The Global Outpost

September 11, 2014

The Music Piracy Complex - Part 1

Filed under: Music Industry — Mathew D @ 12:59 pm

For too long, consumers have been considered to be the main perpetrators of piracy and the bane of the music industry whilst corporations use them as human shields in devising new ways to deprive artists of their rightful revenues.

The following is Part 1 of a 2-part series examining the less obvious aspects of the state of music piracy. Part 2 can be read here.

Part 1 - The Consumer as the Fall Guy

In his book City of God, St Augustine recounts Cicero’s anecdote about a captured pirate being questioned by Alexander the Great on what he was thinking of that he should molest the sea. The pirate replied with defiant impudence:

“The same as you when you molest the world! Since I do this with a little ship I am called a pirate. You do it with a great fleet and are called emperor”

Piracy is conveniently blamed on developing countries but with suspect practices in the music and tech industries prevalent in the developed world, Adrian Johns, author of the book Piracy observed,

“Piracy has not been superseded in the developed world – indeed, its impact there remains comparable to that in developing nations – and the globe has seen more than one trajectory to more than one way of being modern. Yet the myth matters. The notion of a dissolving frontier between us and them creates real consequences – but consequences that we need to confront, not assume”

Making The World A Better Place text
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Today even Google, arguably the world’s most recognized Internet brand, struggles to stay on the right side of piracy not only from a legal standpoint, but also ethically, it has been accused of crossing the line by others – ‘Don’t Be Evil’ be damned.

So What Exactly Is Piracy?

With little clarity or delineation between the legal and ethical definitions of piracy and with various parties with their varying agendas obfuscating the situation, it makes it harder for a clearer understanding of piracy to be part of the mass consciousness.

The common notion of piracy perpetuated by the powers-that-be is the kludging and some say, misguided “You Wouldn’t Steal A Car” slogan disseminated worldwide in a host of languages by the Motion Picture Association of America (MPAA).

This equating of theft to piracy has been turned on its head by the ‘file-sharing is not piracy’ lobby, which points out that when you share a file, the original owner still owns the file. There are legions who argue that piracy is not theft, or as Professor Stuart P. Green of Rutgers Law School phrased it in an op-ed in the New York Times, “When stealing isn’t stealing”. And this digital conundrum seems to have festered into a formidable defensive platform adopted by many in the tech sector.

Whilst the industry had been based on the music-ownership model comprising vinyl, tapes, CDs and, of late, downloads, it is now definitely moving into an era of the music-access model via streaming. With this comes a new mode of consumption as well as remuneration…and institutionalized piracy. The concept of piracy will change as a consequence whilst the industry struggles to define what it encompasses.

One Man’s Piracy…

The situation is exacerbated by some artists or managers/agents who say piracy has been good for them and speak up in support of it. Even if it is said that one man’s piracy is another man’s marketing, the fundamental issue is that when these artists, managers, or agents are reconciled with their music being distributed for free, knowingly or otherwise, it then transcends from piracy to legitimate free distribution. Although some artistes might be fine with this aberration in the application of the piracy term, it is a fundamental mistake to expect other musicians to accept this stance.

A Little Knowledge…

With so much confusion at the industry level as to what exactly constitutes piracy, it is bewildering that some governments and music industry bodies are contemplating or instituting three- or six-strikes laws against consumers, who are now supposed to figure out on their own as to what is legal when batteries of supremely qualified copyright lawyers and judges are not defining it clearly in the first place.

It is unreasonable to expect consumers to understand the convoluted intricacies of copyright law whilst corporations can hide behind Section 512 (c) of the US Copyright Act (or its equivalent in other countries) asserting that they “do not have actual knowledge that the material or an activity using the material on the system or network is infringing.” So a multi-million dollar corporation is allowed to claim that it does not know if a Madonna track available on its network for streaming or download is infringing copyright whilst a lone user who streams or downloads the song is expected to figure it out or else be potentially liable for an infringement? This does not compute.

Just as the Recording Industry Association of America (RIAA) misguidedly tried to sue music downloaders in the early 2000s and Sony infamously violated legitimate music customers’ computer systems with their rootkit fiasco, governments are now likewise introducing punitive action against consumers whilst wholesale ripping-off of artistes takes place at an institutional level, often times by corporations abusing a dysfunctional Safe Harbor law or by the adoption of creative accounting. This echoes the war on drugs, where it’s more expedient to nab small-time junkies and the resultant statistics paraded as a showcase of successful action, rather than putting in the hard time to go after the bigger operatives who are protected by wealth, lobbying influence, and an army of lawyers.

The ‘Freehadist’ Movement

In China, for example, consumers have for years been downloading unlicensed music for free from music services run by the likes of Baidu and Xiami, but when these services started licensing the majority of their content in the past couple of years (though pockets of pirated content still exist), consumers continued exactly as before, still blissfully unaware and none the wiser about the changed copyright status of the music. The point is that it is easy to point the finger at consumers, but corporations are the ones that eventually decide if they want to adopt and profit from a pirate model or not.

This does not absolve consumers from all responsibility with respect to copyright infringement, but when corporations base their business model on facilitating the transfer of large amounts of unlicensed content and on the premise that consumers can be enticed to download or stream this content, this is akin to an arms manufacturer setting up stall in a war zone of their own making.

Consumers who have now developed the notion that musicians should simply donate all their music for free as it has no monetary value are wholly misguided and have been cannily co-opted by tech corporations. The oft-repeated mantra ‘Information wants to be free‘- misappropriated by the tech sector and adopted by the freeloading masses, insidiously leaves out the first half of the quote by Stewart Brand : “…on the one hand, information wants to be expensive, because it’s so valuable” and is bookended by “so you have these two fighting against each other“. It is usually literally applied to the music sector but rarely to other forms of intellectual property belonging to tech corporations.

 The Music Piracy Complex - Part 2 can be read here.

Image Credit:
Silicon Valley by Cult of Mac & HBO

6 Comments »

  1. […] This article will upset some people: “The Music Piracy Complex.” […]

    Pingback by A Journal of Musical ThingsRandom Music News for September 17, 2014 - A Journal of Musical Things — September 17, 2014 @ 12:53 pm

  2. […] 5. The Music Piracy Complex – Part 1 […]

    Pingback by News of the Week; September 17, 2014 | Legal Constraints on (Digital) Creativity — September 18, 2014 @ 7:14 am

  3. The author begins with a premise based on “little clarity or delineation between the legal and ethical definitions of piracy….” This doesn’t seem quite right. Certainly the courts and others have both inadvertently and intentionally obscured and obfuscated the issue, but the basics of copyright law, upon which all other matters of use and compensation stand, are abundantly clear. Professor Green at Rutgers and others argue that “file-sharing is not piracy,” fallaciously reasoning that when a file is shared, the copyright holder still holds that copyright. Of course the copyright holder still owns the copyright! That’s not the point. The issue is that their copyright (the right to make copies) has been illegally violated. Copyright law clearly delineates the rights of ownership. Violations of that right are as plain as day and any suggestion that “legal and ethical definitions of piracy” must be more clearly defined is intentional obfuscation that leads us away from the fundamental issue: failure to enforce well established copyright law.

    The author suggests the advent of business models built on streaming brings “a new mode of consumption as well as remuneration…and institutionalized piracy. The concept of piracy will change as a consequence whilst the industry struggles to define what it encompasses.” That notion serves only to further bury copyright law in high-sounding gibberish. It is well established that the principle of copyright does not change due to new forms of transmission. The law plainly says that I alone control the right to determine how and under what circumstances my work may be copied, transmitted or otherwise used and that I alone have the right to require payment for any such use as I see fit. If consumers or intermediaries don’t like my terms, they can choose not stream (and thereby copy) my work, but if they do transmit (copy), they are not allowed to unilaterally decide to pay, or not pay, as they wish

    The author discusses Stewart Brand’s misquoted comment that “all information wants to be free,” but seems to miss the point. Some distort Brand’s ideas into an authoritative opinion that music and other copyrighted works should be free. Again, this is inane obfuscation. Certainly, some types of information should be free and, as laws make clear, are therefore not subject to copyright: public records, ideas and information that are not in a physical, copyrightable form. Original work in physical form such as inventions, art, and other types of information, are however covered by copyright law specifically because of the well-defined benefits to society created by rights of ownership and limitations on use specified in those laws. Conflating all types of intellectual work into an undifferentiated, abstract notion of “information” completely overlooks that a physical object containing information must exist for copyright to be obtainable. More importantly, it destroys the social benefits that copyright law was specifically created to preserve. (see http://en.wikipedia.org/wiki/History_of_copyright_law). Using Brand’s comment as an all-encompassing principle fails to recognize the obvious differences between inventions and artistic creations and other types of “information.”

    While illegitimate businesses built on copyright infringement may produce significant profits, they corrupt and destroy an ordered market for invention and artistic creation, and thereby, not only the social benefits of copyright law, but also the monetary value of invention and artistic creation. This in turn destroys, as the music recording industry’s demise shows, what would otherwise have been an overall business value exponentially greater than what pirates and others are pilfering.

    Enforcement of copyright law is the responsibility of government, industry, and the creators of inventions and artistic work. Suggestions that tracking use and collecting payment is difficult and therefore constitute an unreasonable burden, is also an attempt to obfuscate the primary issue of lawful conduct. General Electric produces millions of light bulbs, but successfully tracks and collects profit from each one every day. Certainly, a lawful music industry operating in an ordered market can do the same. Without enforcement, neither business nor artists can enjoy the many benefits of an ordered market and both business and artists abandon the social value copyright law was created to protect.

    Comment by Jacques Bailhé — October 5, 2014 @ 8:34 pm

  4. This is an excellent piece that puts music piracy into perspective and gives us musicians a better understanding of what we are up against.

    To the comments above by Jacques, I am not sure of what his point is as the author of the article has made it very clear that it is this very ‘obfuscation’ that has messed up the understanding of piracy and how some big organizations are getting away with it.
    This is how it is currently and the article has certainly opened my eyes to it. I might not be Taylor Swift, but something needs to be done about it.

    Comment by Not Taylor Swift — November 13, 2014 @ 7:29 pm

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