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Pirates vs Artists

Pirates vs Artists

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Published by Powers
Copyright Paper by Austin Corbett
Copyright Paper by Austin Corbett

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Published by: Powers on Mar 18, 2008
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07/06/2010

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Austin Corbett
Pirates vs. Artists
The Real Debate Behind the Copyright Wars
[It’s important that] the seeds are sown which willgrow up into free speech, free singing, and the free pursuit of happiness that is the first and simplest birthright of a free people. For with their songschoked and their pamphlets condemned, their freedom…will just be a rich man’s word to print inhis big papers and holler over his radio, it won’t bereal, it will only be a word.-Woody Guthrie
1
In the summer of 1999, Shawn Fanning developed a new tool to help him search for mp3files at his university: Napster.
2
By February 2001 the service boasted 26.4 millionusers.
3
 In a media storm of publicity, the service was later shut down, but it brought the problems of copyright, file-sharing, and the internet into the public eye for the first time.In the commentary that followed the shut-down of Napster, most pundits spoke about theneed to protect “intellectual property,” and how file-sharing allowed “pirates to steal fromartists.” The opposing camp argued that file-sharing wasn’t taking away CD sales, andoften served as a powerful marketing tool. Since then, this has continued to form the coreof the debate on file-sharing, as it has moved from service to service, and expanded toinclude massive sharing of movies and software, primarily through programs such as bittorrent. The MPAA and RIAA have gone from shutting down the software developersto shutting down websites and suing individual users. But the debate about file-sharinghas rarely risen above this level of pirates vs. artists. The real issues of copyright andfile-sharing are much broader, much more complex, and much more important than is
1
W. Guthrie,
 Pastures of Plenty
, pp. 54-55, quoted in Kembrew McLeod,
 Freedom of Expression
, pp.333-334.
2
Hyperlinks will not be shown in the footnotes; they can be found in the Bibliography.
3
Jupiter Media Metrix, “Global Napster Usage Plummets,” July 20
th
2001.
2
 
Austin Corbettcommonly realized. The confluence of technology, corporatism and ubiquitous mediahas created a storm of problems and solutions that haven’t even begun to play out in our Information Society. I will attempt to trace the evolution of this problem and what iscurrently at stake today for all involved, (and everyone IS involved) before attempting to postulate certain directions the debate will take in the future. As I will attempt todemonstrate, at its most basic level the debate comes down to one fundamental issue thatthe global economy must eventually decide. Do we want to live in a society wherefreedom of speech and expression is a right, or one in which every thought, idea, artisticcreation and public resource is a commodity to be bought and sold?
What is Intellectual Property?
“I’m all for destroying their machines,” said Hatch in2003 during a Congressional Committee hearing,referring to those who trade music files. “If you havefew hundred thousand of those [viral bombs], I think  people would realize the seriousness of their actions.”-Senator Orrin Hatch (Republican, Utah)
4
At the most basic level, copyright is one area of law that deals with the problem of “intellectual property,” our ideas, expressions and inventions. But before exploring thehistory of copyright, we must understand what IP actually is. Jack Valenti, the former head of the MPAA stated at the 1982 Sony v. Universal, Betamax trial, “Reasonable menand women will keep returning to the fundamental issue, the central theme whichanimates this entire debate: Creative property owners must be accorded the same rightsand protection resident in all other property owners in the nation”
5
On the face of it, this
4
T.C. Greene, “U.S. Senator would destroy MP3 traders’ PCs,”
The Register,
18 June 2003.
5
Lawrence Lessig,
 Free Culture: How Big Media Uses Technology and the Law to Lock Down Cultureand Control Creativity
(New York: The Penguin Press, 2004), 117.
3
 
Austin Corbettseems to be a perfectly legitimate statement. As Ayn Rand stated, “Patents andcopyrights are the legal implementation of the base of all property rights: a man’s right tothe product of his mind.”
6
But while this is a simple and clean answer, it’s also wrong.As Lawrence Lessig points out in
 Free Culture,
“If creative property owners were giventhe same rights as all other property owners, that would effect a radical, and radicallyundesirable, change in our tradition.”
7
At the most basic level intellectual property is notthe same thing as physical property, and never before have the two been equated as equal.The effort to equate the two has nothing to do with tradition or law, but instead representsan attempt to drastically change the meaning of IP.The US constitution has many safeguards on private property. Under the FifthAmendment, the government must pay “just compensation” in order to acquire private property.
8
Yet in the section discussing Intellectual Property the same rights are notaccorded to IP. Instead the Constitution
requires
that after a limited time IP rights bereleased to the public, without any sort of compensation. The Constitution never statesthat “creative property” is an inalienable right. Instead, in the “Progress Clause” it statesthat,
Congress has the power to promote the Progress of Science and useful Arts, by securingfor limited Times to Authors and Inventors the exclusive Right to their respectiveWritings and Discoveries
.
9
6
Adam Thierer and Wayne Crews, eds.,
Copy Fights
(Washington D.C.: Cato Institute, 2002), xvi.
7
Lessig,
 Free Culture,
188.
8
Lessig,
 Free Culture,
119.
9
U.S. Constitution, art. 1, sec. 8, cl. 8
4

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