Pirate Nation How Digital Piracy Is Transforming Business, Society and Culture
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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 No 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 Hearty thanks to my blog readers, scant as they are at times, and for all the writers while they flow freely from others. All have proven invaluable. for all IP news. at Tech Dirt, Ars Technica, Torrent Freak and Slashdot: comprising a fine dashboard To my co-workers at Carilion Clinic for enduring long and likely boring lunchtime discussions of copyright. short. So thank you to the hard-working and talented developers at Scrivener, I believe firmly in using the right tool for the job, and – sorry Bill – Word falls Evernote, Dropbox and OneNote (much better, Bill). All programs that – in full done so many times over, and have a customer and an advocate for life. disclosure – only received my money once they had proven their merit. They have 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 my cousin Debbie for reading while pregnant and insanely busy. To Mom, for several weekends of solitude. To my brother Brandon for being a media encyclopaedia. To 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, would have remained only and always in my head alone, doing no one any service, and without having to leave me to the book for countless, priceless hours, this project spreading no seeds of curiosity and doubt. 9 INTRODUCTION W hen people asked – often with genuine interest – what my book was the end, many were already nodding off or peering at something more interesting about, I delivered a canned response: ‘It’s about copyright law and digital piracy.’ By over my shoulder. Other times they retained some cordial interest, but seemed Still other times, they congratulated me on tackling internet piracy, because unsure of how to feel about the subject. 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 smallest, approved, pre-packaged opinions of piracy crop up amid more prevalent responses. It is my attempt to interject on water cooler dialogues, where only the than where they have been, though that history provides a revealing guidebook. topics. Because where copyright and piracy go now has become more important 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: and dissemination of our art and culture than blazing through an uncertain, wild copyright is control – herding to fixed paths can cause greater harm to the growth 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 bring their art to the people. starving artists, the impoverished inventors, the musicians living in vans just to This is a dangerous misconception for a few reasons. Foremost, it begets the code is the result of a system that protects and incentivizes the creator. This is not view that the current body of literature, film, music, inventions and even computer the case. Not historically, and not now. 10 introduction Copyright began before it really began, at least before our modern idea of editions of printed works, there was copyright absent the name alone. Protection copyright. Before the Statute of Anne protected English printers from Scottish pirate really began with royal patronage to select printing guilds (even before the printing from being able to censor what the guilds printed. Where did writers come into this? press). The guilds profited through stateenforced monopolies. The crown benefited Nowhere, really. They lost their rights the moment the book was published. not content creators. Our ideas of protecting the writer are far more modern Even after the Statute of Anne, copyright laws protected industry and business, 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. Indeed, a legal response to technology that makes copying as simple as clicking That these laws benefited a few at the expense of the many, just as they do today. extending copyright terms and coverage speaks to a shortfall in critical analysis. a button seems logical. But that legislators worldwide have resorted only to Copyright remains a weighty, blunt instrument, one that governments should use when continued creation and thriving media quell such fears. sparingly. Alas, these state-monopolies expand in uncertain times but fail to recede as anything else, because colluding with citizens to control information means But what some have dubbed the ‘copyfight’ is as much a battle over semantics the copyleft use this, though it is safe to argue that the copyright stakes a clear cleverly using collective terms to apply blanket judgments. Both the copyright and 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’ most enforceable copyrights (either through transfer of copyrights or by funding with the money that copyright monopolies bring. Because corporations own 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.