Music and “Piracy”

Aram

April 20, 2012

¶ 1 Leave a comment on paragraph 1 0 The name of this book is The Piracy Crusade, and I would be remiss if I didn’t spend some time in this introductory chapter discussing the concept of piracy as well. Usually, when a child dresses up as a pirate for Halloween, the outfit might include a false peg leg, an eye patch, and even a plush parrot doll for good measure. The child will swagger around with plastic cutlass in hand, uttering phrases like “Arrrghh” and “Shiver me timbers!” and generally making things difficult for younger siblings and house pets. Adults occasionally like to play pirate as well, and each year on September 19^th, hundreds of thousands around the world celebrate “International Talk Like A Pirate Day” by adopting this garb and garbled speech to one degree or another. At the time of writing, people have paid over $3.7 billion in box office ticket sales just to see Johnny Depp swashbuckling across the screen as Captain Jack Sparrow in the Walt Disney Company’s massively successful “Pirates of the Caribbean” movie franchise.[1]  For most of us, he is the dictionary definition of a pirate.

¶ 2 Leave a comment on paragraph 2 0 The International Federation of the Phonographic Industry (IFPI; the global trade association for record labels) has a very different definition. On their website, a page entitled “What is piracy?”[2] mentions nothing about ships, parrots or cutlasses. Instead, they use the term to mean “the deliberate infringement of copyright on a commercial scale,” and identify four types relevant to their industry: “Physical music piracy,” “counterfeits,” “bootlegs,” and “Internet piracy.” In this fourth category, the IFPI acknowledges that even its own definition of piracy doesn’t really apply. Internet piracy, they argue, is “not necessarily due to the motivation of the perpetrator.” So much for “deliberate.” They also claim that the term refers “more generally to any use of creative content on the Internet that violates copyright.” So much for “commercial scale.” Given the fact that, since the enactment of the 1976 Copyright Act, every piece of text, audio, video and imagery ever created is automatically subject to copyright, this means that anyone who emails, blogs, or shares any document, song, video clip or image they did not personally create from scratch is, according to the IFPI, a pirate. So much for Johnny Depp.

¶ 3 Leave a comment on paragraph 3 0 How can this one word mean two such different things? Is the distinction between Blackbeard and BoingBoing merely one of scale and means, or are they truly as different as they seem? What possible similarity can exist between blasting a ship to smithereens and making off with its bullion, and posting a mashup to Facebook? In order to address these questions, we need to look briefly at the history of the concept of piracy itself, and trace its evolution from antiquity to the present day. Fortunately, other researchers have done a lot of this work already, so I will try my best to give credit where it is due, lest I be branded a pirate myself.

¶ 4 Leave a comment on paragraph 4 0 As it turns out, the definition of piracy has been continually revised and debated since its earliest appearance. Cicero, writing two thousand years ago, was the first to outline a comprehensive definition and theory of piracy, arguing that pirates are those who, by virtue of being “the common enemy of all,” have forfeited all rights, including those to fair dealing. “For example,” he wrote, “if an agreement is made with pirates in return for your life, and you do not pay the price, there is no deceit, not even if you swore to do so and did not.”

¶ 5 Leave a comment on paragraph 5 0 Literature Professor Daniel Heller-Roazen, who uses Cicero’s words to title his excellent social history, The Enemy of All: Piracy and the Law of Nations, argues that Cicero’s exceptionalism inherent in this definition is the thread that ties together all subsequent concepts of piracy. He identifies four distinguishing features of this paradigm: First, piracy must take place outside of traditional legal regions (e.g. on the high seas); Second, piracy is committed by an agent of “universal” antagonism; Third, piracy collapses the categorical distinction between the criminal and the political; Fourth, and consequent to the first three features, piracy requires a redefinition of “war.” From the beginning, then, piracy has operated as a kind of negative category – a placeholder for malicious actors and activities that fall outside obvious social and political categorization. What it hasn’t always meant is the theft of property; this property/theft dialectic, so central to our contemporary understanding of piracy, is a relatively recent affair, likely dating to the dawn of modern nation states and international commerce. As Heller-Roazen observes, even plunder on the high seas was considered a legitimate economic model and political tactic for most of history, until international accords in the mid-19^th Century abolished privateering, and in so doing, relegated the plunderers that remained to the negative category of pirates.[3]

¶ 6 Leave a comment on paragraph 6 0 The application of the term “piracy” to what we now call intellectual property is of relatively recent vintage, as well. As history professor Adrian Johns demonstrates, this use of the term can be traced directly to the dawn of the modern publishing industry in late-17^th Century England, from whence it spread to other Western European nations. Like Heller-Roazen, Johns emphasizes that the definition of piracy has always been fluid, “a matter of place – of territory and geopolitics.” In this case, the territory was the modern European nation-state, and the geopolitics involved the international trade in mass-produced printed goods. And although the IFPI’s definition hinges on the “infringement of copyright,” Johns makes it clear that the term was not only adopted prior to the development of copyright, it was actually a constituent element of the original argument in favor of legal protection for publishers. In Johns’ words, “the invention of copyright itself was largely a response to a piracy feud overflowing with national resentments” between publishers in London and Scotland.[4]

¶ 7 Leave a comment on paragraph 7 0 Unlike textual piracy, the concept of music piracy does not seem to have existed prior to copyright. Although the concept of musical plagiarism had begun to emerge along with 18^th Century notions of authorship, it wasn’t until the turn of the 20^th Century that the music industry identified piracy as a systematic problem. According to Johns, this was due to the confluence of two factors, one on the supply side (photolithography, which offered rapid, inexpensive reproduction) and the other on the demand side (the boom in piano ownership). Earlier in this chapter, I described the process by which the music industry successfully lobbied for an ever greater scope of legal control over the works they published. Arguably, this gradual encroachment on what had previously been a musical “commons” constituted a third factor in the growth of music piracy. As Johns acknowledges, the industry’s monopolistic practices at the end of the 19^th Century contributed to a “widespread . . . sense of resentment at the traditional music publishing companies” on the part of consumers, which in turn conferred a degree of social legitimacy on “pirate” publishers.[5]

¶ 8 Leave a comment on paragraph 8 0 Even throughout most of the 20^th century, the concept of “music piracy” referred primarily to unlicensed publishers and manufacturers undercutting the market for legitimate commercial goods. It wasn’t until the 1970s that an entirely new paradigm emerged: that of “home piracy.” Two factors contributed to this change: First, the development of the phonorecord copyright in 1972 (which covers the sound of a recording, rather than the composition that has been recorded, and confers “master use rights” on the owner) gave the record labels a greater incentive and stronger set of tools to police and punish unlicensed reproductionists. Second, the development of home electronics based on magnetic tape (especially the microcassette format) gave musicians and listeners far greater power to reproduce, alter and redistribute musical recordings.

¶ 9 Leave a comment on paragraph 9 0 Because these behaviors were even more difficult to control than “traditional” music piracy, the extension of the term “piracy” to cover noncommercial reproduction was largely rhetorical in nature. In fact, it had no legal basis; Congress explicitly declined to prohibit home taping in its 1972 law, and subsequent to its passage, “judges . . . acted as though an exemption for home taping existed.”[6] Even some official and semi-official organs of the music industry had a hard time accepting that home taping constituted a piratical act; as late as 1979, Billboard magazine was still referring to it as “so-called ‘home piracy.’”[7]

¶ 10 Leave a comment on paragraph 10 0 In 1984, the US Supreme Court ruled in the landmark “Betamax case”[8] that home taping of television for personal reasons was “fair use” (a legal concept limiting the powers of copyright holders in the interest of preserving cultural innovation and free speech). This decision was widely held to apply to a variety of “time shifting” and “librarying” behaviors, including home music taping. Left without legal recourse to prevent such behaviors, the music industry doubled down on its rhetorical efforts to brand them as piracy; Beginning in 1985, for instance, the British Phonographic Industry (BPI) initiated its now-iconic “Home Taping Is Killing Music” campaign, which featured a skull-like image of a microcassette tape above a pair of crossbones (see Figure 1).

¶ 11 Leave a comment on paragraph 11 0
Figure 1: BPI’s Logo for its 1980s Anti-taping Campaign

¶ 12 Leave a comment on paragraph 12 0 By some measures, these rhetorical efforts paid off over the long term. Though librarying and time shifting have successfully jumped from analog to digital media and have likely become far more widespread than they were in the “home taping” years, the legal status of noncommercial duplication has gotten grayer and grayer, and protection for fair use has waned and withered.

¶ 13 Leave a comment on paragraph 13 0 A major blow came in the form of the Digital Millennium Copyright Act (DMCA), a 1998 law that acknowledged fair use, but made it a felony for businesses or consumers to bypass technological copy protection, even if this was the only way to exercise fair use rights (such as “ripping” a song onto a hard drive). Another blow came in the form of the February, 2001 federal appeals court decision in A&M Records v. Napster, Inc.[9], which found that the popular file sharing service (which operated on a noncommercial basis) did not enjoy the same fair use protections as Betamax, because the network’s centralized architecture gave its operators the power to identify and prevent copyright infringement. A third blow came in the form of the 2005 Supreme Court decision in MGM Studios, Inc. v. Grokster, Ltd,[10] (a case in which I served as an expert witness for the defense), which found that even technology providers who had no knowledge or power over the use of their products for copyright infringement, and who did not benefit financially from such infringement, could still be found liable for “inducement.”

¶ 14 Leave a comment on paragraph 14 0 Mitch Bainwol, the head of the Recording Industry Association of America (RIAA), celebrated the ruling against Grokster for its role in “contain[ing] piracy” and for  providing “moral and legal clarity.”[11] Many legal scholars and public advocates disagreed. As Fred von Lohmann of the Electronic Frontier Foundation (EFF) argued at the time, the broad and vague applicability of this new precedent gave rise to a “new era of legal uncertainty,”[12] in which nearly any media technologies could be construed as vehicles for piracy.

¶ 15 Leave a comment on paragraph 15 0 This is, of course, exactly the outcome devoutly pursued by the music industry (and its entertainment industry partners). As law professor Lawrence Lessig has astutely observed, every new medium is pioneered by “pirates,” who use the contents of older media to populate their new platforms and test their technologies. This was true of the recording industry (once dubbed pirates by music publishers), the radio industry (once dubbed pirates by record labels), and also the film and cable television industries.[13] In other words, yesterday’s pirates have become today’s establishment, and their aim is to stay put by keeping the cycle from repeating. If the price is fair use, free speech, and cultural and technological innovation, then so be it.