When piracy goes mainstream

I was quite taken aback to discover a very interesting article posted on the ABC news network’s Technology Blog, called The Case For Piracy. What I found surprising about this, was that a mainstream media company had actually published an article that presents an argument defending piracy. What is also quite interesting is the sheer number of positive comments about this article. After taking some time to read through the article, I felt quite split in my opinion on the matter.

I want to question whether this really is a legitimate case for illegally copying and sharing digital content. A small voice inside me keeps saying no.

Nick Ross, the author of the article, presents his argument based on the grounds that copyright owners persist in the maltreatment of consumers in such a way that it ultimately makes sense for a consumer to resort to piracy and that copyright owners have brought this situation onto themselves. I think that this is a very strong claim that may initially sound tenable to a lot of consumers, but is it realistic?

There are a number of things to keep in mind here. The first is that, in general, most of the content that is pirated actually falls under a “luxuries” market, as opposed to a “necessities” market. This means that you really do have a choice. If you don’t like how a company does its business, don’t use its service and write a letter of complaint. Get other people to join your cause and let the company know how it can improve its service so that it can build its customer base. These are the usual actions that civilized people take. You don’t just loot a store because the way they do business upsets you.

Ross and his supporters may counter such a point by saying that there are no alternatives due to the exclusive nature of copyright or due to the exclusivity of the broadcasting rights of the owner. But this is the nature of the beast.

Things cost money to produce, and producers have a right to profit on their work. Exclusivity protects that right. You may feel sympathy for Ross with regard to things like the particular sports matches that he is so adamant that he deserves access to?

Ross needs to realise that the purchasing of exclusive broadcast rights on these matches, is what pays for the matches in the first place. But the law doesn’t just fall heavily on the side of big corp and forget about the little guy. In fact, at the beginning of this month, the European Court of Justice passed a law that undermines exactly such exclusivity, permitting end-consumers the rights to access content from other legitimate providers. Granted the author is based down under, where this law doesn’t apply. But the point is that these things can be solved legally, it just takes time.

Ross actually undermines his own argument with regard to the music industry. He points to the many non-DRM services that have opened up and also admits making use of legitimate pay-for-use streaming services such as Pandora and Last.fm. The music industry is catching up with the demands of its consumers, and accepting that if it wants to survive it needs to meet these demands and provide reasonable options to do so.

In fact, EMI stopped using DRM back in 2007, and it is pretty rare to find an actual record label still using this technology today. Once again, it is worthwhile looking back at how the law has progressed to protect consumers in these areas.

Right back to two-track tape decks, in the famous case of CBS Songs v. Amstrad (1988) in the UK, Amstrad won on the grounds that although it provided a facility that allowed copyright infringement, it was powerless to prevent it. Currently, in the US, under “The Audio Home Recording Act” (AHRA) of 1992 it is perfectly legal to make a copy of the media that you own for personal use (i.e. backing up a CD collection to MP3 format).

The same state of law exists in the UK, Australia, New Zealand and Spain. While pirates may have encouraged these changes, it is questionable as to whether there is still a legitimate case for piracy in this area.

This also makes me think back to the interesting case against the UK torrent network called Oink. Alan Ellis, the creator of the Oink file sharing software, was the first person in the UK to appear in court regarding internet file sharing. He was charged under criminal law with conspiracy to defraud. In court, Ellis argued that Oink was a private internet community, allowing members by invitation only, although he had made a considerable sum from donations from users, at least over £180 000, he made no money on advertising and the service was essentially for friends only. In fact, the prosecution’s case failed and Ellis was acquitted.

It seems that the law found in favour of Ellis on the grounds that he was not actively marketing the sharing of music for profit, and that he had kept the file-sharing network private. While the network was finally shut down, the point is that the law is there to protect the producers of intellectual property but it also protects the rights of individuals.

I’m generally pretty limited in the number of words I can use in an article here, so unfortunately I cannot really get into any real depth on this issue. But I am dismayed that people have reached a point where their only strategy for change is to break the law. The law is not necessarily your enemy. Where you feel that it has been wrongfully implemented, lobby for change, but whatever you do, don’t whinge about how isn’t really a crime, because the big bad corporates are actually evil and deserve their come-uppance.

Of course, I have my own gripes with copyright law and with the media industry in general, but I’m not going to even attempt to say that my breaking the law is justified with regard to a bunch of luxuries that I really don’t need.