Online Piracy: Nothing New

By , December 08, 2010.

There’s this idea that online piracy is somehow “different” from real-world or traditional piracy. It’s like nothing the world has ever seen before — a paradigm shift that fundamentally changes how content is created and consumed and calls into question the very notion of copyright law.

Online piracy is defended by many and even celebrated by some. Terms like “innovation” are applied frequently to those who discover faster and easier ways to ensure everyone benefits from content except those who spend the time and money creating it. In November, for example, music blog Hypebot asked, “Does litigation drive innovation in music piracy?”

On a sidenote, it’s important to distinguish between real innovation and “false innovation.” An airline might be able to cut costs by foregoing maintenance, but we wouldn’t call that move “innovation.”

It’s not hard to find examples of this sort of revelry in “piracy 2.0.”

Last month, a group released a “Pirate Edition” of the file-sharing program Limewire after a court injunction shut down the original version of the software. Those responsible celebrated both the difficulty the content industries have in enforcing their copyrights and the ease in which pirates can recover from any setbacks.

“A horde of piratical monkeys climbed aboard the abandoned ship, mended its sails, polished its cannons and released it FREE to the community to help keep the Gnutella network alive,” say the coders.

“Speaking for myself, the motivation is to make RIAA lawyers cry into their breakfast cereal. I hope the other monkeys have nobler intentions,” says the project leader.

The idea that piracy is a noble cause now that it has moved online, or that this new generation of pirates are more clever than the bootleggers of the past for figuring out ways to evade the law and take all the benefits of the copyright incentive for themselves is silly.

As long as there has been copyright, there has been copyright infringement. And though dissemination of creative works has moved from print to digital, pirates use the same techniques to stay one step ahead of the law.

Nothing illustrates this better than the following selection from Edward Cutler’s 1905 book, A Manual of Musical Copyright Law. (I previously posted a different section in Enemies of Monopoly of Brain-product). Cutler describes a particular method of piracy seen in England over a century ago:

The piracy in recent years of copyright musical compositions and the musical anarchy which, unfortunately, still reigns in this respect, form a disgraceful epoch in the history of English jurisprudence.

Abuses have arisen which would be impossible in any other civilised state, and which hold Great Britain up to derision throughout the civilised world.

In the closing years of the last century some unscrupulous person invented a scheme for robbing the proprietors of copyright (whether composer or publisher) of their just gains.

Wretchedly-got-up versions of songs, carefully chosen from among those which have gained popular favour, are secretly printed and secretly stored in cellars. A few copies are handed out to irresponsible hawkers and are offered for sale by them at a penny or twopence a copy in populous thoroughfares. If interfered with, the dozen or so copies which each hawker has with him are given up. The loss to the thief is inconsiderable. Another hawker in the next street renews the stock and the same game is played out daily.

Another form of the fraud is the house-to-house distribution of lists of pieces of music, from which the householder can choose, and the supply of the pieces chosen at low prices. No printers name or address is found on any of the pieces sold. The people who are responsible for the transaction remain in the background, and in this way many thousands of copies of any popularised pieces of music are got rid of and the legitimate sale of the publication almost, if not entirely, ceases. There appears to be an idea in many people’s minds that these pirates deserve some sort of questionable credit for their ingenious evasion of the law, thereby defeating a vicious monopoly. It is time to undeceive them in this respect. Audacious lying; concealment of addresses, and scuttling away are the laudable means by which these street buccaneers carry out their ends. Ingenious evasion or device there is none, and their boldness would not have succeeded but for the supineness of the Government, the unreasoning sympathy which appears to exist in the minds of a few short-sighted politicians, and the dishonesty of purchasers who knowingly buy the spurious articles. The effect of this wholesale robbery is disastrous.

The publishers (leaving out of the question the most wealthy and old established houses, whose capital enables them to stand the brunt of the competition on unequal terms) are many of them hardworking tradesmen who have invested their small capital in getting together a business, and in purchasing the copyright of one or two songs which offer a probability of success, and they are ruined wholesale. They pay singers to bring their songs before the public, and advertise very largely, only to find that they have been spending their money for the benefit of a pack of thieves, who filch the whole of their profits and entirely stop their sales. Unfortunately the votes of these deserving, but politically insignificant, sufferers can be treated as a “quantité negligeable.”

The parallels between what Cutler is describing and the recent targeting of the domain names of infringing websites are particular acute. Under the DMCA, a website dedicated to infringing activities can continue to operate while each individual copyright owner who finds her work on the site is limited to requesting removal file by file or link by link. The loss to the site is indeed “inconsiderable.”

Executive efforts like Operation in Our Sites and legislative efforts like COICA are more effective at disrupting these types of sites. Obviously, they won’t put an end to piracy: just as people were infringing during Cutler’s time, they will find ways to infringe 100 years from now. And absolutely the content industries must continue to adapt to technological changes and rely primarily on the quality of their work and the attractiveness and convenience of the services they offer.

But, as with every industry, the law plays a necessary role. It’s silly to think the law shouldn’t evolve along with technological changes in order to remain effective against widespread, consumptive infringement.

Special bonus: the next section of Cutler’s book is eerily reminiscent of the events surrounding COICA:

The copyright bill discussed before Lord Monkswell’s Committee contained a clause inserted by the writer conferring upon the owner of copyright power to seize pirated copies of his works. It also gave him power, without applying to any Court, to authorise a police constable to seize the pirated copies which might be taken before a Court of summary jurisdiction and destroyed.

The writer’s clause also contained words enabling the Court to act ex parte; (that is, on the evidence of the complainant alone, without the necessity of summoning the alleged infringer); to make an order for destruction in the absence of the latter. The clause also contained a Provision inflicting a penalty for every piratical sale. Had these two last provisions been allowed to remain, the whole mischief caused by the street pirates would have been remedied; but the words inflicting penalties and giving power to make ex parte orders were struck out, and the Bill eventually became law in a form which is useless. The Statute in question is printed verbatim in the appendix. In consequence of the utter failure of this admirable effort of the Legislature, a Bill was prepared and put into the hands of a private member containing clauses necessary to remedy the abuses. The measure was stifled by the efforts of a member for a Scotch district, who utilised the technicalities of Parliamentary procedure to throw the matter over another session. After endless efforts on the part of those who wished to see justice done, a Parliamentary Committee sat upon the matter, the Scotch member being nominated as one of the members; and again the real merits of the case were stifled, both in the proceedings before the Committee and before the House of Commons. In the latter place the procedure which stops short of the application of closure to a Private Members’ Bill enabled the matter in question to be thrown over to yet another session.

Enemies of Monopoly of Brain-product

By , November 12, 2010.

A Manual of Musical Copyright for the Use of Music-Publishers and Artists, and of the Legal Profession was first published in 1905, and the full text is available on Google Books. It is perhaps the first treatise written to focus specifically on the law surrounding music publishing. While published music had been around for a few centuries, it didn’t develop into a regular industry until the mid to late 19th century. By 1905, music publishing was big; hit songs sold millions of copies of sheet music.

The author, Edward Cutler, was a London attorney during the late 1800s and early 1900s and involved with drafting several British copyright bills. He was also, apparently, an accomplished musician, giving frequent organ recitals during his life. 1Who’s Who, 1907, pt II, pg 433. Along with the Manual of Musical Copyright, Cutler co-authored A Treatise on Musical and Dramatic Copyright with Eustace Smith and Fred E. Weatherly.

Manual of Musical Copyright covers British law: copyright formalities, licensing, infringement, etc. Obviously, the material wouldn’t be much help to musicians or publishers today, but it is interesting from a historical perspective.

What stands out most to me, however, is how the treatise begins. Employing strong rhetoric, Cutler addresses what he calls the “enemies of monopoly of brain-product”:

(1) There is a certain class of persons, who look upon the protection which the law throws around the offspring of a man’s brain as an unjust monopoly, an invasion of the liberty of the subject. These would-be lavish givers of other people’s property are more numerous, and in some cases more influential, than one would suppose in an enlightened age when, to use the often quoted language of Lord Chancellor Brougham, ” the schoolmaster is abroad.” 2See the New York Times for an explanation of this saying. Their policy is not dissimilar from, though fraught with far wider mischief than that of the opponents of the game-laws. 3According to Dr. Marjorie Bloy, “The Game Laws of 1816 limited the hunting of game to landowners: pheasant, partridge, hares and rabbits. The penalty for poaching — or even being found in possession of a net at night — was transportation for 7 years. The enclosure movement had enabled landowners to extend their parks and warrens, but had deprived villagers of common land from which to net/trap extra meat, to supplement poor diet they could afford on low wages.” The attacks of both assailants of the rights of property like other socialistic believers in the axiom “la propriété est le vol” 4“Property is theft” — Pierre-Joseph Proudhon. are suicidal, and would result in the slaughter of the bird which lays the golden eggs. Instead of getting cheap music of a good class, the abettors of the pirates will end by stopping the production of all works of genius and even of popular ones.

(2) This argument is too familiar to need development. If the allies of the notorious pirate of musical publications have minds so constituted that they cannot see the inevitable result of withdrawing protection from producers of “thoughts that burn,” no reasoning of the present writer on the old lines would convince such onesided and narrow thinkers. There is, however, another form of argument derived from the mode in which copyright sprang up; an evolution founded on the absolute necessity for intervention by the legislature to prevent a scramble for “no man’s property,” in the region of idea-creation; a necessity resembling that which gave rise to the laws giving validity to testamentary documents. If it be found necessary in the interests of society, and if it is not a vicious monopoly, to allow a man by making a will to withdraw his goods and chattels after his death from the clutches of the strongest and least scrupulous citizens, there is no impropriety in following an analogous course, and protecting what is often more precious than money, brain product.

(3) Sympathisers with the street buccaneers who carry out the principle “non vobis mellificates apes” 5Roughly, “bees make honey not for themselves.” From Virgil. and fatten upon the pastures which industrious publishers have cultivated and enriched by the sweat of their brow and the money from their purse, think that musical copyright sprung into life, the offspring of a few wealthy publishers, nursed by the advocates in Parliament of those interested wire pullers; and that it is only the apathy of an ignorant and lazy public which allows it to live. The reverse is the fact. Topsy’s mode of accounting for the existence of stupendous London, “I suppose it growed,” applies to copyright. 6I believe this is a reference to the character of Topsy from the novel Uncle Tom’s Cabin and the resulting expression “it growed like Topsy.” It is not necessary to enlarge upon the state of society prior to the reign of Queen Anne, 7I.e., prior to the Statute of Anne, considered the first modern copyright law. when not only the musical art was at a low ebb, but means of multiplying copies of a musical piece were in their infancy; theft was not attractive, street pirates were unknown in those halcyon days. Then men began to suspect that music, following on to the heels of literary composition, had a value, both intrinsic and pecuniary. The theft of a MS. 8MS. = manuscript. musical composition containing often matter of national, nay, of European interest, was a crime, and punishable as such; and police-protection was accorded to this sort of property. Then it came to be held that even where a felonious intention or act was wanting, as in the case of an executor, borrower, or other person becoming possessed of, or obtaining access to a MS. by legal means, such person should be restrained by the court from illegally publishing the contents of such MS. or otherwise dealing with it so as to encroach upon the rights of the author; and performance in public, and under certain circumstances in private, of a piece of music or a dramatic piece not communicated to the public by the composer or author, would be subject to the same rule.

(4) The right to recover an unpublished MS. or to restrain publication or multiplication of copies of it or performance, was and is unrestricted in point of time, and remains for ever unless interrupted by some act of acquiescence by the proprietor amounting to “leave and license” to interfere with his rights or some part of them.

(5) These rights to protection for valuable property sprang up by degrees and as it were, spontaneously, and were due to no envious invention of avaricious publishers; they took root in the natural sense of justice and necessity, to avoid confusion and literary anarchy. The same deep-seated motives caused the legislature to intervene, and to crystallise the unwritten law by several Statutes, which the writer abstains from referring to in detail, as the measures in question were all repealed, and the whole copyright law relating to Great Britain was dealt with (or purported to be so) by the Act of 1842 herein referred to as “The Copyright Amendment Act.” 9The Copyright Act 1842 extended copyright to musical compositions in England. This Statute was due to the unceasing labours of the large-minded and classical Serjeant Talfourd, 10Thomas Noon Talfourd. and as will be seen from his published correspondence, was free from the taint of any editorial intrigue.

References

References
↑1 Who’s Who, 1907, pt II, pg 433.
↑2 See the New York Times for an explanation of this saying.
↑3 According to Dr. Marjorie Bloy, “The Game Laws of 1816 limited the hunting of game to landowners: pheasant, partridge, hares and rabbits. The penalty for poaching — or even being found in possession of a net at night — was transportation for 7 years. The enclosure movement had enabled landowners to extend their parks and warrens, but had deprived villagers of common land from which to net/trap extra meat, to supplement poor diet they could afford on low wages.”
↑4 “Property is theft” — Pierre-Joseph Proudhon.
↑5 Roughly, “bees make honey not for themselves.” From Virgil.
↑6 I believe this is a reference to the character of Topsy from the novel Uncle Tom’s Cabin and the resulting expression “it growed like Topsy.”
↑7 I.e., prior to the Statute of Anne, considered the first modern copyright law.
↑8 MS. = manuscript.
↑9 The Copyright Act 1842 extended copyright to musical compositions in England.
↑10 Thomas Noon Talfourd.