Pirates to Ploughshares

First it was Napster.  Then it was Grokster and Gnutella.  Then it was BitTorrent.  What will be next?  It must be tough (and profitable) to be a lawyer for the Recording Industry Association of America (”RIAA”).  After claiming victory over Napster close to a decade ago, wave after wave of new technologies have emerged from the dead and caused additional headaches for large multinational corporations the world over.  The more successful of these, such as Aimster and Grokster, were also shut down by the courts (Grokster even made it to the Supreme Court, which gave Justice Breyer the opportunity to comment that the “unlawful objective” of Grokster was “unmistakeable”).

But none of them have ever fully died, and the latest enemy of copyright law is a technology called “BitTorrent.”  For the last few years, anyone with a modicum of internet know-how could download a BitTorrent program such as uTorrent or Azuerus and click on BitTorrent hyperlinks (so called “torrents”) that connected to a wide variety of data all over the internet.   

And then came The Pirate Bay.  Certainly not shy in its avowed intent (they are self-proclaimed pirates, after all), the administrators of The Pirate Bay set up a website which indexed BitTorrent hyperlinks in one location.  Users from all over the world could come to their website and search for torrents all over the world.

So far, so good — up until a few months back, when a Swedish court found the administrators of The Pirate Bay guilty for inducing copyright infringement, slapped millions of dollars in fines and imposed jail time.  

The Pirate Bay defendants (and this is not a joke) employed the “King Kong defense.”   The defense lawyer argued that none of the defendants had control over their users, including a user who carried the handle “King Kong.”  Thus, if “King Kong” was engaging in illegal activity, then the proper avenue was to subpoena his records and put him on trial, not the administrators of the website.  

The argument didn’t fly with the Swedish judges, and probably wouldn’t have flown with many federal judges here in the United States either.  Like the defendants in Grokster, a judge would probably have said that The Pirate Bay administrators were “inducing” infringement by the layout of their website, and were materially contributing in a more-than-innocent way.  

A classic battle between old industry and new:  specifically, old-school compact-disk-in-a-jewel-case distributors of music versus the burgeoning development of online music distribution.  

Almost at the same time as The Pirate Bay conviction in Sweden, a federal jury in the United States found in favor of the RIAA and leveled a $2 million dollar verdict against a mother of four in Minnesota for hosting 24 tracks on the Kazaa peer-to-peer network.  The verdict against Jammie Thomas-Rasset came after an original verdict was overturned on account of faulty jury instructions and a dismal defense on the part of the defendant, who claimed that a hacker must have taken control over her wireless router (though she didn’t have a wireless router).  She also then blamed her children.  (Incidentally, Thomas-Rasset was defended by Kiwi Camera, the youngest attorney to graduate from Harvard Law School who called African Americans “nigs” on his law school course outlines and didn’t think it was a big deal).

The policies that guide copyright law are intended to promote creativity and reward inventors.  But it seems clear that copyright law as it stands in the United States is in need of a real makeover.  Thomas-Rasset was charged $2 million dollars for songs that she could have downloaded for $1 each on iTunes — no reasonable argument could be made that the fine is proportional to the harm that was caused.   And it is telling that the brains behind the Thomas-Rasset and Pirate Bay lawsuits are the recording industry big-wigs, not the artists themselves.  Indeed, any neutral observer would be unable to deny that the biggest winners by far under the copyright regime are industry groups who already possess a disproportionate amount of power.  The artists themselves continue to make pennies on the dollar under current copyright arrangements.

It is telling that laws are continually revamped in favor of big industry in ways that hamper innovation.  In the early 1990s, The Walt Disney Company lobbied aggressively for legislation that would keep Mickey Mouse and other Disney characters under copyright protection, as they was due to enter in the public domain.  Once in the public domain, any person in the United States would have been able to use the Mickey Mouse character in a book, movie — any creative work — without paying a dime to Disney.   Congress did what it was told, and the “Sonny Bono Act” was passed by both houses and signed into law by President Bill Clinton.

Copyright serves a purpose, but it increasingly is used simply as a way to privatize creative works in the hands of a small, privileged few.       As the barrier between thought and expression is chipped away by technology, does a robust copyright regime make sense?  And why?  How far does copyright extend into the human mind?  What purpose is served by a handful of small companies making the most money from current law?  These questions are not being answered by anyone in power.  Already in Europe, groups like the Pirate Party (no affiliation to The Pirate Bay) are demanding a re-working of copyright law.   

Incidentally, The Pirate Bay is going legal.  A Swedish Company called Global Gaming Factory is purchasing the company for close to $8 million, a sum that will no doubt cover the fines imposed by the Swedish court and possibly even legal expenses (technically the case remains on appeal).  Global Gaming Factory wants to convert The Pirate Bay into a site where individual users are paid to provide legal torrents for other users to download.   A future the RIAA and other industry groups have resisted for a long time is slowly but surely coming into fruition.  The real question is whether legal sites like iTunes (and ostensibly The Pirate Bay) will be the fruit of the concerted effort by industry behemoths to stomp out innovation; or whether it’s just a matter of time before the next progeny in the Napster-Gnutella-BitTorrent line of technologies emerges to take on the very notion of copyright itself.

This entry was posted on Sunday, July 5th, 2009 at 1:16 am and is filed under Law and Politics and tagged with big industry, copyright, technology. You can follow any responses to this entry through the RSS 2.0 feed.