A pyrrhic victory

A bad week for pirates is capped by the big computing story of the day when the Swedish courts found against the founders of the Pirate Bay. Fredrik Neij, Gottfrid Svartholm, Peter Sunde and Carl Lundstroem have all been sentenced to a year in jail and have been fined a total of 30 million kroner (about $3.5 million US).

The precise logic of the ruling is hard to follow, not least because the Pirate Bay does not host a single file, but simply allows users to search for bit torrents hosted on other websites. Sure, it can be used to find and download copyrighted content, but then so can Google. Of course, one might argue (as have several record company lawyers on the news today), “it’s called the PIRATE BAY! What do think they were doing?” But, pursued to its logical conclusion, that argument would imply that if the site had been re-named it would have been OK. It doesn’t seem like a particularly watertight legal position.

Ultimately, I would suggest this is a bad day for everyone involved. I don’t like these narrowly defined, two-sided arguments, where you have to be with either the record companies or the pirates, because the matter is rather more complex than that. Most people would agree that artists, software developers and the like should be able to make some kind of living out of what they do. Furthermore, it is quite clear that the Pirate Bay guys have a complete disregard for any kind of copyright law, to the point of it being an ideological position (in fact, to the extent that their is a pro-Pirate Bay party in Sweden). But this certainly doesn’t mean we should automatically side with the record companies, for a few reasons.

• Hypocrisy. Record companies are now crying out about copyright law, but spent precious little time talking about it in the past, even though the whole edifice was a joke. Indeed, just this week, a survey found that the United Kingdom had the most outmoded copyright law among 16 countries examined. Ever put a CD on your iPod or even your PC? You broke the law. Ever make a tape of a from a recording you owned? Once again, you broke the law. If our legal framework can’t really cope with the innovation of the tape deck, it is little wonder it is struggling with peer-to-peer bit torrenting. Why were the record companies so blasé about a flawed regime? In the past, these failings didn’t cost them money. Now they do. It is a really obvious point to make, but it is worth reminding ourselves because it is so at odds with all their rhetoric about a fair deal for all: the entertainment industry is really only interested in its bottom line. 
• Undermines creativity. In the future, it is vitally important that content is free. But let’s be clear what we mean by this:that is free as in speech, not as in beer. In other words, it doesn’t really matter if you can download the latest Madonna album without paying any money (in other words, that it is free as in beer), but it does matter that you can use samples from it to engage in a creative project or do a mash up without fear of a major record label coming after you (free as in speech). The danger is that decisions such as the Pirate Bay empower record companies to attempt to crush both forms of free use without distinction, as EMI tried with DJ Dangermouse’s Grey Album and the accompanying Grey Video. In theory, such activities might be protected by a fair use claim (technically a facet of American law, but frequently cited elsewhere, at least rhetorically). But the reality is somewhat different. Right holders have a tendency to greatly overstate their claims. Viacom, for example, used litigation to get 100,000 clips removed from YouTube with no regard as to whether the individuals who posted them had a fair use claim.
• It is bad for all of us if the entertainment industry dictates the terms of copyright. Duke University law professor James Boyle has just published The Public Domain: Enclosing the Commons Mind, which deals with exactly these issues (incidentally the book has been published under a Creative Commons licence and can be downloaded here. I also have to flag up that he has also authored a copyright themed comic. I kid you not). Boyle makes two important points for our discussion. First, a huge proportion of creative material from the 20th century is essentially under lock and key, and cannot (or at least without the requisite fees being paid) be used for new projects. This makes the era we are living in distinct from others that preceded it, where a much higher proportion of material was available for re-use – thus, it fails the free as in speech test. Second, if a society wants to encourage creativity, there is a balancing act between, on the one hand, overly controlling information and, on the other hand, ensuring that artists exist in some kind of legal framework where they are paid for their work in order to create incentives. While in many ways contradictory, these two ideas actually have to co-exist – and that is where the Pirate Bay model fails, as it does not offer incentives for creativity. But it is also really important we do not let corporate interests dictate the terms of the co-existence, as their tendency will be to control content (as pretty much the entire history of the popular entertainment era demonstrates), rather than making it open and accessible.
• They can’t win. This war isn’t winnable. Despite today’s ruling, the Pirate Bay is still up, proudly telling their readers: “Don't worry - we're from the internets. It's going to be alright.” Even if the Pirate Bay does get taken down, something else will take its place. But it is even worse than that for the record companies. Digital copyright infringement is a bit like the broom in Fantasia (yes, I know I am linking to an illegal video – my defence is fair use, since the metaphor is a good one!). As Ori Brafman and Rod Beckstrom argue in their book The Starfish and the Spider, every time the music industry kills one model of file-sharing, a more decentralized, harder to kill system emerges to replace it.
• The future is new models, not defending the old one. There is some hope. As it happens, as I write this, I am listening to the Rolling Stones Hot Rocks (Amazon price for the CD, £15.48) for free and completely legally on Spotify, the streaming service with an iTunes-type interface on it. I much prefer this approach to the tactics of the pirates, but the fact it has taken the best part of a decade to get here tells you everything you need to know about the record companies’ approach to these matters.

[Originally published on nickanstead.com]