Art without Crime

Issues over private and intellectual property abound in our current era—the information age.  I see this every day with myself and with my friends as we constantly download music, movies, images, software, and anything else from the internet.  Some of this is done legally, and some of it isn’t.  Some of the illegal activity is done with full knowledge of its illicit nature and with deliberate intention, but then again some is done simply by mistake, or because we don’t know better.

The pressures of society in the information age are constantly pushing us to be able to perform many of the activities we perform when we are online, but we must always be aware (and thus responsible) for our activities, and that we ensure we are using the potential property of others respectfully.  There are many international agreements concerning copyright protection.

Despite these agreements, there are large groups of people who are opposed to the very idea of respecting intellectual property.  These pirates are as adamantly opposed to the idea of a person owning a piece of media (for profit) as the owners would be in asserting their rights over the piece of property.  While these pirates who are philosophically opposed to the idea of intellectual property, many citizens, especially college students, are active pirates, but would not be if there were viable options to avoid it.

The lack of viable alternatives to piracy has obviously been the main cause for its rampant success in recent years, and especially with the expanding popularity of the internet.  While law may always be attempting to catch up to technological innovation, there is an easy way for companies to preserve their intellectual property while allowing its patrons the freedom and ease of use piracy offers.

While there is no single international copyright law that will automatically protect an author’s writing throughout the world (as well as other artistic and creative forms of expression), many nations are becoming part of their own copyright conventions and organizations.  Below is a list of some of these conventions.  Unless otherwise stated, the information for the following agreements has been adapted from Butler [3].

The Berne Convention is by far the largest international agreement on copyright law.  As of September 2008 there were 164 nations who had agreed to the Berne Convention (source: Wikipedia).  The Berne Convention treats works from another country as if it were a work produced in their own country.  In member countries, works do not have to have a copyright notice as a guarantee for protection (i.e. the work does not have to have a registered copyright to be protected).

The Buenos Aires Convention was one of the first conventions to proects works published in member countries according to the laws in other member countries as long as the protection did not exceed the country of origins terms of protection, i.e. a work would maintain its original level of protection even if another country had more stringent copyright regulations so it could not gain any more protection than it was originally published with.  The Buenos Aires Convention has largely fallen out of use with the popularity of the Berne Convention.

The EUDD allows the potential for databases under public domain to come back under copyright protection in particular countries by virtue of having some of their content copyrighted.  So if a portion of a previously copyrighted work gets its own copyright for whatever reason (perhaps a new edition or a change has been made to the original), the original piece has the potential to regain its copyright protection.

This reinforced the notion that the copyright of the country of origin extends internationally.
Universal Copyright Convention (Originally 1952, last revised 2004)
This agreement ensured international copyright protection to authors even if their country wasn’t a member of the Berne Convention.  This has largely become irrelevant in recent years due to the essentially universal acceptance of the Berne Convention.

Prohibits making bootleg copies of liver performances

The WIPO is a governing body within the United Nations that oversees 24 international intellectual property treaties.

Modern United States Copyright Law

The DMCA implements WIPO treaties and policies in the United States.  More controversially, however, it also makes it illegal to invent a method, product, software, or any other thing that can circumvent locks on the technological control of a work.

This act extends copyright protection for all works credited in the United States after January 1, 1978 from fifty to seventy years beyond the life of the author, or 120 years in a case of work for hire.  It retroactively extended copyright protection for many works created in the United States.

As you likely noticed, these laws have, over time, acted to increase (in theory) the protection afforded by a copyright.  Most commonly they have done this by increasing the length of the copyright (especially with the Sonny Bono Act) and the penalties for infringing on the copyright.  These increasingly drastic measures that have been put in place have spawned a movement philosophically and diametrically opposed to the idea of copyright and intellectual property.

Digital piracy is the biggest modern force opposing intellectual property law.  There are many different forms of piracy that act to subvert current intellectual property laws, but the most noticed form is the downloading of bootlegged copies of music, movies, software and numerous other forms of media over the internet.  An example of a particular site will prove useful for examination.

The Pirate Bay is the world’s largest and best known pirating site and acts as a BitTorrent tracker.  There are numerous reasons why the Pirate Bay is so successful and is able to keep its doors open (figuratively speaking) and its servers up.  The biggest reason the Pirate Bay can avoid prosecution is that its main servers are located in Sweden.  Swedish laws concerning copyright protection are far less rigid than those in the United States, United Kingdom, and many other industrialized nations [6].  If the Pirate Bay operated under U.S. law, it would have long ago been shut down, but as it stands, Swedish law governs its operations and it is able to continue.  Also, the Pirate Bay’s status as a tracker essentially means that it acts as a search engine rather than a host of pirated materials, thus avoiding prosecution as the originators of the pirate work.

BitTorrent, for clarification, is a type of Peer-to-Peer (P2P) network that acts incredibly effectively by decentralizing the source of information being downloaded.  There is a host server that breaks down a file into any number of pieces.  It will only send out a limited number of these pieces to any one computer that is downloading.  Each of these computers will then fill in the blanks by downloading the missing pieces from another computer, while BitTorrent forces the blanks with other computers in the downloading cloud by automatically uploading pieces that other computers may be missing (effectively acting as its own host server).  The host server need only exist as long as it takes for the downloading population to attain a full copy of whatever piece of media it is sending, and then the population will be able to sustain itself.  This is an incredibly effective way of quickly spreading large files and allowing the original hosts and their downloaders to avoid responsibility.

The Swedish, as a nation, are furthermore a nation far more involved in internet culture than many others.  The government subsidizes the purchases of computers, offering tax rebates, and generally encouraging its citizens to be active participants in modern internet culture [6].  Also, it can easily be seen how the government’s relaxed intellectual property laws foster a culture more comfortable with the traditional view of piracy than most other nations.  The people operating the Pirate Bay are fundamentally and philosophically opposed to the idea of intellectual property, and there are many in Sweden who agree with their rationale.

While there are certainly those, like the founders and supporters of the Pirate Bay, who pirate out of a fundamental opposition to the idea of intellectual property and copyright law, many others do so for a number of other reasons.

The protection afforded by intellectual property laws seems to be waning as more and more people seek out pirated versions of legitimate media.  This is particularly true among college students, even though there is an interesting conflict in belief versus actual practice.  1,000 students were surveyed, and of those:

Only 24% consider it wrong to make unauthorized copies of software, while 89% don’t always pay for media or software.  However, 93% believe people who develop software should be rewarded for their efforts.  Yet, 88% of students and 54% of faculty (300 surveyed) believed that it’s wrong to charge hundreds of dollars for something that costs pennies to reproduce.  52% of students believe that the software industry is strong enough that a few people pirating does not make a difference, yet in 2002 piracy cost 105,000 jobs or the equivalent of $5.3 billion in lost wages.  28% of students have downloaded software (legally or illegally) and of those, only 32% pay all or most of the time.  69% of students have downloaded music, but only 8% of those pay all or most of the time.  A further 26% have downloaded movies, but only 4% of those pay all or most of the time.  Students aren’t the only ones with conflicting views, however.  Over 40% of educators believe that sharing/swapping software to cut costs is fine, but 79% of professors believe unauthorized copying is wrong (all statistics—[4]).

The rampant use of alternative methods of acquiring software shows that current copyright and intellectual property laws fail to address current needs.  Modern culture requires students be familiar with the latest in any number of different forms of media, and there is so much media to consume that it is hardly practical for any normal middle class person to have to individually purchase each CD, movie, book, or program.  The prevailing trends also fly in the face of traditional copyright laws.  One popular example is mash-ups in music.  This is not the only example however, as copyrighted material constantly is downloaded, remixed in one way or another, and published.  This shows a need for new approaches both to copyright law and to addressing the issues of pirating.

Part of the reason that copyright infringement is so prevalent in contemporary society is that the modes of creative expression in our society have shifted largely into electronic forms.  69% of students have downloaded music [4] and that number is only expected to rise.  Even if these students were downloading this music legally (which only 8% are [4]) there would still be issues over what people do with this music when they’ve downloaded it.  Mash-ups in music are a perfect example.
Modern mash-ups are a genre that started in the late 1990s in Europe as an extension of house (dance club) music as well as a sort of evolution of remixes; lately they have been gaining popularity in the United States.  Basically, mash-ups can come in several different forms, most of the time based on an “A vs. B” format where one track is paired with another.  Often what will happen is the vocal track will be taken from one song, and will be paired with the instrumental track from another song, and this will carry through until the vocal track is finished.

More modern evolutions will have multiple tracks layered on top of each other to create a song incorporating far more songs, with smaller samples taken from each.  These usually will have a track play, and then have a background track, and then the vocal tracks will switch with the same background playing, and then the background will change, and then the vocal track will change, and so on so it’s a sort of continuous play of different songs transitioning into one another.  CDs released by artists using this method often sample upwards of 200 songs, though some have been known to go as high as 400.
Even though they are seemingly an entirely new evolution of music and creative expression, the spirit of the mash-up (or the remix) has been around for quite some time, having manifestations even in works like The Canterbury Tales.

Many of the pilgrims draw on historical sources that would surely have been easily recognized by their fellow pilgrims. The Knight’s Tale is a perfect example.  It is absolutely filled with classical mythology, from the setting (Thebes), the events (epic battles between Athens and Thebes), many of the plot points (including the Greco-Roman gods), and even the characters themselves (particularly Theseus).  “Chaucer probably became acquainted with the poem that provides the matiere of the Knight’s Tale, Boccaccio’s Teseida, and with other works by the same writer, such as the Filostrato and the Decameron, in the late 1370s” (Pearsall 117).  So examining just The Knight’s Tale by itself from the two perspectives of Chaucer as author and Chaucer as reporter reveals that either Chaucer was drawing on Boccaccio, who was himself drawing on classical mythology, or the Knight was drawing on classical mythology.  In either scenario (the former being the likelier of the two) classic works are being used for inspiration, imitated, and in most cases improved.  Audiences are able to examine Chaucer in light of Boccaccio, and more interestingly they can now examine Boccaccio in light of Chaucer, which undoubtedly creates new themes that were previously undiscovered.

The Knight’s Tale is not the only tale to draw on classical mythology, nor is it the only tale to draw on any sort of classical work as source material.  The Manciple’s Tale, The Second Nun’s Tale, The Nun’s Priest Tale, and The Man of Law’s Tale among many others all include aspects of classic stories.  Each of these narrators, by choosing to include such strong links to classic texts, essentially does the exact same thing as modern mash-up artists when they pick songs to incorporate into new mash-ups.  Each picks an accepted story (or song) that has become a classic or is, at the very least, popular, and portrays it in such a way that the product is new enough to cast the story in a new light, but familiar enough to be immediately recognizable and excite the audience to see what they will do to change it.  Modern mash-ups, then, fulfill the same need that we have always had to honor and continue to immortalize valued artistic expression in just the same way that the allusions in Chaucer’s work honor classic stories.

The most important aspect of these mash-ups is the fact that these artists do not ask for the permission of the original artists and record labels to use their work.  Our contemporary culture is incredibly sensitive to issues of possession, especially when it comes to media.  Accordingly, what mash-up artists do is technically considered a crime.  However, a surprisingly small number of them actually charge for their music; those that do predominately use a sort of donation method where people can pay as much or as little (or not at all) as they want.

While this may be an extreme example of what an average internet user might do, the general feeling is not far off.  Many of us download pictures, edit them, and post them without getting the permission of the original artist.  Many of us have downloaded music for a project and failed to properly cite or ask the permission of the musician according to the conventions.  The list of things we do in contemporary culture that breaks current copyright laws is endless.  Does this mean we have a criminal culture?  That businessmen, housewives, students, and school children are all deserving of criminal punishment?  Or, rather, is this an indication of a shift in cultural values?  I like to think the latter.

So what is it, exactly, that we need to do?  As we move forward the most important thing we must do is to ensure that we are doing everything we can to promote creativity and new forms of creative expression.  Law has always had to catch up to technological innovation, and the debate on intellectual property is no different.  In a society where we mix the old and the new every day, the conventional approach to understanding property is constantly challenged.

In the debate over what should be done too many people take one extreme or another.  This is rarely the best path to choose.  Instead we should look to find a middle ground.  In this particular case we can incorporate many of the pirate’s tactics as a business model.  Major broadcasting companies and smaller cable networks alike (ABC, NBC, Comedy Central, Sci-Fi) have begun posting full episodes of their various series available for viewing online at any time [7].  Networks are still able to make money on these videos through advertising much in the same way they would through traditional broadcasting.

Creative Commons and Opens Access Licenses (particularly Creative Commons) also are an excellent option for online publications of informational and creative material.  While there are different degrees of freedom an author can allow within each license, they exist to allow the individual to download, change, and republish without fear of copyright infringement

Our modern remix culture presents numerous difficulties, especially for artists looking to publish work for commercial gain (especially in the case of music).  This is one instance where I think technology will be able to adapt (and already is adapting) to meet our need.  If someone were to create a technology that could function much in the same way that the networks have figured out how to post their videos online, something that would give the user easy, free, and infinite access to the piece of music, then I think the need for piracy would significantly drop.  A technology like this would also require very little in terms of legal reform.

While the issue over intellectual property in the modern age is incredibly complex, and ongoing I have attempted to propose an approach that I think would work across the various issues.  We should use all of the resources and options we have to come to a compromise.

The debate, I think, has become too polarized.  With little effort we can adapt pirating technology to legitimate and legal uses, and we can advocate for more open access to information that reflects the open culture that we are coming into.  These are relatively simple proposals, and though they may require a great deal of work (though in reality very little), they are the most practical for resolving some of the latest issues to arise in the debate on intellectual property.

Bibliography

1. Bell, Abraham, and Gideon Parchomovsky. “The Evolution of Private and Open Access Property.” Theoretical Inquiries in Law 10.1 (2009): 77-102.
2. Botterbosch, Hope R., and Preston Parker. “Copyright and Collaborative Spaces: Open Licensing and Wikis.” TechTrends 52.1 (2008): 7-9.
3. Butler, Rebecca P. “Borrowing Media from Around the World: School Libraries and Copyright Law.” School Libraries Worldwide 13.2 (2007): 73-81.
4. Kruger, Bob. “Failing Intellectual Property Protection 101.” T.H.E. Journal 31.9 (2004): 48.
5. McLeod, Kembrew. “Confessions of an Intellectual (Property): Danger Mouse, Mickey Mouse, Sonny Bono, and My Long and Winding Path as a Copyright Activist-Academic.” Popular Music and Society 28.1 (2005): 79-93.
6. Pearsall, Derek. The Canterbury Tales. London: George Allen & Unwin, 1985.  
7. Touloumis, Tara. “Buccaneers and Bucks from the Internet: Pirate Bay and the Entertainment Industry.” Seton Hall Journal of Sports and Entertainment Law 19.1 (2009): 253-281.

Author: Patrick Boocock
Posted 25 May 2009 for Marc Bousquet’s Spring 2009 English 138 class: Internet Culture in the Information Society.
If you see anything in here that you like, ideas, sources, whatever you want, feel free to do whatever you would like with it, and here’s to a more open society.