
software development, and the US will have more than a 200,000 patent head start on
other nations.
This outlandish protection affects more than programs. It has now infected the
booming video game market as well. In the same way, the effect of the code gains
protection, not just the code itself. Most people remember the game Memory from
childhood, where players turn over cards with matching pictures and try to remember
where they saw them as the game progresses. This same game pops up as a time killer
while loading hit PC title The Sims 2. Little do players know that this intuitive idea –
playing a mini-game while the main game loads – meant that Sims creator Maxis had
to pay for the right to use it. The owners of Memory? Hardly. The holders of the patent
on load-time mini-games, Namco.
For EA – the umbrella game giant over Maxis’s Sims – throwing compliance money
Namco’s way presents no problem. It will not hamper Sims development, and the
more trivial any claim against EA becomes, the higher the odds that EA’s own array
of lawyers will shoot down claims of patent infringement. But for the small business,
obeying the letter of patent law can mean scrapping projects, compromising game
design, or worse – creating in ignorance of patent infringement, which almost always
begets greater losses than pre-emptive licensing.
There are even patents on how game characters evolve, gain experience and grow
stronger. Sound familiar? This is a premise found in almost all role-playing games, as
well as many action/adventure games in both the first and third person. Using this
as a benchmark, it seems logical that a company could patent the colour blue used in
video games to simulate the sky.
As lawsuits go, it is common for patent holders to wait until a project makes
money before claiming patent violation. This was the case with The Simpsons: Road
Rage using a pointing arrow over the car to tell players where to go next. Sega owned
the patent for that game device. They then sued Fox, EA and Radical Games.
Now, developers either pay a ‘tax’ once they have inevitably infringed on patents,
or they avoid patented game concepts altogether. The only developers who can
afford to pay the patent holders for use of controlled concepts are the largest, not
necessarily the best. So a legal device meant to prevent piracy and encourage content
creation, the patent, now hurts small game developers.
This goes against the original purpose of patents. We believe that patents exist
so innovations reward the creator. So that what businesses make and market will not
immediately have to compete with reverse-engineered replicas or copycats. However,
with patenting game ideas, it seems the rewards are going not to the creator, but
to the person sitting back and waiting for others to create. No wonder so many file
patents. Some patent for defence while others intend to profit when another company
infringes.
And yet, no matter what the size of the developer, it has become in their best
interest to patent anything they can. No matter how minute, it has become a race
to the patent office, to avoid injunctions or infringement suits. As authors of one
article in the Intellectual Property and Technology Journal put it: ‘Even if a company is
philosophically opposed to patents, it is prudent to adopt at least a defensive patent
strategy. Unfortunately, it is often the case that companies do not deal with patent
issues unless they have to (i.e., when a patent is asserted against them). At that point,
it is too late’ (Gatto et al., 2009: 9).
In the article, the authors argue that game developers should patent not because
they plan to sue others, but to form a defensive strategy. But a company that files a
patent and then sees another company using the same game concept would not refuse
to file suit. In fact, the patent grab, no matter what the original purpose, only feeds the
problem. These patents do not further incentivize creation, nor would their absence
prevent coders from innovating. Gamers care more for worthwhile, immersive
and intuitive gaming experiences than clever features. The facets of gaming that
companies are patenting represent a symptom of game evolution, not the other way
around.
Imagine this same coverage in other media. Let’s say that a film studio patented
the high-speed car chase. Any film after that would have to pay for the right to have
a car chase scene. This would alter plots, stories and production to avoid lawsuits or
save money rather than to please cinemagoers. Just as with software, the mad grab for
film patents would have nothing to do with protecting talent, creation and innovation,
only with a sue or be sued culture.
How about the same rules for books? If you can patent a game concept, why not
a literary one? If so, Christopher Paolini’s hit series The Inheritance Saga beginning
with dragon rider Eragon would have received hefty payment from every boy-rides-
dragon clone to hit the market after that, or else would have just forbidden such
stories altogether to prevent competition. Such an act would neither aid creativity nor
please Paolini fans.
The fact remains that patents for code came after software and games already
enjoyed widespread use and a strong economic presence. Such patents remain
unnecessary to incentivize software and game creation while still exacting a hefty
price on present and future development. The only people benefiting from such
patents are the lawyers and the patent trolls, neither of which contribute anything
to culture or technology. The longer the mad grab of patents continues, the more
processes will become tied up in courts instead of contributing to content creation.
Patents’ role in digital media bodes ill indeed if the debacle of the software and
gaming industry’s patents spills over into other media.
168
Creative Piracy
08
M odern media boils over with repetitive themes, characters, settings and
circumstances. Some receive little or no public ridicule while others suffer harsh
judgement based on their lack of originality. And yet, so much of what passes for
new media each year builds on previous work. Many book titles, films and songs are
licensed remakes of previous works, whether from five years or fifty years ago. The
difference in remake and remix, however, is that money changes hands for the former,
and often does not for the latter. Remakes take money and make money, while remixes
need only shoestring budgets and see scant returns.
So the small budgets and individual effort of remix culture lose some people.
Perhaps they remain entranced by mainstream media and advertising, which says
that nothing without a cost holds any value. But what ties remix types together is
an almost universal disregard for copyright, and an equally universal respect for
the original media. Nearly all levels of copyright enforcement, from international
169 Creative Piracy
to local, have created harsh penalties for file-sharing and counterfeiting. Yet these
same entities are unsure of what to do with remix culture. Rights-holders can sue for
any infringement, but legal action remains a delicate balance between dissuading
competing products and preserving the good graces of customers. The most forward-
thinking companies cultivate remix for guerrilla marketing.
Regardless of industry reception, creative piracy blossoms in the digital age.
But though a shaky truce keeps some creative infringement out of the courts, the
balance remains precarious. A time will come when the copyright rich tire of losing
consumers to user-generated media. By then, perhaps piratical creativity will have
too large a stronghold to be stamped out. Otherwise, everyone loses when corporate
rights-holders tell a whole generation of content creators to cease and desist.
Fan fiction blurs the pirate line
The final dishonesty of the plagiarism fundamentalists is to encourage us to

pretend that these chains of influence and evolution do not exist, and that a
writer’s words have a virgin birth and an eternal life.
- Malcolm Gladwell, ‘Something Borrowed’ (2004)
About the most originality that any writer can hope to achieve honestly is to
steal with good judgment.
- Josh Billings (Henry Wheeler Shaw), US humorist
When the sixth book in the Harry Potter series, Harry Potter and the Half-Blood
Prince, hit the shelves, Harry popped up everywhere. In the UK, the trains looked
like an advertisement for the book, with more passengers engrossed in Harry’s new
adventures than newspapers or any other publication. In the US, bookstores held
launch parties complete with cosplay contests and served Bertie Bott’s Every Flavour
Beans.
Since file-sharing sites’ content reflects pop culture, Harry became popular on
170 Creative Piracy
Limewire as well. Most e-books on the Guetella network come in either PDF or Word
format. The e-pub and LIT (Microsoft’s proprietary e-book format) have grown
in popularity, and a few also come in TXT with no formatting at all. This makes
discerning an e-book’s authenticity difficult, since pagination and cover art may
change.
What many Limewire users found alongside illegal copies of Half-Blood Prince
were books of equal length with the same title and loosely the same storyline that JK
Rowling had no hand in writing. One such e-book begins with Harry back at Number
4 Privet Drive, as usual, but he has finally settled his differences with his overbearing
cousin Dudley. Harry and Dudley – new pals – are talking about the magic world.
Harry wins a soda-drinking contest with Dudley by downing 47 sodas. At the end of
Harry’s adventures at Hogwarts is the message: ‘I hope you liked my version of Harry
Potter and the Half-Blood Prince. Feel free to distribute it.’ This is on page 500 or so.
Someone had written a full-length novel of the same storyline and put it on a p2p
site for general download, all under the guise of the original book. The implications of
this are staggering: someone spending all of that time (even if amateur writing, 500
pages is a magnificent feat of willpower and dedication) without any wish or request
for payment. The author had even adopted some of Rowling’s more trademark writing
techniques, such as the generous use of adverbs.
That someone took the time to compose this novel, and within a relatively short
period of time, speaks volumes about the person. Not among such volumes is that the
author is a pirate or plagiarist for taking on such a thankless and interesting project.
One could call them a dedicated, relentless fan of Harry Potter and JK Rowling.
This creative piracy is called fan fiction or ‘fanfic’. Amazingly, several full-length
fanfic versions of Half-Blood Prince appeared on Limewire. But full-length Harry
Potter fanfic stretches beyond p2p sites. A site by web designer George Norman
Lippert bore yet another full-length Harry Potter fan novel entitled James Potter
and the Hall of Elder’s Crossing, which received many responses from Potter fans
worldwide. Indeed, the book became so popular and fans felt it did the Harry Potter
world such credit that JK Rowling eventually came forth to ensure fans that she did
not secretly write it under a pseudonym (PR Web, 2008).
But is this unique? Does Harry Potter hold such (magical) charm that he alone
171 Creative Piracy
makes people violate copyright to write and share fanfic? Hardly.

Fan fiction has grown rapidly with widespread internet. Now die-hard fans of
everything from Star Trek to the more obscure Vampire Hunter D can share their own
written adventures involving these characters or settings. It is by its nature a piratical
act. When another Star Wars book appears in the shops, it has cleared all rights from
George Lucas and other copyright holders responsible for this beloved galaxy far, far
away.
And yet, fanfic is innately creative. If Tolkien Enterprises stopped people from
writing their own adventures in Middle Earth because of copyright, it would stymie
creativity, not protect it. Especially since fan fiction most often holds no commercial
purpose. The rewards are in peer review and, arguably, it helps perpetuate
commercial interest in the copyrighted material. Thus, how the industry reacts to fan
fiction is important for claiming that copyright is a tool for ensuring artistic creativity.
After all, fanfic is undoubtedly a ‘derivative work’ making use of copyrighted
characters, themes and settings. Even claiming fair use were the work used for
education would likely hold little water. Of course, parody is another means of fair
use, such as with slapstick film Meet the Spartans, which comically portrays scores of
copyrighted concepts and characters.
Fortunately, neither the MPAA nor publishing houses have turned to widespread
lawsuits to stop fan fiction, but it remains a shaky truce. It can depend on how the
author uses the copyrighted material (not in a sexually explicit manner, for instance).
This is even more precarious for the sub-genre called ‘slash’, where the author pairs
often-male characters in homoerotic situations. For instance, a piece of fanfic for the
book-turned-film Jumper series portrays protagonists David and Griffin discovering
homosexual feelings for each other. Thus, ‘David/Griffin’ is the title.
Possibly Steven Gould does not like seeing characters he created portrayed in
such a way publicly, even if non-commercial and ostensibly not affecting Jumper’s
market. Yet authors have little say in how a fair use parody might portray their
creations; should we treat fanfic any differently? After all, when an artist, writer,
musician or film-maker creates art and works hard to increase its exposure and
consumption, it becomes an entity with indisputable ties to society. Even before
copyright expires, works ingrained in our culture must – to a degree – surrender
to offshoot interpretations. Star Wars represents a prime example. Luke, Yoda and
172 Creative Piracy
Darth Vader have become icons embedded in our cultural literacy. Commercial or not,
parody or not, people can make their voices gruff and low, and say: ‘Wise you have
become,’ and almost everyone will get the reference.
Over time, Lucas has taken an almost hands-off approach to all fan fiction. This
leniency extended only to fan films at first, then later to fanfic. In one instance a Star
Wars fan novel went commercial, but LucasArts saw it removed from Amazon.com
post-haste. The novel’s author then drew ire from the fanfic community for trying to
make money with her work (Goldberg, 2006).
JK Rowling even encourages fan fiction. Warner Bros – the production company of
the Harry Potter films – even posted fanfic guidelines on their website.
So far, fan fiction writers comply with any author or creator wishes to keep fanfic
off the internet. Perhaps because of this, the worst legal action most fanfic writers
receive is a takedown notice. For example, despite the popularity of the show, there
are few online works of fan fiction for sci-fi show Babylon 5 because of requests from
the creator.
Movements within the fan fiction world, notably by the Organization for
Transformative Works (OTW), have argued that fanfic should fall under fair use. Fair
use would not put fanfic writers completely in the clear, since fair use arguments
have meagre success as a defence in copyright cases. But it would at least firm the
shapeless legality fanfic now has. Indeed, fan fiction seems a normal and expected
tactic for fledgling writers. In arguing for fan writers, avid fanfic author Carol
Pinchefsky writes: ‘…So many people have independently created fan fiction without
knowing it already exists that I’ve begun to believe science fiction and fantasy are a
crucible for ideas – that there is a natural extension between fandom and creation’
(Pinchefsky, 2006).
Is writing a story based on another’s characters or settings any different from
emulation in other arts? Throughout history, movements in art, literature, theatre
and film have meant artists mimicking and building on one another’s work. There
are many examples of Shakespeare’s use of previous, even contemporary stories in
his plays. In fact, a Shakespearean play that modern copyright would not consider a
derivative work would prove the exception, not the rule.
While fanfic authors cannot sell works using copyrighted characters without
173 Creative Piracy
permission, they still hold a copyright on their work. This may seem unfair, given that
they play off protected works, but fanfic authors’ rights warrant some recognition.
For instance, when 12-year-old French writer Marie-Pier Côté landed a deal for her
2007 book Laura l’immortelle (Laura the Immortal), the media could not get enough
of this young prodigy. However, it quickly came out that the story bore a likeness to
the popular Highlander series. Afterward, people found out that Côté had pilfered 99
per cent of her work from Highlander fan-fiction writer Frédéric Jeorge, who had put
his fanfic novel Des cendres et du vent (Ash and Wind) on the internet for free in 2001
(Morissette, 2007). In the end, despite Jeorge having no legal right to publish his fanfic
novel, he had legal grounds to stop Côté from claiming it as her own. Jeorge received a
small settlement from the publisher, and the book – while still lingering on Amazon as
‘unavailable’ – discontinued after its first 5,000-copy printing.
Unlike other forms of copyright infringement, fan fiction does not pretend to
represent a new product. But while the authors are capable of creating their own
worlds and characters, they expand on works they love, despite copyright protection.
It represents creativity as much as the work from which it draws. Perhaps because
fanfic writers avoid commercializing their works and respect requests to leave other
works alone, big media has adopted a hands-off approach, despite infringement.
However, it seems ominous that both the fanfic authors and rights-holders tacitly
carry on. Because, come a day of reckoning, the law would favour the rights-holders.
If current fair use arguments consistently fail in court, what hope does a creative form
unprotected by fair use have?
Disparity in the modern hacker image
Sure it’s crooked, but it’s the only game in town.

- Mr Wednesday, American Gods
The term ‘hacker’ still conjures negative reactions in people. The computer
industry has loaded this moniker with all manner of unauthorized actions. But just
as the term ‘pirate’ should now seem an overused misnomer, the hacker title bears
174 Creative Piracy
several dubious assumptions. Any assumption about a hacker’s guilt or harm must
consider the nature of whatever they hacked, disassembled or just scrutinized. That
hacking automatically transforms the target object or system into a victim remains a
popular misconception.
For example, Apple’s monopoly with mobile phone company AT&T has become
a money machine worth more than the combined wails of Apple customers. After
the DRM-laden iTunes tethered users’ bought music to Mac devices and met with
unending opposition, many thought Apple would avoid another user bottleneck
that runs opposite to consumer wishes. But their stubborn dedication to the AT&T
monopoly on the iPhone’s several editions and the new iPad have spawned hacks
called ‘jailbreaking’, for installing third-party applications, and ‘unlocking’, which frees
iPhone users from going to AT&T for phone service. While reasons vary, most people
want to stay with their current service provider, and simply switch the SIM card from
their old phone into the iPhone.
Plainly resisting collective customer will, Apple finally declared jailbreaking and
unlocking as copyright infringement and threatened legal action. But despite the
occasional article or blog on how ‘the law is the law’ and how Apple has every right
to prosecute any violation of their IP, few consumers look down on jailbreaking. The
reason lies in how unpopular the AT&T monopoly has become. But the ubiquitous
hacks allowing even the least savvy iPhone owners to loosen Apple’s imposed
shackles presents a quagmire. In most people’s minds, the hackers working to counter
any protective measure Apple creates look nothing like the generic ‘bad guy’ hacker
from industry rhetoric. Since Apple’s firmware upgrades have had more to do with
reinstituting DRM and other controls than with fixing bugs, the hackers have become
heroes.
Similarly, the hacker group Operation Payback has mirrored industry-funded
Distributed Denial of Service (DDoS) attacks on the RIAA, the MPAA and even the
US Copyright Office, leaving their websites inoperable for a short time. Payback is
open about its purposes and represents strong opposition to the current copyright
climate and inherent ‘necessary evils’ such as taking down websites or stifling free
speech. When Amazon, MasterCard, Visa and others pulled their support of whistle-
blower site Wikileaks late in 2010, Payback took down their websites, resulting in
press coverage and public awareness. When the RIAA finally received a favourable
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judgment resulting in the p2p file-sharing platform Limewire shutting down, Payback
shut down the RIAA’s website multiple times for several hours.
Other hackers boast no political or ideological objectives, such as with projects to
reverse engineer technology. Though often transparent to consumers, rights-holders
see nothing innocuous about reverse engineering their IP. This seems deeply ironic,
since such hacks often entail making programs work on platforms on which they do
not already work. A program or piece of hardware must have a digital bridge between
it and users’ operating systems. Linux users either accept that having a rock-solid and
open source operating system means that many mainstream software applications
cannot run on it, or they pick the program apart to make it work. But the irony is that
reverse engineering an application to run on another platform is in effect stretching
and working to consume that product. Only in digital media would rights-holders
incite legal penalty against those so eager to become customers. They not only break
the law, but also put in their own time and effort to make the programs work. Rights-
holders would normally have to pay to for such specialty work.
A prime example is the industry battle over DeCSS. Content-Scrambling System
(CSS) was a technical protection measure to control what devices could play DVD
movies. It prevented disks from playing on computers running the Linux operating
system (because they lacked the authentication protocol approved by the DVD
consortium). A group of Linux users ‘hacked’ the mediocre encryption of CSS, so
DVDs could play on their computers. The resulting program, which began on message
boards, was called DeCSS, and quickly went viral. But as Lawrence Lessig remarks:
‘DeCSS didn’t make it any easier to copy DVDs than before. There’s no reason you
can’t simply copy a CSS-protected movie and ship it to your friends. All that CSS did
was ensure that you played the movie on a properly licensed machine. Thus, DeCSS
didn’t increase the likelihood of piracy. All that DeCSS did was (1) reveal how bad an
existing encryption system was; and (2) enable disks presumptively legally purchased
to be played on Linux (and other) computers’ (Lessig, 2001: 189–190). Bypassing
CSS violated the newly formed Digital Millennium Copyright Act (DMCA) and so met
with swift legal retribution, regardless of DeCSS’s function or its creators’ motivation.
So this group of hackers wanted nothing more than the ability to consume licensed
media, and the industry reacted with legal action that put one of them in jail.
Arguably the most feared and hated of hackers are those who penetrate and
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expose security flaws. Industry rhetoric would have consumers believe that such
hackers act as a continuous threat to their online safety, personal privacy and financial
security. So successful is this rhetoric that an entire industry of security software has
met market demand for protection against these manufactured threats. Again, media
work to pass all liability and blame to the hackers penetrating popular platforms such
as Internet Explorer, AOL and Adobe Reader. This ignores the message such hackers
are communicating: that companies releasing software riddled with security flaws
should be responsible for fixing it. Doubtless, there are myriad hackers out for credit
card information, identity theft and even government and trade secrets. But the hair-
thin line between hackers who mean harm (often called black hats) and those who
expose the same security vulnerabilities to strengthen existing infrastructure (white
hats) remains pivotal. Alas, it has become the least understood and so the most feared
brand of hacking, despite its obvious importance in hardening online security.
To pretend that all unauthorized access represents a threat, and to demonize
publicly all such hacks, is to harbour a dangerous ignorance, both for consumers
and businesses. The outcome for both means avoiding all but well-known, oft-used
programs for access and security. The drawbacks to this should be obvious, as they
are to the hacker. Security services or programs have a vested interest in arousing
fear of hackers: money. If contributing to the veil of mystery and anxiety around
hacking fattens their bottom line, why argue otherwise? And yet when users relegate
themselves to mainstream access points and programs, for office suites, internet
browsers or email clients, they only guarantee that this remains the largest target for
hackers. Any malicious code, scam or other attack will ignore lesser known programs
or operating systems. So when fear huddles all users into the same corner, this will
invariably become the primary target for hackers. Users must remain wary of any
advice coming from companies creating profit from compliance.
After all, exposing security flaws can further public exposure to important social
issues. For instance, in the HBO documentary Hacking Democracy, hackers exposed
a clear and disturbing backdoor in the popular Diebold brand electronic voting
machines. The hackers could alter votes at the voting machines themselves, or – more
importantly – using only the scorecards from each voting station. Bev Harris, founder
of voter advocacy group Black Box Voting, brought these vulnerabilities to Ion Sancho,
Leon County Florida’s Supervisor of Elections in what they called the ‘Hursti Hack’.
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This, at the least, prods Diebold to revise and upgrade their security, and could mean
lost voting machine contracts because of these egregious shortfalls.
Despite any possible good they may do, in many ways hackers suffer from IP
law more than any other group. They contend not only with copyright, but also
with technical protection measures (TPMs) and patent restrictions. While copyright
infringement often meets with only civil penalties, hacking can mean criminal
penalties. Indeed, hackers have few legal choices, and yet their value becomes clear
when the same companies willing to criminalize these tech savvy pirates turn around
and hire them. Hired hackers test security and copy protection, and work to form
an environment to defend against other hackers. That some businesses benefit from
hacker tactics fails to alter public opinion, however.
To the hacker, it matters little what manner of legal protection IP holds. With the
growing number of software patents, hackers become even more likely to violate
IP protections. However, violating patents should bear no more moral weight than
jailbreaking the iPhone. Patents create monopolies and artificial scarcity just as
copyright does. Reverse engineering a patented product or process becomes a matter
of calculated risk, not morals or ethics. Any attempt to profit from patented IP without
permission is an algorithmic decision weighing risk against gain, as with counterfeit
goods. For the hacker, however, protected products or processes present a challenge, a
puzzle. Hackers indeed harbour ideological motivation, but their incentives may lie in
the hacking itself – the prestige that unveiling that hack brings.
These are facts that rights-holders have difficulty understanding and, more
importantly, adapting their business models around. When a company’s only
incentives are sales, that any group would risk legal prosecution with no aim of
financial reward seems foreign. But hacking – whether opposing copyright or cracking
a video game – should not be misunderstood as the malicious acts of ne’er-do-wells. It
is as much a part of the digital age as portable media, online business and expanding
culture.
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User-generated film
The US produces more than 600 films per year. India, 900, Nigeria 1200, and
Nigeria has no copyright law.
- Ronaldo Lemos, Brazilian Law Professor (Johnsen et al., Good Copy, Bad Copy,
2007)
Give me the second and third Matrix movies, a pair of scissors, and some duct
tape, and I’ll put together 90 minutes that will flatten your balls.
- Anonymous fan edit remixer
Consumers’ love of cinema remains as solid in the digital age as it was before the
internet was a sketch on a napkin. In some countries, cinema is developing at pace
with the country’s economy. In other post-industrial nations such as the US and the
UK, the film industry has enjoyed more than a century to hone the craft. But if the
rise of user-generated media proves anything, it is that film does not have to be cost-
prohibitive either to inspire creative content or please viewers.
While micro cinema abounds today, the low financial barrier to film-making has
also spawned a new collection of remixes. That the content falls under copyright
protection holds no concern to the remixers – only the creative process and outcome.
That does not mean that movie remixers believe all content should come at no cost;
only that copyright meant to encourage creative expression should not stand in the
way of their expressions either.
One such remix movement in film is the fan edit. These edits can mean blending
multiple movies (often sequels) together for a tighter product. Other times, the
editors will take extra sections or deleted scenes from the consumer DVD and
integrate them into the film. Rarer but equally respected are releases that weave in
lost footage not commercially available. Often the remixers also develop and post
alternate DVD cover art for their edits.
A prominent fan edit remixer goes by the handle ADigitalMan or ADM. Obviously
a huge fan of film, ADM makes his position on piracy clear in the DVD credits of his
releases: ‘This DVD should be traded freely among legitimate owners of the official
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DVDs,’ he writes. ‘It is important that we not steal from film-makers as we enjoy their
products in exciting new ways.’
ADM entitled one of his edits Superman Redeemed. In the DVD’s ‘about’ section,
he explains blending ‘elements from all four movies (including some esoteric deleted
stuff)’. He describes Superman III and IV as ‘mostly painful to watch’ calling part
three ‘a bad concept produced well’ and part four ‘a good concept produced horribly’.
Superman Redeemed takes Lex Luther and his ‘Nuclear Man’ from part four, but uses
the warm and amiable chemistry between Clark Kent and hometown crush Lana Lang
from part three. ADM says he hopes ‘it redeems the legacy of Christopher Reeve for
you, as it has for me.’
A similar ADM edit focuses on another comic book-based film. After the mammoth
success of Spiderman 2, fans felt underwhelmed and let down by the cheesy, overacted
scenes in part three. ADM felt that part three, when Spiderman discovers the black
symbiote suit that eventually creates his arch-enemy Venom, ‘was supposed to be
the darkest chapter of our favourite webslinger’s life’ but ‘followed so many genre
predecessors’ third outings by going campy’. So ADM removed just ten minutes from
the 140-minute movie to rid the film of its cheesier, more light-hearted scenes. ‘This
movie,’ says ADM about his version ‘feels like it belongs with the other two now’
(FanEdit, 2007).
Fan edits need not work with full films. Anyone lured into seeing a mediocre film
at the cinema knows the power of movie trailers. A good trailer makes the shoddiest
of films seem Oscar-worthy. Despite this, trailers command massive audiences as
an appreciated and beloved facet of film. Trailer mashups or ‘retrailers’ remix film
segments to present an alternative preview, often for a non-existent film. They employ
snippets from several films as well as sampling all manner of copyrighted songs and
scores. To put it lightly, mashups use so much copyrighted material that their creators
could never have cleared rights before presenting them to the world. In fact, if video-
rich websites such as YouTube needed proof that uploaders had cleared all rights,
most mashups would never go public at all.
YouTube and other video sites offer fans an anonymous platform to share their
remixes with the world. But more than anonymity, they allow mashups to continue
accruing views despite infringement. Staying non-commercial keeps media trade
groups and rights-holders from pouncing with takedown notices or lawsuits. Sure,
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some YouTubers can monetize their videos in tandem with Google, using ads that pop
up during the video, but this is a far cry from charging viewers to see the retrailers.
Mashups are the epitome of mimetic creativity, since most are mere remixes
of what someone else has created – from the original trailer, the ‘previewed’ film,
or from other films. Seldom is anything made from scratch, save for on-screen text,
voice-overs or transitions. And yet, the mashup reflects a great tribute to the trailer.
Mashups use the same effects viewers have come to expect from real trailers, either
for the same response, or as a satirical jab at cliché.
The epic scope, grand digital set and instantly classic lines of the trailer for Frank
Miller’s film 300 spawned several mashups. These depicted farcical ideas using the
score and voice-over from the original trailer. ‘Cat 300’ featured woven together viral
videos to depict cats as the brave Spartans resisting the ‘thousand nations of the
Persian empire’ as hordes of puppies.
Other mashups twist the original genre of a film and recreate it as something
different. Mashup artists blend in such a fashion that, were viewers ignorant of the
original, they would believe the mashup represented the real film. In a remix of
Stephen King’s The Shining, the mashup artist re-cut the trailer using bits of the film
to portray it, not as a haunting horror classic, but as a heart-warming, inspirational
film. Instead of the Overlook Hotel driving Jack to murder his family, Danny finds a
loving father figure in Jack, and helps end his writer’s block. In an opposite twist, the
mashup entitled ‘Scary Mary’ combines the visually capricious parts of Mary Poppins
to make them appear disturbing. The film comes across as a horror movie where
Mary flies into town to steal the children instead of care for them.
Much as independent cinemas support remixed or remade films, mashups have
also received patronage and support from organizations such as the Association of
Independent Creative Editors. However, mashups are not without criticism. Writing in
GLQ: A Journal of Lesbian and Gay Studies, Corey Creekmur finds the slew of Brokeback
Mountain mashups ‘snicker-inducing mutilations’ that ‘undercut the film’s sombre
trailer’ (Creekmur, 2007: 106). Creekmur cannot deny, however, that rampant interest
in the mashups spells an inevitably greater interest in the film, no matter what the
origin or assumptions of this interest. After all, mashups – no matter how comical or
degrading to the film’s message – do not undermine the film itself.
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So why do musical remixes receive negative attention from media trade groups
when trailer mashups are left relatively unscathed? For starters, the RIAA already
laid a foundation of suing fans and consumers that the MPAA has resisted. Possibly,
mashups could pass for fair use as parodies. Unless the work is Weird Al Yonkovic,
who still must jump through legions of legal hoops to create his music, mashups and
remixes are simply perceived differently, even if their creators and their intended
audiences are fundamentally the same. Or perhaps trade groups consider mashups
inherently dependent on the original film, whereas music remixes seem more
autonomous and thus greater competition to their commercial counterparts.
Film remix will only increase as hardware and software continue to drop in price
and as more user-generated platforms blossom. Both emerging and established film
industries have only to gain from this creative content. Lawsuits and even takedown
notices will neither stem the flow nor create consumer favour. Sites such as YouTube,
bearing all manner of view stats, offer rights-holders millions of dollars in free
marketing research. For emerging film industries, this is an opportunity to learn from
both high-end, budgeted film and shoestring tricks as well. Nowhere in this bright
future does arbitrary copyright enforcement add incentive, content or market share.
Remixing the music industry
Perhaps it’s a little easier to take a piece of music than it is learn how to play a
guitar or something. True. Just like it’s probably easier to snap a picture with
that camera than it is to actually paint a picture. But what the photographer is
to the painter, is what the modern producer and DJ and computer musician is
to the instrumentalist.
- Shock G, Digital Underground, Copyright Criminals (Franzen, 2009)
They took the credit for your second symphony / Rewritten by machine and
new technology / And now I understand the problems you can see
- The Buggles, ‘Video Killed the Radio Star’ (1979)
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The hit television show Glee follows a high school glee club through the drama-
comedy of teen life. Each episode finds the students expressing themselves, dealing
with their problems, and competing using modern, copyrighted songs. They add their
own spin, mashup multiple songs, and remix classic songs. Season one saw them
performing everything from Britney Spears to Madonna. Season two incorporates
hip-hop and classic rock. What happens on the show represents a healthy, harmless
means of expressing adolescent creativity, emotion and teamwork. The only problem
is, it does not exist. Nor could it exist in real life.
While no one on the show even mentions the word ‘copyright’, what audiences do
not see are the mountains of legal paperwork, performance contracts and hefty rights
payments that make such a show possible. What appears an inspired, colourful group
of kids singing songs and performing off-the-cuff is the result of calculated, licensed
and sanctioned music; of legal negotiation and costs that no real high school could
swing, only the fictional William McKinley High School of Glee producers at Fox. So
while it may seem a spontaneous burst of musical inspiration, glee club members will
not feel inspired to belt out any Bryan Adams or Guns N’ Roses, since neither allow
their songs to be performed on the show.
Of course, when the characters sing their hearts out on the show, they also create
a marketable product. But it seems the price for students of McKinley High ignoring
performance rights is that they also ignore any royalties. Despite selling more than 5
million albums worldwide and having 25 hit singles, label Sony Music has cut the cast
of Glee out of the profits. One of the stars, Corey Montieth, told radio show host Toby
Knapp: ‘I got 400 bucks from it going number one. But you know what, that’s okay,
because if I’m patient, and if this thing does really well, maybe I’ll see another 400
bucks’ (New York Post, 2010).
Consumers misunderstand music’s creative process when taking industry
rhetoric as gospel. Think about this legally. When record labels sue others for
infringement and then fiercely defend against infringement the message is: music
is creative and unique so long as we own it. Any other music lacks creativity and
uniqueness. More accurately, labels only care about creativity and uniqueness so far
as it fixes copyright controls while avoiding any other labels’ controls.
Historically, this legal tango bears no likeness to creating music. People falsely
assume that modern music abounds with piracy and plagiarism, as if the last
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generation of music presents nothing but unique expression. But let’s be clear: the
music industry only became rife with copyright criminals the moment ‘inspiration’
became ‘theft’. Modern music is no more mimetic than it was 10, 20 or 200 years
ago. It has always built on old ideas. But rights-holders and courts do not stand for
unauthorized use. Labels show no hesitation in defending their IP regardless of
whether the violation could lead to lost profits. Most record labels feel the same way
about every song in their archives. When pirate DJs play their remixes in a club, they
step on the toes of hundreds of songs, dozens of labels and a bevy of artists. But step
on their profits? Probably not.
‘Everyone we’re remixing – including Britney Spears – we like,’ says remix DJ
Eclectic Method. ‘When we play Britney Spears in a bangin’ techno club, we’re playing
her in a place where she never gets played’ (Albert et al., 2010). Some remix DJs do
intend for their mashups to conjure some recognition of the music they cut up. This
might mean something as small as a few notes or as subtle as a baseline subdued
in the background. Other times, their product bears so little likeness to the original
works, the infringement remains undetected. But DJs use remix to create fresh
expressions, not to avoid paying rights by masking the original tracks.
When courts stand by ‘if you sample, you license’, what they fail to weigh is
whether the remix poses any financial threat to the original. Whether the remix acts
as a disincentive for future artistic creation. Under those guidelines – far closer to the
stated purpose of most nations’ copyright laws – few if any remixes would qualify as
infringement. ‘Just because there’s leakage and not every use of your music can be
controlled,’ says expert witness and law professor E. Michael Harrington, ‘that’s just
something we have to deal with’ (Albert et al., 2010).
If you consider that courts and lawyers and legislators are dictating what is
creative, it seems absurd. Lawyers do not create. Courts do not create. Congress does
not create. So when industry trade groups dictate law to Congress and then enjoy the
backing of law enforcement, what goes unconsidered is what represents creation. In
other words, creation absolutely takes place outside the law. The law is arbitrary to
the remix artist, and only exists to preserve a consumer model that currently makes
money.
It is impossible to examine music copyright without butting against remix. But
another example of infringement needs no great creativity, but diligent work. Moving
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traditional sheet music for pop songs to tabular form has grown exponentially since
the internet. Now amateur musicians can use tabs to play any song imaginable or
at least any song where someone willing to violate copyright has transformed the
sheet music into tabs. Most would agree that while tabular has not made sheet music
obsolete, it is much easier to learn. So even though it does not suggest pace and
rhythm, for popular tunes, the only real question is how to play it, not what it sounds
like when played.
When considering how egregiously tabular conversion infringes on sheet music,
again, the only reasonable question is whether tabs interfere with sheet music sales.
Any other indictment of tabular conversion is arbitrary, and therefore risks bad
publicity while gaining nothing. Despite this, the Music Publishers’ Association of the
United States and the National Music Publishers’ Association have threatened to shut
down sites posting tabular music (Lyons, 2006). But is tabular transformative, much
like a translation? This would not free tabular sites from infringement, but it makes
a strong case for tabular music offering no market competition to sheet music. If the
companies selling sheet music sold tabular music as well, opposition would gain
some logical ground. So if tabular music represents a lost market, why do sheet music
companies refuse to sell tabular tunes?
With music especially, big media has adopted a clear attitude of ‘do as I say, not
as I do’. Consumers see thousands of messages daily that encourage creating art, the
versatility of media, and the beauty and freedom of spontaneous expression. But the
same companies spending millions convincing consumers that the world exists for
creating and sharing art, music and information are first to fall back on their legal
haunches when detecting infringement. Even non-commercial, harmless infringement
that could promote the infringed material. In this identity crisis, remix artists create
with a sword dangling above their heads, unsure of when or if it will come down.
Most create despite such danger, but the more visible the sword, and the thinner its
cord becomes, the more tomorrow’s creators may just resign themselves to consume
instead.
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User-generated modifications in the video game market
If you fail to remove all infringing material immediately, then we will have no
choice but to turn this matter over to our litigation counsel.
- Square Enix cease and desist letter sent to the makers of Chrono Trigger:
Crimson Echoes (Square Enix Legal Department, 2009)
It is the responsibility of leadership to provide opportunity, and the

responsibility of individuals to contribute.
- William Pollard, Quaker
The argument that fighting piracy ensures creativity loses steam further when
considering game modification. Game ‘mods’ (short for modifications) can take
the form of something as simple as a new map or character or encompass all the
complexity of a stand-alone game.
One Real-Time Strategy (RTS) game that has formed an enormous following
over a long career is the Command and Conquer series game, Command and Conquer:
Generals. With a user-friendly graphical editor, thousands of mods, maps and
extras surfaced. Some were so complete and elaborate that the developers claimed
to have spent several hundred collective hours on them and the mods reached
hundreds of megabytes in size. With new soldiers, equipment, missions and maps,
the replayability of the game continued to grow. Even later Command and Conquer
releases and the game’s age (it was initially released in 2001) could not deter hoards
of fans from developing more mods.
Alas, it appears that this rampant creativity could only reach as far as copyright
laws would allow. A team of coders called Slipsteam Productions was developing a
total conversion mod for Generals called Halogen, which used characters, concepts
and lore from the hit X-Box game Halo. Close to launch, however, Microsoft Studios
and Bungie (the manufacturers of Halo) ordered them to cease and desist (Miller,
2006). For three years, these eight coders had spent innumerable hours creating the
mod. Of course, the universal online opinion of this move raged against Microsoft
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and the Halo series. Nowhere could one find a voice sympathetic to their reasons
for stopping the project, despite their legal rights. Microsoft and Bungie wanted to
prevent Halogen from diminishing their upcoming game Halo Wars, also an RTS game.
Despite Halo Wars’ release date being years away, Slipstream Productions heeded the
threat, and abandoned the project.
This remains a clear example of copyright holders having no capacity for thinking
outside the legal box. Imagine if they had let the project continue; would there have
been more buzz about Halo or less? Imagine if someone played Halogen and loved
it: loved the game play, the storyline and the characters. Would they be more or
less likely to buy Halo Wars? And imagine if, instead of throwing snowballs from
behind the walls of copyright law, Microsoft and Bungie had embraced the project.
They might have gone so far as to include a copy of Halogen with the PC version of
Halo Wars. This would have spelled two developments. Gamers with no exposure to
Halogen would feel inclined to buy Generals. Those who did know of Halogen would
have bought and played Halo Wars out of respect and admiration for a monolith game
developer supporting a few hard-working coders putting out a free mod.
Instead, Bungie simply stopped creativity. Slipstream Productions moved on to
another project. Nothing would stop them from creating. But the gaming world is
that much poorer for the countless hours wasted in the name of copyright. An idea
– supporters of copyright law would have people believe – that exists to make sure
creativity always has a place.
A similar case occurred with a mod a full five years in development. Based on
Square Enix’s Chrono Trigger game for the Super Nintendo, Chrono Trigger: Crimson
Echoes was days away from launch when the cease and desist letter came from
Square Enix. The group, Chrono Compendium – arguably the greatest fans the Chrono
Trigger saga ever had – got shut down just before delivering a mod that would have
undoubtedly rekindled gamer interest in the series. Stopping a five-year project days
before launch is more than law enforcement: it appears backbiting and vindictive to
the fans who have made Square Enix a successful company.
Square Enix learned little from the bad press fighting Crimson Echoes. More
recently, they ordered a one-person coding project called OpenC1, which used some
graphics from Square Enix title Carmeggedon, to cease and desist releasing his version
for free. 1am Studios, under which game creator Jeffrey Harris works on his open
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source and no-cost projects, posted part of the letter on his blog. Square Enix told
him that his ‘actions have already caused and will if they continue cause substantial
damage to the value of Square Enix’s copyrights and you will understand that Square
Enix cannot allow this clear infringement to continue’ (Denby, 2010). All this for a
game that at the time was 13 years old and that no one could buy. Harris removed all
Carmeggedon-related images and other references in OpenC1, and released it shortly
after.
1am Studios also created a free-to-play game with all original coding but that
‘uses the original Need for Speed data (textures, models, tracks)’ (Harris, 2010). Need
for Speed is 15 years old, not currently for sale, and cannot run on modern versions
of Windows. 1am Studios’ version, called Need For Speed: XNA, plays on current
Windows operating systems. Obviously, Need for Speed rights-holders Electronic Arts
(EA) acted more practically than Square Enix. Perhaps EA realized that a no-cost,
updated release paying tribute to one of their older titles could spawn interest in the
series and mean more sales for newer titles.
Fortunately, some game developers show no interest in stopping modders, and
others even encourage them. After gamers made a slew of mods for The Elder Scrolls
III: Morrowind, respected gaming company Bethesda made modding especially easy
for their later release The Elder Scrolls IV: Oblivion. Gamers regarded Oblivion as easier
for the lay gamer to play, and with this broader audience, so too was the ability to
make and use mods proportionally easier. Gamers could find and activate mods using
a simple graphic interface built right into the main menu. Overnight, scores of mods
sprang up, many for magical items that made the game easier, but others that clearly
improved on the game’s design. Mods for everything from graphically rendering
water to making faces more human or spells more realistic made playing Oblivion
a customizable experience, not just a game. Players’ in-game homes could feature
portraits of their real-world family, imported through use of a mod. By applying
another mod, they inherit a fortress to store the plethora of items picked up in the
game and the ability to teleport to any town in the land. Yet another mod made sparse
lock picks available from multiple (yet still decidedly shady) merchants instead of
only select towns or people.
The ability to mod Oblivion created sales, fostered creativity and gave Bethesda a
ready and discernible pulse on how to improve on their designs to meet fan wishes.
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It also rekindled the mod market for the former Elder Scrolls games, and with it their
sales. It is little wonder that Bethesda remains such a potent force in gaming, having
embraced the wishes and creativity of fans instead of punishing them with copyright
infringement claims and cease and desist orders.
While there are several more examples on both sides, the seemingly precarious
balance between modding and piracy still evokes apprehension among game
developers. Many remain wary of lost sales or too hard-lined on thick copyright to
realize that modders are just game developers working for free. They spend endless
hours for love of the game and the art. What this dedication and effort has to do with
piracy remains little indeed. Almost as little as it has to do with decreased game sales.
Almost.
Reinventing cinema through video games
Suddenly, in this new digital millennium, it has become possible to commit

serious, punishable offenses with what was once viewed as an innocuous,
personal, and pleasurable experience with various forms of published media.
Should this trend continue and spill over into other aspects of our rights of
personal expression and freedom, it is likely we will lose more of both.
- John Gantz and Jack Rochester, Pirates of the Digital Millennium (2005)
A video game isn’t any more ‘speech’ than a gun is. Both are devices.
- Jack Thompson, disbarred anti-video game activist
Critics have long tagged video games as soul-sucking time vacuums destroying
youth in record numbers. This smacks of how those critics’ parents felt about
television, and their parents felt about radio. However, games offer many creative
outlets for anyone interested enough to explore and experiment. Many titles allow
coding mods, developing environments, boards and even entire levels. Games also
offer a medium of expression for those with no interest or competence in coding. For
189 Creative Piracy
them, a creative form of video production called ‘machinima’ (a mix of machine and
cinema) presents more than a way to pass the time between new games. It gives them
a way of expressing their passion for the game and their own creativity. Machinima
is when someone fuses images and characters from game scenes with tons of
imagination and wit to tell a story through film.
A popular and mainstream example of machinima is a series called Red vs Blue by
Rooster Teeth Productions. It features characters from the hit game Halo. The show
portrays Halo characters (mostly multiple ‘Master Chiefs’) in situation comedy. It
became so popular that major retailers carried DVDs with the various seasons of the
show, though the Red vs Blue website also hosted the videos free.
The most obvious advantage to machinima as a creative form is that game
developers have already done much of the work. Creators can focus on the writing,
shots, situations and other details instead of creating graphics. Plenty of challenges
remain, however. In machinima, shot blocking, voice acting, cut scenes and tight
editing are just as necessary as in traditional film. For one, game developers created
characters with the game in mind, not acting. In the first seasons of Red vs Blue, which
used the first Halo game, the film-makers managed with limited movements and
positions for the master chief actors. Character movement, after all, depends on what
developers need to create quality game play. Halo is a first-person shooter, where
the player is the game’s protagonist. This means that Bungie, the game’s developers,
focused more on what Master Chief sees, since players only see the character in cut
scenes or multiplayer mode.
Unlike microcinema, machinima creators also benefit from the game’s character
recognition. Their creations hold instant appeal for whatever fan base the game
created. A game like Halo will have its own draw of millions of people who love the
game.
Film-makers who want to capture the majesty of the Alps or the bustle of New
York City can build a set, shoot on location or use CGI. A machinima film-maker
suffers no such burdens. Sure, this means limiting locations to those either portrayed
in games or that users can create. But video games look more realistic and grow more
expansive with each platform.
The time involved, while possibly substantial, is less than the extensive time
190 Creative Piracy
needed for animation and CGI. What the game avatar sees, the film-maker records:
the game developers have already rendered the graphics. Compare this with the latest
Harry Potter or Toy Story film, where rendering a single frame can take half a day on
multiple linked computers (Lehrer, 2010).
Quickly, machinima spread beyond stories about the game. The games became
the platform for any topic, even activism and social commentary historically reserved
for those with the means of funding film projects. Allen Varney wrote about how the
short machinima film The French Democracy allowed no-budget industrial designer
Alex Chan the opportunity to offer another view of the 2005 riots in France. ‘[The
film’s] widespread recognition proves you don’t need high-powered graphics cards
and a team of hundreds to join the world’s ongoing conversation,’ writes Varney.
‘Ideas are not only cheap; they run on low-end hardware’ (Varney, 2007).
Game companies have even used the popularity of machinima in advertising
campaigns. The hit series Syphon Filter used machinima in an advertisement to
promote their newest sequel. This quick, comical commercial not only showed off
the game’s graphics, but integrated the innovative weapon selection feature into
the action. The mere act of breaking the frame of conventional advertisements by
stopping game action to allow dialogue and other facets that had no place in the game
resulted in eye-catching marketing for an otherwise mediocre game.
As with other innovative art forms that occurred organically outside mainstream
media, other commercial attempts to capitalize on machinima have proved less
effective, such as an underwhelming Geico commercial that uses machinima. Just
as capitalizing on viral videos often meets with tepid audiences, machinima in
advertising needs a tender balance between faithfulness to the nature of machinima
and the sales pitch. Thus, game manufacturers will often sponsor machinima contests,
offering prizes for the best ‘movie’ that they then use as an advert for the game (Ford,
2008).
But independent machinima creation represents a clear violation of copyright. It
uses copyrighted graphic creations that developers spent countless hours perfecting
without permission. These clips can then go on to have thousands or even millions of
views online or – as with Red vs Blue – even make money through direct sales, often
without the original developers receiving anything. Employing some in-game scenes
or sequences could mean using the copyrighted musical score as well.
191 Creative Piracy
However, the gaming industry has upheld a far more lax and realistic approach to
this copyright infringement than the film or music industry ever has. Bungie Studios
(and by extension, Microsoft Games) gave permission to Rooster Teeth Productions
to use the 3D world of Halo, even creating a special mode in Halo 3 that offers
more freedom when making machinima. Other studios have even released digital
environments that creators can use expressly for making machinima.
Even with unauthorized machinima, game companies rarely demand creators
take down the content because of copyright infringement. This is rarer than takedown
notices because of film or music use, by far. The law allows rights-holders to forbid
machinima of their games, but few developers want to put a stop to it. After all, it
would take some creative analysis to finger machinima as direct competition for video
game sales. Developers have to consider whether higher exposure, even through
unauthorized and technically illegal use, still acts as guerrilla marketing for their
product. While the answer is probably yes, the question remains, why have the film
and music industry been so slow to embrace remixes and mashups?
After all, a film-maker creating a documentary that samples from many other
works to weave an argument could spend years clearing rights, only to have copyright
holders renege. Others demand excessive sums, and still others refuse use of the work
at any cost. Sometimes film-makers cannot even reach the rights-holders. Most film
still under copyright is doing nothing but rotting in cans in sporadic archives (called
‘orphan works’). Obviously a rights-holder that film-makers cannot identify cannot
grant permission for use.
Licensing is time and cost-prohibitive, but it is the paltry nature of the public
domain of Western media that becomes the real barrier. Instead of film-makers using
myriad clips from the past – clips no longer making any money and that have no real
market demand – they are forced to use clips for which they can afford licensing.
Or they use footage with no clear copyright holder and hope no one sues them in
the aftermath. Instead, machinima film-makers may use any footage they can create
within any number of games. This relegates them to a purely machinima project,
but when cost, access and legal issues abound, and a less-restrictive platform comes
along, the choice may be creating in an imperfect medium or not creating at all.
Machinima possibilities continue to grow with newer games. Inventing elaborate
and creative shots one might expect in a Quentin Tarantino or Yimou Zhang film
192 Creative Piracy
in machinima would have seemed impossible only five years earlier. But French
film-maker Mathieu Weschler spent two years working solely with the Grand Theft
Auto 4 engine to create a full-length machinima film. Ringing in at 88 minutes, The
Trashmaster holds all the action, story and camera work of a modern blockbuster.
This half-Dexter, half-Taxi Driver tale of murder in New York City breathes creativity,
innovation and hard work. Grand Theft Auto series developers Rockstar Games called
it ‘a pretty stunning accomplishment’ (Rockstar Newswire, 2011) and even hosted the
film on their website.
Ironically, while one arm of companies such as Microsoft can see user-generated,
copyright-infringing material like machinima as a boon for their products, the
company aggressively combats other infringement. Microsoft spends more than $10
million annually on gathering intelligence on counterfeiting and about $200 million
a year on researching better anti-piracy tactics (Vance, 2010). Members of the BSA,
notorious for scouring p2p sites for copies of their software, and often seen globally
as corporate bullies pushing for local raids on counterfeiting rings, Microsoft takes no
lax stance on software piracy.
This is the problem with lumping all manner of infringement together: gamers
and film-makers producing creative, not-for-profit videos become grouped (legally
and socially) with bootleg rings in developing countries. Both have their reasons for
infringing on copyright, but they have little in common. Their incentives are entirely
disparate, as are their rewards for infringing and their products. But so long as fair
use defences gain so little legal ground, and copyright laws offer scant wiggle room
and an ever-shrinking public domain, infringement remains certain.
193
New Models for Skirting Piracy

09
F ighting piracy – the War on Piracy – must end somewhere. Fighting digital
piracy means making criminals of customers and bleeding as much money in the fight
as is supposedly lost to piracy. So some businesses have begrudgingly accepted that
file-sharing, hacking, modding and remixing will happen. That media once kings of
the market now compete with piracy as much as with other media. And so ideas begin
to form and come into practice – some good, some very bad.
Rights-holders and content creators have begun to realize that file-sharing can
create exposure, birthing an online presence that would cost valuable money in
traditional marketing. Others try more innovative marketing, both to embrace digital
media and to try to pull customers back to physical media through repackaging.
An unseen casualty of the digital age, the pornographic industry, has become a
model for effective advertising and establishing a presence among internet pirates.
Other industries have learned that adapting the platform to the customers beats
194 New Models for Skirting Piracy
trying to adapt the customers to the platform. Lastly, a model of pirate-proofing that
risks the future of our food supply to ensure production equals profit.
Ideally, the best models would remain as the poorer, unrealistic ideas fell away.
But this is not the case. Money as well as legal and political clout give weight to new
models that leverage them, whether good or bad for everyone else. The fulcrum
for all ideas is consumer spending, whether through money, time, attention or
proliferation. The digital age has introduced many paths for where IP may head, no
matter where it has been. Eventually, what paths information and technology take
rests with consumer decisions, not businesses. Perhaps this is another reason piracy
has garnered such fear: if people realize they have more in common with copyright
violators than with many rights-holders, their attention and attitudes might begin to
align with the pirates.
Using piracy to grow business
The worst thing that can happen to a label or artist is not that your music is
pirated, but that no one hears it. And that’s much more common than… piracy.
- John Buckman, CEO, Magnatune (Good Copy, Bad Copy, Johnsen et al., 2007)
I really feel like my problem isn’t piracy. It’s obscurity.

- Cory Doctorow, author/blogger (Rich, 2009)
Copyright infringement violates the law, but it only hurts business when
consumption matters more than exposure. Like when rights-holders invest so heavily
in advertising that gross profits trail far behind net profits. Big media continues to
rely on traditional methods of advertising, so when their content debuts, it works to
pay off a handsome deficit. Smaller content creators have much less to lose, having
spent little or nothing on advertising. And the more obscure the content, the more
valuable the exposure, even if that exposure comes from illegal file-sharing. Lesser-
known content holds just as much potential value as mainstream media, but far fewer
advertising costs, operating expenses and outstretched hands awaiting payment.

In software development, programs or services that offer free versions to market
premium packages are called ‘freemiums’. For such companies, file-sharing their free
versions proves easier and cheaper than hosting the downloads elsewhere. When file-
sharers download and continue to share such programs, it means scores of potential
customers for the premium versions. Much file-sharing and copyright infringement
is about sampling, not simply avoiding payment. In this way, freemiums have only to
gain through their products peppering p2p platforms.
Other small developers profit from piracy, solving problems inherent in internet
file-sharing and pirate applications. One such program, called Little Snitch, keeps
pirated versions of software from ‘phoning home’ and deactivating. Another program
called cFosSpeed arranges data packets so bandwidth hogs such as torrents fall
behind packets for, say, VoIP phone calls or e-mail. So users can run torrents without
slowing down the connection speed for other online jobs.
Though becoming popular serving pirates means the program will endure its
own illegal copying, often well-made helper programs find success. Seeders and
release groups will still host such files on bit torrent trackers. They often suggest that
downloaders buy the program to support the developers, treating the developers
more as allies than software companies who use heavy-handed authentication.
File sharing and copyright infringement also have a unique effect on the written
word. Text is small enough to share repeatedly, but as covered earlier, people consume
literature differently from other media. Writing has a clear sampling effect, where
readers want a satisfactory taste of a book or magazine before deciding to buy.
And yet even smaller pieces mean valuable face-time. This is why blogs that pay
contributors handsomely still allow unfettered visitor access. The advertising pulls in
the money, not pay-for content.
Alas, writers’ conferences and online forums abound with horror stories of
stolen material. But few authors enjoy enough exposure to have their work pirated.
Copyright lawyers encourage authors to register and protect their work (mostly
to proliferate lawsuits). They cannot see how the struggling writer competing for
exposure amid millions of other writers could benefit from illegal copying. So much
online copying preserves attribution, however. The internet is not about plagiarism,
but sharing information, regardless of authorship. This is the idea behind the
blogosphere. Trying to control every word and prevent any unauthorized copying
runs a distant second to getting exposure and a steady readership. This means that
link-backs are fine, but so are discussion boards where users cut and paste entire
articles without permission.
Some new publishing houses even offer a no-cost PDF of their titles, protected
under the Creative Commons license. For Onyx Neon Press, customers can easily buy
their books through Amazon, or they can download a DRM-free PDF for no cost or
by donation. The site explains this rationale, stating: ‘We believe we’ll reach more
[people] by encouraging everyone to share this book than by trying to maximize our
profits’ (Onyx Neon Press, 2010).
Most in the music industry fervently disagree. RIAA President Cary Sherman
said during an interview for the short film What Do You Think? ‘That’s what the
whole copyright system is about; it’s a property right that’s intended to encourage
investment’ (Richmond School of Law, 2007). But Sherman and many others have
sold the public a different version, one of starving artists, out-of-work labourers and
a fizzling will to create. So instead of blazing the path for new consumers, rights-
holders innovate with control in mind. To combat piracy and simultaneously wow
customers, companies have met changing technology with greater controls and a
turntable of new products. These ventures draw in some early interest from price
insensitive consumers, but often die out. Individuals or small, new businesses cannot
afford to reproduce such models. For them, a higher degree of freedom from control
can indeed mean more illegal sharing. But sharing always means more exposure,
and setting up a brand in a competitive marketplace remains more important than
enforcing copyright law.
For music labels who have used p2p networks to create a fan base, their savings
pass on to the artists. Despite every musician dreaming of the record deal where they
go platinum, and even 10 per cent of sales puts them in huge homes, driving fancy
cars, and throwing mad parties, this represents a pie in the sky. The more rooted,
practical record deal may come with an independent label. Such labels, saving money
on advertising and paying off radio stations for playtime, give as much as 50 per cent
of all sales to the artists (Nelson, 2003). For the independent label, slowly pulling
together a fan base from file-sharing falls in line with their business model, where
they are ‘developing artists’ careers over the long-haul rather than the pursuit of
immediate hits’ (Nelson, 2003). Compared with the hype-driven, flash-in-the-pan
methods of mainstream music promotion, indie labels harbour a stick-to-it attitude
that copyright infringement can make pay off. Chris Blackwell, indie label Palm
Pictures’ chief executive, said in a New York Times piece: ‘In artist development, file
sharing – it’s not really hurting you’ (Nelson, 2003). If music labels begin to question
measurable harm, it will prove better than assuming file-sharing kills music.
Even game creation is changing. Not a decade ago, large game companies such
as EA Games gobbled up smaller upstarts. Now, on widespread, popular platforms
such as Facebook, little-known games can find overnight attention. Facebookers did
not spread the now-ubiquitous ‘social game’ Mafia Wars because it proved worth the
money – it is a no-cost game. They spread it because, for no cost, it offered enough
entertainment to justify learning the rules and enlisting friends. Mafia Wars creators
Zynga essentially took a natural human tendency – sharing – and moved it from
a crime to the backbone of their growth. Sharing spelled more power and greater
success in the game, not legal threats or internet disconnections. For independent
game developers, lacing games with DRM and suing file-sharers have become less
important than getting known and getting played. Now scores of games on Facebook
and elsewhere have followed suit, realizing that sharing does not have to hurt
business; that tied to growth it can mean greater success than trying to exercise
control. Sure, sharing Mafia Wars with friends is not copyright violation or piracy, but
that is the point. For such games to succeed, they decriminalized what other game
makers still view as a cardinal sin. This is a lesson that veteran game companies are
beginning to understand. In a 2010 conference with Nintendo CEO Satoru Iwata, he
noted: ‘If one software can attract many people and can become a social topic, that
software can sell regardless of piracy’ (Nintendo IR Information, 2010). Nintendo still
hard codes piracy countermeasures into compulsory and automatic updates, but an
attitude that piracy will not bankrupt the company is a start.
Heavy-handed controls eventually loosen because of court cases, poor consumer
reception or realized profits, but control remains the copyright-rich reaction to
changing times. Meanwhile, younger, more agile and accepting companies are
sidestepping old business models, and trying to compete with or even use piracy
instead of fighting it. Today, trade groups should have more work than ever – finding
ways to deal with and avail their clients of new technologies. Instead, they have
largely resorted to litigating their problems away.
As Fred Von Lohmann from the Electronic Frontier Foundation astutely notes:
‘No one thinks that suing music fans one at a time is the business model of the future’
(Clough and Upchurch, 2010). Such simple reactions make trade groups appear little
more than one-trick ponies, not only to consumers, but also to their clients. Self-
publishing is growing rapidly, as are independent films, music under the creator’s
own label, and software creators concerned more with getting the word out about
their niche programs than punishing potential pirates. So while it is doubtless that
piracy indeed affects media, the results are less polemic than industry rhetoric would
have consumers or lawmakers believe. The crowning irony is that file-sharing already
proves a powerful tool in marketing and distribution. And as media grow ever more
digital, file-sharing’s power will grow, whether fettered or free.
Edge marketing meets with mixed success
I’m always struck by how successful we have been at hitting the bull’s-eye of
the wrong target.
- Joel Salatin, Polyface Farms, Food Inc. (Kenner, 2008)
Ever tried. Ever failed. No matter. Try again. Fail again. Fail better.
- Samuel Beckett
The copyright rich often try to compete with piracy using the same old tools:
repackaging their products instead of re-imagining them. Such tactics still cling to the
notion that beating piracy means lowering prices and increasing convenience, but
introducing new limits as well. That piracy needs to be beaten at all, as reflected in
such models, shows a gap in understanding.
Beginning in 2003, petrol stations, airports and other transitional places began
selling EZ D disks of popular films. They performed as any other DVD, but with a
catch. After 48 hours of inexorable exposure to oxygen on opening, the disk changed
colour and became unreadable by the DVD laser. In effect, Flexplay Technologies, Inc
had created a self-destructing DVD, so they could sell popular films anywhere without
the concern of returning the DVDs, therefore allowing much lower prices. Plus, since
the disk was little more than a shiny object after 48 hours, the viewer would have to
rent or buy the film again to re-watch it.
There are several issues with this innovation that should be glaring to any
consumer concerned about the monumental amount of waste the Western world
produces daily. Creating waste arbitrarily – taking a disk that could otherwise
work for decades and ensuring it works for hours – is shameful. It uses technology
opposite to how one might expect: taking a relatively efficient medium and making
it inefficient. From the Boston Globe travel desk, however, Paul Makishima lauds the
idea, calling it ‘convenient and “Mission Impossible” cool’. He writes: ‘Once the DVD
is kicked, you recycle’ (Makishima, 2008), as if not only is the wasteful nature of such
disks a consumer responsibility, but also that all consumers recycle (while travelling,
no less). This conveniently sidesteps the hidden environmental externalities inherent
in the creation, packaging and distribution of the DVD. Toxic chemicals go into
producing electronics, as well as the plastic packaging. It takes fuel to transport
them to their sale point, and electricity to power the kiosks. Also, as Annie Leonard
points out in The Story of Stuff, recycling should be our last resort, not a default when
considering how best to conserve resources: ‘Recycling is the last thing we should do
with our stuff, not the first’ (Leonard, 2010: 232).
The same argument applies to other one-off efforts as well. Delta Entertainment
released older films and television shows, many of which reside in the public domain,
with two disks: one for the DVD player and the other from which users could drag and
drop the video files onto their iPods. That copy protection should exist at all on such
DVDs is asinine, since they are in the public domain and have little demand; the move
also implicitly gives iPod space shifting the okay, meaning the extra disk is so much
superfluous material. A likened strategy by Disney tries to lull consumers back to the
physical disk, and the amount of material quickly becomes obscene. One ‘collection’
contains four disks: BluRay 3-D, BluRay, DVD, and ‘data disk’ for space shifting
without format shifting.
Perhaps a better way to bridge the gap between the value attribution consumers
attach to hard goods and the unavoidable evolution of digital media is to blend
the two. Popular rapper Mos Def released his 2009 album The Ecstatic as a t-shirt
bundled with a code for downloading the songs (Saba, 2009). While CDs still hold
appeal in disk collection purposes and cover art, a CD is little more than an archaic
and superfluous shell for consumers who know the versatility and cross-platform
ability of the digital track. But there is no digital counterpart for clothing, and little
devalues fan tees, especially for conspicuous fans.
In the UK and the US, amid industry wails of declining CD sales, vinyl records have
enjoyed an upsurge. In fact, more LP records sell now than in decades before, with
2009 seeing the most sold since sales tracking began (Mearian, 2010). While reasons
for increasing sales vary from nostalgia to sound quality, many record companies add
a modern kick. They include a code with the album allowing buyers to download the
songs at no extra cost.
Indeed, with so little from CD sales going to the artists, and private collections
going digital, fans seek out one-off ways to support artists. Doubtless this is why,
despite the rise of file-sharing, live shows have flourished worldwide. Artists can
sell more than t-shirts, of course. Merchandising has become an enormous boon for
artists as well.
No matter if exposure comes from piracy or payment, fame still holds great value.
Celebrity product endorsements gain as much weight from pirate fans as any others.
Some celebrities such as Madonna, Gene Simmons and Lars Ulrich may believe that
ridiculing file-sharing fans only cuts off non-paying customers. But a willingness to
buy bootlegs or share copyrighted files does nothing to keep pirates from spending
money on all manner of other consumer goods, including media. Consider the actions
of sci-fi author Cory Doctorow, who released his e-book Little Brother free online
the day the print book hit the shelves. Not only is Little Brother no cost to download,
Doctorow released it under the Creative Commons license, meaning that anyone can
rip, remix and mashup Little Brother for non-commercial purposes. This has made
Doctorow a household name among remix artists and pirates alike, and respect gleans
sales. Fearful or excessively litigious authors such as Harlan Ellison or Mark Helprin
cannot boast such progressive ideas, and their fan-base reflects this.
Turning business exchange on its head, still others have begun a ‘pay what you
want’ model. Just as it sounds, this means that customers choose what they want to
pay for products or services (often with recommended price guidelines in place).
In the analogue world, this has met with some success. Recently, a Panera Bread
restaurant in St Louis began this model, which other independent restaurants have
done since as early as 2003 (Strom and Gay, 2010). The Associated Press followed
up on Panera Bread’s trial and found that while most paid the suggested price, an
equal percentage paid more as paid less. The 1,400-store strong restaurant business
expects to open stores with the same model in Portland, Oregon. Of course, for scarce
goods, clientele matters. Businesses using these models typically choose upscale
neighbourhoods. One restaurant, for instance, had limited success because of the high
concentration of teens in the area (Strom and Gay, 2010).
For digital goods, however, this model makes even more sense. Because despite
industry rhetoric, digital media are not scarce. Anyone can reproduce them any
number of times. But then the point of the ‘pay what you want’ model is twofold.
First, to draw in customers who might not have become customers. Second, to create
exposure for the product. The springboard for this model was the 2007 release of
English rockers Radiohead’s album In Rainbows, which launched first for digital
download and then on CD. Even though many fans downloaded the album free, and
the average payment for each download was only £4, the digital sales alone made
more money than the previous album Hail to the Thief. This is a fact not mentioned in
loaded coverage indicting the model in The Times article ‘How much is Radiohead’s
online album worth? Nothing at all, say a third of all fans’. Again, the point of the
model is not to persuade consumers to pay the retail price, but to create more
customers and gain more exposure.
This is the case with independent game company Wolfire Games. Wolfire bundled
five games selling at $80 and allowed customers to pay what they wanted. Wolfire
co-founder Jeffrey Rosen said sales of the so-called Humble Indie Bundle were ‘far
better than we expected’ (Brom, 2010). It spawned a second Humble Bundle, which
made even more than the first, ringing in at nearly $2 million. Game developer Robert
Fearon and his co-workers followed suit with the Bundle of Wrong, not only giving
‘pay what you want’ customers access to several titles, but also promising to add titles
to the bundle for later download (Meer, 2010). Arguments that such models devalue
the ‘worth’ of media seem especially doubtful with video games. Indeed, while many
will pay less than retail, a $60 game is not by its mere existence worth $60. It only
bears this premium for so long. Then, it drops down to $40 and then $20, particularly
if it has a strong resale market for used copies. This devaluation is faster in short-
life media than it is with longer life media, such as movies. Value holds longer still
in many corporeal goods, such as books. Books several years old still sell for cover
price in bookstores, but no game store would think of selling a title from a few years
ago at the premium price. This depreciation reflects not only the mayfly existence of
ever-evolving media, but also the turnover the industry itself forces. Sports games
offer a great example. When a new Madden debuts each year, the value of the previous
editions drops to near nothing, let alone the premium price.
Unfortunately, this model has not spread to independent films very quickly. Many
documentaries, especially those released under the Creative Commons license, use
‘pay what you want’ with success. Other film-makers load their movies onto video
sites such as YouTube, increasing viewership and ostensibly an interest in retail
copies, but have yet to embrace ‘pay what you want’. More authors are selling e-books
in this fashion, with hardcopies upholding a static price. For many, this is superior
to free-to-read e-books using heavy-handed controls over how, when and where
potential customers can read them.
Of course, any attempts to compete with or even use piracy and file-sharing meet
better reception than criminalizing potential customers. Some industries are faring
better than others, but so long as rights-holders show a willingness to coexist with
systemic piracy, successful schemes will float to the surface and continue to succeed.
Pornographic industry turns piracy into profits
My circulation went from three million to about 500,000, and that was all
attributed to the Internet.
- Larry Flynt, founder of Hustler magazine (Porndemic, Benger, 2009)
The basic business models, the how to transact, the per click, the per
impression, the upsell concept: that all came from the adult business.
- Jason Tucker, Falconfoto (Porndemic, Benger, 2009)
Many assume that file-sharing only affects movies, music and games, ignoring
media that users can share just as easily, and consume just as much. Despite
pornography’s tacit place in Western society, where leftover puritanical beliefs keep
porn behind the curtain of propriety, there are few industries that piracy has affected
more than adult entertainment. Just 15 years ago, people went to a XXX store and
bought pornographic videos at a high premium, often approaching $100 for a full-
length film. The movies were largely VHS, making duplication, sharing and editing
difficult for the mainstream. Unlike sharing other types of media, pornography
occupies a private space in consumers’ lives. So while sharing entailed human
interaction, it remained limited.
Compare that with today, where anyone with an internet connection and a little
patience can find endless collections of pornography. And unlike a conventional
movie, pornography in the digital age comes cropped, mashed and blended – an act
that would make a conventional film worthless. Print pornography has long enjoyed
a solid market. With analogue photography, creators easily controlled their work.
The nature of printed media limits consumers’ capacity for sharing. Even if people
sought to copy analogue photography, they would have only glossy copies without
the photographer’s negatives. With digital pornographic pictures, however, a perfect
copy of a photo can circulate indefinitely without losing its quality. Unlike other
photographers, who have several photos that few people will enjoy, pornographic
photographers have few photos that several people will enjoy. Their incentives are
clearly different. They have more to lose if their pictures end up on a p2p site.
Yet the adult industry gleans little public sympathy over pirates sharing their
media. No commercials condemn porn piracy, and likely none will. The porn industry
indeed funds lobbyists, such as the Free Speech Coalition in the US. However, unlike
their media counterparts in the RIAA and MPAA, they argue for the right to keep
producing porn. They do not demand the government pay for their anti-piracy
efforts, or consistently tighten free speech controls to try to stymie piracy. Nor have
they ‘declared war’ on piracy, or made Luddite statements like Sony CEO, Michael
Lynton, who told the world that he ‘doesn’t see anything good having come from the
Internet’ (Salisbury, 2009). Their lobbyists make no mention of lost jobs, economic
hardship or the loss of will to create pornography because of piracy. No letters flood
colleges ordering them to ensure that their students are not sharing adult films or
pornographic pictures over the network. ISPs do not send cease and desist letters to
their customers for detected pornographic piracy.
So what has the pornographic industry done against such overwhelming
obstacles? What could they do to ensure the survival of their business when it
has changed so drastically since the digital age? Simply stated: they compete with
piracy. Even porn producers made rich off the old models knew they had to evolve
or dissolve. After suffering an enormous decline in Hustler subscriptions because
of internet porn, the CBC special Porndemic calls founder Larry Flynt ‘just another
huckster’ (Benger, 2009). But Flynt did not act like so many other industry leaders
turned topsy-turvy by the web. He quickly benefited from digital pornography, setting
up a strong online presence that remains profitable.
The strategy is simple enough. FalconFoto CEO Gail Harris says: ‘We’re willing
to give away a few images, and then if you’re interested in more, we have a whole
archive of hundreds of thousands of images that you can subscribe to see’ (Friess,
2003). How effective is this approach? Consider the potential number of files on a
p2p network. They can grow indefinitely, but the way in which users access the files
limits distribution and availability. If users wanted photos of a particular subject – say,
‘Jenna Jameson’ – then they could search using various methods. The query results
could number in the thousands, but always with superfluous files unrelated to Jenna’s
pictures. Also, there is no guarantee that all or any of Jenna’s pictures will be on the
network, since p2p networks have no central server but rely on ‘nodes’ – shared
folders on users’ computers.
If those few pictures of Jenna displayed a website address, however, users who
wanted many more images of her could go to the site and subscribe to the service.
Then they would have fast, navigable and relevant pictures to choose from, probably
video as well, and likely far more than available on the p2p network.
For videos, p2p platforms work largely the same way. They hold scores of videos
under 10 minutes. But downloading them implies some buy-in from users, since they
remain unsure what the file contains, how long it will take to download and whether
it will prove complete. Some files are snippets from full-length films while others
make up a two-minute highlight reel. Realizing that potential customers are legion,
pornography providers litter p2p networks with free snippets. They display their
website name and address in part or all of a video sample. Others, notably the videos
in QuickTime format, jump online toward the end of the video. The adult industry
has embraced these tools instead of constantly seeking legal punishment for those
downloading the videos.
Harris goes on to say: ‘What we have is a captive audience of people we know
are interested in our product because they went out seeking it themselves. Many of
them are willing to pay for it, too’ (Friess, 2003). These are the tactics that groups
such as the RIAA and MPAA refuse to employ, and to their own harm. Their refusal is
understandable to a degree. To flood p2p networks with, say, music videos that jump
to the band’s website or a place to buy the CD sounds viable, but what would it mean
for them? It would be tantamount to admitting that their current anti-piracy model –
suing those infringing on their copyrights – is ineffective. It would also be admitting
that file-sharing has a market application, a stance that RIAA representatives in
particular have long fervently opposed. This stubbornness in refusing to alter their
strategy may seem pointless and counterproductive, but as long as they continue
litigation and claiming the cataclysmic harm that piracy is doing, the music and movie
industries cannot profit by the adult industry’s model.
The digital age has also broadened the potential client base for pornography.
Renting or buying adult films holds negative stigma, as does buying pornographic
magazines. Now, however, those social barriers are gone. Anyone with an internet
connection can have access to all manner of adult videos and photos. What some
have called a rise in sexual addiction is likely the product of more people consuming
pornography due to the anonymity and ease of digital technology. And yet again, we
see the music and movie industry shying away from this reality. Instead of embracing
streaming movie services that have benefited the adult industry, they enforce
arbitrary red tape and use verification, chilling convenience, and with it marketability.
So while pornography remains in the shadows socially, its industry leaders are
innovating, adapting and learning how to compete with piracy. The media industry
that piracy could have hit hardest is among the only innovators showing acceptance
instead of aggression, and no doubt it is working for them.
Moving from static to streaming media
The only question is whether we’re going to get the celestial jukebox the way
that the biggest copyright holders would prefer: by paying for it.
- Douglas Wolk, Wired magazine (2009)
Convincing rights-holders to allow streaming media, where consumers enjoy

media through the internet or mobile phone networks rather than physical products
or client-side files, should be easy. Big media has long sought the Celestial Jukebox,
where licensed media flow through approved, controlled channels and devices. But
today’s emerging streams buck conventional predictions on how it should work, for
how much, and how best to control it.
For music, streaming songs had a rocky start. Early music services offered only
pay accounts that met with mixed reviews and had no clear industry leader. In the
US, the still reigning streaming service is Pandora, which debuted in 2005. Pandora
considers user tastes and then plays music to match those preferences. It streams
through nearly any device, from computers to iPods to Playstations.
In the UK, Spotify was the brainchild of confessed pirate Daniel Ek, who teamed
up with the creator of famed bit torrent application uTorrent, Martin Lorentzon.
Two young entrepreneurs unafraid of technology and with the wherewithal to tap
into their piratical roots to make a better media model. Spotify’s free account allows
for unlimited streaming music, formation of playlists, sharing songs with friends,
and accessing personal collections from multiple devices. It makes money from
advertising and its premium service, which allows users to space shift songs onto an
iPod or phone. Alas, both Pandora and Spotify contend with licensing issues that keep
them from crossing the pond into each other’s country.
US-based DVD distributor Netflix brought automation to the DVD rental industry.
Shipping DVDs direct to customer homes quickly began to beat the price, commitment
and unforgiving fees of conventional rental. When Netflix added a streaming movie
service, it pulled customers away from premium monthly cable channels, rentals and
movie on-demand services, all of which bore higher prices. Netflix planned to expand
to the UK, but for now operates only in the US and Canada.
Also in the US, Hulu has done for television shows what Netflix’s streaming
service has done for movies. Hulu offers five episodes of many current shows without
an account. It is a joint-venture by NBC, Fox and ABC, and makes its money from
ad revenue. Ironically, it usually has only 90 seconds of advertising for every 20
minutes of programming. Comparing this with the 10 minutes of advertising for each
20-minute show on cable programmes, a clear disparity surfaces. In short, how can
cable companies charge for cable and still need one-third of viewer time to focus on
adverts when Hulu is no-cost with minimal advertising? Hulu’s corporate owners get
the irony. In their own adverts for Hulu, they call it ‘an evil plot to destroy the world’
(Vodpod, 2009), and if the media triumvirate did not own it, this description would
probably sum up their feelings. Hulu had planned on debuting in Europe, but licensing
issues have prevented them so far.
In gaming, server-side game platforms such as Valve’s Steam join social games
like Mafia Wars in engaging a greater number of players and allowing them to create
and connect in communities. Just as with other media, Valve has to balance an anti-
piracy stance with pleasing customers. Steam mandated internet connectivity even
to play Valve titles, beginning with hit release Half Life 2 in 2004. While widespread
broadband was well underway by then, that Steam appeared chiefly a DRM scheme
angered many customers who felt guilty until proven innocent. Steam now offers in-
game chat features and automatic updates, and provides a noteworthy platform for
small-developer games to gain widespread exposure. Yet their DRM controls forever
hum in the background.
Cloud-based literature seems a technological breeze. Files are tiny in size but
offer valuable content. Despite no provable threat to the print industry, publishing
houses have remained reluctant to surrender any control of books to users. The
result is a collection of disparate, second-rate reading platforms mandating that users
be online, often with time-outs and other annoying controls. Some publishers such
as the University of Chicago Press have tried giveaways, where they make monthly
titles free-to-read, but again with a plethora of annoying controls. Some libraries
have created tolerable lending practices for customers’ phones, e-book readers
or computers. While still bogged down in details of format (to avoid copying), the
logistics remain simple.
The legal misgivings of streaming or cloud-based media remain just as
complicated for film. Cinema tickets and many first-run DVDs bear no price
discrimination. If a film cost $50,000 to create, cinema tickets cost the same as for a
film that needed a $100 million budget to hit the big screen. When films debut on DVD
or BluRay, studios and retailers want to cash in on price insensitive consumers, and
so the same universal pricing occurs. Later, however, price discrimination creeps in,
not based on the film’s production costs, but on consumer demand. For rental stores a
universal price also made sense, because at first they paid a high premium for copies
of the VHS tapes. Later, even though DVD prices declined, stores often paid a standard
price themselves.
However, when considering a movie streaming service, the idea of universal
pricing seems silly. While Netflix’s streaming choices appear arbitrary or random
to consumers, it reflects costs. Licensing one film for streaming may cost much
more than another. When, not if, films become as commonly streamed as music, an
auspicious and realistic beginning considers this price disparity. A new film streaming
service with low-premium memberships would start out with an archive of films that
cost little to license. In time, this collection would grow. Even later, as such a service
began to act as a notable revenue stream for Hollywood and other nations’ film
studios, streaming service providers could negotiate lower and lower licensing fees.
Right now, Netflix already allows streaming films on portable devices so long
as users have an internet connection. In the future, this must mimic Spotify, where
users become free from internet tethering and can stream any manner of media from
portable players for the price of an affordable, sensible membership. After all, having
all sorts of media at users’ disposal is still miles away from sharing illegal copies with
millions of people. Instead, offering each person a wide range of fast, flexible media on
several platforms and sharing through that same platform makes illegal file-sharing
nearly obsolete.
Mention the Celestial Jukebox to most pirates, and expect a huff. Historically, this
spells control, pay-per-use and inflexibility. But younger entrepreneurs, themselves
versed in copyright violation, happily turn the Celestial Jukebox on its head. The
idea is the same: a conduit through which media pass, indeed controlling the flow of
content, but then it’s hands-off. Instead of pay-per-use, consumers pay nothing until
using specific features (such as space or format shifting). Instead of inflexibility, users
have access to their collection, even with free memberships, from almost anywhere.
Some pirates will always want complete control and even possession of their
media, but when commercial services begin to offer advantages over file-sharing
and ownership, they will pull consumers away from piracy. Fretting over the small
percentage of pirates who demand ownership only echoes old and tired business
models that are dying off. Eventually, ownership of media could become the tether,
and cloud-based collections, sharing and media consumption could become freer
than ownership. As long as streaming service providers understand what Spotify,
Facebook, DropBox, Evernote and many others already know: consumers need to see
no-cost services work properly before they will gladly pay for premium.
Critics claim that as media change from selling in physical stores to streaming or
cloud-based services, consumers have no authority to turn to for advice. Anyone who
has been to a bookshop, spoken with a true bibliophile, and left with an armful of
must-read books knows that gurus can enhance a buying experience. Alas, for every
guru in a rundown record store who could tell you – hands down – the best version of
‘Sympathy for the Devil,’ there are droves of minimum wage Virgin Records employees
who are simply making a living. For every bookworm happy to talk about Neil Gaiman
for an hour, there are ten whose knowledge of literature starts and stops at the
computer in front of them. The same for movies, for games, for any media.
Yet to presume that without brick-and-mortar stores customers now wander
about the internet buying whatever pop-up ads direct them to is a fallacy. Media
gurus still exist, arguably in even higher numbers, but now anyone can tap into their
wisdom via the net. The difference is that they are sharing their wisdom for love
of the media, not for minimum wage. And instead of sharing it with a few hundred
customers in their brick-and-mortar store, they speak to tens of thousands online.
They debate with other gurus, and – to be fair – with many who only claim to be
gurus.
As expected, another unparalleled advantage to using the internet to cater to one’s
tastes is in the code. Computations and algorithms beyond human capacity can tell
what someone will probably enjoy based on indicators such as likes, dislikes, buying
habits or even price sensitivity. And while code notably aids commercial enterprises
such as Amazon and eBay, it has non-commercial applications as well. The website
Library Thing, for instance, gets users to build a virtual library, and then matches
that library to other users based on congruent titles, authors, genres and other
indicators. Then, users can sift through the libraries of other, like-minded readers on
the site to discover new reads that someone like them has found interesting. Such
sites encourage community and communication as well, while being only passively
commercial via premium accounts that allow for larger collections or other, exclusive
features.
One chink in the streaming armour remains: user-generated remix and mashup.
Without high-quality files to work with, remix culture suffers. With physical media
comes file-sharing sites offering near-perfect copies for whatever purpose. But could
ubiquitous streaming cause such sharing to fall from favour, both by becoming a more
isolated target for rights-holder lawsuits and by losing sharers and thus speed and
variety? Users will forever continue to create and share, but if streaming media takes
over, getting copyrighted content for client-side remix could become both high-profile
and difficult.
There is no doubt that the internet’s popularity and use will continue to climb.
With it, streaming media will increase as well. It remains up to rights-holders to
ensure streaming happens through legal channels. If they fail to meet market demand
for streaming media, pirates will.
Food patents paint a bleak picture of IP control
The centuries old practice of farmer-saved seed is really a gross disadvantage

to Third World farmers who inadvertently become locked into obsolete
varieties because of their taking the ‘easy road’ and not planting newer, more
productive varieties.
- Harry Collins, vice president of Delta & Pine Land Company, creators of
terminator technology (Warwick, 2000)
And I looked, and behold, a pale horse: and his name that sat on him was
Death, and hell followed with him. And power was given to them over the
fourth part of the earth, to kill with sword, and with hunger, and with death,
and with the beasts of the earth.
- Webster’s Bible Translation
IP has been called the oil of the 21st century, yet much of it contains no corporeal
form. One of the greatest struggles rights-holders take on, needed or not, is how
to pirate-proof their IP. In many ways, this protection has seen more failures than
successes. Schemes such as CSS and other technical protective measures have proved
so ineffective as to need scads of lawsuits to enforce them, when originally designed
to prevent piracy independently.
Just as the RIAA fights and sues over the piracy of music, the agricultural industry
fights real and perceived piracy of genetically modified (GM) crops through food
patents. GM crops come in many forms, whether changed to increase yield, prevent
crop loss due to pests, or even make a crop more resilient to a particular herbicide.
Companies such as Monsanto have created a model in which farmers must pay for
their seeds and their herbicide in tandem to achieve the best results. Monsanto –
known for DDT and Agent Orange – makes RoundUp, the most successful herbicide on
the market, so it is financially sound for Monsanto to create seeds that falter without
their particular brand of herbicide, no matter what this means for the crop itself.
It is easy to argue that nations should want as high a yield as possible. That using
RoundUp to deal with weeds, and Monsanto’s GM seeds to ward off pests and improve
yield, would mean more food. But increasing crop exports from developed nations
is not – in and of itself – mutually exclusive to arguments against GM crops, just as
Monsanto’s innovative means of protecting their IP is not necessarily one that others
should copy.
Consider what Monsanto’s patents are protecting. Nature harbours plants that
are annuals, which need replanting each year, and perennials, which usually come
back each year (self-seeding). In both cases, the plants produce some manner of
seed or clipping that farmers can harvest and use for another plant. This is how non-
indigenous crops (such as cherries and soybeans in the UK, and apples and bananas in
the US) have come to prosper in non-native lands.
However, this natural cycle is not a part of Monsanto’s plans. No one may patent
nature, and so natural ingredients are an ineffective money-maker. And yet, in the
1980s, through hefty lobbying and an ever-increasing presence of former Monsanto
executives peppering governmental agricultural groups, the United States allowed
for patenting of genetically modified seeds (Kenner, 2008). By using bacteria to alter
the DNA of the crop cells, Monsanto can modify seeds to an extent and with a process
that allows them to gain patent protection. Of course, while greater yield sounds like a
sensible advancement of science, it is also in Monsanto’s best interests to ensure that
they sell as many seeds as often as possible.
Monsanto began selling GM seeds that conveniently develop best using RoundUp.
But this is where the perversion started. Since Monsanto owned the patent on the GM
seed, they effectively owned the seed. Therefore it became patent infringement for
farmers to use seed for a second year. These second generation seeds are the product
of nature, but since they spawned from a GM seed, farmers could not use them. While
this may sound like an on-paper rule that no one follows, a team of more than 75
investigators works for Monsanto to expose any farmers reusing their seeds (Kenner,
2008). Seed reuse leads to many one-sided lawsuits, given Monsanto’s battery of
lawyers. Most end in hefty settlements, since fighting Monsanto proves too costly for
many farmers.
Other legal targets of Monsanto include farmers whose fields have unintentionally
cross-pollinated with their GM-using neighbours. Such farmers become doubly
damned, as they must try to prove themselves innocent of patent infringement by
costly legal means, and they also have crops that will produce illegal seeds, and seeds
that only respond to RoundUp.
Moe Parr made a living cleaning farmers’ seeds so they could replant the
following year; now a dinosaur profession. Monsanto sued him for ‘inducing farmers
to break the patent law’ (Kenner, 2008). And yet, this is precisely the same scenario,
only analogue instead of digital, as when companies simplified bypassing technical
protection measures (TPMs) so consumers could practise fair use. The same with
companies such as DropBox, where despite the possibility of customers infringing
on copyright by using DropBox to file-share, copyright violation was not the primary
purpose of the service. In the same way, Parr’s service may have led to patent
infringement, but that was not its primary function, especially since his machine’s
design pre-dates patents. Alas, there is no fair use for patents, and patent protection
offers rights-holders tighter reigns over their IP than copyright.
However, even the GM patents were not pirate-proof enough for Monsanto. They
still lacked any physical barriers to stop reuse of their IP. So Monsanto looked to the
ultimate pirate-proof seed, one that no farmer would be able to reuse. These seeds
have what are euphemistically called Genetic Use Restriction Technology (GURT).
More fittingly, the term ‘suicide seeds’ came to mean the use of so-called terminator
technology that ensured a seed would produce a sterile crop. Any further seeds
coming from plants using this technology could not grow crops the following years.
Arguments for terminator technology include less cross-pollination, though as Hugh
Warwick notes, this is tantamount to admitting that GM crops do indeed cross-
pollinate and fertilize neighbouring fields (Warwick, 2000). This is a fact that would
prove damaging to Monsanto’s constant litigation for patent infringement against
cross-pollinated farms accused of using RoundUp Ready seeds illegally.
In 1999, Monsanto agreed not to commercialize suicide seeds, responding to
fervent opposition from farmers and governments. Still, vice president of Delta &
Pine Land Company Harry Collins asserted that they would continue to work towards
commercialization (Warwick, 2000). Monsanto bought Delta & Pine Land Company
five years later.
If anything represents hope of reversing such dire controls, it is consumer
preferences. Monsanto also manufacturers Recombinant Bovine Growth Hormone
(rBGH), which stimulates milk production in dairy cows at some considerable cost to
the quality of the milk and the life of the cows (Robin, 2005). However, rBGH has not
rooted into milk production as GM seeds have in crop production. This is only because
of consumer pressure on governments and regulatory bodies to forbid the sale of
rBGH milk, or at least ensure labelling of such milk as coming from cows given the
hormone. Every nation but the US has forbidden milk from cows treated with rBGH.
Even in the States, Wal-Mart stopped carrying such products ‘based on customer
preference’ (Kenner, 2008).
Yet, for many, the future of IP controls echoes Monsanto’s tactics. Control not only
of knowledge or the right to create, but also the right to use what comes naturally,
whether corn seed or guitar riffs or slogans. But Monsanto owns nothing worth
stealing. No developing country will reverse-engineer GM seeds or terminator
technology. While a competing company may mirror such monopolistic designs, no
pirate would choose something as unwieldy and unnatural as a seed that cannot
reproduce, or that needs a specific brand of fertilizer and herbicide. And so Monsanto
offers a fine example of how to pirate-proof intellectual property: make something no
one wants to copy, even at the peril of everything but profit.
214
Conclusion
I t can prove discouraging, looking back on what we have covered of copyright and piracy,
to realize that the façade of IP law as a well-oiled machine crumbles under the lightest
scrutiny. Conversely, knowing that culture and creativity will flower under both the tightest
and loosest of copyright controls should bring hopeful certainty. At the least, armed with a
greater understanding of incentives, you may evaluate the prevalent mantras about the evils
of piracy with fitting scepticism.
Just as it is important to consider the hidden costs of laws that invade privacy for the
sake of security, we must assess what thick copyright laws cost tomorrow’s content creators.
We should understand that any greater controls to protect current media will have an equal
and opposite chilling effect on tomorrow’s creations. This applies to longer and broader
terms, technical measures, lawsuits, expanding patent coverage – all inflict a hefty cost on
future creation, costs that surface in debates alongside dreary loss statements, doomsday
prophecies and us-versus-them finger-pointing. After all, most creative piracy only became
illegal when the laws expanded around it.
Rest assured, the pirates are no sooner ‘out to get you’ than corporate copyright
is destroying creative content. Healthy cynicism reveals that anti-piracy measures and
propaganda have more to do with preserving current moneymaking models than with
incentivizing creation, protecting consumers or preventing job losses.
Even recent history arms us with a likely road map for where copyright-poor countries
are heading. They follow the same path that currently copyright-rich nations traversed
not long ago. To criminalize such countries for ignoring other nations’ IP laws, or even for
counterfeiting with the very processes and machinery that more developed nations gave
them, is absurd. A nation’s bootlegging prevalence neatly matches the demand for its cheap
labour, as its medical and agricultural advances often match its disregard for drug and food
patents.
History also reveals that all creation draws from what came before. Authorized remakes
215 Conclusion
or repackaged ideas hold no superiority over unauthorized remixes; not in novelty or

utility. The only difference is legal, and lawyers, legislators and courts make poor judges of
creativity.
That IP laws as monopolies still fail continuously to prevent piracy or secure markets
should beget doubt, but not discourage. We have come a long way both in trying to give
creative piracy a safe harbour and, alas, in ensuring that it remains piratical. Accepting
that user-generated content (UGC) that violates copyright holds no threat to monetized
copyrighted content is a good first step. Equally important is understanding that it
represents artistic creation despite, not because of, current copyright laws. Eventually,
mainstream media will butt against unauthorized content, based on the number of people
enjoying it, or how much money is ‘lost’ because exposure to pay-per-use media loses to
free content. We must resist demonizing this creative piracy the way that we have allowed
slandering of so many other derivative works.
File-sharing and derivative works will never stop. But we can vilify such acts to an extent
that we see violating copyright as always criminal and never creative. So much content we
enjoy and expect from the internet sits on the edge of a razor. Neither the law nor consumer
preference could stop rights-holders from excising it if they chose. But enforcement is
calculated, not random. Big media considers what UGC does for them compared with how
such content acts against them. Supremely, while UGC helps mainstream media sales, makes
money through advertising, or presents only limited threats to industry profits, it will remain
unmolested. Eventually, people might rather watch a machinima movie free online than pay
$20 to go to the cinema. No-cost music remixes might grace more iPods than pay-for content.
Independent ‘pay what you want’ games or mods for existing titles might draw more face-
time than the premium-priced releases. Fanfic might glean more favour than the novel or
movie that it emulates. That day, rights-holders will bring down the legal axe, and we will all
suffer the outcomes.
To be fair, just as it seems convenient for rights-holders to condemn piracy and laud
copyright, this pendulum swings the other way. It is convenient for pirates to claim that they
share media because information wants to be free or because they are protesting against
DRM. But this act of dissent also saves them money. A better means of dissent would be to
pay for only those games or books or films that forgo DRM, allow mods, encourage remix or
offer an agreeable price model. A more telling act of rebellion would be to violate copyright
only in creating something else. This both bolsters public opinion of the creativity of remix
216 Conclusion
culture and user-generated content, and makes people question any set of laws that forbids
such creativity.
Finally, we must resist crediting our current creative culture and access to media to the
effects of thick copyright. Suing Girl Scouts is a result of copyright. Bad sequels are a result
of copyright. The art and culture we enjoy would be here with or without a state-enforced
monopoly; whether we called content creators pirates or employees. Even a cursory glance
on the internet reveals legions of content creators incentivized by creativity alone. But
making money from media is as sound a model as ever. It just means adapting to how people
consume, and moving on from models the digital age has made ineffective. Greater control
is only a model, and arguably one much less effective than seeing how people use, share and
create information and going with it.
Create what the market wants. Ignore unauthorized use. Monetize without alienating.
And consumers will gladly abide.
217
GLOSSARY
ACTA: Anti-Counterfeiting Trade Agreement. A proposed multinational piece of legislation to

standardize intellectual property protection policy and rights enforcement.
ASCAP: American Society of Composers, Authors & Publishers. A non-profit organization for
licensing performance rights for copyrighted works in the US.
BASCAP: Business Action to Stop Counterfeiting and Piracy. The activist arm of the
International Chamber of Commerce (ICC), persuading governments of the economic harms
done by digital piracy.
Berne Convention: An agreement among several nations governing international copyright

terms.
Bit torrent: A file-sharing protocol that allows simultaneously uploading to and

downloading from multiple peers.
BPI: British Phonographic Industry. A trade organization for the British recording industry.
BSA: Business Software Alliance. Third-party trade organization that represents software
manufacturers in combating piracy of their intellectual property worldwide.
Celestial Jukebox: The copyright industry’s long-held ideal of media distribution where all
media comes through a single device as pay-per-use.
Cosplay: Costume Play. Where people dress as characters from popular media, such as video
games, comic books, or films, often for fan conventions.
Creative Commons: A non-profit organization focused on supplanting automatic All Rights

Reserved copyright with a series of licenses that encourage sharing and collaboration.
CRIA: Canadian Recording Industry Association. A non-profit trade organization that

represents members within the Canadian music industry in legal matters and through
political lobbying.
218 Glossary
CSS: Content Scramble System. A digital rights management protection scheme for
controlling how and on what devices DVDs can function.
DDoS Attack: Distributed Denial of Service Attack. An attack of a server’s resources by

routing traffic from multiple, often-unwilling computers.
DeCSS: A program to decode the DVD protection scheme Content Scramble System (CSS) so
that DVDs could play on machines running the Linux operating system.
Digital piracy: Unauthorized copying or distribution of intellectual property.
DMCA: Digital Millennium Copyright Act. A 1998 addendum to US copyright law

criminalizing, among other things, the circumvention of Technological Protection Measures
(TPMs) to enforce copy protection.
DRM: Digital Rights Management. Protection schemes to control how digital content is used.
EFF: Electronic Frontier Foundation. Non-profit organization advocating for consumer digital
rights.
EULA: End User License Agreement. A written agreement between software rights holders
and users governing how a program may be used.
Fanfic: Fan Fiction. Fictional written works based on copyrighted characters, settings, or
concepts.
First-sale doctrine: copyright policy allowing the rights holder control over only the
first sale, so that media owners may transfer ownership of used media without violating
copyright.
GMO: Genetically Modified Organism. Patentable organisms that have been genetically
modified by DNA-modification.
Google: An Internet search engine providing web links based on user queries.
GPL: General Public License. A software license that ensures that software code remains
available when used in derivative works.
IP: Intellectual Property. Any creation protected by patent, copyright, trademark, or trade
219 Glossary
secret.
iPod: Apple’s proprietary portable music and media player.
ISP: Internet Service Provider. A company that provides access to and bandwidth for the
Internet.
iTunes: Apple computer’s proprietary, cross-platform media management software.
Jaywalking: When pedestrians cross the street either against the traffic light at a crosswalk
or where there is no crosswalk present.
LEK Consultancy: A firm hired by the MPAA to conduct research into the economic impacts
of film piracy.
Limewire: Now defunct popular p2p file-sharing platform using the Gnutella Network.
Machinima: Machine Animation. Animated film created through video games or other
rendered digital environments.
MMORPG: Massive Multiplayer Online Role-Playing Game. Also called Massively Multiplayer
Online (MMO). Video games housed on servers into which players worldwide play the same
game simultaneously and cooperatively.
MMPS: Major Motion Picture Studios. A collective term for the largest film studios in
Hollywood.
Moniker: A nickname or alternate name for someone or something.
MPAA: Motion Picture Association of America. A non-profit trade organization representing

movie studios in legal matters and through political lobbying.
Napster: Now defunct music file-sharing platform created by college student Shawn Fanning.
p2p: Person to person. A file-sharing scheme where users share files with one another in lieu
of downloading files from a central server.
PRS for Music: formerly Performance Rights Society. An organization for licensing
performance rights for copyrighted audio works in the UK.
220 Glossary
RAM: Random-Access Memory. Temporary data storage for computers, allowing for faster
performance and data retrieval.
RIAA: Recording Industry Association of America. A non-profit trade organization that

represents members within the US music industry in legal matters and through political
lobbying.
Terminator Technology: An as-yet-unused technology of making GMO crops produce sterile

seeds.
The Pirate Bay: Sweden-based bit torrent tracker site, providing site visitors with the ability
to search for torrent files.
The Pirate Party: A political party started in Sweden with a platform of copyright
reformation or abolishment, information transparency, and personal privacy.
TPM: Technological Protection Measure. A means of copy protection governing intellectual

property.
TRIPS: Set of standard intellectual property rules and regulations established by the World
Trade Organization for all WTO member nations.
UMD: Universal Media Disc. Proprietary media format created by Sony for the Playstation
Portable (PSP) hand-held gaming system.
USTR: United States Trade Representatives. Publishes the annual Special 301 Report watch
list of countries’ levels of digital piracy.
Wikileaks: A non-profit organization that publishes classified or otherwise controlled

documents or other media made public through leaks or whistle-blowers.
221
REFERENCES
A Debate on ‘Creativity, Commerce and Culture’ with Larry Lessig and Jack Valenti
(2001) The USC Annenberg Norman Lear Center, University of Southern California
Albanesius, C (2008) [Accessed 19 December 2010] ‘President Bush Approves
“Copyright Czar”’, PC Magazine [Online] http://www.pcmag.com/
article2/0,2817,2332432,00.asp
Albert, J, Beauchamp, R and Schlagel, B (dirs.) (2010) Walking on Eggshells, motion
picture, Yale Law & Technology
Alfano, S (2006) [Accessed 28 November 2010] ‘50 Cent Sued For Copycatting’, CBS
News [Online] http://www.cbsnews.com/stories/2006/01/21/entertainment/
main1227294.shtml
Anderson, C (2009) Free: The Future of a Radical Price, Hyperion, New York
Anderson, N (2008) [Accessed 22 October 2010] ‘Oops: MPAA admits college piracy
numbers grossly inflated’, Ars Technica [Online] http://arstechnica.com/tech-
policy/news/2008/01/oops-mpaa-admits-college-piracy-numbers-grossly-
inflated.ars
Apple, Inc (2010) [Accessed 16 August 2010] ‘Terms and Conditions’ [Online] http://
www.apple.com/legal/itunes/us/terms.html#SERVICE
Ardizzone, S and Michaels, R (dirs.) (2006) Hacking Democracy, motion picture, HBO
Films
Bannon, L (1996) [Accessed 15 December 2010] ‘Birds Sing, but Campers Can’t –
Unless They Pay Up’, Star Tribune [Online] http://www.law.umkc.edu/faculty/
projects/ftrials/communications/ASCAP.html
Bate, R (2007) [Accessed 26 January 2011] ‘India and the Drug Patent Wars’, AEI
Outlook Series [online] http://www.aei.org/outlook/25566
BBC News (2009a) [Accessed 15 December 2010] ‘MGMT to Sue Sarkozy for Music
Use’ [Online] http://news.bbc.co.uk/2/hi/7912423.stm
222 References
BBC News (2009b) [Accessed 02 February 2011] ‘Apology for Singing Shop
Worker’ [Online] http://news.bbc.co.uk/2/hi/uk_news/scotland/tayside_and_
central/8317952.stm
Benger, R (2009) ‘Porndemic’, television program, Cogent/Benger Productions, Inc.
Bernstein, J (2006) ‘Q + A: Jack Valenti’, W, vol. 35, no. 9, pp.420–421
Borland, J (2003a) [Accessed 21 November 2010] ‘RIAA Settles With 12-year-old
Girl’, CNET News [Online] http://news.cnet.com/RIAA-settles-with-12-year-old-
girl/2100-1027_3-5073717.html
Borland, J (2003b) [Accessed 21 November 2010] ‘P2P Group: We’ll pay girl’s RIAA
bill’, CNET News [Online] http://news.cnet.com/P2P-group-Well-pay-girls-RIAA-
bill/2100-1027_3-5074227.html?tag=mncol
Borland, J (2003c) [Accessed 22 November 2010] ‘RIAA’s Case of Mistaken
Identity?’, CNET News [Online] http://news.cnet.com/RIAAs-case-of-mistaken-
identity/2100-1027_3-5081469.html?tag=mncol;1n
Bowers, J (2006) [Accessed 30 November 2010] Software and Software Patents
[Online] http://www.jerf.org/writings/communicationEthics/node6.html
Boyle, J (2008) The Public Domain: Enclosing the Commons of the Mind, Yale University
Press, New Haven
Bradford, D (2006) [Accessed 12 October 2010] ‘Bird Flu: Liability and Risk
Management Update’, Advisen [Online] http://www.kmrdpartners.com/
documents/BirdFluPandemic-RiskManagementIssues.pdf
Brandon, J (2008) [Accessed 19 November 2010] ‘Tech Myths That Just Won’t Die’, PC
World [Online] http://www.pcworld.com/article/151606/tech_myths_that_just_
wont_die.html
Brom (2010) [Accessed 23 December 2010] ‘Pay-what-you-want Model Adopted
by Indie Games Company, Lawsuit Imminent’, Tiny Mix Tapes [Online] http://
www.tinymixtapes.com/news/pay-what-you-want-model-adopted-indie-games-
company-lawsuit-imminent
Burns, C (2010) [Accessed 13 December 2010] ‘UK Prime Minister Wants US-style
Fair Use Industrial Policy to Spur Innovation’, Slash Gear [Online] http://www.
slashgear.com/uk-prime-minister-wants-us-style-fair-use-industrial-policy-to-
spur-innovation-05112678/
223 References
Business Action to Stop Counterfeiting and Piracy (2010) ‘Report on mission,

achievements, work plan, and membership’, Business Action to Stop
Counterfeiting and Piracy (BASCAP) and the International Chamber of Commerce
(ICC)
Business Software Alliance (2010) ‘Seventh Annual BSA/IDC Global Software 09
Piracy Study’, Business Software Alliance (BSA), Irving, TX
Business Wire (1998) [Accessed 18 October 2010] ‘RIAA Wins Restraining
Order Against MP3 Recording Device’, [Online] http://www.highbeam.com/
doc/1G1-53092513.html
Calandrillo, S and Davison, E (2008) ‘The Dangers of the Digital Millennium Copyright
Act: Much ado about nothing?’, William and Mary Law Review, vol. 50, no. 2,
pp.349–415
CBS News (2010) [Accessed 11 September 2010] ‘Lawsuit: “Harry Potter” Author
Stole Ideas’ [Online] http://www.cbsnews.com/stories/2010/02/18/
entertainment/main6219192.shtml
Clough, B and Upchurch, L (dirs.) (2010) When Copyright Goes Bad, motion picture,
Access to Knowledge Project
Cohen, A (1990) ‘Copyright Law and the Myth of Objectivity: The Idea-Expression
Dichotomy and the Inevitability of Artistic Value Judgments’, Indiana Law Journal,
vol. 66, pp.175–232
Committee on Governmental Affairs (2003) Privacy and Piracy: The paradox of
illegal file sharing on peer-to-peer networks and the impact of technology on the
entertainment industry, Washington
Committee on the Judiciary House of Representatives (1982) Home Recording of
Copyrighted Works, Washington
Congressional Joint Committee on Patents (1906) To Amend and Consolidate the Acts
Respecting Copyright, Washington
Conti, A (2004) [Accessed 19 December 2010] ‘Ebay Art Fraud: Copyright violations,
plagiarism, forgery’, Big Crow, blog posting [Online] http://www.bigcrow.com/
anna/ebay_fraud/evidence.html
Corliss, R (2007) [Accessed 06 December 2010] ‘What Jack Valenti Did for Hollywood’,
Time [Online] http://www.time.com/time/arts/article/0,8599,1615388,00.html
224 References
Coulter, C, Masayuki, N and Foskett, E (2010) ‘UK Steps Toward “Digital Britain”
with the Introduction of the Digital Economy Act 2010’, The Computer & Internet
Lawyer, vol. 27, no. 9, pp.25–31
Craig, P (2005) Software Piracy Exposed, Syngress Publishing, Inc, Rockland, MA
Creekmur, C (2007) ‘Brokeback: The Parody’, GLQ: A Journal of Lesbian and Gay
Studies, vol. 13, no. 1, pp.105–107
Denby, L (2010) [Accessed 19 December 2010] ‘Square Enix Cease-And-Desists
Amateur Dev For Carmageddon Spin-Off’, Beef Jack [Online] http://beefjack.com/
news/square-enix-cease-and-desists-amateur-dev-for-carmageddon-spin-off/
Deng, S, Townsend, P, Robert, M and Quesnel, N (1996) ‘A Guide to Intellectual
Property Rights in Southeast Asia and China’, Business Horizons, November–
December, pp.43–51
Desai, R (2005) ‘Copyright Infringement in the Indian Film Industry’, Film & TV,
Spring, pp.259–278
Diffley, K (ed.) (2002) To Live and Die: Collected Stories of the Civil War, 1861–1876,
Duke University Press, Durham, NC
Doctorow, C (2010) [Accessed 12 October 2010] ‘Wikileaks Cables Reveal That the
US Wrote Spain’s Proposed Copyright Law’, BoingBoing [Online] http://www.
boingboing.net/2010/12/03/wikileaks-cables-rev.html
Drahos, P (2003) Information Feudalism, The New Press, New York
Efroni, Z (2007) [Accessed 15 September 2010] ‘DRM by Mandate? Belgium Court
Imposes a Filtering Duty on ISP’, Stanford Law School [Online] http://cyberlaw.
stanford.edu/node/5449
Elinson, Z (2009) [Accessed 18 November 2010] ‘ASCAP Sues Over Ringtone
“Performance”’, The Recorder [Online] http://www.law.com/jsp/
lawtechnologynews/PubArticleLTN.jsp?id=1202432025253&slreturn=1&hbxlog
in=1
Espiner, T (2009) [Accessed 02 September 2010] ‘U.K. Gets its Own Pirate Party’,
CNET News [Online] http://news.cnet.com/8301-1023_3-10309960-93.html
FanEdit (2007) [Accessed 09 September 2010] ‘Spiderman 3: The Darkness Within’,
[Online] http://fanedit.org/328/
225 References
Federal Bureau of Investigation (2010) ‘Justice Department Announces New

Intellectual Property (IP) Task Force as Part of Broad IP Enforcement Initiative’,
Federal Bureau of Investigation (FBI) National Press Releases, Washington
Firestone, D (2000) [Accessed 12 December 2010] ‘King Estate and CBS Settle Suit
Over Rights to Famous Speech’, The New York Times [Online] http://www.nytimes.
com/2000/07/14/us/king-estate-and-cbs-settle-suit-over-rights-to-famous-
speech.html
Ford, S (2008) [Accessed 21 October 2010] ‘City of Heroes Launches Matrix
Machinima Contest’, Warcry Network [Online] http://www.warcry.com/news/
view/84779-City-of-Heroes-Launches-Matrix-Machinima-Contest
Franzen, B (dir.) (2009) Copyright Criminals, motion picture, Copyright Criminals, LLC,
Changing Images, LLC, and ITVS
Fricklas, M (2009) [Accessed 21 December 2010] ‘Copyrights, Markets, and Free
Speech: Should we be free not to be free?’, Yale University presentation [Online]
http://www.youtube.com/watch?v=vVvC7bj26aU
Friedman, D and Finke, B (2008) ‘The Big Bong Theory’, GQ – Gentlemen’s Quarterly,
vol. 78, no. 2, pp.90–95
Friess, S (2003) [Accessed 19 December 2010] ‘Porn Strategy: Share and Snare’, Wired
[Online] http://www.wired.com/techbiz/media/news/2003/01/57348
Frisch, M (2010) [Accessed 07 December 2010] ‘Digital Piracy Hits the E-book
Industry’, CNN [Online] http://articles.cnn.com/2010-01-01/tech/ebook.
piracy_1_e-books-digital-piracy-publishing-industry?_s=PM:TECH
Gantz, J and Rochester, J (2005) Pirates of the Digital Millennium, Prentice Hall, New
York
Gatto, J, Blaise, B and Esplin, D (2009) ‘Worlds.com Saber-rattling Portends a Trend
in Virtual World and Video Game Patents’, Intellectual Property & Technology Law
Journal, vol. 21, no. 5, pp.8–13
Gaylor, B (dir.) (2008) RiP!: A Remix Manifesto, motion picture, National Film Board of
Canada and EyeSteelFilm
Geist, M (2008) ‘Transparency Needed on ACTA’, The Toronto Star [Online] http://
www.thestar.com/sciencetech/article/439551
226 References
Gladwell, M (2004) [Accessed 13 November 2010] ‘Something Borrowed’,

The New Yorker [Online] http://www.gladwell.com/2004/2004_11_25_a_borrowed.
html
Goldberg, L (2006) [Accessed 28 September 2010] ‘No HOPE for this Fanficcer’, A
Writer’s Life [Online] http://leegoldberg.typepad.com/a_writers_life/2006/04/
no_hope_for_thi.html
Graham, P (2004) Hackers and Painters, O’Reilly, Beijing
Greenberg, A and Irwin, M (2008) [Accessed 19 December 2010] ‘Spore’s Piracy
Problem’, Forbes [Online] http://www.forbes.com/2008/09/12/spore-drm-
piracy-tech-security-cx_ag_mji_0912spore.html
Grice, C and Junnarkar, S (1998) [Accessed 25 October 2010] ‘Gates, Buffett a Bit
Bearish’, CNET News [Online] http://news.cnet.com/2100-1023-212942.html
Halliday, J (2010) [Accessed 11 September 2010] ‘BT in Privacy Row After Sending
Customer Data to ACS: Law’, The Guardian [Online] http://www.guardian.co.uk/
technology/2010/sep/29/bt-unencrypted-customer-data
Hansen, E (2003) [Accessed 30 November 2010] ‘eBay Mutes iTunes Song
Auction’, CNET News [Online] http://news.cnet.com/eBay-mutes-iTunes-song-
auction/2100-1027_3-5071566.html
Harris, J (2010) [Accessed 19 December 2010] ‘Need For Speed: XNA’, 1am Studios,
blog posting [Online] http://www.1amstudios.com/games/NeedForSpeed/
Harris, J, Stevens, P and Morris, J (2009) ‘Keeping it Real: Combating the spread of
fake drugs in poor countries’, International Policy Network, UK
Hartman, R (prod.) (2004) ‘Pirates of the Internet’, 60 Minutes, television program,
CBS
Helprin, M (2009) Digital Barbarism, HarperCollins, New York
House Appropriations Committee (2002) A Clear and Present Future Danger, Ashburn,
Virginia
House Committee on the Judiciary, US Congress (1996) The National Information
Infrastructure: Copyright Protection Act of 1995 (H.R. 2441), Washington
Hyde, L (2010) Common as Air, Farrar, Staus, and Giroux, New York
If Symptoms Persist (2008) Television programme, mPedigree
227 References
Ingram, M (2000) [Accessed 18 September 2010] ‘Napster Offers Deal to Recording

Industry’, World socialist website [Online] http://www.wsws.org/articles/2000/
oct2000/naps-o10.shtml
Johns, A (2009) Piracy: Intellectual Property Wars from Gutenberg to Gates, University
of Chicago Press, Chicago
Johnsen, A, Christensen, R and Moltke, H (dirs.) (2007) Good Copy, Bad Copy, motion
picture, Rosforth
Johnson, S (2010) Where Good Ideas Come From: The natural history of innovation,
Riverhead Hardcover, New York
Jokeroo (2010) [Accessed 11 November 2010] ‘Paranormal Activity 2 Review/909
Experiment’, [Online] http://www.jokeroo.com/videos/yt/sdaf-paranormal-
activity-2-review909-experiment.html
Jones, B (2006) [Accessed 15 November 2010] ‘The Swedish Pirate Party Presents
their Election Manifesto’, Torrent Freak [Online] http://torrentfreak.com/the-
swedish-pirate-party-presents-their-election-manifesto/
Keen, A (2007) The Cult of the Amateur: How today’s internet is killing our culture,
Doubleday, New York
Kelly, R (2006) ‘BlackBerry Maker, NTP Ink $612 Million Settlement’, CNN Money
[Online] http://money.cnn.com/2006/03/03/technology/rimm_ntp/
Kenner, R (dir.) (2008) Food, Inc., motion picture, Magnolia Pictures
Khoo, N (2008) [Accessed 22 September 2010] ‘Cutting off Someone’s Internet Access
for Illegal Downloading?’, Geekonomics, blog posting [Online] http://asia.cnet.
com/blogs/geekonomics/post.htm?id=63003196
King, B (2001) [Accessed 02 September 2010] ‘Fight Rages Over Digital Rights’, Wired
[Online] http://www.wired.com/politics/law/news/2001/01/41183?currentPa
ge=2
Kirk, R (2010) ‘2010 Special 301 Report’, Office of the United States Trade
Representative, Washington
Krajec, R (2011) [Accessed 19 January 2011] ‘Patent Litigation Encourages
Innovation, Not Stifles It’, [Online] http://www.krajec.com/blog/patent-litigation-
encourages-innovation-not-stifles-it
228 References
Kravets, D (2010) [Accessed 18 December 2010] ‘Newspaper Chain’s New

Business Plan: Copyright suits’, Wired [Online] http://www.wired.com/
threatlevel/2010/07/copyright-trolling-for-dollars/#ixzz0yuUQDiZQ
Lehrer, J (2010) [Accessed 17 September 2010] ‘1,084 Days: How Toy Story 3 was
made’, Wired [Online] http://www.wired.co.uk/magazine/archive/2010/07/
features/how-toy-story-3-was-made?page=all
LEK Consultancy (2005) ‘The Cost of Movie Piracy’, LEK Consultancy and the Motion
Picture Association (MPA)
Lemire, P (2007) [Accessed 07 December 2010] ‘Three Chords and the Truth Part
I’, Leyendecker & Lemire, LLC [Online] http://www.coloradoiplaw.com/pdf/
resources/Three-Chords-and-the-Truth-Part-1.pdf
Leonard, A (2010) The Story of Stuff, Free Press, New York
Lessig, L (2001) The Future of Ideas, Random House, New York
Lessig, L (2004) Free Culture, The Penguin Press, New York
Levy-Hinte, J (2004) ‘The Digital Divide’, Filmmaker, Summer, pp.72–92
Love, C (2000) [Accessed 18 August 2010] ‘Courtney Love Does the Math’, Salon.com
[Online] http://www.salon.com/technology/feature/2000/06/14/love/print.
html
Lucarini, L (2010) Patent Absurdity, motion picture, Free Software Foundation
Lyons, K (2006) [Accessed 04 November 2010] ‘Fretting Over Infringement’, Pittsburg
Tribune-Review [Online] http://www.pittsburghlive.com/x/pittsburghtrib/news/
tribpm/s_465216.html
Macy, A (1933) The Story Behind Helen Keller, Doubleday, New York
Magee, C (2010) [Accessed 13 September 2010] ‘Confessions of a Book Pirate’, The
Millions [Online] http://www.themillions.com/2010/01/confessions-of-a-book-
pirate.html
Makishima, P (2008) ‘Rent a $6 Self-destructing DVD at Airports’, The Boston Globe
[Online] http://www.boston.com/travel/blog/2008/10/rent_a_6_selfde.html
Marco, M (2008) [Accessed 27 September 2010] ‘EA Allows 3 “Activations” Of Mass
Effect And That’s It? Period?’, The Consumerist [Online] http://consumerist.
com/2008/06/ea-allows-3-activations-of-mass-effect-and-thats-it-period.html
229 References
Marshall, A (2009) [Accessed 19 December 2010] ‘The Fatal Consequences of

Counterfeit Drugs’, Smithsonian magazine [Online] http://www.smithsonianmag.
com/people-places/Prescription-for-Murder.html?c=y&page=1
Martell, D (2007) [Accessed 11 September 2010] ‘Jobs Says Apple Customers Not into
Renting Music’, Reuters [Online] http://www.reuters.com/article/2007/04/26/
us-apple-jobs-idUSN2546496120070426
Mason, M (2008) The Pirate’s Dilemma, Free Press, New York
McArdle, J (dir.) (2007) On Piracy, motion picture, Celsius Studios
McDermott Will & Emery (2007) [Accessed 18 September 2010] ‘Defective Chinese
Goods: Legal Risks and Protective Measures’, [Online] http://www.mwe.com/
index.cfm/fuseaction/publications.nldetail/object_id/e6a6094d-ee63-486e-b8f1-
c22c0a476e04.cfm
McHugh, M (2010) [Accessed 10 December 2010] ‘Woman Found Guilty (again)
of Sharing 24 songs, Owes $1.5 million’, Digital Trends [Online] http://www.
digitaltrends.com/computing/woman-found-guilty-again-of-sharing-24-songs-
owes-1-5-million/
McIllwain, J (2007) ‘Intellectual Property Theft and Organized Crime: The case of
film piracy’, in: Albanese, J (ed.) Combating Piracy, Transaction Publishers, New
Brunswick
McNeil, D (2000) ‘Selling Cheap “Generic” Drugs, India’s Copycats Irk Industry’, The
New York Times [Online] http://www.nytimes.com/2000/12/01/world/selling-
cheap-generic-drugs-india-s-copycats-irk-industry.html
Mearian, L (2010) [Accessed 15 December 2010] ‘Forget Digital Tunes: Analog music
on the upswing’, Computer World [Online] http://www.computerworld.com/s/
article/9187001/Forget_digital_tunes_analog_music_on_the_upswing
Meer, A (2010) [Accessed 18 December 2010] ‘The Other Indie Philanthropy Bundle’,
Rock, Paper, Shotgun [Online] http://www.rockpapershotgun.com/2010/12/16/
the-other-indie-philanthropy-bundle/
Meltzer, J (dir.) (2007) Welcome to Nollywood, motion picture, Cinema Guild
Meyer, S (2008) [Accessed 10 December 2010] ‘Midnight Sun: Edward’s Version of
Twilight’, blog posting [Online] http://www.stepheniemeyer.com/midnightsun.
html
230 References
Meza, E (2010) ‘Pirate Party Fires Volley: Movement to limit intellectual property laws
shows surprising strength’, Variety, vol. 419, no. 5, pA4
Miller, R (2006) [Accessed 18 December 2010] ‘MS Shuts Down Halogen Mod... Why
now?’, Joystiq [Online] http://www.joystiq.com/2006/09/13/ms-shuts-down-
halogen-mod-why-now/
Mitchell, D (2005) [Accessed 22 December 2010] ‘Manufacturers Try to Thrive
on the Wal-Mart Workout’, The New York Times [Online] http://www.nytimes.
com/2005/02/20/business/yourmoney/20sell.html?pagewanted=all&position=
Monblat, J (dir.) (2002) ‘Attack of the Cyber Pirates’, television program, BBC
Morissette, N (2007) [Accessed 18 September 2010] ‘Copier-coller aux Intouchables’
(‘Copy-paste the Untouchables’) La Presse [Online] http://web.archive.org/
web/20070328173853/http://www.cyberpresse.ca/article/20070321/
CPARTS02/703210674/1017/CPARTS
Murray, B (2004) Defending the Brand, Amacom, New York
Naim, M (2005) Illicit, Doubleday, New York
Nelson, C (2003) [Accessed 15 December 2010] ‘Upstart Labels See File Sharing as
Ally, Not Foe’, The New York Times [Online] http://web.mit.edu/21w.784/www/
BD%20Supplementals/Materials/Unit%20Two/Piracy/indy%20labels%20
like%20shar.html
New York Post (2010) [Accessed 10 October 2010] ‘No “Glee” Over No Royalties’,
[Online] http://www.nypost.com/p/pagesix/no_glee_over_no_royalties_
ahwxPuTlo2YpVsWSOhAN2N
Nintendo IR Information (2010) [Accessed 22 December 2010] ‘Nintendo
Conference Q & A Session’, [Online] http://www.nintendo.co.jp/ir/en/library/
events/100929qa/index.html
Oberholzer-Gee, F and Strumpf, K (2007) ‘The Effect of File Sharing on Record Sales:
An empirical analysis’, Journal of Political Economy, vol. 115, no. 1, pp.1–42
Onyx Neon Press (2010) [Accessed 15 December 2010] ‘Why Free?’, [Online] http://
www.onyxneon.com/books/modern_perl/index.html
Parfitt, O (2009) ‘Will Leak Help Wolverine?’, IGN UK [Online] http://movies.ign.com/
articles/972/972978p1.html
231 References
Perone, T (2008) [Accessed 11 November 2010] ‘Bon Jovi Sued for $400 billion’,
New York Post [Online] http://www.nypost.com/p/news/national/item_
Yp8NtYfdj8Op8JMwxB7clN
Philip, J (dir.) (2006) Yoga, Inc., motion picture, Bad Dog Tales, Inc.
Pinchefsky, C (2006) [Accessed 13 November 2010] ‘Fan Fiction, Part Two: City
on the edge of copyright infringement’, Wizard Oil [Online] http://www.
intergalacticmedicineshow.com/cgi-bin/mag.cgi?do=columns&vol=carol_
pinchefsky&article=009
PR Web (2008) [Accessed 30 August 2010] ‘On Eve of James Potter Sequel, Harry
Potter Fan Fiction Heats up: Unlikely author poised to keep the story alive’,
[Online] http://www.prweb.com/releases/2008/07/prweb1080574.htm
Ramani, R (2010) [Accessed 04 December 2010] ‘Re: Russet Noon – A Parody Sequel
to Breaking Dawn by Lady Sybilla (the “Book”)’, Message to Ms. Glorianna Arias,
letter [Online] http://fanlore.org/wiki/Image:Letter_re_Russet_Noon.pdf
Ramsey, N (2005) [Accessed 06 November 2010] ‘The Hidden Costs of
Documentaries’ The New York Times [Online] http://www.nytimes.
com/2005/10/16/movies/16rams.html
Refe (2009) [Accessed 19 December 2010] ‘Lawmakers Praise Napster for File
Sharing Innovation in 2000’, Creative Deconstruction [Online] http://www.
creativedeconstruction.com/2009/08/lawmakers-praise-napster-for-file-sharing-
innovation-in-2000/
Rich, M (2006) [Accessed 18 January 2011] ‘Who’s This Guy Dylan Who’s Borrowing
Lines From Henry Timrod?’, The New York Times [Online] http://www.nytimes.
com/2006/09/14/arts/music/14dyla.html?_r=2&th=&adxnnl=0&emc=th&adxnn
lx=1158238978-cnkpSQFIU6EDbkL2zyeI5g&pagewanted=print
Rich, M (2009) [Accessed 17 August 2010] ‘Print Books Are Target of Pirates on
the Web’, The New York Times [Online] http://www.nytimes.com/2009/05/12/
technology/internet/12digital.html?_r=1
Richmond School of Law (2007) What Do You Think? Motion picture, Intellectual
Property Institute
Ringle, K (1996) [Accessed 15 December 2010] ‘ASCAP Changes Its Tune;
Never Intended to Collect Fees for Scouts’ Campfire Songs, Group Says’, The
232 References
Washington Post [Online] http://www.law.umkc.edu/faculty/projects/ftrials/

communications/ASCAP.html
Robin, M (dir.) (2008) The World According to Monsanto, motion picture, Image et
Compagnie
Rockstar Newswire (2011) [Accessed 15 January 2010] ‘Full Feature-Length Film
Created with GTAIV: “The Trashmaster”’, [Online] http://www.rockstargames.
com/newswire/article/12771/full-featurelength-film-created-with-gtaiv-the-
trashmaster.html
Rodriquez, K (2005) ‘Closing the Door on Open Source: Can the general public license
save Linux and other open source software?’, The Journal of High Technology Law,
vol. 5, no. 2, pp.403–419
Rojas, P (2004) [Accessed 07 December 2010] ‘The Engadget Interview: Jack Valenti’,
Engadget [Online] http://www.engadget.com/2004/08/30/the-engadget-
interview-jack-valenti/
Rotstein, R, Evitt, E and Williams, M (2010) ‘The First Sale Doctrine in the Digital Age’,
Intellectual Property & Technology Law Journal, vol. 22, no.3, pp.23–28
Saba, M (2009) [Accessed 13 November 2010] ‘Mos Def’s The Ecstatic: The T-Shirt’,
Paste Magazine [Online] http://www.pastemagazine.com/articles/2009/06/mos-
defs-the-ecstatic-is-both-an-album-and-a-t-shi.html
Salisbury, A (2009) [Accessed 19 August 2010] ‘Sony Pictures CEO “Doesn’t See
Anything Good Having Come From The Internet”’, Maximum PC [Online] http://
www.maximumpc.com/article/news/sony_ pictures_ceo_doesnt_see_anything_
good_having_come_internet
Samuelson, P and Wheatland, T (2009) ‘Statutory Damages in Copyright Law: A
remedy in need of reform’, William & Mary Law Review, vol. 51, pp.439–489
Sanford, J (2010) [Accessed 15 January 2011] ‘Why the Entire World Doesn’t Steal
from Harlan Ellison’, Fiction, Thoughts, and Ramblings, blog posting [Online]
http://www.jasonsanford.com/jason/2010/12/why-the-entire-world-doesnt-
steal-from-harlan-ellison.html
Schager, N (2006) ‘Unfair Use: An Interview with Kirby Dick’, Slant Magazine [Online]
http://www.slantmagazine.com/film/feature/unfair-use-an-interview-with-
kirby-dick/45
233 References
Sciretta, P (2007) [Accessed 03 January 2011] ‘Michael Moore’s Sicko LEAKED Online’,
Film [Online] http://www.slashfilm.com/michael-moores-sicko-leaked-online/
Smith, D (2007) [Accessed 05 December 2010] ‘Dumbledore Was Gay, JK Tells
Amazed Fans’, The Observer [Online] http://www.guardian.co.uk/uk/2007/
oct/21/film.books
Springen, K (2005) [Accessed 19 August 2010] ‘Writing Dynamo’, Newsweek [Online]
http://www.msnbc.msn.com/id/8917828/site/newsweek/
Square Enix Legal Department (2009) [Accessed 12 November 2010] ‘Re: Cease and
desist: Chrono Compendium, Crimson Echoes’, Message to Chrono Compedium,
letter [Online] http://crimsonechoes.com/letter.pdf
Strom, S and Gay, M (2010) [Accessed 19 October 2010] ‘Pay-What-You-Want
Has Patrons Perplexed’, The New York Times [Online] http://www.nytimes.
com/2010/05/21/us/21free.html
Taylor, G (2009) [Accessed 29 October 2010] ‘Napster – 10 Years of Turmoil’, BBC
News [Online] http://news.bbc.co.uk/2/hi/technology/8120320.stm
The Buggles (1979) ‘Video Killed the Radio Star’, audio recording, Island Records
The Guardian (2007) [Accessed 13 December 2010] ‘Second Coming for First Harry
Potter’, [Online] http://www.scenta.co.uk/home/search/cit/1706904/second-
coming-for-first-harry-potter.htm
The Independent (2010) [Accessed 11 December 2010] ‘Hollywood Ate my Childhood:
Why film remakes are desecrating our most precious memories’, [Online]
http://www.independent.co.uk/arts-entertainment/films/features/hollywood-
ate-my-childhood-why-film-remakes-are-desecrating-our-most-precious-
memories-2032073.html
Three Boys Music v Michael Bolton (2000) [Accessed 13 December 2010] Ninth
Circuit Court, [Online] http://cip.law.ucla.edu/cases/case_threeboysbolton.html
TMZ (2009) [Accessed 28 September 2010] ‘Twilight Author Sued for Vampire Rip-
Off’, [Online] http://www.tmz.com/2009/08/19/twilight-stephanie-meyer-
jordon-scott-lawsuit/
Todis, V (dir.) (2010) ‘Counterfeit Goods’, Crime, Inc., television program, CNBC
Tremlett, G (2010) [Accessed 17 September 2010] ‘Spain Finds that Film Piracy
234 References
is a Hard Habit to Break’, The Guardian [Online] http://www.guardian.co.uk/

world/2010/mar/31/spain-film-piracy-downloading-dvds
United States Government Accountability Office (2010) ‘Intellectual Property:
Observations on efforts to quantify the economic effects of counterfeit
and pirated goods’, United States Government Accountability Office (GAO),
Washington
Vaidhyanathan, S (2003) Copyrights and Copywrongs, NYU Press, New York
Vance, A (2010) [Accessed 15 January 2011] ‘Chasing Pirates: Inside Microsoft’s
war’, The New York Times [Online] http://www.nytimes.com/2010/11/07/
technology/07piracy.html?pagewanted=all
Varney, A (2007) [Accessed 19 October 2010] ‘The French Democracy’, The Escapist
magazine [Online] http://www.escapistmagazine.com/articles/view/issues/
issue_88/496-The-French-Democracy
Vitale, K (2010) ‘Video Game Piracy in the Philippines: A narrowly tailored analysis
of the video game industry and subculture’, Pace International Law Review, vol.
22, no. 1, pp.297–329
Vodpod (2009) [Accessed 17 November 2010] ‘Hulu Reveals Its Secret, An Evil
Plot to Destroy The World’, [Online] http://vodpod.com/watch/1328642-hulu-
reveals-its-secret-an-evil-plot-to-destroy-the-world-enjoy-
Warwick, H (2000) [Accessed 19 August 2010] ‘Syngenta: Switching off farmers’
rights?’, Genewatch [Online] http://www.genewatch.org/Publications/Reports/
Syngenta.pdf
Washburn University (n.d.) [Accessed 03 December 2010] Copyright Glossary,
[Online] http://www.washburn.edu/copyright/glossary/
Watts, R and Chittenden, M (2009) [Accessed 11 January 2011] ‘All Shook Up: Small
traders hit by music snoops’, The Sunday Times [Online] http://entertainment.
timesonline.co.uk/tol/arts_and_entertainment/music/article5581353.ece
Weiss, D (2010) [Accessed 28 November 2010] ‘Chief Justice Roberts Admits He
Doesn’t Read the Computer Fine Print’, ABA Journal [Online] http://www.
abajournal.com/news/article/chief_justice_roberts_ admits_he_doesnt_read_the_
computer_fine_print/
235 References
Wolk, D (2009) [Accessed 22 December 2010] ‘The Future of Music: The Celestial
Jukebox’, Wired [Online] http://www.wired.com/dualperspectives/article/
news/2009/05/future_of_music_jukebox
Wu, T (2006) [Accessed 08 November 2010] ‘Copycat: Can China create its own
Hollywood?’, Slate [Online] http://www.slate.com/id/2144789/
236
FURTHER READING
Anderson, C (2008) The Long Tail: Why the future of business is selling less of more,
Hyperion, New York
Bocij, P (2006) The Dark Side of the Internet, Preager, Westport
Kempema, J (2008) ‘Imitation is the Sincerest Form of… Infringement?: Guitar tabs,
fair use, and the Internet’, William and Mary Law Review, vol. 49, no. 6, pp.2264–
2307
Koons, D (dir.) (2004) The Future of Food, motion picture, Lily Films
Kuhlen, R (2007) ‘Knowledge and Information – Private Property or Common Good? A
global perspective’, in: Lenk, C, Hoppe, N and Andorno, R (eds.) Ethics and the Law
of Intellectual Property, Ashgate, Hampshire, England
Litman, J (2001) Digital Copyright, Prometheus Books, New York
McLeod, K and Smith, J (dirs.) (2007) Freedom of Expression, motion picture, Media
Education Foundation
Patry, W (2009) Moral Panics and the Copyright Wars, Oxford University Press, Oxford,
NY
The Future of Intellectual Property on the Internet: A Debate (2000) Harvard Univer-
sity Law School’s Berkman Center for Internet and Society, Harvard
Tsai, T and Czarnecki, K (2008) ‘Machinima Goes Mainstream: Digital filmmaking for
the 21st century’, School Library Journal, vol. 54, no. 2, pp.29–31
Vaidhyanathan, S (2005) The Anarchist in the Library, Basic Books, New York
Wolinsky, A (2003) Safe Surfing on the Internet, Enslow Publishers, Inc., Berkeley
Heights, NJ
237
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To the Bean and the Bear

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01 The copyright players 14

The copyright oblivious 15

Copyright terms in literature 37

03 Piracy in the digital age 57

The move to digital media 58

04 Responses to the pirate problem 74

The first-sale doctrine in digital media 99

06 Digital piracy in Asia 124

Discovering counterfeit causes 125

07 The idea-expression dichotomy 147

Imitation and intimidation in literature 148

08 Creative piracy 168

Fan fiction blurs the pirate line 169

09 New models for skirting piracy 193

Using piracy to grow business 194

public street, but no one would consider such an act ‘illicit’.

4. The corporations holding copyrights, patents, trademarks or other

5. Probably most complicated is the phrasing in making, receiving or

Semantics offer a single bone of contention in my attempt to dispel prevailing

can challenge conventional wisdom everywhere intellectual property

The Copyright Players 01

U nderstanding the current copyright culture means knowing who is involved.

drudge relentless opposition or fervent support despite limited knowledge of IP law –

The copyright oblivious

You are a pirate.

The copyright rich

This is a loophole larger than a parade of eight-wheelers through which a

The copyright rich – rights-holders of marketable intellectual property – are a

suffering by using colourful metaphors and wild, incredible scenarios.

The copyright poor

and economic hardship is whether piracy developed because of copyright, or

the US alone. But it remains free of any moral judgements.

crackers possess a common semi-autistic personality. The process of cracking involves

Copyright terms in literature

Wouldn’t creativity flower if unfettered by fears of petty lawsuits by relatives

If you make a dollar, I should make a dime.

Few sought to alter copyright terms as drastically as Samuel Clemens, better

All rights reserved alternatives for software

Perspectives on copyright terms in film

It is good that authors should be remunerated; and the least exceptionable

Thank God for the residuals.

only go to clear the estate of its now enormous debt.

In Finding Forrester, Sean Connery’s character preserves a life of solitude, living

Copyright terms and short-lived media

Kang: And over here is our crowning achievement in amusement technology:

away with UMD games altogether. Sound familiar?

companies in the future.

Expanding copyright coverage in music

You’re a slave to the money then you die.

Piracy in the Digital Age 03

A s important as understanding the players in the so-called copyright wars

The move to digital media

I go to Tiffany’s and steal a diamond necklace and put a picture of it on the

Internet piracy is theft, pure and simple.

It’s this peer-to-peer technology approach that basically has formulated

File-sharing and popular opinion