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2 Austin Corbett

Pirates vs. Artists


The Real Debate Behind the Copyright Wars

[It’s important that] the seeds are sown which will


grow 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 songs
choked and their pamphlets condemned, their
freedom…will just be a rich man’s word to print in
his big papers and holler over his radio, it won’t be
real, it will only be a word.
-Woody Guthrie1

In the summer of 1999, Shawn Fanning developed a new tool to help him search for mp3

files at his university: Napster.2 By February 2001 the service boasted 26.4 million

users.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 the

need to protect “intellectual property,” and how file-sharing allowed “pirates to steal from

artists.” The opposing camp argued that file-sharing wasn’t taking away CD sales, and

often served as a powerful marketing tool. Since then, this has continued to form the core

of the debate on file-sharing, as it has moved from service to service, and expanded to

include massive sharing of movies and software, primarily through programs such as

bittorrent. The MPAA and RIAA have gone from shutting down the software developers

to shutting down websites and suing individual users. But the debate about file-sharing

has rarely risen above this level of pirates vs. artists. The real issues of copyright and

file-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 20th 2001.
3 Austin Corbett

commonly realized. The confluence of technology, corporatism and ubiquitous media

has 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 is

currently 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 to

demonstrate, at its most basic level the debate comes down to one fundamental issue that

the global economy must eventually decide. Do we want to live in a society where

freedom of speech and expression is a right, or one in which every thought, idea, artistic

creation and public resource is a commodity to be bought and sold?

What is Intellectual Property?

“I’m all for destroying their machines,” said Hatch in


2003 during a Congressional Committee hearing,
referring to those who trade music files. “If you have
few 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 the

history 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 men

and women will keep returning to the fundamental issue, the central theme which

animates this entire debate: Creative property owners must be accorded the same rights

and 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 Culture
and Control Creativity (New York: The Penguin Press, 2004), 117.
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seems to be a perfectly legitimate statement. As Ayn Rand stated, “Patents and

copyrights are the legal implementation of the base of all property rights: a man’s right to

the 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 given

the same rights as all other property owners, that would effect a radical, and radically

undesirable, change in our tradition.”7 At the most basic level intellectual property is not

the 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 represents

an attempt to drastically change the meaning of IP.

The US constitution has many safeguards on private property. Under the Fifth

Amendment, the government must pay “just compensation” in order to acquire private

property.8 Yet in the section discussing Intellectual Property the same rights are not

accorded to IP. Instead the Constitution requires that after a limited time IP rights be

released to the public, without any sort of compensation. The Constitution never states

that “creative property” is an inalienable right. Instead, in the “Progress Clause” it states

that,

Congress has the power to promote the Progress of Science and useful Arts, by securing

for limited Times to Authors and Inventors the exclusive Right to their respective

Writings 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
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Enshrined in the Constitution is the right of Congress to promote progress, through

limited copyright; not the right to create and enforce IP rights. In a legal sense, the whole

idea of IP is a monopoly, granted by the government to allow creators, (specifically

Authors and Inventors) to profit from their ideas for a limited time. In 1790, when

Congress passed the first copyright law, this limited time was 14 years, plus another 14 if

the author was still alive when the first term ended.10 Many of the uses that are now

prescribed where not controlled. Derivative works were not controlled, and if an author

wished copyright to apply, they had to register their work and place a copy in the Library

of Congress; otherwise it was assumed to be in the public domain. This requirement,

called a “formality” preceded from the belief that most works did not require copyright.

In the first ten years after the Constitution was framed, 95% of works were not

copyrighted, illustrating that the law and societal norms were closely aligned. By

requiring that a copy of the work remain in public hands, the law also assured that the

work would not be lost after the copyright expired. In essence, the Copyright Law of

1790 was aimed at regulating one small area of cultural creation. It was designed to

prevent one publisher from taking the work of an author and publishing it for profit

without receiving permission. As there were only 174 publishers in the U.S. at the time,

the Copyright Law was extremely limited in its scope.

Today, Copyright Law has grown larger and larger, regulating an ever larger group of

activities in an ever more strict way. Intellectual Property has never been a natural right;

Thomas Jefferson stated, “The exclusive right to invention is given not of natural right,

but for the benefit of society,” yet today, many people assume differently.11 How did IP,

10
Lessig, Free Culture, 133.
11
Thierer, Copy Fights, 5.
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and the trademark, copyright, and patent law that protects it change to facilitate this

radical re-envisioning?

How we got here.

Something is wrong in Diablo Day Camp this year.


At the 3 p.m. sing-along in a wooded canyon near
Oakland, Calif., 214 Girl Scouts are learning the
summer dance craze, the Macarena. Keeping time by
slapping their hands across their arms and hips, they
jiggle, hop and stomp. They spin, wiggle and shake.
They bounce for two minutes. In silence.
“Yesterday, I told them we could be sued if we played
the music,” explains Tessie King, camp co-director
and a volunteer mom. “So they decided they’d learn
it without the music.” Watching the campers’ mute
contortions, King shakes her head. “It seems so
different,” she allows, “when you do the Macarena in
silence.”
-L. Bannon12

The first law governing the right-to-copy was created in 1710, in England, and was called

the Statute of Anne. It gave authors the exclusive right to copy and distribute their work

for 14 years, renewable once if the author was alive. Existing works were given 21 years.

The law gave the right for a limited time only because copyright was understood as a

monopoly, and thus deserving of a limited term. The argument, “It’s my property and I

should have it forever” is far less convincing when framed as “It’s my monopoly and I

should have it forever.”13 Furthermore, it was understood that unless limited terms on

these monopolies were enforced, small groups of people could control and censor free

speech, by enforcing copyright. This belief was not truly tested until 1774.

12
L. Bannon, “Birds sing, but campers can’t—unless they pay up,” Minneapolis Star Tribune, 24 Aug.
1996, E10.
13
Lessig, Free Culture, 88.
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The debate over copyright in England in 1774, like the debate today, centered around the

problem of “piracy.” Scottish publishers were taking works whose copyright had expired

and republishing them, a process that was legal under the Statute of Anne. But the

English publishing cartel, the Conger, argued that when they acquired author’s works,

they acquired a common law right to that property, a right that trumped the Statute of

Anne. They had one several previous court cases with this argument, but in 1774, the

House of Lords voted that this was not the case. There was no common law right to a

work above the right-to-copy. When a work’s copyright expired, it did not remain the

author’s property, but entered into the public domain. In Scotland there was, “Great

rejoicing…upon victory over literary property: bonfires and illuminations.”14 By creating

the idea of a public domain that works would naturally enter into, England assured that

literary culture would remain free. Free in the sense that culture and its growth would not

be controlled by a cartel of publishers, but would be instead controlled by the market.

Consumers and producers would be free to chose what to read and create, in a

competitive context; rather than a small group making the choice for them, by limiting

availability and enforcing copyright.

Protect the Mouse!

“Sonny [Bono] wanted the term of copyright


protection to last forever. I am informed by my staff
that such a change would violate the Constitution. I
invite all of you to work with me to strengthen our
copyright laws in all of the ways available to us. As
you know, there is also Jack Valenti’s proposal for a
term to last forever less one day. Perhaps the

14
Lessig, Free Culture, 93.
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Committee may look at that next Congress,” – Mary


Bono15

Since the establishment of copyright, the original vision of a free culture has been lost.

Until 1962, copyright lengths were changed three times in the U.S., extending the term to

a maximum of 58 years. Since 1962, copyright terms have been extended 11 times.

Copyright terms have also been extended to corporations, so that they may hold copyright

on items as legal entities. To further exacerbate the problem, by 1992 Congress had

eliminated the renewal of copyright for all works. All works now receive the maximum

copyright term, without the need to renew it half way through. Combined with the Sonny

Bono Copyright Extension Act (CEA) of 1998, this sets expiration of copyright at 95

years after the author’s death, or in the case of corporations, 95 years after creation. No

work more recent than 1923 will enter the public domain until 2019. Furthermore, there

is no guarantee that Congress will not extend copyright terms again, further distancing

the possibility of post-1923 works from ever entering the public domain. This is in direct

violation of the Constitution, which explicitly states that copyrights are for, “limited

Times.” If Congress is free to continue extending copyright indefinitely, than “limited”

becomes “unlimited.” These extensions orphan the public domain, preventing any works

from entering it. This situation is made yet worse by other changes in copyright over the

past 30 years. The “formalities” of copyright, discussed earlier, are no longer applicable.

Before, to copyright something, you had to register it, place a copy in the Library of

Congress, renew it after the first term expired, and prominently display a notice of

copyright on the product (the © symbol.) If these procedures were not followed, the

work was not copyrighted. In order to “harmonize” IP laws internationally, Congress

15
Cong. Rec., 144th Cong., H9946, 9951-2
9 Austin Corbett

changed these laws, adopting a European model first proposed at the Berne convention.

After 1976, all new work was assumed to be under copyright, and no formalities had to

be undertaken to ensure this. This act not only blurred the lines between the public

domain and copyrighted works, (how do you check if something is copyright or not?) but

also seriously weakened the public domain itself. Since copyrights are in reality now

nearly indefinite, the public domain has been virtually destroyed.

There is only one reason for this unprecedented expansion in the duration of copyright.

Copyright has been extended to protect the tiny minority of creative works that continue

to make money today, decades after they were created. The most cited example of this is

Mickey Mouse. While the Mickey Mouse character itself is a trademark, and therefore

will never become part of the public domain, the original shorts of Mickey Mouse, as

well as overall copyright on the character will. (Currently, they will enter the public

domain in 2024.) This would mean that derivative works based on Mickey Mouse would

be legal. The Disney Corporation would have to compete with others using “their”

character. It is therefore no surprise to find out the Disney Corporation was the key

lobbyist behind the Sonny Bono CEA in 1998. Before this act, the copyright on Mickey

would have expired in 2003. By extending copyright another 20 years, Congress handed

Disney Co. a billion dollar monopoly on Mickey Mouse. But the most grievous harm

caused by this extension is the virtual destruction of American cultural history.

Most books stay in print for less than 5 years. “In 1930, 10,047 books were published.

In 2000, 174 of those books were still in print.”16 To archive those out-of-print books,
16
Lessig, Free Culture, 222.
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and preserve them for future generations is nearly impossible today. You’d have to

determine which of those books are still under copyright by labouriously cross-checking

the titles and authors of the remaining 9, 873 books against the copyright registration and

renewal records (Records which ceased to be updated after 1976.) Then, for the works

still under copyright, you would have to track down the current copyright owner as no

general list exists. Generally, the author of the work may not hold the copyright, or it

may be passed down through a family, further complicating the issue. For books, this

means that they will never be digitized, even for archival purposes, as this violates

copyright, and will instead slowly rot and be lost.

Films represent an even greater challenge. The great majority of film has no continuing

commercial value, but is still protected under copyright. The technical costs to digitize

these films are minimal. ($200/hr to digitize, virtually free for every subsequent copy.)17

The legal costs however, are enormous. A film does not have a single copyright owner, in

most cases the copyright for a film is owned by dozens of people and companies. To

archive it without permission from all copyright holders is not only a felony, but allows

the owners to sue the company for revenue collected. For the vast majority of films, the

legal costs to secure archival rights outweigh any other considerations, and so many films

will never be digitized before their copyright expires. But these films are on nitrate-

based stock, which dissolves over time. With the continual extension of copyright, many

of these films will simply turn to dust, without ever being saved for future generations.

17
“Brief of Amici Curiae the Internet Archive Filed on Behalf of Petitioners,” Court document, 2001.
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But why would Congress reward media interests in such a way, hurting the public interest

in the process? It’s because the MPAA, RIAA and the corporations that they represent

are the most powerful lobby group in Washington. The numbers, even just for a single

bill are astonishing, and help illustrate why Congress continues to pass legislation that is

bad for consumers and the general public. Before the Sonny Bono Copyright Extension

act passed, the Disney PAC (Political Action Committee) rewarded most of the sponsors

of the bill with campaign contributions. $95, 805 went to Democratic Members of

Congress, $53, 807 went to Republican Members. Of the 12 sponsors in the Senate, 9

received contributions from the Disney PAC. Of the 13 sponsors in the House, 10

received contributions. The MPAA PAC gave a total of $77, 232 to Republican and

Democratic members in support of the bill. The bill never received public debate, as

access to the floor was controlled in both Houses by the sponsors of the bill.18

“I cannot find,” wrote [Supreme Court Justice Stephen] Breyer, “any constitutionally

legitimate, copyrighted-related way in which the [Sonny Bono] statute will benefit the

public. Indeed, in respect to existing works, the serious public harm and the virtually

nonexistent public benefit could not be more clear.”19

The situation since then has become even worse, with Congress actively ignoring public

opposition to other special-interest driven legislation. The broadcast flag, which would

force all Digital TV’s to recognize DRM (Digital Rights Management) technology in

over the air signals was nearly passed despite public opposition. It was later resurrected

as a FCC mandate that was struck down in court as unconstitutional before being attached

18
Phyllis Schafly, “Why Disney has Clout with the Republican Congress,” 25 Nov. 1998.
19
Kembrew McLeod, Freedom of Expression (New York: Doubleday, 2005), 29.
12 Austin Corbett

as a rider to a Senate Appropriations bill several months later, the status of which is still

uncertain.

This hijacking of Congress by media special interests is not merely a U.S. problem, but

manifests itself in Canada as well. The former liberal Minster of Heritage received

thousands of dollars from various pro-copyright groups, and responded by introducing

Bill C-60, a DMCA-like bill.20

Consume as I tell you to.

Even without formal study in economics, it should be


clear to anyone reading this that the music industry
cannot continue to exist if the trend holds. The
widespread copying of prerecorded audio material
via the burning of CD-Rs can only be countered one
way: namely, copy protection. We fear, however, that
all these facts will not interest you in the slightest, as
these measures will herald the end of free music,
which surely won’t please you at all… In the event
that you plan to protest future releases of copy-
protected CDs, we can assure you that it is only a
matter of months until more or less every CD
released worldwide will include copy protection. To
that end, we will do everything in our power, whether
you like it or not.
Sincerely,
Your EMI Team
-Response to a letter complaining about unlabelled
copy protection on a legitimately purchased CD.21

Unfortunately, copyright has not grown more powerful only in respect to the duration of

its terms. The scope of copyright has also increased as technology has enabled new and

more powerful uses of copyrighted material. In response, over time users and consumers

have been able to do less and less with their legally purchased media. The full extent of

20
Michael Geist, “Campaign Contributions,” 3 Jan. 2006.
21
McLeod, Freedom of Expression, 282.
13 Austin Corbett

these changes began in 1909, as Copyright began to regulate copies, more than

publishers.

Scope of Copyright

1790 1900

Publish Transform Publish Transform


Commercial © Free Commercial © ©
Noncommercial Free Free Noncommercial Free Free

1975 Today

Publish Transform Publish Transform


Commercial © © Commercial © ©
Noncommercial ©/Free Free Noncommercial © ©

22

As each new technological innovation has come out, easing the creation of copies, the

law has responded by becoming more regulative; limiting creativity and creating the idea

of “fair use.” In the age of the Internet, two acronyms serve as the largest threats to

personal freedom. DRM and the DMCA.

22
Lessig, Free Culture, 170-171.
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Digital Rights Management. For Hollywood and the recording industry, this term is held

in very high regard, the “digital padlock” that will protect their content from all the

pirates out in the world. DRM describes any technology that is used to enforce copyright

policies on any media. In truth, a more factual term for this type of technology would be

“Digital Restrictions Management” as its true purpose it to restrict the rights of

consumers. Common examples of this type of technology include CSS (Content

Scrambling System) and regional coding on DVD’s, Apple’s iTunes/Fairplay AAC

system, or copy-protected CD’s, like Sony’s XCP system. These technologies have had

only limited success in preventing the piracy of copyrighted material, but development

continues on evermore powerful DRM systems.

On the surface, DRM seems like a perfectly reasonable proposition; after all, if I create a

copyrighted work, shouldn’t I be allowed to protect it against unauthorized use? But

there are many hidden costs to DRM technology, many of which have yet to fully

emerge. Before introducing those costs, it is perhaps instructive to highlight the

limitations and intended effects of DRM. Primarily, most DRM is aimed at the average

user, in order to create a digital “speed bump” to copying. No DRM has yet been devised

that is “uncrackable” or unbreakable. A good example of this type of DRM is the CSS

system implemented into DVD’s. CSS only prevents the average user from copying a

DVD. The CSS specification itself was broken within days of the first DVD releases,

and since then, it has remained broken despite updates to the specification. Tools that

incorporate the crack, called DeCSS, are freely available on the internet, despite

numerous attempts to shut down sites hosting the files, as well as the illegality of the files
15 Austin Corbett

in the US. But for the average user, CSS is enough to prevent casual copying. Similarly,

Apple’s Fairplay DRM system and Sony’s CD copy-protection have also been similarly

cracked; generally very quickly. DRM in computer software is generally more advanced,

often with multiple layers of encryption. Virtual machine spoofing, and DVD/CD

manufacture techniques are also used to enforce DRM, but even the most secure and

intrusive DRM schemes have been consistently cracked, generally by fame-seeking

individuals on a not-for-profit basis. Despite these failures, DRM is becoming more

powerful, with ever greater and more sophisticated techniques to protect content. For

next-generation content, such as HDTV (High Definition TV) DRM will be mandatory at

all levels. The disc will be encrypted, as will the cables and the TV itself. If any of the

devices are found to be “untrusted” or insecure, the disc will not play. Similarly, the disc

can not be viewed at full resolution over normal cables or on a standard TV, playing

instead at a lower resolution. Currently produced HDTV’s do not implement this

standard, which means that when HD content becomes available, these HDTV’s will not

display it. Not only will this severely affect the consumer’s use of HD technology, but as

of 2001, the DRM specification had already been compromised. DRM’s affect on piracy

is minimal, but it prevents the average user from various operations.

Even with the relative unsuccessful application of DRM to prevent copying, it has still

been responsible for multiple abuses of fair use and consumer rights. When combined

with the DMCA (Digital Millenium Copyright Act) which makes circumvention of DRM

illegal for any reason, the costs grow even higher.


16 Austin Corbett

The DMCA was enacted in 1998, before file-sharing and other Internet technologies

became prevalent, but its effect on innovation and technology over the past 8 years has

been very powerful. It was envisioned as an attempt to stop copyright infringers from

defeating anti-piracy protections, and also to stop the sale of devices which accomplished

the same goal. This intended effect, already dubious both in aim and effectiveness, is not

what the DMCA has been used for since its inception. Instead, it has been used to curtail

free-speech and scientific research; impede competition and innovation, and harm

consumer and fair-use rights by protecting the DRM that takes away these rights.23 The

DMCA also serves to legitimize the patenting of ideas and obvious business methods, an

issue that still needs to be explored.

The greatest problem with the DMCA is Section 1201, which is overly broad and harsh.

This section consists of two separate prohibitions. Firstly, it bans the circumvention of

technological access controls (DRM.) This prohibition stands even if copyright is not

violated. It is therefore illegal to make a personal copy of a DVD, or to play that DVD

on the Linux operating system in the US. These uses are “fair use” and protected under

the US Constitution and various copyright acts, but since the DVD’s are encrypted,

circumventing the encryption in order to exercise these rights is illegal. Furthermore,

Section 1201 also makes illegal the distribution of technology or ideas that allow others

to circumvent DRM technology, leading to many abuses.

23
Electronic Frontier Foundation, Unintended Consequences: Seven Years Under the DMCA, April
2006.
17 Austin Corbett

These two prohibitions allow corporations to use the DMCA for all types of unintended

uses. The DMCA has been used successfully to ban the discussion of copy-protection, as

well as the dangers of DRM. If security researchers publish flaws or dangers present in

DRM systems, they are liable to civil and even criminal penalties under the DMCA.

Since 2000, there have been at least 12 high-profile cases of companies suing researchers

for releasing information about proprietary DRM systems. In several other cases,

researchers have decided not to publish academic research, for fear of liability under the

DMCA.24

In the summer of 2005, it was revealed that Sony/BMG was shipping audio CD’s with

two particularly intrusive forms of DRM, which could potentially harm user’s computers.

These dangers had been discovered by researchers weeks before public disclosure, but

had not been revealed due to fears about the DMCA.25 By installing hidden software

without user consent, this DRM, which was protected under the DMCA, also violated

several other U.S. laws.26 Furthermore, the software used several techniques, such as the

use of “rootkits” to hide its presence from the user. After widespread public outrage,

including several class action lawsuits the software was withdrawn, but not before several

further revelations about this DRM system were revealed. In addition to installing secret

files without consent, the software also violated the copyrights of several other programs,

as it used copyrighted software code without consent. This copyrighted software had

been written by others to circumvent Apple’s Fairplay DRM. Because of its inclusion in

Sony’s DRM, it could be argued that Sony was also violating the DMCA. In addition, it
24
Electronic Frontier Foundation, Unintended Consequences: Seven Years Under the DMCA, 6.
25
Electronic Frontier Foundation, Sony BMG Litigation Info, n.d..
26
J. Alex Halderman and Edward W. Felten, “Lessons from the Sony CD DRM Episode,” 15 Feb.
2006.
18 Austin Corbett

opened several security holes in the Windows Operating System, allowing unauthorized

attacks from the Internet. After the public outcry, patches were introduced to remove the

DRM from user’s computers. These patches were found to increase the security risk of

the software, by opening several more security holes. To uninstall the software properly

required advanced technical knowledge, unavailable to most computer users. Eventually,

a proper uninstaller was released, but to access it users had to submit their personal

information to Sony/BMG and wait several days. These provided uninstallers were

single use only. If another protected audio CD was inserted, the DRM software would

reinstall and users would have to apply to Sony/BMG for another uninstaller. In perhaps

the most confusing development, Sony/BMG published data allowing users to

circumvent the DRM, in order to make the cd’s compatible with Apple’s iTunes and iPod.

This was a second violation of the DMCA by Sony/BMG, as the DMCA does not

distinguish between circumvention that infringes on copyright and circumvention that

does not. Sony eventually settled the class-action lawsuits out of court.

This episode is just one of the many scandals that have recently erupted over DRM and

its application in consumer devices. In other cases, the DMCA has been used to prevent

foreign companies and programmers from entering the U.S. In July 2001, Dmitry

Sklyarov was arrested and detained for writing software that circumvented the DRM in

Adobe electronic books. His actions were not illegal under Russian law, as the software

only worked for legitimately purchased e-books, but he was not allowed to leave the U.S.

for five months while an investigation took place. (His company was later acquitted of
19 Austin Corbett

wrong-doing.) This experience has lead many computer programmers and researchers to

boycott US software conferences.27

In the cases previously mentioned the DRM systems involved, protected by the DMCA,

have also trampled on “fair use” and consumer rights. Sony/BMG’s CD DRM prevented

users from copying the music to their computer in an unencrypted format. In 2000,

Adobe issued an e-book version of Alice in Wonderland. This e-book, despite being in

the public domain, was issued with DRM that prohibited, among other things, printing

the book, copying passages or using the “read-it-out-loud” feature. Similarly, the DMCA

has been used to lock cell phones to specific carriers, as well as to prevent modifications

to proprietary hardware.28 In at least 13 cases, the DMCA has been used by companies to

prevent competitors and users from creating interoperable hardware and software.29 In

several of these cases, the DMCA was used by companies to sue their customers for using

the product in an unintended way.

What all these cases have in common is that the DMCA serves as a legal protection for

DRM that often violates user rights. The DMCA and DRM allow companies to dictate

what rights are allowed, above and beyond copyright law itself. This in effect gives the

companies the ability to create new copyright law, without public input or actual

legislation. If you can’t trust Congress, and you can’t trust the companies, who are you

left with?

27
Electronic Frontier Foundation, Unintended Consequences: Seven Years Under the DMCA, 4.
28
Ibid., 8.
29
Ibid., 9.
20 Austin Corbett

The future of DRM is very uncertain, and consists of three distinct developments. Firstly,

DRM continues to grow more powerful and more pervasive. With the release of

Windows Vista, the next operating system from software giant Microsoft, DRM will be

supported in the operating system and computer hardware. A small chip in the computer,

called a TPM (Trusted Platform Module) will regulate DRM activities on the computer.

This chip is not accessible by the user/owner of the computer. While the most advanced

uses of this chip will not be included in Windows Vista, development is ongoing. Further

applications could include the ability for the computer to “check back” with Microsoft to

determine if a particular use is allowed or disallowed. These future applications would

not be “opt-outable” by the user, but would be necessary for the computer to operate

properly.

As DRM becomes more and more powerful, it is also being replaced by other methods of

enforcement. It is now common for many Audio CDs, and most computer software, to

contain a license, called a EULA (End User License Agreement) which must be agreed

upon before the media can be used. These licenses disallow almost all uses not yet

covered by copyright law and the DMCA, and are often argued to apply even if the

consumer does not explicitly agree to them. Often, these licenses restrict the right to

resell the software or media, and are said to take effect on purchase. These “click-

through” licenses currently exist in a legal grey area, but their use is steadily becoming

more prevalent.
21 Austin Corbett

Public opposition to DRM, the DMCA and EULA’s is becoming more common however.

Support to repeal the DMCA is growing, but whether this will have any effect in

Congress or the Senate remains to be seen.

Just as the endless extension of copyright terms is damaging the public domain, and

virtually destroying countless historical cultural documents, DRM and DMCA is

endlessly expanding the scope of copyright regulation, making it harder and harder to use

media in a legal way. Thus, the regulation of the creation, dissemination, and

consumption of media has reached previously unimagined heights.

When combined with the consolidation of media companies over the last 15 years the

situation for free speech, “fair use” and free creation becomes ever bleaker. As Sen. John

McCain summarized, “five companies control 85 percent of our media sources.”30 Other

statistics on the consolidation of media companies are even more startling. The “Big

Four” recording labels control 84.8 % of the U.S. music market. Four companies collect

90% of the radio industries revenues, the largest two collecting 74% combined. 10

companies own half the US newspaper market. (In Canada three companies control

virtually all major daily newspapers.) In film, the top ten film studios collect 99%

percent of all film revenue.31 (These ten film studios are themselves owned by six larger

companies, three of which are also the largest music companies.) This consolidation is

not divided along media boundaries. News Corp, owned by Rupert Murdoch, is the

leading figure in this multimedia convergence, with divisions in all major media areas.

30
Lessig, Free Culture, 162.
31
Ibid., 163.
22 Austin Corbett

Murdoch’s companies now constitute a production system unmatched in its integration.

They supply content – Fox movies…Fox TV shows…Fox-controlled sports broadcasts,

plus newspapers and books. They sell the content to the public and to advertisers – in

newspaper, on the broadcast network, on the cable channels. And they operate the

physical distribution system through which the content reaches the customers.

Murdoch’s satellite systems now distribute News Corp. content in Europe and Asia; if

Mudoch becomes DirecTV’s largest single owner, that system will serve the same

function in the United States.32

This consolidation, mostly hidden from public eyes through the use of subsidiary

companies has given the major media companies unprecedented power to alter public

perception and education. When combined with their power within the US government,

and international organizations such as the WTO (World Trade Organization) and WIPO

(World Intellectual Property Organization,) as well as the legal power afforded them

through the DMCA and DRM, they seem like unstoppable juggernauts, capable of

silencing any opposition. Which begs the question…why are they so concerned with file-

sharing?

The death of music?

“There's no minimizing the impact of illegal file-


sharing. It robs songwriters and recording
artists of their livelihoods, and it ultimately
undermines the future of music itself, not to
mention threatening the jobs of tens of thousands”
32
Lessig, Free Culture, 163.
23 Austin Corbett

-Cary Sherman, RIAA president33

Since Napster broke onto the scene in 1999, the RIAA and MPAA, among others, have

consistently stated that file-sharing represents the single greatest threat to their

businesses.34 They have repeatedly claimed that box office receipts and cd sales are down

solely because of file sharing. Central to this argument is that file-sharing promotes

piracy; piracy being defined as the willful infringement of copyright to obtain an item for

free, instead of legally purchasing it. At first, this claim was accepted at face value, by

almost all involved. However, in the last 5 years, increasing evidence shows that file-

sharing is not piracy, as it does not contribute to lost sales.35 Indeed in a joint study by

Harvard and UNC Chapel Hill, researchers found that there was no correlation between

file-sharing and lost CD sales. Instead they found that many albums benefit from file

sharing.36 Furthermore, in a recent study conducted in Canada, and commissioned by the

CRIA, (Canadian Recording Industry Association) which represents the Big Four

recording companies in Canada, it was found that,

Consistent with many other studies, people who download music from P2P services

frequently buy that same music. The study found that only 25% of respondents said they

never bought music after listening to it as a P2P downloaded track. That obviously leaves

nearly 75% as future purchaser, including 21% who have bought music ten times or

more. Note that demographically, the lowest percentage of non-buyers actually belonged

to the 13 to 17 year old demographic (page 70).37

33
Cary Sherman, “Impact of File Sharing,” USA Today, 18 Sept. 2003.
34
James Torr, ed., Internet Piracy (Detroit: Greenhaven Press, 2005), 44.
35
Michael Geist, “CRIA’s Own Study Counters P2P Claims,” 17 March 2006.
36
Felix Oberholzer, and Koleman Strumpf, “The Effect of File Sharing on Record Sales: An Empirical
Analysis,” March 2004, 8.
37
Geist, “CRIA’s Own Study Counters P2P Claims”.
24 Austin Corbett

The survey went on to find that only 10% of respondents bought less due to the

availability of music downloads. Instead, people cited “a long list of alternatives that

have nothing to do with downloading including price (16%), nothing of interest (14%),

lack of time (13%), collection is big enough (9%)…”38 So why does the RIAA and

MPAA so oppose file-sharing, when studies show it does not hinder, and can often help

artists?

In many ways, we’ve been at this juncture before. This is not the first time that the media

industry has complained about a new technology being used for piracy. Piracy has

existed in the music industry since the first manuscripts were published and sold. Piracy

and copyright infringement was a common lament for Vaudeville and movie theater

owners at the turn of the century.39 It has continued in various forms since then, from the

stealing of prints, to the unauthorized editing of movies by exhibitors. With each new

technological advance the movie industry has reshaped itself, first fighting the

technology, and then; grudgingly embracing it. When Sony introduced Betamax, it was

almost immediately sued for creating a device that could be used to infringe copyright,

just as P2P services can be used to infringe copyright. The Supreme Court however,

affirmed that a device that has substantial non-infringing uses cannot be found liable.40

The movie industry also attempted to legislate Betamax out of existence but failed there

too. Over the next 20 years, the successors of Betamax, the VCR and DVD, have

restructured the entire industry, generating billions in new sales. Today, DVD sales and

38
Geist, “CRIA’s Own Study Counters P2P Claims”.
39
Kerry Seagrave, Piracy in the Motion Picture Industry (Jefferson: McFarland & Company, 2003), 3.
40
Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, (1984).
25 Austin Corbett

rentals, at $22.5 billon dollars worldwide in 2004, are more than double that of box office

receipts.41

In fact, every modern information-based industry was built on piracy. Hollywood was

founded as filmmakers such as William Fox, the founder of 20th Century Fox moved west

to escape restrictive patents and licensing schemes developed by Thomas Edison.42 Due

to the limited term of patents, by the time Hollywood had achieved enough prominence

to raise the ire of movie producers on the east coast, the patents were in the public

domain. Similarly, by not signing the Berne Convention, regarding international

copyright, the US allowed the movie industry to pirate, transform and copy European

content with impunity until the 1970’s. Many of the largest grossing movies in the

earliest years of the movie industry were unauthorized remakes of European films.

Without piracy, Hollywood would never have been born.

The introduction of recorded music also began a similar debate on piracy. Once again,

composers declared that they were being greatly harmed by the effects of piracy, as

people made recordings of their works without authorization. In the end, Congress

ignored Copyright Law, deciding that it was against the public interest to give composers

the right to control recordings of their work. If the composer had the exclusive right to

recordings, then cover songs would be illegal, as would karaoke, or singing in the

bathroom. Instead, once they had recorded a song once, the public was free to create

their own recordings and distribute them commercially, as long as they paid the original

41
“DVD Drives Video Industry to Record Breaking Year,” 8 Jan. 2004.
42
Lessig, Free Culture, 53.
26 Austin Corbett

composer a compulsory fee, set by the government.43 In effect, the government

subsidizes this partial piracy. Composers are not given control of their work, once it is

made public, but are paid restitution.

Within the radio industry, the same acceptance of piracy exists. If Intellectual Property is

a natural right, accorded equally to everyone, than the radio industry pirates just as much

as the recording industry. Playing a song on the radio is a “public performance” and

therefore the creators of the work should be compensated. This isn’t the case however.

The composer is paid by the station for their work, but the recording artist receives

nothing.44 Once again, the law allows piracy, because radio can serve as a powerful

promotional tool for the recording artist, who receives money when they sell recordings.

Unlike recent laws, the legislation governing radio and recorded music recognizes that

according the creator of work exclusive rights for new technologies is detrimental to all.

New industries were created, and are today sustained through legislated piracy.

Even cable TV was founded on piracy. First introduced in 1948, the cable industry

existed for 30 years without paying broadcasters compensation for their material.

Eventually, it was decided that the content should be paid for, but that giving broadcasters

the right to set prices would be giving them veto power over cable TV; allowing them to

further extend their monopoly by introducing their own cable services. Instead, just like

recorded music and radio, the government would set the price of compensation.

43
Lessig, Free Culture, 57.
44
Lessig, Free Culture, 59.
27 Austin Corbett

So we return to file-sharing. A new technology, with significant non-infringing uses,

which can be used for piracy, but which studies show is not. Sound familiar? The battle

today over file-sharing is not about piracy, just as DRM is not truly about piracy. It is

about an industry with an old business model, attempting to veto a new technology, a new

industry, a new opportunity; in order to perpetuate their existing monopoly. But whereas

in the past, the government stepped in; creating legislation that balanced the need for

compensation with the public good, the U.S. government instead has passed the DMCA

and the NET (No Electronic Theft) Act, which criminalizes file-sharing, even for non-

commercial purposes.

In Canada, the CRIA successfully lobbied for a levy to be placed on all blank CD’s and

DVD’s and other media, to compensate artists for online file sharing in much the same

way that composers are compensated for cover songs and recordings. For approximately

9 years, this has effectively legalized file-sharing in Canada. As of March 2006, the

CRIA is now asking for this levy to be repealed and file-sharing criminalized.45 The

RIAA, MPAA and others such as the CRIA, have been effective as they never have

before in convincing the government and the public that this new technology of file-

sharing will be their death, rather than a new beginning. The fight against file-sharing

isn’t about piracy, at least not primarily. Just like extended copyright terms, expanded

copyright regulations, DRM, and new legislation; it’s really about extending and

expanding a monopoly on human innovation and free speech.

“My Global Right”


45
Howard Knopf, “CRIA—What Lies Ahead?” 13 April 2006.
28 Austin Corbett

The quota demands South Korean cinemas show

local films at least 146 days a year. I am fighting that

quota because I am an advocate of competition. We

have the right to enter their market as much as they

can enter the U.S market. They just need to find a

theater and distributor for it here.

-Jack Valenti, former President of the MPAA46

We live in a globalized world; a world of constant international trade and exchange. The

major corporations of culture, the Big Six in film and the Big Four in music (which are

often one and the same) are some of the most global corporations in existence, and they

expect their copyright to be applied equally in all areas, regardless of national feeling or

law. Every nation industrializes by copying others, whether it is business methods,

patents or copyrights. The railroad barons in the U.S. didn’t invent rails, or trains, or

steam power; they copied the idea, manufactured it, and marketed in a new environment,

without compensating the creators. Japan’s surge forward in transistor and other high

tech production during the 1960’s and 1970’s was made possible through their piracy of

U.S. electronic designs. Every developed nation stole liberally from others in order to

develop. Today however, that is no longer possible as many third world countries are

beginning to find out. In a global world, US firms do not want to compete with regional

rivals. International law is today used as a tool by developed countries to force third

world countries to manufacture and consume products for others, rather than re-inventing

the products for themselves, just as every other developed nation did.

46
“Re: South Korean Film Industry,” 8 April 2004.
29 Austin Corbett

China, and the change in copyright law that has taken place their over the last 10 years

there, serves as an excellent example of the successes and failures of this international

copyright system. Negotiations between the USTR (United States Trade Representative)

and the PRC (People’s Republic of China) on the subject of IP have been ongoing since

the late 1970’s, but within the last 10 years, these talks have increased in frequency and

importance. Time after time, the USTR pressures China to accept stronger IP laws, and

then threatens trade sanctions when enforcement is lacking.47 Since the introduction of

the TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement, they can

also threaten trade action by the entire WTO. But why has the U.S. government, through

the USTR, so aggressively pursued IP laws and enforcement in China?

The USTR, given control over international copyright trade issues in 1988, works based

on a dynamic model. Those U.S. industries that complain the most about international

trade issues, receive the most attention when the USTR is in international talks. One

former USTR official described the issue selection process as follows,

U.S. trade policy is biased toward the “squeaky wheel”: those industries that complain

the most, influence the USTR the most. In our negotiations with the PRC, we would

claim to represent the entire U.S. industry, but in reality, we were only responsive to

those with the most effective lobbying or PR or information dissemination efforts.48

The company involved in “complaining” about international trade relations rarely does so

individually, preferring instead to act as a member of a trade association, in order to


47
Andrew Mertha, The Politics of Piracy: Intellectual Property in Contemporary China (Ithaca:
Cornell University Press, 2005), 52.
48
Ibid., 59.
30 Austin Corbett

minimize negative publicity and economic risk in affected countries. What the USTR’s

selection process, and the power of associations like the RIAA and MPAA lead to is a

virtual co-optation of US trade policy by RIAA and MPAA trade policy. When the IIPA,

(International Intellectual Property Alliance) an organization that encompasses the RIAA,

MPAA and many other national copyright groups with an estimated worth of $433.9

billion, or 5.68 % of the 1996 U.S. GDP (Gross Domestic Product), complains to the

USTR and Congress they are rarely ignored. The USTR relies on the industry making

the complaint to provide credible information on the claim, further exacerbating the

problem.

International trade organizations are unconcerned with issues of global development.

Third world countries rarely have the means to enforce the copyright laws they are treaty-

bound to implement, nor do their citizens have the means to purchase content at First

world prices. By enforcing international IP agreements like TRIPS and the Berne

convention through the use of unilateral and multilateral trade sanctions, countries with

developed IP industries can keep new IP countries artificially suppressed. Just as the

granting of full property rights to creators is bad for the public good, the granting of full

property rights to nations is bad for the global good and often bad for the developed

world in the long term. Enforcing the import, export and sale price of IP in the Third

world only leads to wide-spread piracy, as those nations and individuals who can’t afford

to modernize do so anyway through less legitimate channels. This increased piracy leads

to the threat and use of trade-sanctions against Third world countries who are perceived

to be “soft” on IP laws. In many cases, this leads to grave injustices, as the First world
31 Austin Corbett

punishes the Third for being unable to pay First world prices, for everything from

computers and software, to technical manuals and drugs. And while the largest

companies continue to push for stronger IP laws in developing countries, they

systematically pirate and copy ideas, expressions and resources from the very same

countries.

Patents are currently the leading issue in this area, as US multinationals patent regional

and ethnic plants for their use in drugs, then attempt to block sales of generic versions of

these drugs.

According to the United Nations Development Project study, developing countries

annually lose $5 billion in unpaid royalties from drugs developed from [native] medicinal

plants. The United States sees it differently. It calculates that developing countries owe

its pharmaceutical companies $2.5 billion for violating their medical patents.49

These patents can cover any type of natural resource, including life. Many recent strains

of grains are genetically-engineered to produce seeds that will not grow, so that the

patented seeds are “protected” from being saved and replanted by farmers.50

Pharmaceutical companies, since 1985, have been extremely busy, finding, documenting

and patenting genes, in plants, animals and people, from all over the world. Rarely have

they in any way compensated those who have cultivated these plants, or those who have

donated tissue and blood samples. Most astonishingly, the U.S. courts have repeatedly

ruled that such companies can pirate at will. In 1976 the University of California

49
McLeod, Freedom of Expression, 54.
50
McLeod, Freedom of Expression, 52.
32 Austin Corbett

removed the spleen of a leukemia patient named John Moore. The University was later

granted a patent on cells from his spleen that could produce valuable proteins, estimated

at a value of over $1 billion. “Mr. Moore demanded the return of the cells and control

over his body parts, but the California Supreme Court decided that he was not entitled to

any rights to his own cells after they had been removed from his body.”51 In 2001 the

U.S. Patent Office awarded 20,000 gene patents, and “another 25,000 were pending.”52

We talk about fighting a war on file-sharing, a war on piracy. Why aren’t we fighting the

war on bio-piracy?

The Copyright Wars

As a little experiment, I sent the [Dr. Martin Luther]


King estate an e-mail inquiry about reprinting four
sentences from “I Have a Dream” in a scholarly
book. A few weeks later I received a contract in the
mail from Writers House LLC, which licenses King’s
copyrights. The only way I could reprint those four
sentences was to hand over two hundred dollars and
adhere to nine other restrictive contractual
stipulations. “I have a dream that one day…my heirs
will shill my image in cell-phone ads and charge
scholars fifty dollars a sentence to reprint this
speech.” Inspiring.
-Kembrew McLeod

51
Council for Responsible Genetics, “DNA Patents Create Monopolies on Living Organisms,” April
2000.
52
Council for Responsible Genetics, “DNA Patents Create Monopolies on Living Organisms,” April
2000.
33 Austin Corbett

Many people talk about the “copyright wars.” They speak at length about those “teenage

downloaders” and “high-priced lawyers” battling it out in the courts. But like most news

in our consumer culture, the debate over copyright has been shrink-wrapped and pre-

packaged for easy consumption, not for factual accuracy. The real debate is larger, more

important and less understood then this simple binary opposition. We have in fact, only

just begun to explore the real issues underlying this debate, issues that stretch back over

the last century, and forward into the century ahead. If the real messy debate is only just

beginning, what does the future hold?

Technology, politics and law are converging rapidly, coalescing around the copyright

debate. The traditional models of doing business in an information society are once again

changing, and the media leaders have chosen to not only resist this change, but have also

made a bold grab at re-envisioning our past and future. I’ve attempted to trace the harms

and issues caused by this re-envisioning, this refusal to change, in the hopes that the facts

speak for themselves. This may make for dire reading, but it’s important to know the

dangers we are already in. To end, I’d like to speculate about what the future holds for

copyright. We are at the cusp. Within the next ten years the developed world will either

choose to continue as they have in the past: consolidating and commoditizing our culture

at will, systematically creating criminals out of millions of people young and old, and

abandoning any widespread support for their products and initiatives, or they’ll step back

and create a new vision for the future.


34 Austin Corbett

Certainly, it would seem that recent events have not gone well for advocates of free

culture. Lawsuits and the forced shutdown of web sites and individuals continue

unabated. The government, and the Big Six/Four continue on much as they have in the

past, fighting file-sharing every step of the way. But in the public mind, things are

changing. Many people are growing increasingly unwilling to step down from legal and

political battles against copyright associations. More and more, artists and authors are

willfully violating the law, in order to produce the art they need to. Fewer and fewer

musicians are willing to defend the actions of the RIAA as it sues its biggest customer

base. In Canada, the CRIA is falling apart, as independent Canadian record labels leave.

The Canadian MP who introduced Bill C-60 resoundingly lost her seat in the next

election. Many in the public are beginning to see that a law which criminalizes 30

million people for the sake of a single special-interest group is not a just law. But the

future holds even more promise then the simple cessation of lawsuits.

Since the fifties, the U.S. has been the leading member of consumer culture. We have

been taught that purchasing and acquiring items is one of the best ways to be happy.

Today, this culture of consumption and commodization pervades us, influencing

everything we do. The clothes we buy, the music we listen to, and the movies we watch

are all meant to say something about ourselves. We consume, in order to create a self-

identity to show to others.53 We as an audience have been commoditized; turned into a

product itself. The super-hero movie is aimed at one audience, and is made accordingly;

the romantic-comedy is aimed at another. Before the super-hero movie, we see a trailer

for a Star Wars movie, illustrating for us what we should be excited about next. This
53
Sean Cubitt, The Cinema Effect (Cambridge: MIT Press, 2005), 340.
35 Austin Corbett

creation of fan-culture is today widespread, and is incredibly profitable for the

mainstream media. It fueled the adoption of DVD, and reinvigorated the blockbuster, but

it is now coming to an end.

0.90%
54.0%
Movies are getting more expensive to 52.0%
0.80%

0.70%

50.0% 0.60%

make, and the blockbuster is slowly 48.0% 0.50%

0.40%
46.0%
0.30%
disappearing. The top 25 films each year 44.0%
0.20%
Top 25 box office as % of total (left scale)
42.0% 0.10%
Ave. cost as % of total box office

make up less and less of the year’s profits, 40.0% 0.00%

91

92

93
94

95
96

97

99
00

01
02

04

05
90

98

03
19
19

19

19
19

19
19

19

19
20

20
20

20

20
19

20
but the cost to make these films keeps rising.54 With the advent of DVD and video-on-

demand, there is less and less reason to go to the theatre. Combined with the rapidly

decreasing costs of digital video, a new market is

developing, the “Long Tail” of media. The internet,

and even the media companies themselves, have

created a culture of choice, and consumers are beginning to embrace it.55 Rather than

spending money on hits and on mainstream choices, more and more often people are

choosing niche products that appeal primarily to their personal interests. File-sharing,

with its efficiency, equal footing, and rapid dissemination of content is driving this trend

forward even faster. By driving the cost of inventory and distribution close to zero, file-

sharing gives the power to create to everyone. This trend towards the “Long Tail” is

common in TV, movies, and music, and forms the primary business model for many of

the most successful web businesses such as eBay, Google and Amazon. These niche

markets, with their infinite variety and generally cheap production costs can often be

54
Chris Anderson, “Responses to Blockbuster Post,” 7 Feb. 2006.
55
Image courtesy of Wikimedia Commons
<http://commons.wikimedia.org/wiki/Image:Long_tail.PNG>
36 Austin Corbett

more profitable and exploitable than the mainstream audience they replace. This

fundamental change in the media market is one of the primary reasons that the major

media companies continue to fight for stronger copyright. In the “Long Tail” there are no

major media companies, as the “hits” portion of the graph that they currently rely on for

revenue keeps getting smaller.

There is however, one further development that is revolutionizing the way our culture is

organized. With the near-zero production and distribution costs of the internet, and the

vast database of easily copyable content created by the digital age, people are beginning

to become “media literate.” The future of media is not consumption, but production, and

it is this fact that is the most terrifying to traditional media business models. People are

beginning to engage in culture, copy and pasting media together to create new works,

regardless of copyright.56

Powered by video sharing sites such as Youtube and Google video, people are re-

imagining the media they consume everyday. This re-imagining takes nearly endless

forms, from pastiche and parody,57

to the transformation of media into

new forms. 58 From blogs to

internet video wars,59 to pop

culture mashups,60 artists and musicians everywhere are creating wildly, without regard

56
Illegal Art, Home page, 17 April 2006.
57
Derek Johnson, “Titanic Two: The Surface,” 14 April 2006.
58
“The Incredibles: ASCII-movie,” 17 April 2006.
59
“Lazy Muncie search results,” 17 April 2006.
60
Neil Cicieraga et al., “The Ultimate Showdown,” 22 December 2005.
37 Austin Corbett

for copyright.61 Other artists are developing software programs whose primary goal is

infringing copyright.62

It is this future, a future of free culture, of open-source, of not-for-profit art, of media

literacy that is the true bane of organizations like the MPAA and RIAA. In the past ten

years they have extended copyright, expanded regulation, and fought the internet every

step of the way to avoid this future. A future where freedom of expression is truly free,

where people engage in media, rather than consuming it. A future where the right to

speak is granted to anyone regardless of location or monetary backing. The internet and

the movements that it fuels and embodies are the end of the monopoly over culture that

has been given to big media for 70 years. In a cut-and-paste world with zero costs there

is no need for the middleman, the distributor or the exhibitor; artists of all types can

create, distribute and profit all by themselves.

There is still a debate to be won. It’s easy to be labeled a pirate, and hard to move the

argument beyond that step. But the internet already exists, in its original, egalitarian

form, and it’s not going away. “Fair use” isn’t enough, and it will take time to change

copyright laws for the better, but with work it will happen. When the choice for future

generations is between free expression and mute consumption, the choice becomes easy.

What we have today isn’t freedom, but we will get there.

“Fair use isn’t freedom. It only means you have the right to hire a lawyer to fight for

your right to create,” said an exasperated Lawrence Lessig during a panel we both sat on
61
Illegal Art, “Grey Album,” 2004.
62
“sCrAmBlEd?HaCkZ!,” March 20 2006.
38 Austin Corbett

for the Illegal Art show. “Fuck fair use,” the bespectacled, buttoned-down Stanford Law

professor said. “We want free use.”63

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McLeod, Freedom of Expression, 329.
39 Austin Corbett

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