Issue - Politics and Money

Media Piracy: The Infinite Futility in Copyright

Protection and Supervision
Author: Dr Trajce Cvetkovski

Date: 01 October 2009

The Internet is a gigantic resource. It includes a large and ever-growing volume of media
material that is more and more readily downloadable. Why is it that electronic media
piracy has become so commonplace and so acceptable? What is its history, and what is its
future? Trajce Cvetkovski explores these questions.

How effective are copyright laws? This question is historically relevant in that, since the
inception of modern copyright legislation in 1709 (Statute of Queen Anne), and the
subsequent common law recognition of media piracy as far back as 1769 (Millar v Taylor
[1769]), relatively little appears to have been achieved in terms of stemming the flow of
illegal consumption over the past 300 years. That is, from printing press “media pirates” to
cassette peddlers, CD burners and MP3 peer-to-peer (P2P) rippers, we have witnessed three
centuries of carte blanché media piracy in the West. And what is also interesting is that
modern copyright laws and media piracy evolved at approximately the same time as the
dominant Western political ideology – liberalism.

Liberalism is concerned with limiting the extent to which the state regulates individual
behaviour. The state, through the legal system, sets the limits to interference by establishing
the principle that the only end for which it is legitimate to interfere with the liberty of an
individual is to prevent harm to others by way of a morally driven legal code (for example
preventing acts of criminality against persons or property or any form of physical or tangible
harm). This “freedom from interference” ideology in the modern sense may be traced back to
John Stuart Mill‟s 19th century “harm principle,” where in the absence of external constraints
on individuals, people choose which way to lead their lives.

One fundamental tenet of liberalism, important for understanding consumer behaviour in

terms of piracy, is its emphasis on equality and freedom (also known as “negative” or
individualistic freedom). Liberalism, is concerned with ensuring that individuals are able
make their choice rather than having it imposed on them by society, state – or in the case of
media consumption – corporate citizens (such as the the major film players in Hollywood and
the handful of major music record companies).

The dilemma for the major players who jealously guard, protect, supervise and otherwise
maintain copyright is that ordinary citizens do not see any tangible harm in illegal media
consumption. When it comes to media piracy, individuals appear to rationalize the difference
between “soft” and “hard” morals, and somehow distinguish the difference between “real”
and “virtual” crime.

For example, by way of general deterrence, people accept that stealing a physical or tangible
product from a store would ordinarily lead to prosecutorial action (if caught). Such behaviour
is deemed socially inappropriate or deviant. But file swapping, copying CDs for friends and
basic media sharing appears to be socially acceptable. This observation is empirically
grounded because the statistical data tendered in the most notable MP3 piracy cases Napster
(US 2000), Kazaa (Australia 2005), Cooper (Australia 2005) and Pirate Bay (Sweden 2009)
revealed millions of individual internet subscribers were actively downloading music and
film at any given time. These people were not organized pirates, but rather ordinary citizens
in the (mistaken) belief they were exercising their personal rights and freedoms.

I suggest that in Western democracies, the notion of “harm” does not extend to acts of media
piracy; or specifically, any recognition by individuals that illegal entertainment consumption
creates harm to “others”. The primary reasons for a perceived lack of recognition are two-
fold:

a) Individuals appear not to recognise that illegal consumption is harmful to corporate

citizens when compared to say obvious acts of harm as mentioned above; and
b) Individuals in a liberal society are naturally suspicious of dominant institutions, and
therefore regard the state, large corporations and their associate organisations as entities that
actively interfere in negative freedom.

Combined, these elements create an environment where individuals utilise new technologies
to express and protect personal autonomy and individual expression from perceived
constraints and arbitrary power of corporations and government regulators. In previous
centuries these constraints related to free speech, free assembly, or freedom of expression, or
any other acts tantamount to “oppression”. In the modern context this expression extends to
copying copyrighted material.

Liberalism remains the dominant political theme in the piracy cases. In terms of recent
doctrinal developments, several significant cases throughout the West over the last decade
have attempted to deal with the issue of digital media piracy in a reactive manner by applying
legal principles dogmatically. Suffice to say, the relevant case law indicates that protracted
litigation is a core feature in piracy cases in all jurisdictions. Complex procedural and
substantive legal argument dominate the proceeding, such as resolving conflict of laws issues;
identifying the relevant parties, including third parties; ensuring the chain in causation has not
been broken; determining whether any cause of action actually exists; and, in some cases,
establishing liability beyond reasonable doubt once reversing the onus of proof has occurred.
An examination of copyright case law supports the argument the majors‟ policies and
strategies have been disjointed. Indeed there is negligible doctrinal evidence to support the
conclusion that media piracy is capable of being consistently controlled through legal and
related prosecutorial action. In many of these cases, defences are made on the balance of
probabilities (lower standard of proof than a prosecution), thereby weakening the prospects of
securing a win against pirates and illegal consumers. And in all significant cases, once a
matter has been determined in favour of the prosecution, the critical issue of deterrence (both
general and specific) must be determined. In non-legal terms, specific action might shut an
illegal operation down, but generally a new site is created and the cycle perpetuates. What is
missing from the debates is any critical analysis of the deterrent value placed on legal
outcomes (judgements). Furthermore, whilst all of these cases have gained significant
publicity, the recent Pirate Bay case has been the only one to date where the proprietors were
given custodial sentences (which are being appealed in any event).

There is no evidence to suggest these “prosecute, protect or die” polices have made any
significant impact. The main reason for the suggestion that the corporate response has been
deficient is not aimed at the above methods and techniques employed by the major players.
Rather, the political ideology of freedom and liberty as espoused by liberalism is so ingrained
in the psyche of individual “atoms” enjoying freedom of technological emancipation and
creative expressions (akin to free speech), that any perception that copyright infringement is
illegal is continuously subordinated by beliefs that free media sharing is not a crime because
corporations are not “living” per se and are not capable of being hurt.

Aggravating the legal issues such as general deterrence is the fact that technological
developments to prevent illegal consumption appear useless in the face of technical loop-
holes and “tech-tricks”. If anything, access to new technologies has brought about
democratising effects. Indeed some of these factors are positive or “enabling” because
technologies have also universally (and legitimately) enabled consumers to choose products
freely and without corporate influence. Specific new technologies have assisted in
emancipating those who previously could not consume media. Another ominously potent
feature of the Internet is that it facilitates many websites which provide the „free tools‟ to
enable the downloading of high quality music from music websites. This has proved to be a
most popular form of Internet use in the last five years. New technologies have paved the
way for various types of illegitimate user – from the most sophisticated to the most basic of
grass-roots illegal consumer.

To complicate matters, several categories of illegal consumer exist. The most obvious relates
to organised pirates as major operators, akin to say, experienced drug manufacturers. It is not
surprising, therefore, the major players always react to any meaningful challenge with a great
deal of force. Any serious challenges that affect high levels of profitability are dealt with
swiftly and vigorously. In short, the majors are notoriously well known for entering into
protracted and acrimonious litigation in order to assert their IPRs.

But sophisticated pirates are not the only official targets. In its aggregated form, illegal music
consumption is a complex form of social behaviour. The line between curious browser and
serial downloader has easily blurred as a direct consequence of technological advancement.
In addition to sophisticated national and international pirates (organised crime), there also
exist:
a) Small time operators (for profit);
b) Home users burning CDs for friends and family (not necessarily for profit); and
c) Curious users – downloaders („rippers‟).

Not many piracy cases have made it to court, so it must be argued that, in recent years, the
deterrent aspect has been minimal. Despite these general observations, the current
environment in which anti-piracy policies are being implemented is of particular interest and
concern because the literature shows the key actors have traditionally adopted both reactive
and anticipatory policies in order to ebb the flow of illegal consumption. This tends to
suggest these policies have produced mixed results despite the fact the industry is combating
the damage to copyright property more strenuously than it ever has before.

Unfortunately, there appears to be little room for copyright recognition in these liberal
cyberspace domains. The impact new technologies have made on copyright controllers
generally is evident simply by performing a cursory view of the Internet. Currently,
thousands of discreet avenues exist for media consumers. These developments must be
viewed as negative and debilitating for the owners of copyright because of the loss in revenue;
but positive for those who believe in the democratisation (or rather, emancipation) of media
consumption. And to add further insult to injury, educational campaigns focussing on the
“evils” of media piracy have flopped miserably. It seems hard for individuals to sympathise
with multinational majors because they exist in an unnatural state.

To complicate matters even further, there is virtually no proper debate about stemming the
flow of media piracy in non-Western nations. Discussion in this arena is promoted by
Western governments, and it is arguable that these policies are deemed eurocentrically
imperialist in their delivery. The end result is that non-Western nations appear to be
jurisdictionally neither benign nor malevolent – but rather ambivalent in terms of media
piracy. Such inaction strongly suggests that it is left to the West to combat piracy on a global
scale but without proper international co-operation.

The proliferation of digital piracy (especially in terms of CD/DVD replication and MP3/AVI)
downloading has posed great threats to the major players as they comprise the bulk of the
media entertainment industry. But historically, corporate citizens have always felt threatened
by this perceived lack of recognition in proprietary copyright interest. The 18th century was a
great period for modern liberal ideological development where the fundamental tenets of
individual freedom and limited state interventionism were being developed in the US and
Britain. Given the fact that wholesale organized piracy and private home file
swapping/taping/burning and ripping are not new phenomena suggests a media-for-free
attitude is inherently ingrained in modern popular culture. If it is prima facie against the law
to infringe copyright, what is the fundamental legal basis for this purportedly accepted social
activity?

This structural shift commenced precisely at the point in which the Internet commenced to
become the major cultural gate keeping forum. It is trite law to state copyright protection
exists in cyberspace. But with the advent of personal websites and networking sites such as
Facebook and MySpace, it is quite clear the Internet has become the new forum and the new
market place where money is not necessarily exchanged. This low-level regulatory
environment has made it virtually impossible to monitor and review protection.

Under these circumstances, it is doubtful whether media piracy is capable of being labelled as
criminal let alone curtailed. Court action is costly and inefficient, formal educational policies
have had minimal impact, and emerging technologies encourage illegal consumption. One
way of confirming that prosecutorial and educational programs do not work is by examining
just how many offenders have had “exemplary” damages awarded against them for flagrant
infringement. The doctrinal evidence does not support acts of flagrancy. The fact that media
piracy has successfully thrived and therefore protectionist strategies have spectacularly failed
suggests that significant tensions between liberalism, technology and copyright law remain
and have existed concurrently ... for exactly 300 years.

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