Pirate Nation: How Digital Piracy Is Transforming Business, Society and Culture

237 Pages·1.98 MB·English

by  Darren Todd

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