Piracy is Here to Stay, How can we Adapt to it?
September 28th, 2013

Piracy is Here to Stay,
How can we Adapt to it?

Jake Hollands

Written May 2013.

For my literature review I have chosen to look at what needs to change so that we as a society can maintain a free internet where free culture thrives without exploiting the creators of that content. Up until recently we practically had a free internet, but in May of 2012 UK-based broadband providers BT and Virgin Media began to block popular torrenting website The Pirate Bay taking a significant and foreshadowing step toward internet censorship. This was shortly following a protest on the 18th of January 2012 which fought against SOPA and PIPA – two corporately funded United States bills which also sought to heavily censor the internet and came close to passing. The protest gained a lot of media attention before it was shot down, but similar bills are still being proposed today with much less being done to fight them since the hype from the SOPA/PIPA protest quickly faded – the issue requires us to be alert as long as a free internet has not yet been secured.

I have chosen to research this subject because a free and open internet is extremely advantageous to creative content producers, whilst a censored and monitored internet stifles innovation and slows cultural development whilst helping corporations to gain profits and governments to spy on users. Generations and designers after us shouldn’t be restricted any more than we are – they should grow up in a more powerful and vibrant economy rather than a crippled, monitored one. It’s very possible that we are living in the golden days of the internet and that future generations will not be lucky enough to experience the power of free culture.

The two main things that are threatening a free and open internet are censorship and monitoring/regulation of users on the internet. Corporations and governments are trying to push these new laws and systems for reasons which appear reasonable – to restrict access to torrenting websites which allow piracy (piracy is thought to damage sales in the music, film, gaming and perhaps eBook industries), prevent people from buying illegal items and substances online, and monitoring/regulating the internet to catch people searching for or producing illegal and severely disturbing content.

While these are large issues, the current proposals to deal with them have either been ineffective or too extreme. Most ‘solutions’ that governments and corporations push forward are made to solve the problem but gain either extra profit at the expense of the internet user’s freedom, or are made to also collect information or invade people’s privacy unnecessarily. In an attempt to make piracy difficult for users to commit, corporations use techniques such as DRM, tethered software, and piracy ads that you can’t skip at the start of DVD’s – all of these are tactics that make the experience less pleasant for honest customers, and they are also tactics which pirates can easily avoid through cracking DRM, tricking tethered software and providing pirated versions of DVD’s that do not contain irritating anti-piracy ads.

During my research I have come across a number of sources which have been crucial to my understanding of the current climate surrounding my chosen subject. TPB:AFK (The Pirate Bay : Away From Keyboard) is a documentary released in 2013 which follows the founders of popular notorious torrenting website The Pirate Bay through their joint criminal and civil prosecution trials in Swedish courts in 2009. The documentary also introduced me to Roger Wallis, chairman of the Swedish Composers of Popular Music who is a pro-file-sharing researcher. Good Copy Bad Copy (GCBC) is a documentary released in 2007 which looks at what file-sharing across the internet allows musicians to create and how it allows culture to thrive and develop, whilst also considering the legal implications and impact. GCBC also introduced me to Lawrence Lessig, the founder of Creative Commons – a system being developed to change the way that copyright works today. This led me onto Lessig’s book ‘Free Culture’, which looks at arguments for and against current copyright laws. Whilst researching proposed solutions to the problem that I’m looking at, I discovered the Free Internet Act’s Digital Bill of Rights – an international crowd-sourced legislation made to prevent the erosion of our civil liberties in the face of increasing pressure to regulate the internet, especially on behalf of corporations and copyright holders. Unfortunately the development of the unfinished bill was abandoned in late 2012 due to a lack of contributors and diminishing public attention and interest. Through a typo whilst searching for information on The Digital Bill of Rights I came across The Bill of Rights and Responsibilities for Electronic Learners, a bill which was passed in the United States in 1993 made to protect internet user’s privacy and right to free speech, which also helps my argument. Whilst looking at statistics surrounding piracy I also stumbled upon a handy report, The Sky is Rising (by Michael Masnick and Michael Ho) and its sequel, The Sky is Rising 2 which looks at sales figures in relation to piracy in Germany, France, the UK, Italy, Russia and Spain.

I would like to start my insight by looking at how my sources address piracy, as this issue is essentially the elephant in the room throughout my research – until I slay this beast it’s going to cast a shadow. In Good Copy Bad Copy, Dan Glickman – chairman and CEO of The MPAA (The Motion Picture Association of America) admits that they’re trying to slow the success of piracy, “we recognise and we know that we will never stop piracy. Never. We just have to try to make it as difficult and as tedious as possible to do.” later, Ronaldo Lemos – Professor of Law at FGV (Fundação Getúlio Vargas) Brazil provides an insight into why they may be doing this, “Society is the biggest competitor for Hollywood, the music industry and the publishing industry. So you have this new competitor that is everyone else. So the law has been consistently changed in the past 12 years in order to protect certain very specific interests. Especially for the North American cultural industry. In order to prevent society from becoming the producer of culture in itself, for itself ”. Of course, you’d probably argue that they’re doing this because piracy unethically ruins profits. Roger Wallis backs up the conspiracy as he leaves the court room in TPB:AFK after acting as witness for The Pirate Bay, stating that pro-file sharing researchers are “hunted down with a whip” by pro-copyright forces. Why is this? Because piracy isn’t quite as bad as it’s made out to be.

These pro-file sharing researchers have been revealing some surprising statistics, according to Roger Wallis and the regional study The Sky is Rising 2. According to an article by Torrent Freak (a website which covered and recorded The Pirate Bay trials in 2009), Wallis was questioned on the link between the decline of album sales and file sharing, responding that his research has shown that there is no relation between the two – in fact, Wallis went on to say that downloading music caused an increase in sales of live event tickets, and that people who download music also tend to buy more CD’s than others who don’t download. The Sky is Rising 2 backs these claims up – between 2007 and 2013 live music revenues have gone up in percentages ranging from 10 – 15 percent, with Russia’s rising by 105 percent and Germany as an exception dropping by 20 percent [p.A2]. Whilst music sales revenue is also rising [p.9], so are authorized online music services (platforms for new and ethical distribution of music such as Spotify or Pandora), with them increasing by 407 percent in the UK between 2007 and 2011 [p.A5].

Ignoring these statistics, the pro-copyright forces claim losses of billions of dollars worldwide due to piracy, using inaccurate methods to work out their lost revenue – such as counting every illegal download as a lost sale, despite the fact that a ‘pirate’ might download an album because he can’t be bothered to find his legally obtained copy (in GCBC, remix musician ‘Girl Talk’ admits that he does this a lot), many people may download it more than once, and downloading an album does not suggest that you would have bought it had you not downloaded it. This kind of incompetence leads me to believe that perhaps a lot of pro-copyright supporters don’t quite understand computers or the internet – an idea which is backed up by the way that they are depicted in TPB:AFK, where lawyers, prosecutors and judges get megabytes and megabits mixed up, need internet-acronyms explained to them, and make crucial mistakes in wildly overestimating the profits that The Pirate Bay had made through ads on their site due to a severe lack of understanding of how pages work on websites.

Not only is piracy made to look like an unstoppable, culture-stomping beast, but as stated in The Sky is Rising 2, it is made clear that while you can’t stop piracy, you can beat it; “In Russia, video game piracy was once thought to be such an overwhelming problem that some distributors would ignore the market. But with some innovative tactics, Steam has grown its service to the point where its Russian customers accounted for more revenue than its sales in any European market except Germany.” Steam is a revolutionary gaming distribution platform which has turned the gaming industry upside-down by accepting that piracy exists, and selling games in a way that is more convenient to the user than pirating them.

As mentioned previously, Ronaldo Lemos suggests that the pro-copyright forces are fighting against file sharing because it allows society to create culture without the media’s regulation – corporations would lose control. A lot of my sources cry for a change to current copyright laws – the incomplete Digital Bill of Rights states, “We, the Users of the Internet do declare that when copyright is unreasonably applied and/or fraudulently claimed, it is a form of censorship. Current copyright laws are a threat to both human rights and innovation.” [Article II: Freedom of Speech and Expression, Section 2], which protects users from copyright claims which are purely for profit. The Sky is Rising states, “the way forward should focus on adapting to new digital technologies and business models — not looking to preserve outdated distribution methods.” [p.2], in Good Copy Bad Copy Peter Jenner (British music manager and record producer) claims “If the record companies stick to their old business model in the new technology… It will not work. It will only slow down the development.” The Bill of Rights and Responsibilities for Electronic Learners which was published 20 years ago states, “As new technology modifies the system and further empowers individuals, new values and responsibilities will change this culture. As technology assumes an integral role in education and lifelong learning, technological empowerment of individuals and organizations becomes a requirement and right for students, faculty, staff, and institutions, bringing with it new levels of responsibility that individuals and institutions have to themselves and to other members of the educational community” [Preamble, Line 7]. In Lawrence Lessig’s book Free Culture he states, “A technology has given us a new freedom. Slowly, some begin to understand that this freedom need not mean anarchy. We can carry a free culture into the twenty-first century, without artists losing and without the potential of digital technology being destroyed.” [p.238]

Lawrence Lessig also did a Google talk following the release of his book, in which he describes our current society as a ‘Read-Only’ or ‘RO’ Culture – in the world before technology this worked fine, he says, because “most uses of culture by ordinary people were unregulated (e.g. lending a friend a book) and free because a copy is not being produced – the target of copyright law is the commercial use of culture only”. In the present however, this doesn’t hold up because “it’s not possible to use a piece of culture without producing a copy – no matter how temporary it is (for example, reading a .pdf online will produce a temporary copy on your computer’s RAM rather than borrowing the original), thus every single use requires permission from the creator” for this reason, when you buy digital content you’re usually buying the producer’s permission to use it, rather than buying a copy of the culture itself. He suggests that we aim for a ‘Read-Write’ or ‘RW’ Culture instead – this is where copyright permission is only needed to use something commercially, or the creator gets to choose the copyright permissions on anything that they create (this is what Creative Commons aims to achieve). “The tools developed to kill piracy also kill the potential for a Read-Write internet”. In a RW culture, the potential for creativity is huge – according to The Sky is Rising 2 Regional Study, even whilst being fought by corporations and governments, cultural freedom is succeeding, “we are actually living in a true renaissance period of abundance, with each industry growing in terms of revenue — but even more impressively in terms of content output, often expanding at unheard of rates.” [p.1], and when looking at the content being produced in detail, “It would be easy and simpler to exclude all amateur musicians from official music production figures, but doing so would also grossly underestimate the potential of the music industry and undercount the diversity of the field of music.” This isn’t only the case in the music industry – “Authors are writing books as never before, and the world’s libraries are filled with more new book titles than at any other time in history. In 1999, UNESCO estimated the annual worldwide book production to be on the order of 1 million new titles published per year. Since then, estimates of the annual worldwide book production have more than doubled to over 2 million new books per year — and the rate is still accelerating.” When talking about the controversial remix culture that copyright attempts to thwart in Good Copy Bad Copy, Lawrence Lessig states “You can either call them criminals or pirates and use all the tools of law and technology to block them, or we can begin to encourage them by making a wide range of material available, which gives them a better understanding of their past and a much better opportunity to say something about the future.”, and in his Free Culture book talks about the opinions on the matter from the ‘opposition’, “An insider from Hollywood—who insists he must remain anonymous— reports “an amazing conversation with these studio guys. They’ve got extraordinary [old] content that they’d love to use but can’t because they can’t begin to clear the rights. They’ve got scores of kids who could do amazing things with the content, but it would take scores of lawyers to clean it first.”” [p.238]

While the internet as it stands is a thriving free culture (okay it’s not entirely free, but it technically is as long as our proxy’s still gain access to The Pirate Bay), the risks in taking part in the development of it can be severe. In TPB:AFK, the founders of The Pirate Bay are each sentenced to a year each in prison, with a multi-million dollar fine to pay – they appeal of course, resulting in shorter sentences in prison. The unfinished Digital Bill of Rights would have protected The Pirate Bay, “No User shall be tried for crimes involving the Internet, except in the User’s country of location at the time of commission of the crime” [Article VII: Culpability, Section 1: Residency] the founders were trialled because of pressure from the American government to pursue them. Aaron Swartz, an American computer programmer and internet activist was charged with 50 years in prison in 2011 for downloading scholarly articles from an academic database. Earlier this year – 2 years after sentencing, he was found dead in his apartment due to suicide – his family and friends said that he was “driven to his death by a justice system that hounded him needlessly over an alleged crime with no real victims” [via rollingstone.com]. According to Lawrence Lessig in Free Culture, “Congressmen are talking about deputizing computer viruses to bring down computers thought to violate the law.” [p.238], which violates current privacy laws and “Universities are threatening expulsion for kids who use a computer to share content.” – governments and corporations are aiming to restrict the free internet further, which could eventually put an end to the idea of a thriving creative Read-Write Culture.

To conclude, take a look at the cultural media available online today and you’ll see that it’s clear that recent advances in technology have allowed the quality and quantity of content produced to sky-rocket – have you heard Macklemore’s ‘Thrift Shop’? I can’t say I like it. However, the vintage-style cover by the Postmodern Jukebox? It’s pretty good, but then the Electro Swing remix by Bart & Baker of the vintage-style cover by the Postmodern Jukebox of Macklemore’s ‘Thrift Shop’? I absolutely adore it. We’re only witnessing the start of a vibrant Read-Write Culture, and we can’t take it for granted as long as it’s under attack by dying industries that refuse to adapt. In an ideal world, I feel that corporations as they stand now need to die so that they can be reborn with the understanding of the current culture and technology. Piracy is here to stay – we need to look at how we can adapt to it and use it to our advantage, rather than using it as a escape-goat for unsatisfactory profit margins.

“Freedom provides a more vibrant economy than restriction and control.” – Lawrence Lessig