Pirates, Partisans or Parasites?
(Originally Published in Barcelona Metropolitan, February 2008)
A global war is being fought on the battlefields of technology, law, ethics and philosophy. The confederates in this war generally rally around two opposing flags: Money and Ideals. There are those who wish to protect their interests, and there are those who believe that the greater interests of humanity are at stake. Somewhere in the middle of all this are the scavengers, those who are unconcerned with the big picture and merely want to acquire for free that which they could never buy. This dispute converges upon the downloading of intellectual property through the use of file-sharing software, often referred to as “piracy” by those of the Money flag.
File sharers generally use peer-to-peer (P2P) software to connect to a network of other sharers who store files on their personal computers. The files are accessible to whoever is connected to that particular P2P community. In principle, it should be used strictly for privately produced material which has no copyright. But in practice, it is predominantly used as a medium to swap intellectual property without paying its authors or producers. Across the globe, music, videos, hacked software, games and books are routinely exchanged in the millions every day. In 2006, an estimated five billion files were exchanged through P2P. And Spain has been crowned the King of Thieves.
According to the German-based market research group, GfK, in 2006 32% of all unauthorized film downloads in Europe occurred here, far more than any other EU country. Italy came in second, at 25%, and Holland third with 11%. And that’s just for films. Another study, by the Centro de Investigación del Mercado del Entretenimiento y la Cultura (CIMEC) reports that in the same year there were 130 million film and 750 million music downloads in Spain, representing a respective increase of 132% and 50% over the previous year.
Partially to blame for this surge in popularity is the state of Spanish law. “There is no question that downloading intellectual property is absolutely illegal,” said Manuel Benito of the Anti-Piracy unit of the Sociedad General de Autores y Escritores (SGAE) in Madrid. “But for now it’s not a felony. No one can go to prison simply for sharing repertories that they don’t actually own. It’s not like Anglo-Saxon law, in which the judge establishes what is legal or not. In our country, it’s decided on a case by case basis.” A prime example of this –which executives and watchdogs decry as a gross aberration of justice—is a November, 2006 court decision to exonerate a Santander man who had amassed 6,700 albums in mp3 format. The judge’s rationale was that “there was no motive for profit.”
The comparison has been made to the cultivation of marijuana for personal use in Spain: It may not be completely legal, but it’s a misdemeanor that is hardly ever penalized. Benito called this “a forced comparison” and likens it more to jumping a red light or not paying rent to the landlord. “You won’t go to prison for it, but it’s an illicit act all the same. One must pay.”
Getting paid is the issue for those who are opposed to the unauthorized download of copyrighted material. But there are others, like the Electronic Frontier Foundation (EFF) and Free Culture Movement, who believe that overly restrictive copyright laws have created a “permission culture” and restrict the creative freedom that is cultivated by a society with free and open access to information.
Historically, laws are fickle entities; what is legal at one point in time or place may or may not be illegal at another. When Mozart composed rearrangements of Handel’s works, ownership was never an issue. And copyrights that – two hundred years ago—lasted for 14 years can now extend up to 150 years, thanks to aggressive efforts by the entertainment industry. In the face of these relatively new protections, the whole concept of ownership of intangible property has been called into question by scholars such as Tom G. Palmer of the Cato Institute, a Libertarian think tank in Washington DC. In his essay, Are Patents and Copyrights Morally Justified?, published in the Harvard Journal of Law and Public Policy, Palmer argues that scarcity should be the only relevant factors in the awarding of copyright. “Rights to property are allocated precisely because the scarcity of resources means that, without legal demarcation and protection of rights, human beings would come into violent conflict over these resources.” Or: Where there is no scarcity, there should be no true conflict.
A common example used to illustrate this point: Anselmo’s use of Helga’s cookie recipe does not exclude her from using it herself—at least, not in the same way as if he were to expropriate her bicycle. Indeed, Anselmo may even improve upon Helga’s recipe, given the freedom to experiment –or so says the Free Culture Movement. But the moneyed interests of organizations like the Motion Picture Association of America (MIAA) and its recording industry equivalent, the RIAA, counter with an argument that was established by Lysander Spooner, a 19th Century American Anarchist, lawyer, and legal theorist. Spooner insisted that ideas are the product of labour and that a person is entitled to the rewards of that labour. In his essay, the Law of International Property, he wrote, “The right of property in intellectual wealth has manifestly the same foundation as the right of property in material wealth. … Intellectual wealth, therefore, is indispensable to the acquisition and use of other wealth.”
But, what about fair distribution of that wealth? Many believe that executives in the entertainment industry have made themselves sickeningly rich by screwing over artists and consumers alike. Such people advocate piracy as a form of Civil Disobedience and they view the sharing of copyrighted works as a means of sticking it to the record companies. “The labels are abusing the confidence of the consumers by charging so much,” said Elena C., a 17 year old high school student in St. Quirze del Vallés. Elena is joined by musical luminaries such as Janis Ian, Manu Chao, Kiko Veneno, Moby and Courtney Love, who argue that the only real victims of file sharing are the thieving producers and record labels.
Love crunched the numbers in a May, 2000 speech to the Digital Hollywood Online Entertainment Conference, in which she explained how a typical million dollar record deal functions basically as a loan, which is repaid through the artists’ royalties. Only after a million records have been sold will the artists begin to receive checks. Yet, the label will realize a profit after about half as many sales. According to Love and other musicians, artists generally make their money through performance; and file sharing is an ideal medium for generating a fan base –to “put asses in the seats,” as they say in the trade.
Ultimately, the industry’s fight against file sharing may prove to be quixotic. P2P technology is pandemic. And it is spreading exponentially as it continuously evolves for simplicity and anonymity. As Erik P. –another 17 year old high school student from St. Quirze—said, “Everybody’s doing it and it’s easy. If you can get the same thing without paying, why pay?”