Introduction: Piracy Crusades Old and New

Aram

August 28, 2012

The fight by creative industries against digital piracy is an economic necessity, not a moral crusade.
– IFPI Digital Music Report 2011[1]

A business model built on infringement is not only morally wrong but legally wrong.
– RIAA CEO Hilary Rosen, 2001.[2]

I’m on a little crusade, and I do have personal interaction with these students . . . I think these young kids are going to understand that it is not only morally wrong, they’re stealing.
– MPAA CEO Jack Valenti, 2003[3]

 We remain the national leader in the crusade against illegal copying and distribution of software and content online . . . In 2010, we intend to be even more vigilant in our pursuit of software and content piracy.
– SIIA Anti-Piracy Year-In-Review 2009.[4]

¶ 5 Leave a comment on paragraph 5 0 In 1390, an army of crusaders set out to wage war on piracy, with disastrous consequences for the soldiers themselves, their nations, and the entire Western world.

¶ 6 Leave a comment on paragraph 6 0 The story begins in Genoa, a coastal city located at the western “hip” of Italy’s boot, which was emerging as one of Europe’s wealthiest and most influential seats of power. Like its chief competitor, Venice (located at the boot’s eastern hip), the city had developed its wealth by dominating the trade of commodities with the Syrian and Egyptian “infidels” across the Mediterranean sea, despite a prohibition against such commerce handed down by the Pope.

¶ 7 Leave a comment on paragraph 7 0 Genoa had one problem that Venice lacked: in order to gain access to the eastern end of the Mediterranean, its sailors had to pass through the Strait of Sicily, a relatively narrow aperture separating Europe from the jutting shores of North Africa. For centuries, Tunisian privateers had policed these waters, and for centuries Genoese ships had done battle with them, raiding one another in countless skirmishes and a few full-scale assaults. Yet the Tunisian pirates were becoming bolder, thanks to the encouragement of the reigning sultan, Ahmad II ibn-Muhammad, who had begun to shift his European political allegiances from Italy to Catalonia.[5]

¶ 8 Leave a comment on paragraph 8 0 Back in Italy, the canny prince Antoniotto Adorno, Doge of Genoa, was having problems of his own. He was facing fierce political opposition for what was supposed to be a lifelong elected position, and would soon be forced out of office (for the second time). So Adorno developed a plan that he hoped would solve his domestic, Venetian, and Tunisian problems in one fell swoop: he would launch “a secular enterprise to suppress the pirates”[6] in the form of an assault on their stronghold in the Tunisian city of Mahdia, and dress it in “the aura of a crusade.”[7] With any luck, this would simultaneously boost the business sector and provide him with a heroic platform to prove his worth to the city.

¶ 9 Leave a comment on paragraph 9 0 The only hitch in Adorno’s plan is that Genoa didn’t have the military strength to launch such a siege. Fortunately, someone else did; France, which had recently called a truce in what would come to be known as the Hundred Years War with England, was chock full of knights who had “nothing to do,” and “would be glad to join in the warfare.”[8] The plan appealed to France’s young King Charles VI, who was facing his own challenges at home, and could use a “ready-made adventure with no need of . . . serious political maneuvering”[9] to bolster his political and religious credentials.

¶ 10 Leave a comment on paragraph 10 0 On July 1^st, an armada set forth from Genoa bound for Mahdia. The Mahdians, who had received advance word of the attack, secured the sturdy walls of their city and stocked it full of provisions, determined to wait out the European invaders rather than attempting to repel them with military force. Shortly after the “crusaders” arrived, the Tunisians sent out emissaries to negotiate. They asked the French what their purpose was in joining the assault, given that “they had troubled only the Genoese, which was natural among neighbors, for it had been customary ‘to seize mutually all we can from each other.’” The French replied that they had joined the crusade as a matter of religious duty, for the Mahdians were Muslim “unbelievers . . . which made them enemies, and also to retaliate upon their forefathers ‘for having crucified and put to death the son of God called Jesus Christ.’” At this, the Mahdians simply laughed, reminded the French that the Jews were more apt scapegoats, and returned to their walled city, where they prepared for the onslaught.[10]

¶ 11 Leave a comment on paragraph 11 0 The Genoans had promised the French a swift and easy victory, but the assault took months. During this time, not only did Europeans and Africans alike die in various skirmishes, but the crusaders suffered and perished from thirst, hunger, fevers, parasitic infections, and swarms of insects. Additionally, their attempts to take the city were stymied by the fact that they had failed to bring any battering rams, and what siege equipment they did have was “hopelessly inadequate.”[11] Once it became clear that military victory was impossible, the Europeans cobbled together a face-saving diplomatic one, exacting promises of reduced piracy (to which the Tunisians fleetingly adhered) plus a substantial monetary tribute (which was apparently never paid).

¶ 12 Leave a comment on paragraph 12 0 All in all, the crusaders had lost 20 percent of their forces in the failed assault, and more died of disease when they returned home, but these costs were nothing next to the invasion’s long-term fallout. Under political pressure to show something for their efforts and expenses, Charles and Adorno trumpeted the crusade as an unmitigated success for Christendom and for European commercial interests, and this, in turn, began a cascade of defeats that would soon reduce Europe to a shadow of its former glory.

¶ 13 Leave a comment on paragraph 13 0 Despite the Mahdian debacle, “the enthusiasm of the returning nobles helped recruit the major crusade directed at Nicopolis”[12] in Bulgaria six years later, which would prove to be Europe’s last such adventure. Because the French had learned “absolutely nothing” from their failure, and “still believed themselves supreme in war,”[13] their ill-conceived assault on Nicopolis would not only cost a great many lives, it would ultimately cost European control over the Bosporus, which was the continent’s primary conduit of trade and communication with the East and the crux of its economic and political power. As a result, the Ottoman Empire would soon rise and come to dominate large swaths of Central Europe, North Africa, and the Middle East. Only after centuries of colonization and global naval exploration would Europe regain its wealth and influence.

¶ 14 Leave a comment on paragraph 14 0 In short, we can understand the Mahdian Crusade as a vital factor (albeit one of many) leading to Europe’s downfall in the Late Middle Ages, like the proverbial butterfly whose flapping wings cause a tsunami halfway around the world. Or as Sigismund, the King of Hungary (and future Holy Roman Emperor) said when the battle of Nicopolis was over, “We lost the day by the pride and vanity of these French.”[14]

***

¶ 16 Leave a comment on paragraph 16 0 Over six hundred years later, we are in the midst of another, very different crusade, that nonetheless shares many similarities with Mahdia, and may threaten to wreak just as much havoc and destruction over the long term. In this instance, it is Hollywood, rather than Genoa, playing the role of the righteous crusader, with the US government as its military ally, and digital technology innovators and their millions of online users cast in the role of the “pirates.” While a variety of industries, including film and software, have participated in this modern piracy crusade, the music industry is its emblematic leader, and continues to be its most vocal advocate.

¶ 17 Leave a comment on paragraph 17 0 I’m certainly not the first to make this comparison; a Google search for the terms “music industry piracy crusade” currently yields over 4.3 million results, and the metaphor is routinely applied in press coverage, including articles by The Hollywood Reporter,[15] The New York Times,[16] and MTV News.[17] It seems that nearly everyone but the recording industry and its antipiracy allies considers their efforts as a “crusade” (and, as this chapter’s epigraphs demonstrate, even they have wavered in their aversion to the term). As for the piracy side of the metaphor, it is the crusaders themselves that have devoted hundreds of millions of dollars and considerable political influence to framing activities such as peer-to-peer (P2P) file sharing and unlicensed streaming in these terms, and these initiatives have been so successful that content-sharing websites like The Pirate Bay and pro-sharing political movements like the Pirate Party have willingly wrapped themselves in the Jolly Roger, in a form of rhetorical one-upmanship.

¶ 18 Leave a comment on paragraph 18 0 The similarities between today’s piracy crusade and its 14^th Century predecessor are more than superficial, and more extensive than a cursory comparison might suggest. To begin with, the two crusades began under similar auspices. In both cases, it was an established commercial interest that promoted the engagement, in an effort to stem the rising economic power of a competitive upstart that threatened to usurp access to its goods and markets. In both cases, this commercial interest courted assistance from a stronger ally, by framing its economic motives in moral terms and painting the crusade itself as a matter of duty. In both cases, the stronger ally agreed to participate in part because it seemed like an easy political victory supported by a clear mandate. And in both cases, the enemy was dehumanized and delegitimized by being branded with the mark of piracy (even in the case of the Mahdians, who actually did intercept and plunder ships rather than merely clicking buttons, the so-called pirates perceived themselves as the Genoese’s “neighbors” involved in an ongoing “mutual seizure” of goods, rather than as malicious and unilateral aggressors).

¶ 19 Leave a comment on paragraph 19 0 There are also similarities in the circumstances of the crusade itself, although the Genoese and the French were fighting for control over the Mediterranean, while today’s crusaders seek control over the internet. Like the Genoese, Hollywood and its allies have used excessive force in place of actual strategy, and yet found their methods “hopelessly inadequate” as P2P networks and other “digital pirates” have strengthened their electronic garrisons in response to the siege. Like the French, the US government was initially promised that its participation would be brief and effective, only to find itself engaged in a classic quagmire. As the major film studios pledged in a 2000 court filing, the strict new copyright law for which they and the music industry had just fought and won[18] would suffice to “stop infringement, to stop digital piracy, before copying becomes truly ubiquitous.”[19] Since then, dozens of newer, stricter laws and treaties have been proposed, and many of them have been enacted, under similar promises; yet unlicensed copying and distribution have only continued to increase,[20] as the stalemate between crusaders and “pirates” has expanded to encompass the globe and the collateral damages have continued to mount. Finally, like the Mahdians, the targets of today’s crusade are often surprised and dismayed to find themselves under assault, and typically view their own activities as ethically valid, even if they do not conform to the (ever-expanding) letter of the law.

¶ 20 Leave a comment on paragraph 20 0 The “pride and vanity” of the French has its analog in the attitudes of today’s crusaders, who invariably treat each newly-enacted law and treaty, and each newly-decided litigation, as a decisive turning point for their cause. To cite a few such examples, the Recording Industry Association of America (RIAA) called a 2000 settlement against MP3.com a “victory for the creative community and the legitimate marketplace,”[21] a 2001 court ruling against Napster a “victory for copyright holders,”[22] a 2005 Supreme Court decision against Grokster “the dawn of a new day,”[23] and a 2010 court victory against LimeWire “an extraordinary victory for the entire creative community.”[24] The industry also frequently follows these legislative and litigious successes by promoting research showing that online “piracy” has been diminished as a direct result of their actions. The fact that these claims are often debunked by independent third-party researchers,[25] and that online sharing in the aggregate continues to climb with every passing year, is conveniently forgotten by the crusaders, and the press that cover them, until the next legal campaign is mounted.

¶ 21 Leave a comment on paragraph 21 0 The most important, and troubling, similarities between the medieval and modern piracy crusades can be seen in their devastating social aftermath. Just as overconfidence, bred by a false sense of victory in the Mahdian Crusade, led directly to the Europeans’ rout at the hands of the Turks in Nicopolis, the hype and false promises attending today’s piracy crusade have undermined the viability of the marketplace and the strength of our democratic institutions, and obscure the fact that these efforts have done nothing to protect the long-term interests of either the crusaders themselves or the government institutions they rely upon as allies.

¶ 22 Leave a comment on paragraph 22 0 Had the Genoese approached their Tunisian neighbors as partners rather than waging holy war upon these supposed infidels, perhaps the Ottomans would never have succeeding in dominating Mediterranean Europe and North Africa in the centuries that followed. By the same token, today’s piracy crusaders have thus far squandered their opportunity to develop constructive partnerships with the legions of online innovators who have radically reimagined our social and cultural universe in recent decades. This has prevented powerful new ideas and technologies from being fully exploited by either the legacy media industries or new and emerging ones, and has impeded their adoption and use by the general public. Even worse, the laws and policies that have been promoted as cures for the ostensible piracy epidemic have only succeeded in strengthening the hands of those who oppose free speech, privacy, and open discourse, as well as the “trolls” and criminals who use such laws to extort and defraud billions of dollars from legitimate businesses and blameless individuals.

¶ 23 Leave a comment on paragraph 23 0 Ultimately, what’s at stake in today’s piracy crusade vastly exceeds the consequences of Mahdia. Losing the ability to travel freely on the Mediterranean cost the Europeans dearly, and it took centuries before colonization, industrialization[26] and the cultural effects of the Renaissance would provide the continent with new sources of wealth and innovation, and new avenues of exchange with the rest of the world. In the meantime, Europeans’ losses amounted to gains for the Ottomans, who provided their own contributions to both European and global society and culture.[27] But losing the ability to share information freely on the internet and other digital networks will have negative repercussions for billions of people around the globe, and will benefit only a minute handful of narrowly-defined commercial and political interests. Today, these networks are already foundational elements of our lives, from our most intimate relationships[28] to our most public dealings and debates.[29] Online communications have brought together millions of husbands and wives, fueled the dreams of visionary entrepreneurs, and fomented major political revolutions. In the years to come, networked digital technologies will most likely play an even deeper role in our lives, becoming cognitive prosthetics and cultural platforms to aid and augment human processes from birth to death, and perhaps beyond. We can’t afford to give that up in the name of fighting our own shadows. This time, the pirate menace isn’t merely our neighbor across the sea – it’s us.

***

¶ 25 Leave a comment on paragraph 25 0 This book, like my first, is not a traditional work of academic scholarship. To be sure, I draw upon scholarly sources in a variety of fields, including law and policy, critical theory, musicology, economics, anthropology, history, international relations, neurobiology and science and technology studies. But my aim here is to develop a line of inquiry and a resulting argument, rather than to advance the theoretical foundations of a given discipline. My personal background as a music industry and communication policy researcher, and as a musician, predates my academic career, and I willingly admit to approaching the subject with a wealth of existing experiences, observations and analyses that have helped to shape my vantage point.

¶ 26 Leave a comment on paragraph 26 0 Yet, although I am hardly dispassionate, and though my explicit aim is to debunk the dominant narrative informing the laws and policies that govern the sharing of music via the internet, I stake my position clearly on the research side of the fence, rather than advocacy. My primary interest here is to erase ideology, not to supplant it, thereby to bring a saner and more clear-eyed perspective to the public debate over the role that intellectual property plays in regulating the operations of the public sphere and the marketplace.

¶ 27 Leave a comment on paragraph 27 0 In this respect, if The Piracy Crusade has a theoretical home within the academic landscape, it belongs to the emerging field of critical information studies (CIS), a term first proposed by my colleague (and book series editor) Siva Vaidhyanathan in 2006 to describe the multidisciplinary confluence of work that focuses on “the ways in which culture and information are regulated by their relationship to commerce, creativity and other human affairs.”[30] This orientation allows CIS researchers to put laws and policies in dialogue with cultural and economic forces, rather than to treat each sphere as a discrete, and unrelated, field of inquiry. Several of the scholars whose work I cite in this book, such as Lawrence Lessig, Michael Carrier, Peter Drahos, John Braithwaite, Jessica Litman, Joe Karaganis, Gabriella Coleman, Jonathan Sterne, Nancy Baym and Adrian Johns, have produced work that belongs to this field, even if they themselves do not always make the connection explicit.

¶ 28 Leave a comment on paragraph 28 0 This book also shares some of its DNA with research and advocacy groups that exist primarily outside of the academy (although with many points of scholarly contact). While there is not yet a single conceptual tent to house these disparate interests, the free culture movement, the free software movement, the access to knowledge movement, the transparency movement, the internet freedom movement, and the open access movement all share an interest in reprioritizing communication policy to privilege free speech, privacy and innovation over the narrowly-defined private interests of market oligopolists.

¶ 29 Leave a comment on paragraph 29 0 Both as a mark of intellectual kinship with these movements, and as a practical method of honing my work by exposing it to scrutiny and critique, I opted to publish the draft of this book online as I wrote it, and to promote newly-published pieces of it via Twitter, Facebook, and several industry associations and online forums in which I regularly participate. MediaCommons Press, an open scholarship platform, graciously offered to host the book-in-progress,[31] and in the five months from its launch to the time of writing, the site has seen thousands of page views, and has garnered both public and private comments from music industry executives, industry analysts, attorneys and academic researchers, in addition to friends, family and other interested parties (the final draft has been considerably improved by this ongoing feedback). Additionally, both the online book draft and this “finished” version are available freely using the Creative Commons 3.0 Attribution-NonCommercial-ShareAlike license,[32] which grants noncommercial actors the freedom to read, reconfigure and redistribute it as long as I am credited for the work.

¶ 30 Leave a comment on paragraph 30 0 The book has nine chapters in addition to this one, which fall into three sections. The first section is about the legal and economic foundations of the music industry, and about the complex relationship that the industry has historically had with innovative technologies.

¶ 31 Leave a comment on paragraph 31 0 Chapter 1 charts a brief social history of the music industry, from its origins at the dawn of print publishing through the development of electronic recording and broadcasting in the 20^th Century. The chapter aims to show that our current ideas about music as a form of property, and as a variety of entertainment, are neither natural nor inevitable, and are instead the contingencies of specific social, economic and technological forces and events over the past two hundred and fifty years. Similarly, the chapter examines the origins of copyright as a regulatory framework for the distribution of music in industrial society, and as an instrument of leverage and control for established commercial interests.

¶ 32 Leave a comment on paragraph 32 0 Chapter 2 examines the music industry’s ambivalent relationship to new technologies during the 20^th Century. It begins by looking at the progression of dominant recording formats, from the wax cylinder to the MP3, and at the industry’s wary reliance on the “format replacement cycle” as a continuing engine of new revenues and business models on the one hand, and a continuing threat to cartelized distribution on the other. The chapter also charts the complex constellation of forces that led to the broadcasting industry’s rejection of the higher-quality FM format for nearly half a century before it achieved market dominance in the 1980s. Finally, it reviews the role of innovative music production technologies in creating and maintaining an aesthetic “pro/am gap” to distinguish between commercial and amateur recordings over the decades, and at the social and economic implications of widely accessible recording and production tools in the digital age.

¶ 33 Leave a comment on paragraph 33 0 Chapter 3 reviews recent innovations in digital music technology, and examines how the industry’s historically anomalous rejection of these technologies (and the market’s historically anomalous embrace of them) diverge from the pattern established over the prior century, undermining the industry’s economic and political power. The chapter uses Kübler-Ross’ well-known “five stages of grief”[33] as an explanatory framework for these developments, arguing that the industry’s paralysis in the face of digital innovation was the result of a kind of industrial psychological crisis, stemming from an organizational inability to adapt to radical change.

¶ 34 Leave a comment on paragraph 34 0 The second section of the book directly challenges the dominant narrative surrounding the economic and structural changes the music industry has undergone in the digital age. While the crusaders and the press have largely painted the industry’s measurable losses as a direct result of online “piracy,” this claim doesn’t stand up to available evidence. Rather, the industry itself deserves the burden of the blame for any misfortunes it may be suffering, due to its inability to address digitization proactively and its problematic relations with artists, consumers, and even its own business partners.

¶ 35 Leave a comment on paragraph 35 0 Chapter 4 takes a close look at the industry’s bête noir, peer-to-peer file sharing. While there are certainly many other forms of online music sharing that have emerged in recent years, P2P has remained the best-known and most vilified among them, and its user base continues to grow. The chapter summarizes a number of recent research studies on the economic consequences of P2P, which fail to reach any consensus on whether its net effect is positive, negative or neutral. It also reviews the many economic benefits of P2P for both artists and music industry organizations, from concrete revenue opportunities to defrayed costs to reputational enhancement. Finally, the chapter contrasts traditional music economics with P2P, arguing that musicians have more to gain from P2P’s potential strengths than they have to lose from the obsolescence of a system that has historically exploited their work.

¶ 36 Leave a comment on paragraph 36 0 Chapter 5 directly challenges the music industry’s claim that “online piracy” is responsible for most, or all, of the drop in music retail revenue since the turn of the century. Using the music industry’s own published sales data as a foundation, I review the many other factors that contributed to the “perfect bubble” in music sales from 1985-2000, as well as those that led to the “perfect storm” beginning in 2000. I conclude the chapter by examining some of the industry’s claims of significant losses in jobs and productivity attributed to piracy. I show that these claims are not only baseless, but are given the veneer of legitimacy through repetition by reputable sources, and are then used as justification for stricter antipiracy laws and policies.

¶ 37 Leave a comment on paragraph 37 0 Chapter 6 investigates the role that the music industry’s own actions have played in undermining its goodwill, and therefore its market value and commercial earning power. The chapter begins by examining the industry’s historical dealings with artists, consumers, and business partners, showing that, in each case, it has relied upon its oligopolistic market dominance to exact concessions that have generated a simmering reservoir of badwill against the industry. The chapter then looks at the industry’s more recent “public education” and mass litigation campaigns, exploring the ways in which they have further undermined public trust and respect. Finally, the chapter concludes by reviewing some of the other major public relations fiascos the industry has faced in recent years, from corruption scandals to massive computer hacking charges.

¶ 38 Leave a comment on paragraph 38 0 The third and final section of the book focuses on the “collateral damage” of the piracy crusade, measured in terms of delayed innovation, failed enterprises, and, most importantly, threats to free speech and civil liberties. The book concludes by arguing that the costs will only continue to mount as we come to rely on networked communications increasingly in our personal lives, public affairs and social institutions.

¶ 39 Leave a comment on paragraph 39 0 Chapter 7 uses interviews with music industry executives and visionary digital music entrepreneurs to present case studies for five failed digital music initiatives over the past 15 years. Although these initiatives are differentiated by the years and circumstances in which they arose, each faced a similar fate: because the major record labels refused to grant them viable licenses, they were unable to spread their innovations to musicians and audiences, impoverishing both the marketplace and the musical public sphere. Ultimately, my industry sources explain, these initiatives were starved to death or sued out of existence not because they lacked market viability, but precisely because they possessed it; factions within the major labels, afraid of competition and unwilling to take risks, opted to control a diminished marketplace rather than to share a growing one.

¶ 40 Leave a comment on paragraph 40 0 Chapter 8 examines the most devastating consequences of the piracy crusade: namely, the increasingly draconian laws and policies that have governed the use of intellectual property since the dawn of the web. The chapter aims to show that, far from isolated responses to discrete legal threats, these laws and policies represent a coherent and consistent “antipiracy agenda” that sacrifices constitutional rights, civil liberties, and international relations in the name of protecting the outmoded business models of a few multinational corporations. The chapter also traces the origin of these policies to billions of dollars in lobbying and campaign finance spent by these companies and their trade associations. Finally, the chapter explores the very real social and political consequences of the antipiracy agenda, from organized crime to political repression to the loss of millions of lives.

¶ 41 Leave a comment on paragraph 41 0 Chapter 9 concludes the book by looking at the potential long-term costs of the piracy crusade. What will the world look like in a generation or two, if the antipiracy agenda continues to progress, while networked communication technologies continue to advance and proliferate? How can interpersonal relationships, creative communities, and democratic political processes survive in an environment in which every song, every email, and every debate is subject to potential surveillance, censorship and misappropriation by powerful and unaccountable commercial and government institutions? In addition to asking these questions, I also review several alternatives to the piracy crusade promoted by both legislators and independent scholars.

¶ 42 Leave a comment on paragraph 42 0 Finally, I conclude by suggesting that the very notion of “copyright” itself is based on an industrial metaphor whose expiration date has long since passed. In an era such as ours, in which our lives are so thoroughly mediated by communication technologies, the line separating copying from expression can’t even be defined, much less policed. Ultimately, I am hopeful that we can develop new methods of encouraging cultural and technological innovation while providing economic benefits to those who contribute creatively and financially to the process, in a way that safeguards free speech and civil liberties now and for the foreseeable future. But before we can get there, we’ll need to end the crusade.