The Agreement on Trade Related Aspects of Intellectual Property (TRIPS) defines “pirated copyright goods” as “any goods which are copies made without the consent of the right holder or person duly authorized by the right holder in the country of production and which are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country of importation.” In the digital world, use of a copyrighted work is not possible without at least making transient copies in the memory of the device you are using to manipulate the work. If these copies are made without the consent of the right holder, the persons who make the copies are pirates.
A lot of people who pirate media, whether music, movies, or software, do so because the authorized versions of the media come with technical protection measures that control the access or use of the media. These technical protection measures come with the MP3s that are downloaded from iTunes and similar sites. These same technical protection measures are absent from music that exists on p2p and bit torrent networks, hence, people who download this music “illegally,” do so (at least some of them) because the music is more freely manipulated.
The terms of service for iTunes tells you what you may and may not do with a song, and if you try to do more that that, either the technical protection measure that comes with the song will not let you do so or you are in violation of the terms. This is why you cannot take tracks off of an iPod and put them on a computer other than the computer registered with iTunes, absent some third party program. Many people who pirate music do so because the music can be listened to anywhere, on any device, in any format, irrespective of any terms of use to the contrary.
A few years ago, if someone wanted to use music without the restriction of technical protection measures, they could purchase the CD and rip the music to their computer. Once ripped, the music could be freely manipulated because it lacked protection measures. Lately, store bought CDs have begun coming with technical protection measures some of which can wreak havoc on a computer.
Music, movies, and software purchased at stores can be used only in the way that the right holder to the media wants. Often music can be ripped or burned only once from a store bought CD. Movies in DVD format have always been encrypted and may not be played on a device not subject to an applicable license; this is why open-source applications like Linux can not legally play a DVD. Software now has protection measures that allow only a certain number of installations of a program, even if every installation is on the same computer. Pirated music, movies, and software do not come with these protection measures, and often the people who pirate simply want to avoid these measures, not necessarily the purchase price.
The record companies and distributors of MP3s have begun to realize that if the MP3s are protected too much, piracy will increase. This seems to be one of the reasons that distributors such as amazon.com are offering MP3s for download without technical protection measures. Purchasers who want to download music free of technical protection measures will have to pay slightly more to do so, but their use of the music will be unrestricted. These purchasers should have the same ability to buy music, movies, and software in stores without technical protection measures.
People may also pirate media if it is released piece mail; for example, when a movie is release in the UK well before it is released in the US, a person may download the movie for the sole purpose of being able to view it when the creators of the movie have first released it. Most movies that are released theatrically, are released in different geographic areas at different times.
Case in point, “Shaun of the Dead,” starring Simon Pegg. This movie came out in theaters in the UK well before it was released in the US. It was available in DVD format on eBay before it was released in the US. The fans who were willing to purchase the DVD, along with the shipping costs from the UK, needed to circumvent the technical protection measure that came with the DVD. By circumventing the technical protection measure to enable the DVD to play in US DVD players, the purchaser is a pirate and is liable under the DMCA. “Shaun of the Dead” is one of many examples of piracy perpetrated by fans of movies, rather than enemies of the entertainment industry.
The foregoing has been cited by both the music and motion picture industries as a reason to stop suing people who download. The industries have realized that the people who download are often their best fans and customers. People who download movies and music are often the first to see a movie or listen to a song. They are often the people who tell all of their friends about the movie or song, effectively reviewing it. And, depending on the statistics you look at, these people may be purchasing more media, rather than less, due to the effects of piracy.
A third reason that people seem to pirate is because an application that is “authorized,” will not allow the person to use the application, or the device on which it is installed, to its potential. This form of piracy has become known by the term “hacking.” People were very happy when the iPhone was first hacked in order to enable the phone to work on networks other than AT&T. The hacker who performed this feat was a pirate, however, and likely disturbed the exclusive contract that AT&T had with Apple.
But people like gadgets, and scoff it the idea that a gadget is not living up to its potential. So when a gadget is “locked” by a program that is installed on it, the user instinctively wants to unlock it. The notion of a content provider being able to decide what programs may or may not be installed on a device buttresses the instinct to hack.
Apple just pulled a soft core porn application for its iPhone. Despite popularity that was able to crash its servers, Apple spokesperson Tom Neumayr said that Apple will not distribute inappropriate content, including pornography. This raises the question, “Why does Apple get to decide what is and is not appropriate?” and the people who do not think that Apple should the discretion to decide, and also own an iPhone, may hack the iPhone to make sure that Apple has no more say in the matter as to what the phone may be used for.
For the same reasons that courts frown at the idea of inalienability of real property, they should begin to realize that intellectual property should be freely alienable and manipulated as well. As long as the piracy discussed herein takes place on non-commercial scales, it will likely lead to greater public knowledge, a more extensive public domain, remixing and creativity, and less stress on our legal system.
The alternative is that anyone who downloads because they love the media, is a pirate, and may be liable for millions of dollars in damages. The next generation of internet users, a large portion of which download illegally, do so with the knowledge that it is wrong. Children download music and know that doing so is illegal, but they don’t care. What type of example do we set when we tell them that something so ubiquitous is illegal? Do the children disregard other admonishments in the same way?
5 Comments
Thank you for the exposition; I appreciate the density of takes/approaches to the subject and ideas. It occurred to me that while there is a burgeoning industry/corporate approach of non-pursuit (for legal remedy and/or punishment) of individual consumers, the legal grounds and interpretations are still trending toward a liberal measure of infringement. In other words, companies may be 'getting it' and letting small fish and even "biggest fans" go because the magnitude of their offenses are minor or (ironically) favorable, it's still becoming easier for the individual consumer to be in violation of the rules!
This makes me wonder whether it might ultimately be left to copyright holders (so often entertainment industry corporations) to make the determination on who to pursue out of a consuming public that will, essentially, all be guilty! It's almost a 'presumed guilty' scenario (maybe shooting fish in a barrel is a more apt analogy). Will companies lose their right to pursue infringing parties after they've adopted a policy that is, at best, ineffectively deterrent?
Rather than answering the question of whether the companies might lose thier right to pursue infringers, I would suggest the entertainment industry find another business model. An absolute deterrent not being possible, the next best thing is not an ineffective deterrent but a different method of payment for content. All over the internet, content is free, even on many sites authorized to host the content by the right holder. On these authorized sites, the content is paid for by advertising. Personally, I'm happy to watch a commercial or view an ad if I am able to watch TV on demand from any computer with access to HULU.
But that stuff only applie to music and movies. Software companies would seem to have no choice but to sue the people who download, as there seem to be no software sites where you can view a commercial to play. However, even when the software companies receives a judgment against a downloader, I don't think they can really call it a "win".
In the end, I think the incentive to create will still exist if law suits against downloaders stopped. Perhaps the incentive for the big industries will shrink, but surely they would equalize with the incentives that anyone else has. The question is: is this what we want to happen? Certainly, in the digital world, the home user is able to create music, movies, and software with great production values. Look at MC Lars, Steal this Film, and Open Office, respectively, as examples of user created content. I think user generated is pretty good.
What I'm suggesting is that you are uncovering a new business model emerging from the present circumstances and trends.
I agree that many creators create almost without regard for compensation, but that doesn't change the copyright-patent-trademark regime that's in place and being adapted for the so-called 'digital age'.
My question was a follow-up to the premise and not to the point. The point is that your insight is about the dynamic that exists when companies/copyright-holders have the right to sue but don't exercise it. Their adjustment may mean that the political impetus for legal reform will not be 'necessary' and so, consumers will remain on the hook based on an arguably antiquated legal framework–i.e. copyright-holders, by not pursuing action in cases that offend the public conscience may be helping preserve their rights.
Is it worse for someone to download pirated software, or for someone to provide it?
Well, it seems the line between downloading and providing is blurring. I believe that Jammie Thomas, who recently had a judgment against her for "making available" copyrighted works, was never proven to have downloaded anything, nor was there any evidence that any person besides agents of the record companies downloaded the songs from her. Basically, she was ordered to pay $80,000 per song for having 24 songs in a shared folder on her computer.
In other words, the way the law stands, if you are caught downloading you may be liable for any unauthorized file on your computer. The procedure the record and motion picture companies follow is to send a request to settle letter as soon as they have evidence that you have downloaded one of the works in their catalogs. The letter will explain statutory damages and request several thousand dollars. If the addressee of the letter does not want to settle, they may be sued by the people sending the letter. This is what happened to Thomas.
Once a lawsuit has commenced, the addressee of the letter will likely be required to run a program on their computer. The program searches for media files which also may be evidence of further copyright infringement. If the lawsuit has started and the person with infringing files deletes them, they may be guilty or obstruction of justice, which may be worse than the damages for copyright infringement.
To answer your question, on the BitTorrent or other p2p networks, as soon as you have started downloading, you are also providing by being a "seed." "Download" and "provide" are becoming synonymous.