COPYRIGHTS VS. NEW MEDIA THREATS AND CONSEQUENCES ...

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COPYRIGHTS VS. NEW MEDIA THREATS AND CONSEQUENCES ...

COPYRIGHTS VS. NEW MEDIA

THREATS AND CONSEQUENCES FOR THE

DIFFERENT MODELS OF AUTHORSHIP

Cláudia Delgado

Library and Information Science Master’s Thesis

Surpervised by Michael René Kristiansson

Royal School of Library and Information Science — 2012

70 pages


CONTENTS

Abstract ....................................................................................................................3

Introduction...............................................................................................................4

Problem Statement ...................................................................................................6

Methods....................................................................................................................7

Sources .................................................................................................................8

Copyrights.................................................................................................................9

History...................................................................................................................9

Background .....................................................................................................10

First Copyright Laws........................................................................................12

Internationalization ..........................................................................................14

Rights of the Copyright........................................................................................15

Media Ownership Monopoly ...................................................................................17

Control Policies ...................................................................................................18

Broadcasting ...................................................................................................19

Home Recording..............................................................................................20

Internet Revolution..................................................................................................23

History of the Internet as a Copy Machine..........................................................23

Sharing Services .................................................................................................25

Peer-to-Peer ....................................................................................................25

Web .................................................................................................................26

Read-Write Culture .................................................................................................28

Authorship in the Internet....................................................................................28

Amateurism .....................................................................................................29

Collaboration ...................................................................................................29

Remix ..............................................................................................................30

Collecting and Curation ...................................................................................32

1


New Authorships’ Value......................................................................................33

Online Copyright Infringement ................................................................................35

Piracy ..................................................................................................................35

Combating Piracy................................................................................................37

New Reinforcements Proposals ......................................................................39

Reinforcements Battlefield......................................................................................44

Supporting Side...................................................................................................44

Arguments .......................................................................................................45

Accusations .....................................................................................................47

Opposing Side.....................................................................................................49

Arguments .......................................................................................................50

Accusations .....................................................................................................54

Analysis of Authorship’s Models.............................................................................57

Authorship from Classical Media.........................................................................57

Threats ............................................................................................................58

Reinforcement Discussion...............................................................................62

Authorships from the Internet Culture .................................................................63

Threats ............................................................................................................63

Reinforcement Discussion...............................................................................67

Future Perspectives................................................................................................68

Need for Balance ................................................................................................68

Look for Opportunities .....................................................................................69

Copyright Improvement.......................................................................................70

Conclusion..............................................................................................................72

References .............................................................................................................73

2


COPYRIGHTS VS. NEW MEDIA

ABSTRACT

THREATS AND CONSEQUENCES FOR THE

DIFFERENT MODELS OF AUTHORSHIP

Cláudia Delgado

Copyrights have evolved according to the technological changes that affect the

way we create and publish things. A new media means a new way of publishing

and new rules to the publishing business. People usually resist to changes and the

same happens to this business. Over and over strategies were used to protect

them and protect the rights of the authors.

On the other side of the equation has always been the right to information and this

time also the right to create. The new media of today — the Internet —provides not

only platforms to access contents but also publishing platforms, allowing the

development of a new culture and new kinds of authorship. However, the rules of

this new publishing method is no rules, which leaves space for infringements.

There is an obvious dichotomy here. The read-write culture only survives without

gates and gatekeeping and protection is the basis of the established media where

the classical authorship is settled. What threatens one kind of authorship is what

allows the survival of the other.

Meanwhile copyrights reinforcements were proposed, but they only had in

consideration one side of the problem and provoked a wave of protests.

Nevertheless, now the discussion is open and it is expected not reinforcements but

improvements — a balanced approach that reflects everyone’s best interests.

3


INTRODUCTION

Technological revolutions often cause controversy when it comes to

accommodating them into the existing society standards, because they necessarily

change the current status quo and common values come to be questioned. This is

particularly true for the Internet in relation to the traditional copyright model. Never

in history have we had the means to obtain, share and manipulate versions of

cultural products so easily. That has enabled for new kinds of communication,

education, socializing, etc. However, the same technological revolution has also

made copyright infringement a phenomenon that is ubiquitous in today’s society,

especially among the younger generation.

Recently, several pieces of legislation have been proposed on the matter. They all

share the same overall purpose; they are intended to create the legal and

institutional basis for much stronger copyright enforcement online. At one point

they looked like done deals. However now they are in the middle of a very powerful

political mobilization on the part of web users and Internet companies that strongly

oppose them. We are beginning to see a conversation not just about online piracy

and copyrights, but also about the different rights related to the Internet and, in a

broader way, democracy itself as those issues have impact on the rights of

citizens. All this fuzz around Internet and copyrights has gradually become of a

great interest to me.

I decided to adopt it as the theme for this thesis then. As I started to research, I

began to notice a lack of balanced academic studies about it. Many of the existing

studies were supported by industry-sponsored research. Although the community

interested and involved in those issues has grown exponentially lately, it is still a

relatively new interest and emotions are still very fresh. It looks like personal

interest is taking over a more sophisticated discussion, from both sides.

Having these constrains, what I aim to do is to construct an objective map of the

state of art and a collection of reflections. The direction I will take is a neutral one –

understanding the whole historical context and all of the stakeholders involved

4


along with their arguments and motivations. Above all, I will try to find out what are

the problems involved on this topic and describe them, hoping to contribute to the

discussion with a balanced view that can serve as a basis for more reasonable and

thoughtful decisions that may be made latter on the matter.

5


PROBLEM STATEMENT

The Internet has magnified society, its capacities and also its problems. It has

allowed for efficient spread of all types of information. Herewith, access to and

participation in culture has been democratized, and new forms of participation have

appeared. These new models of authorship raise many questions, and one of the

most discussed problems is the one that copyright law was created to solve —

copying. Existing copyright legislation seems to be obsolete and inefficient it in this

new context.

Lately there have been several strong attempts of copyrights reinforcement – new

proportions mean new measures. But the measures themselves do not only create

solutions, they also create problems and controversy. What it is being discussed

now is an old dichotomy between copyrights and information rights – rights to

access and participate in culture, rights to be an author within these new kinds of

authorships.

This being said, my problem statement is the following:

● What are the threats affecting both authorship from classical media and the

new authorships from Internet culture?

● And how are they being affected by the discussion of new copyrights

legislation?

The result will be a description of the problem, which is is a problem in itself, since

it is recent and transversal in so many ways that makes it difficult to fully

understand. It is a “messy” problem, and I want to make it less messy.

6


METHODS

In order to guide myself towards the answers to my questions, I need to build a

guideline for what I intend to do. First of all, I will find out how the law protects

authorship works and what was the historical evolution to get the solution that is in

practice nowadays. It is important to understand what were the factors that created

this law, the context and motivations, the interest and the pressures. It also would

be interesting to see how the law was affected by other technological and society

changes, if it also created discussion and what were the arguments at the time.

This background can introduce useful data to use during the analysis. Secondly, I

will examine the technological change in question: see why the Internet was such a

revolution and how did it affect society and the way we create, publish and

consume things – identify the new authorships brought by this new culture. The

next thing will be to relate those two things, copyrights and the Internet. Figure out

why the Internet raised their infringement, why is that an issue and what is being

made to fight it.

For analysis itself, I will start it by scrutinizing the current discussion on the

reinforcement of copyrights legislation since it is what led us to the research

questions. This should let us know in a big extent how authorships are being

affected by it. Next I will examine the authorships from classical media and the new

models of authorship that the Internet culture is supporting. With the research and

study done earlier, I should be able to answer directly to the research questions at

this point. Lastly, I will try to investigate what are the expectations and hopes for

the evolution of the matter.

I will not do my own empirical research per si, I decided to make use of the data

already available - other studies, interviews, statistics. What I will do is to collect,

carefully filter and connect all the information (like a remix – which I will talk about

later) in order to achieve what I proposed to do – to get a description of the

problems involving authorship nowadays.

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SOURCES

There is a clear lack academic material - books and peer reviewed articles - about

this theme. Although it is an obvious obstacle to the realization of this study, I think

it is still possible to make it serious and trustworthy.

Even though I mostly used the Internet for research, I was very careful with the

sources I rely on. My Wikipedia consultation was balanced with the consultation of

more filtered encyclopedias, like the Britannica, so I could get the best of both

worlds: the trustworthiness of one and the big and fresh amount of information of

the other. I also researched a lot in the online databases of considered serious

newspapers, like The New York Times, and of video conferences services, like

Ted.

I end up finding plenty of good material in documentary films about the topic as

well, namely: Good Copy Bad Copy, a Danish documentary about the current state

of copyright and culture; and Steal This Film I and II, a documentary produced by

The League of Noble Peers about the movement against intellectual property. And,

from the authors that I will frequently cite, two are worth to mention here: Lawrence

Lessig, a Professor in Harvard Law School, the founder of Creative Commons and

the Stanford Center for Internet and Society and also a political activist; and Clay

Shirky, a writer, consultant, lecturer at the New York University and thinker on the

social and economic effects of Internet technologies.

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COPYRIGHTS

According to Encyclopedia Britannica, intellectual property law is “the legal

regulations governing an individual’s or an organization’s right to control the use or

dissemination of ideas or information”.[60] The term refers to a number of distinct

types of creations of the mind. The creators of original forms of expression are

protected by copyright (other creations might be protected by patents, trademarks

or trade-secrets) and the rights given to those creations of the mind by intellectual

property law are exclusive - copyrights holders are granted by exclusive rights to

determine who may reproduce, adapt, and publicly perform their creations.[38]

The legal principles governing intellectual property have evolved over centuries,

and as we are talking about intangible assets, it has always been the reason for

many jurisprudential problems. The interpretation of what is intellectual property

and how to apply its rights is not a straightforward business.

HISTORY

The idea of property has always been attached to physical possession; however,

when it comes to intellectual property, the scholars of Ancient Greece were the first

to be concerned about being recognized as the authors of their works. [34] Even

before writing there was literature - for example Homer published his work by word

of mouth. We can see the respect there was for the authors at that time by the fact

that they are still known nowadays. And after writing and paper forms were

invented authors did not have any thought of making money out of it still, there are

no records of copyrights being infringed. They relied on the reward of the public

and on the honor of a wide circulation of their writings. It was not until the invention

of printing in the 15th century that people awaken for the possibility of profit from

the sales of works and this profit would be diminished by an unauthorized

reprint.[89]

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BACKGROUND

In the beginning of the 15 th century, books (codices) were artifacts. They were

large, tremendously expensive, laborious to create, and made to last forever. It was

a business dominated mainly by the church and, with its rise, by universities. The

copying of a manuscript was a slow process done mainly by monks and was

limited to copying religious works for orders and the royal courts of Europe.

Fifteenth-century monastic scribes were the latest in a long line of clergy. [86]As for

the majority of common people, they were illiterate. Only privileged members of

society had access to these manuscripts.[34] Therefore, information was highly

scarce and relatively easy to control.

Around 1440, the invention of the modern printing caused a revolution, by allowing

the mass distribution of printed materials’ copies. The printing press soon changed

radically the forms and uses of books, dramatic effects on European civilization. Its

immediate effect was that it spread information quickly and accurately and this

helped create a wider literate reading public.[129]

But the printing press also created its share of trouble. It took book copying out of

the hands of the Church and the book De laude scriptorum manualium (In Praise of

Scribes) by Johannes Trithemius proves this controversy. Trithemius really did not

appreciate the printing press for what it was doing to the business of copyist

monks. His main arguments had to do with what hand-copying meant from a moral

and religious perspective but he also spent some time talking about practical

reasons why printed books were not anything to be bothered about: their paper

was not as permanent as the parchment the monks used; there were not many

books in print, and they were hard to find; they were constrained by the limitations

of type, and were therefore ugly.[86] Furthermore, the ability to print books easily

and cheaply raised the issue of piracy, as points the English Intellectual Property

Office.[61] But the truth is that another big problem came - the dissemination of

information that arose was not always favorable to the authoritarian regimes of the

time. Print brought with it a new abundance of information threatening the control

over ideas that had come with scarcity and becomes associated with rebellion and

emancipation.[5] The reaction to this was increasing degrees of censorship.

10


In England, this censorship peaked in 1662 when the English Parliament instituted

a state-controlled censoring tool in a License Act. It established a register of

licensed books, along with the requirement to deposit a copy of the book to be

licensed. The deposit was administered by the Stationers' Company who were

given powers to act as a censor as well.[52][38] The Stationers’ Company was a

guild of English stationers formed in 1403, full name Worshipful Company of

Stationers and Newspaper Makers. A guild was a group who was controlled by the

Crown and held monopolies over particular industries.[141] Stationers’ Company

had the monopoly of copying back then and this License Act was a way of giving

them the monopoly of the printing trade again.

In France things developed in a similar way. The “droit d'auteur” found its roots in

the practice of printing patents and royal privileges, which first appeared in the 16th

century and became common in the 17th century. Through this system, the King

granted monopolies to specific editors, and implemented a system of

censorship.[37]

This kind of regime obviously privileged editors that had the monopolies over the

authors. It was a concept of privilege - a publisher gets the right to publish a

particular text, which is denied it to others. This fact plus the censorship made the

system highly unpopular.[52]

Even before the Licencing Act of 1662, the English poet and political writer, John

Milton published the Areopagitica: A Speech for the Liberty of Unlicensed Printing

(1644). Milton's argument, in brief, was that precensorship of authors was little

more than an excuse for state control of thought. Recognizing that some means of

accountability was necessary to ensure that libelous or other illegal works were

kept under control, Milton felt this could be achieved by ensuring the legal

responsibility of printers and authors for the content of what they published. He

accused the Parliament of being deceived by "the fraud of some old patentees and

monopolisers in the trade of bookselling".[95]

John Locke also wrote a formal memorandum to the member of the Parliament

Edward Clarke in 1693, while the Licensing Act was being renewed, complaining

11


that the existing system restricted the free exchange of ideas and education while

providing an unfair monopoly for the Company members.[124] He had already

written the Essay Concerning Human Understanding and the Second Treatise of

Government that situated knowledge within the individual rather than the

community and argued that the work of one's body should be one's property.[67]

The environment of protests, the liberties brought by the Bill of Rights (1688

Parliament of England) and the "developing public sphere" resulted on the lapse of

the Licensing Act ruling at the time. It was not renewed when expired in 1695.[124]

FIRST COPYRIGHT LAWS

The failure to renew the Licensing Act led to confusion and both positive and

negative outcomes; while the government no longer played a part in censoring

publications, and the monopoly of the Company over printing was broken, there

was uncertainty as to whether or not copyright was a legal concept without the

legislation. [124]

Over the next years the Stationers repeatedly advocated bills to re-authorize the

old licensing system, but Parliament declined to enact them. It is said that, faced

with this failure, the Stationers decided to emphasize the benefits of licensing to

authors rather than publishers, they argued that authors had a natural and inherent

right of ownership in what they wrote (knowing there was little an author could do

with such rights other than sign them over to a publisher). This argument

persuaded the Parliament and in 1709 the first Copyright Act was enacted – the

Statute of Anne - which passed into law on 10 April 1710. [124]

The Statute of Anne introduced two new concepts: an author being the owner of

copyright and the principle of a fixed term of protection for published works, as

previously all literature belonged to the booksellers forever. The Statute was initially

much welcomed by the stability it brought to the insecure book trade and by, at the

same time, having in consideration the availability of knowledge. [38]

12


However, when the copyrights granted to works began to expire, the Stationers'

Company and their publishers again began to fight to defend their dominant

position. Their main argument was that copyright had not been created by the

Statute of Anne; it existed beforehand, in the common law, and was perpetual. As

such, even though the Statute provided for a limited term, all works remained in

copyright under the common law regardless of when statutory copyright expired. It

was the start of a thirty-year campaign known as the "Battle of the Booksellers".

Eventually an understanding was established whereby authors had a pre-existing

common law copyright over their work, but, with the Statute of Anne, these natural

rights had been limited in order to strike a more appropriate balance between the

interests of the author and the wider social good. There remains confusion about

the nature of copyright ever since. Copyright has come to be viewed both as a

natural law right of the author and as the statutory grant of a limited monopoly. One

theory holds that copyright's origin occurs at the creation of a work, the other that

its origin exists only through the copyright statute.[30]

In France, the royal privileges were also reformed by a series of royal decrees, in

1777. The royal decrees prohibited the renewal of privileges and, once the privilege

had expired, anyone could obtain a permission to print or sell copies of the work.

Hence the public domain in books whose privilege had expired was expressly

recognized, unlike in the United Kingdom case.[52] Yet, the system was crushed

by the revolution of 1789. And right after the National Convention started working

on new legislation on the matter, a controversy similar to the English one exploded,

this time concerning dramatic authors. The issue was Comédie-Française being

granted the exclusive right to the public performance of all dramatic works and

dramatic authors rebelled against it. In 1791 the National Assembly abolished the

privilege. Since then, anyone was allowed to establish a public theatre and the

works of any author who had died more than five years ago were public property.

These preliminaries resulted in the July 19, 1793 Chénier Act.[37]

As for the United States of America, the U.S. Congress first exercised its power to

enact copyright legislation with the Copyright Act of 1790. The Statute of Anne did

13


not apply to the American colonies at the time because the colonies' economy was

still largely agrarian, copyright law was not a priority. [52]

Similar laws were enacted in Denmark (1741), the United States (1790), and

France (1793). During the 19th century most other countries established laws that

protected the work of native authors.[38]

INTERNATIONALIZATION

But all these laws did not prevent completely piracy and neither the spread of

revolutionary thought. On the contrary, it's existence inspired the creation of new,

parallel pirate systems of distribution. Actually, according to the documentary Steal

this Film II, many of these pirates thought they were just doing business, after all

there was no international copyright law and they were satisfying demand.[3]

The fact that a writer who published a book in his country of origin could have the

work pirated abroad created the necessity for internationalization. The big step to

the world homogenization of copyrights was the Berne Convention for the

Protection of Literary and Artistic Works, first established in 1886. The core

features the Berne Convention brought were: the principle of national treatment,

meaning that a Berne member country must extend the same treatment to the

works of nationals of other Berne member countries as are enjoyed by its own

nationals (Article 3-5); the establishment of minimum standards of national

copyright legislation (though member states can increase the amount of protection

given to copyright owners); and the agreement that copyright arises with the

creation of a work and does not depend upon any formality such as a system of

public registration (Article 5(2)). The Berne Convention was re-negotiated in 1896

(Paris), 1908 (Berlin), 1928 (Rome), 1948 (Brussels), 1967 (Stockholm) and 1971

(Paris).[21]

The United States initially refused to become a party of the convention, since that

would have required major changes in its copyright law. This led to the creation of

another international convention, the Universal Copyright Convention in 1952, to

14


accommodate the wishes of the United States. The Universal Copyright

Convention imposes fewer substantive requirements than the Berne

Convention.[135] Nonetheless on 1989, the United States Senate ratified the

Berne Convention Implementation Act of 1988, making the U.S.A. a party to the

Berne Convention, and making the Universal Copyright Convention nearly

obsolete.[21]

Nowadays, 2012, there are 165 countries that are parties to the Berne Convention.

And since almost all nations are members of the World Trade Organization, the

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), an

annex to the agreement establishing the WTO, requires non-members to accept

almost all of the conditions of the Berne Convention. However, even though many

aspects of national copyright laws are standardized, copyright laws of most

countries have some unique features, still. It is said that there are no two countries

whose copyright legislation is identical.[62]

On a higher level there is also the World Intellectual Property Organization (WIPO),

"to to promote the protection of intellectual property throughout the world "[33], one

of the 17 specialized agencies of the United Nations, created in 1967.

RIGHTS OF THE COPYRIGHT

Despite copyright initially was conceived as a way for government to restrict

printing, the contemporary intent of copyright is to promote the creation of new

works by giving authors exclusive rights to control and profit from them. Exclusive

right means that only the copyright holder is free to exercise those rights, and

others are prohibited from using the work without the holder’s permission.[38][39]

Some typical exclusive rights[22]:

● to produce copies or reproductions of the work and to sell those copies

(including electronic copies)

● to import or export the work

● to create derivative works (works that adapt the original work)

15


● to perform or display the work publicly

● to sell or assign these rights to others

● to transmit or display by radio or video

Copyright is sometimes called a "negative right" as well, as it serves to prohibit

other people than not the owner from doing something they would otherwise be

able to do, rather than permitting the owner to do something he would otherwise be

unable to do.[39]

Copyright law recognizes the right of an author based on whether the work actually

is an original creation. “Original works of authorship” include literary, dramatic,

musical, artistic, and certain other intellectual works, which obviously meet minimal

standards of originality in order to qualify for copyright (different countries impose

different tests, although generally the requirements are low).[22]

This protection is available for both published and unpublished works. As we know,

in all countries where the Berne Convention standards apply, copyright is

recognized in any completed work, without formal registration in any government

office. Once an idea has a tangible form, the copyright holder has the liberty to

enforce his exclusive rights. The length of the term the copyright is active can

depend on several factors, including the type of work, whether the work has been

published, and whether the work was created by an individual or by a corporation.

The minimum standard required by the Berne Convention, is the whole life of the

creator plus fifty, except for photography and cinema. For anonymous or corporate

creations the term is also finite. [22]

16


MEDIA OWNERSHIP MONOPOLY

Publication is the distribution of copies to the public and, as we know, it is an

exclusive right of the copyright owner. It is defined by the Berne Convention as

distribution of copies with the consent of the author, “provided that the availability of

such copies has been such as to satisfy the reasonable requirements of the public,

having regard to the nature of the work.[22]

Classical media authors are the initial copyright owners and might be their own

publishers, but often they prefer to make a mutual agreement with a publishing

company, to benefit from better production and marketing capabilities (as they

used to have much better means to do it). The agreement usually includes the

transference of all copyrights from the author to the company so that the last shall,

during the legal term of copyright, have the exclusive right to produce or reproduce

the said work in any material legible form throughout the world.[53] In exchange the

author receives certain payments, royalties and other considerations.

The fact that publishing became so independent of creation made it a business,

with a need for the expenses of creating, producing, and distributing not to exceed

the income derived from its sale.[109] Business should be characterized by

competition, however, in this case, it seems to be more characterized by the lack of

it. Monopolies were always present in the history of copyrights and, even

nowadays, the concentration of media ownership is still very present.

A media conglomerate is a company that owns large numbers of companies in

various mass media.[94] Contemporary research demonstrates increasing levels of

consolidation, with many media industries already highly concentrated and

dominated by a very small number of firms.[32] According to the 2011 Fortune 500

list, The Walt Disney Company is America's largest media conglomerate in terms of

revenue, with News Corporation, Time Warner, CBS Corporation and Viacom,

sharing 90% of the market.[7] Other major players are NBC Universal, and Sony

Corporation of America.

17


This state of concentrated ownership is an oligopoly, as few companies dominate

the market together and compete only with each other. Proponents of oligopoly

media market structures say that media conglomerates can run the media more

efficiently and cost effectively.[31] But it can also be seen as a problem when we

think about some of its consequences. Where competition is almost absent, it

usually leads to slower innovation and increased prices, although it is argued the

opposite.[32] Also, media institutions are commercially driven; they survive on

advertising fees, which can lead to the media outlet being influenced by various

corporate interests.[117] And, related to this, there are also concerns about

whether the views being expressed by the mass media reflect the diversity of the

communities served.[31] This media imperialism problem can be extended. In

communications, media are the tools used to store and deliver information –

publishing - and, as things are settled, we can infer that with the media ownership

comes the copyrights ownership too, as authors depend on them to be published.

Nowadays the two of the most influential trade organizations on the content area

are the Americans RIAA and MPAA. Motion Picture Association of America

(MPAA) serves as the voice and advocate of the American motion picture, home

video and television industries. Its members include: Walt Disney Studios Motion

Pictures; Paramount Pictures Corporation; Sony Pictures Entertainment Inc.;

Twentieth Century Fox Film Corporation; Universal City Studios LLC; and Warner

Bros. Entertainment Inc.[130] The Recording Industry Association of America

(RIAA) is the equivalent for the recording industry distributors, being the biggest

ones EMI, Sony Music Entertainment, Universal Music Group, Warner Music

Group.[111]

CONTROL POLICIES

This media companies, as any other money driven company, strive for policies that

facilitate their control of the markets across the globe - as Clay Shirky says, “self-

preservation of the institution becomes job number one, while its stated goal is

relegated to number two or lower, no matter what the mission statement

18


says.”[119] However, the principal threat to this kind of enterprises has proven not

to be the competition from other similar enterprises, but radical changes in the

overall ecosystem of information, when a new media comes in.

Copyrights have been constantly used as a shield, for the direct competitors and as

the most plausible argument to avoid changes. An already seen example was

when stationers argued, upon the printing revolution, that authors had a right of

ownership in what they wrote. Yet, they knew there was little an author could do

with such rights other than sign them over to a publisher.

The truth is that, although copyrights were created to protect authors, they have

been more effective when it comes to publishers’ protection (and their monopolies

and oligopolies), and sometimes the reasonability of it can be questionable. This

time, the example I have to give occurred when another great terror for the content

industry was created by the broadcasting technology.[82]

Note: From now on I will focus my research and analysis mainly in the United States of America.

Although the United Kingdom was the first country to worry about copyrights and the most influential

to its initial development, the United States took over. As United Kingdom had a big market around

books and their printing process, we know that United States have now the most powerful media

businesses.

BROADCASTING

Broadcasting was a new way to spread content, and therefore a new battle over

the control of the businesses that would spread content. In the 1930s, radio was

arising as a source of musical entertainment that threatened to weaken record

sales and opportunities for live acts.[27] In the USA, the solution was found in

ASCAP, the American Society of Composers, Authors and Publishers.

ASCAP was an already existing organization created to protect its members'

musical copyrights by monitoring public live performances of their music and

compensating them accordingly, by collecting licensing fees from users of music

and distributing them back to its members as royalties.[17] The entity started to

19


control the performance rights for the music that would be broadcast as well. They

had an exclusive license on the most popular content and exercised it in a polemic

way. ASCAP required radio stations to subscribe to blanket licenses granting

ASCAP a fixed percentage of each station's revenue, regardless of how much

music the station played from ASCAP's repertoire. This made it very expensive for

radios to broadcast music and it condemn them to play songs of the songwriters

and publishers’ elite members of that society. Conscious of this monopoly, ASCAP

constantly raised rates to what was required to pay, until when in 1939 announced

an increase almost to double.[27]

As a consequence of this abuse, the broadcasters got together - the National

Association of Broadcasters founded Broadcast Music, Inc. (BMI), to provide a

lower-cost alternative of licensing. BMI was born with a different business model

then ASCAP: the licensees had the option of paying only for the music they actually

use instead of buying a blanket license; it was much more democratic on what to

include in the repertoire, it sought out artists that ASCAP tended to overlook and

purchased the rights to numerous catalogs held by independent publishers; [27]

and it took public domain works and gave away for free to their subscribers.

ASCAP said they did not feel threatened, people will still choose us because we

have the very best music.[82] But no, the majority of broadcasters switched to BMI.

Eventually, the differences between ASCAP and the broadcasters were settled,

and ASCAP agreed to fees much lower than in preceding years.[82] Radio plus

television end up to be second mass media after printing. The audio-visual facilities

became very popular because they provided both information and entertainment

and because it was easier and more engaging for the general public to passively

watch TV or listen to the radio than to actively read.[88]

HOME RECORDING

Of course the broadcasting technology could not exist without the recording

technology, of sound and image evidently. I am going to use as another example

the polemics around the begging of home recordings.

20


With the rise of cassette recorder popularity, music recording companies feared

that people being able to record music from the radio onto cassettes would cause a

decline in record sales. For that reason the British Phonographic Industry,

launched in 1980 an anti-copyright infringement campaign by the slogan of "Home

Taping Is Killing Music".[56] And the RIAA and music publishers, also concerned

that consumers' ability to make perfect digital copies of music would destroy the

market for audio recordings, had threatened to sue companies and had lobbied

Congress to pass legislation imposing mandatory copy protection technology and

royalties on devices and media. The result was the Audio Home Recording Act of

1992, which surprised the music industry by enabling the release of recordable

digital formats without fear of contributory infringement lawsuits. It set out a clear

distinction between legal and illegal copying - taping, remixing and sharing with

your friends is okay, making lots and lots of high quality copies selling them, is not

okay.[19]

As for video tape recording, in the 1970s, Sony developed Betamax, the earlier

VHS. Universal Studios and the Walt Disney Company were among the film

industry members who were wary of this development. Therefore, in 1976, the

companies sued Sony and its distributors, alleging that Sony was manufacturing a

device that could potentially be used for copyright infringement. The case, by the

name of Sony Corp. of America v. Universal City Studios, went up to the Supreme

Court of the United States.[123] In response to it, it was founded in 1981 the Home

Recording Rights Coalition, a U.S. non-profit organization that claimed to protect

the rights of consumers to view, listen to, and record radio and television

broadcasts.[55] The final decision, known in 1984, gave this organization reason.

The decision ruled that the making of individual copies of complete television

shows for purposes of time shifting does not constitute copyright infringement, but

it is fair use. The Court also ruled that the manufacturers of home video recording

devices, such as Betamax or other VCRs, cannot be liable for infringement. The

case benefited the home video market and it created a legal safe haven for the

technology.

21


Surprisingly, it ended up to also benefit significantly the entertainment industry

through the sale of pre-recorded tapes. Rather than destroying film and music

industries, tape sales became increasingly important to their revenue, and after

that CD’s and DVD’s. The Evening Independent said in 1985 that sales of pre-

recorded film tapes were about the same as box office revenue[14], and by 1987

the VCR was credited of sending viewers back to the theaters, as videotapes'

popularity encouraged consumers' interest in film.[108] Nevertheless, in 1995, The

New York Times reports that more than half of Hollywood's American revenue

came from home video compared to less than a quarter from movie theaters.[98]

The VCR was no longer arguably believed to be the death knell of the movie

business, instead it became its savior.[13]

Both the Audio Home Recording Act and the Sony decision established a number

of important precedents in U.S. copyright law that defined the debate between

device makers and the content industry for the ensuing two decades.

22


INTERNET REVOLUTION

The radical change in the ecosystem of information we are going through right now

is the introduction of the Internet. This is the new media that is threatening the old

ones right now.

The Internet is a system of interconnected computer networks (a network of

networks), a global data communications system between computers and it has

revolutionized the communications’ world like nothing before. It is, at once, a world-

wide broadcaster, a mechanism for information dissemination, and a medium for

collaboration and interaction between individuals and their computers without

regard for geographic location.[80][64] Because of it, we are living in the middle of

the largest increase in expressive capability in the history. More people can

communicate more things to more people than has ever been possible in the past,

and the size and speed of this increase makes the change unprecedented.

A computer is connected to the Internet most likely using an Internet Service

Provider (ISP). When connected to a ISP, it becomes part of their network, the ISP

may then connect to a larger network and become part of their network. In this

network of networks every machine has a unique identifying number, called an IP

Address. To make a connection to other computer the IP address of that computer

needs to be provided.[58] As typing the IP number became unwieldy as more and

more systems came online, it was created the Domain Name System (DNS), which

maps text names to IP addresses automatically, with a hierarchical distributed

naming system.[44] This are the very basics of the workings of the Internet.

HISTORY OF THE INTERNET AS A COPY MACHINE

Internet origins reach back to 1960s. The invention of the telegraph, telephone,

radio, and computer set the stage for its integration of capabilities, and then the

history revolved around some different aspects, resulting in an effective transition

of research results into a broadly deployed and available information infrastructure.

23


The technological evolution began with early research on packet switching and the

ARPAnet.[80] The ARPAnet was designed to allow scientists to share computer

resources in order to improve innovation. The interest was to build robust, fault-

tolerant, and distributed computer network. To make this vision work, ARPAnet had

to allow each machine on the network to reproduce and relay the information sent

by any other. This network, in which peers shared resources equally, was a

massive shift from the corporate and commercial communications systems of the

past - in which messages radiated from a central point or down through a

hierarchy. In ARPAnet there was no centre and no machine was more important

than another. Anyone could join the network, provided they agreed to abide by the

rules, or protocols on which it operated. What ARPA's engineers had produced was

the blueprint for a massive copying machine without master, which would grow into

today's Internet.

Its commercialization began in 1990s, and resulted in the Internet popularization

and incorporation into virtually every aspect of modern human life.[64] As in the

end of 2011, according to the Internet Word Stats, more than 2.2 billion people —

nearly a third of Earth's population — use the services of the Internet, making it one

of the most robust and growing industries nowadays.[63] By relying on the Internet,

society is bringing into its very centre a machine whose primary function is the

reproduction and distribution of information. It's an inherent function of the networks

that we use today that data is stored and copied iteratively - every single packet

that flies through the Internet is stored in memory and retransmitted, copied from

one network segment to the next.

Another inheritance from the ARPAnet and one of the most important characteristic

of the Internet is that it's extremely decentralized. The network is built so that there

is nobody in charge that everybody has control over their own communications - it

has no centralized governance in either technological implementation or policies for

access and usage and each constituent network sets its own standards.[65]

24


SHARING SERVICES

Being the Internet a system designed primarily for the distribution of information in

the form of copies, we can say that file sharing, the practice of providing access to

digitally stored information, is one of its main activity. File sharing can be

implemented through a variety of ways, by services that were invented and are

operated by other network users and have a have a decentralized form as well.

Computers are able to access remote files using e-mail, using ftp, using distributed

peer-to-peer networking, and using World Wide Web-based hyperlinked

documents, among another extensive range of services.[46] I am going to

concentrate in the last two I mentioned.

PEER-TO-PEER

Peer-to-peer (P2P) refers to a computer network in which each computer in the

network can act as a client or server for the other computers in the network,

allowing shared access to files.[105] Peers (users) can run on their own computers

software that connects them in to the network without having any place where

there is a master list or a master coordination. To download files, that are on the

computers of other peers connected to the network, the only requirement is a

central server for indexing and peer discovery. (To the file storing metadata about

the location of different pieces of the target file is given the name of ‘torrent’.)[133]

With this model, peers are both suppliers and consumers of resources, in contrast

to the traditional client–server model where only servers supply (send), and clients

consume (receive).[105] This way, P2P engages internet communication as it was

originally designed.[5]

P2P has excellent scalability, high availability, and low cost. Moreover, the

decentralized nature of its networks increases robustness, because it removes the

single point of failure that can be inherent in a client-server based system, and the

lack of a system administrator leads to a network that is easier and faster to setup

and keep running. At the same time, these kind of decentralized networks introduce

25


WEB

new security issues because they are designed so that each user is responsible for

controlling their data and resources.[105]

Tim Berners-Lee was the first to propose and implement the World Wide Web,

commonly known as Web.[132] Web, in short, is a collection of interconnected

documents and other resources, linked by hyperlinks, referenced with URIs

(containing the domain names to get the IPs) and accessed mainly with the

protocol HTTP.[139] Compared to printed media, books, encyclopaedias and

traditional libraries, the Web has enabled the decentralization of information on a

large scale.[140] Thanks to it, the old limitations of media have been radically

reduced and, with it, something can go from local to global in a heartbeat.

The vision of Tim Berners-Lee for the Web was close to a peer-to-peer design, in

that it assumed each user would be an active editor and contributor creating and

linking content to form an interlinked web of links. This contrasts to

the broadcasting-like structure how the Web was developed in the first years.

Although the first” version” of the Web was already a change, the big change

happened when the Web went from being another medium to retrieve information

to something much bigger, a totally new platform more similar to what Berners-Lee

had envision. “Web 2.0” is usually the jargon used to define it. The term was firstly

used by Tim O’Reilly in 2004 meaning the web-based software which is continually

collaboratively updated.[99] “Silicon Valley consultants call it Web 2.0, as if it were

a new version of some old software. But it's really a revolution.”, says Time

Magasin.[51] What happened is that, over time, the process of creating and serving

web pages has become more automated and more dynamic. Nowadays, websites

are often created using content management or wiki software with, initially, very

little content. Contributors to these systems fill the underlying databases with

content, using editing pages designed for that purpose, while casual visitors view

and read this content in its final HTML form.

26


In “Web 1.0” sites users are limited to the passive viewing of content that was

created for them. On the other hand, a Web 2.0 site allows users to interact and

collaborate with each other in a social media dialogue, as creators of user-

generated content in a virtual community – they do not just watch, they also

work.[136] Users are the ones who provide the data that is on a Web 2.0 site - that

is why we can talk about a true sharing service - and exercise the control over it (at

least some). We can also talk about decentralization, as the power of the Web was

moved to the desktop of each one of us, by increasing what was already possible

before. It provides the user with more user-interface, software and storage

facilities, all through the browser[136], but, like in P2P systems, with user power

comes user responsibility.

27


READ-WRITE CULTURE

Starting with giving power to users, the Internet allows them to accomplish tasks

that were once the province of just a specialized few. Publishing is not a privilege

of the ones who have a publisher anymore, using the Internet, everyone can be his

own publisher and reach an enormous amount of people. Publishing is now called

sharing in the Internet world.

Attached to this came a cultural change. Before the Web 2.0 revolution we were

confined to what Lessig calls a read-only culture (in an analogy to a read-only CD,

which allows only the viewing of its content), where creativity was consumed but

the consumer was not a creator, as the technologies that supported the production

and distribution limited the role of the consumer to just that, consuming with no

interaction. In a read-only culture, a small professional group – the content industry

– is responsible for all the culture that is then consumed passively by the

masses.[83] And, as we know, it seems to result to the content industry possessing

an authority on that particular product/information – the copyright.

Nowadays we do not have the same constraints and so a read-write culture has

come up (in an analogy to read-write CD, where the owner can change their

material on the disk). Digital technologies provide the tools for democratizing

production and distribution and, so, culture has a reciprocal relationship between

the producer and the consumer.[83]

AUTHORSHIP IN THE INTERNET

A common sign that can be found on people included on this read write culture is

the unstoppable sharing activity. As Clay Shirky says “People share written things,

people share images, people share audio, people share video. Some of the things

people share are things they have made. Some of the things people share are

things they have found. Some of the things people share are things they have

made out of what they have found.”[120]

28


AMATEURISM

An amateur is commonly thought as someone who isn’t a professional, who is

unprofessional and inexpert. But there is also a more complimentary meaning:

according to the Oxford English Dictionary the word amateur refers to one who

loves, is fond of, or has a taste for, anything; one who cultivates anything as a

pastime. Actually, according to the same dictionary, the root of the

word amateur comes from a Latin term meaning “to love”.[102]

Nowadays there are conditions and motivation for a process of mass

amateurization of the content industry and that is what is happening. Web 2.0

sharing platforms, such as Flickr, YouTube or even P2P platforms like the Pirate

Bay, create very few demands on the participants and enable them to publish ideas

and information to a potentially large audience online, at greatly reduced expense

and time delay. Plus, production technology is more and more accessible and the

knowledge to control it more and more available (also thanks to information

avaiable on the Internet), so creating and editing all kinds of contents is now an

achievable goal not only to professionals.[119]

Being an author the person who originated or gave existence to anything[20], we

can say that authorship was extended to all of these amateurs, and credit must be

given for participating in the culture they love.

COLLABORATION

With privileges democratized on the creation and distribution of content, not only

authorship was extended to everyone, but also a number of new models of

authorship arose. These new models of authorship involve different forms of

collaboration. Of course, collaborative authorship is not unique to this new media:

think of medieval cathedrals, traditional painting studios which consisted from a

master and assistants, music orchestras, or contemporary film productions.[87]

This new media, however, offers some new variations on the previous forms of

collaborative authorship. I will explain.

29


Communication media used to be between one sender and one recipient, a one-to-

one pattern (the sender talks and the recipient talks back), or between one sender

and many recipients, a one-to-many pattern (the recipients can't talk back) -

broadcasting. Internet services’ efficient and democratic distribution capability allow

this broadcasting to be made anyone and with a world wide scale. But, more than

that, the Internet, and specially the Web 2.0, provided a third alternative: many-to-

many, a much more natural interaction among users. These new tools are the first

to fit human social networks well. The one-to-one and one-to-many tools limit our

communications, but many-to-many tools support and accelerate cooperation and

action.[119] From this large-scale and easy communication and coordination, a

new category of group work has emerged.

The action is done by loosely structured groups, amateurs operating without

managerial direction and outside the profit motive. Those people come together

because they have an affinity for something and they like to interact with their like-

minded peers. They give rise to self-organized communities that perform works

around their shared interests. It is what Jeff Howe describes as ‘crowdsourcing’.

Crowdsourcing is the act of taking a task traditionally performed by specific

individuals and outsourcing it by making an open call to an undefined but large

group of people.[59]

One of the first effective examples of this model of collaborative production is the

free software movement, formed by Richard Stallman, which has produced, among

other things, Linux, Mozilla Firefox, and OpenOffice. This movement was followed

by several other projects with the same philosophy, like Wikipedia. They rely on

trust in anonymous users to constantly and quickly build content.

REMIX

Read-write culture can also be called remix culture, a term used to describe a

society which allows and encourages derivative works. Remix is defined as

combining or editing existing materials to produce a new product. (Are not they all?

"Nothing comes from nothing" said Descartes.) In this culture, the public is free to

30


add, change, influence, and interact with their culture. All members are producers

who continually consume, remix, and produce new material.[110]

As collaboration, this remix culture is not new. According to Lessig, taking works,

such as stories and songs, and appropriating them in private circles was

considered to be 'popular' culture before the advent of reproduction technologies.

The technologies and copyright laws that soon followed, however, changed this

dynamic, as professionalized people were taught to defer production to the

professionals.[82] There are records of complaints about the changes those

technologies were bringing. The philosopher Socrates lamented that writing would

make us stupid because it would eliminate the need to remember things and

intellectual prowess, hinged on one’s ability to draw into a conversation myriad

references, citations, facts, and allusions.[106] We have to remember that works

were once published by the word of mouth – I already talked about Homer – and

who tells a tale will always add a any kind of self made detail.

In the same way, John Philip Sousa complaint about the then emerging recording

industry. In a submission to a congressional hearing, in 1906, he argued: “These

talking machines are going to ruin the artistic development of music in this country.

When I was a boy...in front of every house in the summer evenings, you would find

young people together singing the songs of the day or old songs. Today you hear

these infernal machines going night and day. We will not have a vocal cord left.

The vocal cord will be eliminated by a process of evolution, as was the tail of man

when he came from the ape.”[68] Sousa and Socrates’ fear was that we would lose

the capacity of creation and re-creation because of these new technologies and in

its place, we'd have the opposite of read-write culture, what we could call read-only

culture - a culture which is top-down owned.

As for the examples we see today, collaboration works are actually a kind of remix,

so we can consider this wave of collaboration responsible for the return of this

culture. But not only, the amateurism also attracted a lot of remix - people do things

out of the things that they found, as I mentioned when I talked about amateurs –

the most common are covers of songs and mash up of songs and videos.

31


COLLECTING AND CURATION

To be able to remix information needs to be aggregated, filtered and

connected.[74] We operate by choosing what to retain, by paraphrasing, quoting

and labeling that material, so that we can find it again and combine it with other

material in a process of human judgment and creativity.[24] Connections and

combinations drive value to creation as we see in remix, however, we cannot

connect without aggregating and judgment-based filtering first – collecting and

curating. This is what helps us deal with the vast amount of information available to

us.[74]

Overabundance of information has been considered a problem for centuries,

according to Ann Blair, a Harvard University’s historian. In antiquity and the middle

ages management tools to deal with it were created, including compilations of

summaries and excerpts, organized under subject headings, and alphabetical

indexing. Furthermore, as we know, the spread of printing in the 15th century

massively increased the number and availability of books, and those compilations

became even more desirable. The reference book, which offered ready for use the

best bits from all those books one didn’t have time to read, was a commercial

success.[24]

If centuries ago information was considered overabundant, what can we say about

now with the Internet and the new authors? How do we filter information? “The only

group that can catalog everything is everybody.” says Clay Shirky. “One of the

reasons you see this enormous move towards social filters, as with Digg, as with

del.icio.us, as with Google Reader, in a way, is simply that the scale of the problem

has exceeded what professional catalogers can do.” [121]

So not only in this culture everyone is an author, but also everyone is cataloger and

a curator. And following Maria Popova, the founder of Brain Pickings (a human-

powered discovery engine for interestingness), in this new world of informational

abundance, content curation is a new kind of authorship too. “Sharing platforms are

the new information discovery tools and, if information discovery plays such a

32


central role in how we make sense of the world in this new media landscape, then

it is a form of creative labor in and of itself”, like the reference books are.[106]

NEW AUTHORSHIPS’ VALUE

By taking all kinds of input from all kinds of participants, the culture becomes richer

and more inclusive. But this cultural change and these new authorships based on

amateurism and collaboration have their critics too, such as Andrew Keen. He

argues that Web 2.0, by allowing anybody, anywhere to share and place undue

value upon their own opinions about any subject and post any kind of content, has

created a cult of digital narcissism and amateurism, which undermines the notion of

expertise. Keen is especially concerned about the way that the current Internet

culture undermines the authority of learned experts and the work of professionals,

criticizing Web 2.0 for being similar to Marxism, for destroying professionalism and

for making it impossible to find high quality material amidst all the user-generated

web content.[76] Additionally, The Sunday Times reviewer John Flintoff has

characterized Web 2.0 as "creating an endless digital forest of mediocrity:

uninformed political commentary, unseemly home videos, embarrassingly

amateurish music, unreadable poems, essays and novels", and also asserted that

Wikipedia is full of "mistakes, half truths and misunderstandings".[48]

On the defensive side, Lawrence Lessig wrote an extremely negative review of

Keen’s book: “what is puzzling about this book is that it purports to be a book

attacking the sloppiness, error and ignorance of the Internet, yet it itself is shot

through with sloppiness, error and ignorance. It tells us that without institutions, and

standards, to signal what we can trust (like the institution (Doubleday) that decided

to print his book), we won't know what's true and what's false. But the book itself is

riddled with falsity - from simple errors of fact, to gross misreadings of arguments,

to the most basic errors of economics.” “The real argument of Keen's book is that

traditional media and publishing is just as bad as the worst of the Internet.” Also, he

listed what he stated were a multitude of errors in the book including

mischaracterizations of Lessig's views and work. His conclusion was that it is a

33


great thing when amateurs create, even if the thing they create is not as great as

what the professional creates, and that, if you simply compare the average blog to

the NY Times, the real point is being missed. [81]

Yet, there is also who defends that the value of amateurs should be re-thought,

especially collaborative amateur work. Jeff Howe certainly thinks so. In his

book Crowdsourcing, he devotes a whole chapter to the valuable role played by

amateurs through history. Crowdsourcing allows the power of the crowd to

accomplish tasks that were once the province of just a specialized few and these

communities are rapidly starting to perform many of the functions only corporations

could afford to do in earlier business eras.[59] For comparison, the last print

version of the Encyclopedia Britannica, in 1985, amounted to 40 million words.

Wikipedia, has far surpassed these numbers; the English-language Wikipedia is

now close to an estimated 2.5 billion words.[122] Wikipedia has turned into a

relatively reliable source of information on the widest possible range of subjects

because, on the whole, the good drives out the bad. When someone sabotages or

messes with an otherwise sound entry, there are plenty of people out there who

see it as their job to undo the damage, often within seconds of its happening.[84]

That is why, in 2006, TIME magazine person of the year was “You”. That is, TIME

selected the masses of users who were participating in content creation on Web

2.0 sites. “It's a story about community and collaboration on a scale never seen

before. It's about the cosmic compendium of knowledge Wikipedia and the million-

channel people's network YouTube and the online metropolis MySpace. It's about

the many wresting power from the few and helping one another for nothing and

how that will not only change the world, but also change the way the world

changes.”[51]

34


ONLINE COPYRIGHT INFRINGEMENT

The architecture of copyright law and the architecture of the digital technologies,

that provide space for all these valuable participating authors, do not fit by their

nature. Copyright law, at its core, regulates copies, and, in the digital world, by

using it, we cannot escape the production of copies. As every creation is protected

by copyrights by default, every single use of the Internet requires permission

therefore; without permission, we are trespassers. Having this line of though every

Internet user is a trespasser, but lets put the issue in a simpler way and just

consider a trespassing when a copyright holder really chooses to exercise those

copying rights (I am not talking about be right to be credited).

Having said this, the association of Web sharing platforms and P2P platforms with

copyright infringement cannot be made. They are just content distribution

mechanisms, they can be used both legally and illegally. Nonetheless, the Web’s

anarchy, absence of laws and police and the attribution of all the responsibility to

the users leave space for disrespect and breaking of rules. There is doubtlessly

numerous illegal content scattered on those networks.

PIRACY

Copyright infringement is the unauthorized use of works under copyright -

infringement of the copyright holder's exclusive rights. Here concretely, as I said,

the right to reproduce or perform the copyrighted work, spread the information

contained within copyrighted works, or to make derivate works.

Copyright infringement is having an unprecedented growth over the Internet and it

is revealing an entirely new aspect. Copyright holders have been describing online

copyright infringement as piracy, as the traditional copyright infringement used to

be. Although piracy traditionally refers to acts intentionally committed for financial

gain, the impact of unauthorized copying over the Internet is in such a big degree

that makes the term appropriate.[36]

35


The fact that online piracy is usually not committed for profit is one of the aspects

that make it fundamentally different from traditional commercial copyright

infringement. Other big difference is that it is not wholly committed by a criminal

enterprise but by the active participation of a big number of people. Online piracy is

widespread and also broader in scope - it extends to categories of right holders like

photographers, illustrators, and graphic artists, whose works in the physical world

were more rarely pirated due to difficulties in reproducing them. Another aspect of

online piracy’s broader scope is the fact that it has sprung up in developed

countries, particularly in Nordic countries, where commercial piracy has been

largely held in check.[103]

Its continued growth is a function of high-speed internet access and improving

forms of compression technology - as broader bandwidth capacities are developed

for consumers around the world, the losses attributable to online piracy are

expected to grow.[103] But there are other ingredients for this global media piracy.

The study Media Piracy in Emerging Economies done by Social Science Research

Council, also blames the high prices for media goods - we have seen a massive

expansion in the infrastructure for digital consumption and copying and at the same

time there has been very little corresponding increase in the affordability or

availability of legal digital goods.[73]

Anyway, accurate numbers for piracy are difficult to find, there is a lack of serious

independent statistical studies around the topic. In 2005, according to the e-

Copyright Bulletin of UNESCO, it was estimated that around the world almost 3

billion copyrighted songs were illegally downloaded each month.[2] And, according

to the Digital Music Report of 2006, the digital practices of copying that fall outside

the boundaries of copyright law are up to 95% of it, if industry estimates of online

music piracy are taken as an indicator.[2] As for the Motion Picture Association of

America, estimates 13% of American adults have watched illegal copies of movies

or TV shows online.[115] I will also leave here some data found in an infograph

designed by Go-Globe.com[100] and discuss the topic again later.

● 70% of online users find nothing wrong in online piracy;

36


● 22% of internet bandwidth is used for online piracy;

● 2 / 3 of total torrents available online are illegal;

● More than 75% computer users use at least one pirated

application, software, game or music.

COMBATING PIRACY

From its beggining, the Berne Convention has recognized, in specific terms, the

problem of copyright infringement - "Pirated works may be seized on importation

into those countries of the Union where the original work enjoys legal protection”

(Art. 12). Yet, it never imposed detailed obligations on member states to address

this problem.[103] This gap in the international legal framework was filled firstly, in

significant part, by the Agreement on Trade Related Aspects of Intellectual

Property Rights of the World Trade Organization (WTO). Then, in 1996, the WIPO

Copyright Treaty provided additional protections necessary due to advances in

information technology and the Internet, like covering computer programs and

databases, reinforcing the control over distribution and prohibited circumvention of

technological measures for the protection of works.[138]

In the United States of America the WIPO Copyright Treaty was implemented by

the Digital Millennium Copyright Act (DMCA), passed on in 1998, substituting the

Audio Home Recording Act of 1992. This act criminalizes and heightens the

penalties for production and dissemination of technology devices or services that

may circumvent copyrights. And it also criminalizes the act of circumventing an

access control, whether or not there is actual infringement of copyright itself.[41] In

2001, the European Union passed the Copyright Directive, also an implementation

of the WIPO Copyright Treaty which addresses some of the same issues as the

DMCA.[35]

Traditionally, copyright infringement has just been a civil matter - if a copyright

owner catches someone doing something wrong, they can sue him and force him

to pay them money. Criminal infringement liability, the ability to prosecute and

37


throw someone into jail, has been reserved for circumstances of commercial

piracy. These enforcements change that and make criminal recourse against

people who are engaged in non-commercial activities possible.[5]

These enforcements have been working mainly in a raid based way, which is

characterized by wrapping up police actions and little to know follow trough. The

few cases that do make it through courts end up in forms of extreme punishment,

either in the number of the years in prison sentences, or the number of millions of

dollars in fines, in the hope that this few cases will have a dissuasive effect on

others.[73] As Fred von Lohmann, a senior copyright counsel at Google, described

“Punish them severely enough that they can essentially intimidate a large number

of other people.”[5] The first famous lawsuit in those conditions was Napster’s

lawsuit. In 1999, Napster was a pioneering peer-to-peer file sharing service that

emphasized sharing audio files, encoded in MP3 format. Napster's facilitation of

transfer of copyrighted material led RIAA to fill a lawsuit against the service, almost

immediately. The trial, meant to shut it down, gave it a lot of publicity, and the

service only got bigger. But in 2001, when the case was settled, it was decided that

Napster would pay music creators and copyright owners a $26 million settlement

for past, unauthorized uses of music, as well as an advance against future

licensing royalties of $10 million. After several attempts in order to pay those fees,

Napster went bankrupted.[97] Aimster, Audiogalaxy, Grokster, IMash, Kazaa were

other companies sued, and then the content industry turned to suing individuals for

downloading music without permission as well.

Even though this legislation had some effects, at that time Internet had not

revealed the potential it has now - Internet has turned out to be far more popular

and far more powerful than anyone imagined. And despite the examples I pointed

last paragraph, there is little likelihood a case will make it to a trial and, and also

little expectations. The reason is that raids are cheap but the due process is

expensive and slow - it does not scale well - so the returns on prosecuting piracy at

the low end are very low.[73] And so, increasingly, laws have been being proposed

to try to do something different and reinforce what the actual laws say on this

matter.

38


NEW REINFORCEMENTS PROPOSALS

In the end of last year, 2011, two very polemic bills came out in the U.S., SOPA

and PIPA, and were followed up by a similar international bill, ACTA. They are all

about abridging the process, doing away with the things that cost a lot of money in

the prosecution of file sharing – scaling up enforcement by taking it out of the

courts and make it a administrative function and, whenever possible, an automated

one. This is what we see in laws for punishing infringers, the so called three strikes

laws, where the strikes are determined by automated systems. In this case we see

this automatism in the shipping of the liability of infringement to web intermediaries,

and make them responsible for the surveillance of the activity with their users.[73]

It is worthy to note that this would represent a big change from the current

legislation. Remember the Audio Home Recording Act and the Sony Corp. of

America v. Universal City Studios case, they both dictated that recording devices

cannot be liable for infringement. In the same way, the WIPO Copyright Treaty

states that: “It is understood that the mere provision of physical facilities for

enabling or making a communication does not in itself amount to communication

within the meaning of this Treaty or the Berne Convention.”[137] And the DMCA

itself, which grants immunity to Web sites as long as they act in good faith to take

down infringing content upon notification.[28]

SOPA AND PIPA

PIPA goes for Protect Intellectual Property Act, and was introduced in the U.S.

Senate on May 2011. SOPA goes for Stop Online Piracy Act, and it was introduced

in the U.S. House of Representatives on October 2011. PIPA and SOPA are not

particularly different, they are slightly textually different versions of the same

legislation. Both are designed to primarily tackle the problem of foreign-based

websites that have pirated content which may get visitors or traffic from within the

U.S. (since most of these sites are outside U.S. jurisdiction) - as federal law

enforcement has the authority to shut down U.S. based websites that offer pirated

content, but they cannot directly do the same to foreign sites.[115] The non

39


internationalization of the law allowed parallel pirate systems of distribution in the

18 th /19 th century and now, the world is even more global, it is much easier for that

to happen.

PIPA and SOPA provide a range of new anti-copyright measures targeting

Internet intermediaries. The basic method is to stop U.S. companies from providing

funding, advertising, links or other assistance to the foreign infringing sites.[115]

Firstly it gives the government the power to make U.S. internet providers to redirect

users away from viewing the sites: PIPA proposed to do this by blocking domain

name resolution; whereas SOPA imposes a broader requirement for network

providers, including blocking by IP address and possibly deep packet

inspection.[90] They can also sue U.S. based search engines, directories or even

blogs and forums, so the links to these sites are removed. Secondly, they give

corporations and government the ability to cut out funds to infringing websites by

having U.S. based advertisers and payments services to cancel those accounts.

For example, a film production and distribution company like Disney knows that a

peer-to-peer service like The Pirate Bay is hosting illegal torrents of one of their

films. The Pirate Bay has its servers in Sweden, so Disney is not able to do

anything about it. However, under the law enforcement proposed, copyright holders

and law officials will be allowed to serve a notice to: its Internet Service Provider

(ISP), to block the site; Google, to stop showing up The Pirate Bay in search

results; PayPal, to freeze the site’s finances; and advertisers, to have their ads

pulled from the site.[12] These measures would be applied in the United States,

administered by the U.S. authorities, and judged against U.S. intellectual property

and copyright law. The foreign website owner seeking to fight the injunction or

mount a defense would have to do so under American law.[57]

The proposal of these two bills led to an enormous amount of protests of the

general public, including petition drives, with Google stating it collected over 7

million signatures[127], boycotts of companies that support the legislation, and a

rally held in New York City.[47] Also, on January 18, 2012, Wikipedia, Reddit, and

an estimated 7,000 other smaller websites coordinated a service blackout[93], and

Google censured their logo, to raise awareness for what could be the future of the

40


Internet with this laws.[116] In a more aggressive campaign, by the group of

hackers activists Anonymous, the sites of several pro-SOPA organizations such as

RIAA, CBS.com, and others were slowed or shut down.[10]

After the protests, several Senators and House Congressmen went from being

supporters of the bills to saying they would vote against it and these two bills ended

up by not having any effect. The protest also led the White House to pronounce

itself saying “we will not support legislation that reduces freedom of expression,

increases cyber security risk, or undermines the dynamic, innovative global

Internet. Any effort to combat online piracy must guard against the risk of online

censorship of lawful activity and must not inhibit innovation by our dynamic

businesses large and small.”[29]

ACTA

ACTA goes for Anti-Counterfeiting Trade Agreement and proposes to create a new

governing body outside existing forums, such as the WTO, the WIPO, or the United

Nations. The agreement aims to establish an international legal framework for

copyright infringement on the Internet, aiming to standardise copyright protection

measures, but also for targeting counterfeit goods and generic medicines.[18]

ACTA is a framework only - it does not mandate any specific web blocking

measures, although such intention may be interpreted from the text - any measures

must be implemented under local laws.[57]

The framework is targeting Internet intermediaries too (‘third parties’ as it says on

the text), mainly ISPs. ACTA’s intention is that ISPs can be asked to block web

content using a variety of technical methods, and by forcing ISP’s across the globe

to act as internet police, it is bypassing the sovereign laws.[71] ACTA would have

broader scope in terms of measures, in particular because its measures would

block ISPs as well as hosting. Under ACTA, ISPs will be forced to open and

inspect every data package sent or received to look for copyrighted information. On

the other hand it has a narrower scope in terms of the legal jurisdiction which will

apply.[57]

41


The agreement was signed by Australia, Canada, Japan, Morocco, New Zealand,

Singapore, South Korea, the United States and 22 countries of the European Union

between October 2011 and January 2012.[18] But a quick ratification of the

agreement was putted on hold after demonstrations against it. Mirroring what

happened with the response to the American bills, thousands of people have taken

part in co-ordinated protests across Europe - the most significant marches were

held in Germany, Poland and the Netherlands. The anti-ACTA movement has also

been adopted by members of Anonymous, which has claimed responsibility for

putting high-profile government websites out of action, including that of the Polish

prime minister.[78]

The final decision was mostly in the hands of the European Parliament. The four of

the European Parliament's influential committees (the Legal Affairs Committee, the

Committee for Industry, Research and Energy, the Committee for Civil Liberties,

Justice and Home Affairs, and the International Trade Committee) all voted against

implementing the agreement and expressed serious concerns about it. [78][11] The

committee votes were submitted to the European Parliament ahead of a plenary

session and the final decision was to effectively kill the treaty, on an overwhelming

478 to 39.[9]

NEW DEVELOPMENTS

The presented bills are still the ones more discussed right now, but there are

already more proposals on the way. Like the bill proposed by the U.S. Senate in

December 2011 - the Online Protection and Enforcement of Digital Trade Act

(OPEN Act). The OPEN Act seeks to stop transfers of money to foreign piracy

websites, but does not seek to require Internet providers and search engines to

block it. Also, while the other legislation would have penalized Web sites accused

of the vague crimes of enabling or assisting piracy, OPEN would penalize only

Web sites dedicated primarily to the infringement of copyrights or trademarks. An

Internet piracy court would be created under the International Trade Commission

and content owners could ask the commission to investigate whether a foreign

Web site was dedicated to piracy. The Web site would be able to rebut the claim. If

42


the commission ruled for the copyright holder, it could direct payment firms and

advertising networks to stop doing business with the Website.[101]

Note: I am not going to focus on this bill, just on the previous ones. I do not have enough material to

do it since it is being discussed more recently and I had to restrain my research for practical

reasons. Still, I thought it was worth to be mention.

43


REINFORCEMENTS BATTLEFIELD

Mark Getty, who is the owner of Getty Images and one of the largest intellectual

proprietors in the world, once said intellectual property is the oil of the 21st

century.[131] Considering that we are in a so called Information Society, and that

the size of the discussion around copyrights is approximating itself from a war, his

declaration might be not far from right.

We know that Internet, and the changes it caused in several and different levels, is

the responsible for this war. It is essentially a political problem so the different parts

are shouting very loud so their interests are preserved. These new bills have

exposed a growing fracture between those parts: one thinks that Internet is aiding

and abetting thieves on a broad scale; other sees these bills as dangerous and

potentially destructive to the open Web and a step toward the kind of intrusive

Internet regulation. According to Brewster Kahle, from the Internet Archive, both

sides are extremists. “Existing players are trying to make certain things happen that

in retrospect will seem kind of barbaric.”[5]

On this chapter I am going to analyze those two extremes, find out who are those

supporters and opponents, and describe their points of view based on declarations

that have been done by their members, creating a fictional debate. Each side has

valid arguments and the understanding of both will help to find out what is the

relative weight of the pros against the cons of these reinforcements of the copyright

laws when it comes to protect the informational capacities brought by the Internet.

SUPPORTING SIDE

A way to know who is the side that wants this anti-piracy legislation is to find out

who is supporting it financially. Maplight, an organization that tracks spending on

congressional campaigns, recorded the amount of ‘donations’ made to various

members of Congress that support SOPA using data from the Center for

44


Responsive Politics.[45] And, as was SOPA, we can suppose the other bills were

too, by the same ones. This graphic summarizes it:

The bill's supporters, spearheaded by entertainment producers, are giants such as

Comcast, Disney, Sony, RIAA and MPAA.[85] We are talking about media

conglomerates, publishers that end up owning tons of copyrights. They are the

classical media.

ARGUMENTS

There are several reasons for proposing reinforcements on copyrights and for

supporting them. We know that the big drive for these pieces of legislation was the

raises of piracy numbers, so it is consequently one of the big arguments to support

it as well.

RIGHTS DISRESPECT

According to Dan Glickman, the chairman and CEO of MPAA from 2004 to 2010,

there is only one substantive area of law that was included in the U.S. Constitution:

protecting creators’ rights. He says that “the founding fathers knew that that would

45


e more determinative than anything else about how successfully a country would

be. It says that if we have people imaginative, curious, thinking people who would

want to build things, make things, they will not do it unless somehow we protect

their rights.“[4] But the rights of those who depend upon copyrights are often

ignored intentionally, deliberately, and systematically. It is no doubt true that some

people do not fully understand those rights and negligently infringe copyright -

piracy derives from the non respect of those rights. Conversely, the way things are

right now, authors and other rights holders are often unable to enforce the rights

which the law gives to them.[103]

Darrell Panethiere, for the July - September 2005 e-Copyright Bulletin of UNESCO,

said that damages recoverable in civil actions must be sufficiently high so that

potential pirates are not tempted to take the risk of being caught. “If the pirates

know that the worst that can happen is that they may ultimately be required to

reimburse a rightsholder on the basis of 'lost profits' or some other insignificant

nominal sum, there is little no deterrent effect whatsoever.” [103]“We just have to

try to make it as difficult and as tedious as possible, and we have to make people

know that there are consequences if they are caught”, says Dan Glickman, even

though he recognizes that it will never be possible to stop piracy.[4] Chris Dodd,

the actual the C.E.O. and chairman of the MPAA and a former U.S. senator, agrees

that “no single tactic will solve the problem of copyright theft.” But, as these

declarations are much more recent, he already includes the SOPA and PIPA

subject, saying they would provide significant protection for American consumers

from online piracy and content theft. “SOPA and PIPA would make it much harder –

and less lucrative – to operate sites that illegally profit of the hard work of American

movie makers and other creators.”[43]

ECONOMY LOSSES

MPAA statement on supporting SOPA goes naturally on the same line as well “the

legislative process, when allowed to work, can result in strong, bi-partisan

legislation that will protect millions of American jobs and creativity.” The same

statement gives those jobs a concrete number, “More than 2.2 million hard-

46


working, middle-class people in all 50 states depend on the entertainment industry

for their jobs and many millions more work in other industries that rely on

intellectual property. For all these workers and their families, online content and

counterfeiting by these foreign sites mean declining incomes, lost jobs and reduced

health and retirement benefits.”[96] The Put an End to Piracy video campaign from

respectcopyrights.org put it in plain words, “If you buy a pirated video or download

illegal copies, how are the people who bring you the movies supposed to: ‘pay for

my glasses?’, ‘get health insurance?’, ‘and pay my student loans?’. Because the

movies we love are the work of hundreds of people, ‘not just the actors you see on

screen’, ‘or directors’, ‘or camera men’, ‘script providers’, ‘fire safety officers’,

‘costumers’, and countless others. With your support, ‘we will all keep on

working!’”[3]

It is true that content copy is not a victimless crime. There is no agreement on the

numbers but, according to the Institute for Policy Innovation, says again the MPAA

statement, “more than $58 billion is lost to the U.S. economy annually due to

content theft, including more than 373,000 lost American jobs, $16 billion in lost

employees earnings, plus $3 billion in badly needed federal, state and local

governments’ tax revenue.“[96] Mark Elliot, an executive from the U.S. Chamber of

Commerce, goes further and advances the number for the jobs in risk in a letter to

The New York Times, “Rogue Web sites that steal America’s innovative and

creative products (...) threaten more than 19 million American jobs.”[8] And, beyond

these numbers of economic loss, there is an inevitable further consequence of

piracy says the UNESCO report “inadequate respect for cultural works, and the

heritage they embody”.[103]

ACCUSATIONS

This discussion is not made only by arguments but also by accusations and

answers to the other side.

47


LACK OF REASONABILITY

Cary H. Sherman, chairman and CEO of RIAA, devaluates the arguments of the

opposition (which are described next) and accuses them of exaggeration.

“Consider, for example, the claim that SOPA and PIPA were ‘censorship’, a loaded

and inflammatory term designed to evoke images of crackdowns on pro-democracy

Web sites by China or Iran. Since when is it censorship to shut down an operation

that an American court, upon a thorough review of evidence, has determined to be

illegal? When the police close down a store fencing stolen goods, it is not

censorship, but when those stolen goods are fenced online, it is?”[118]

Dan Glickman continues with this range of accusations. “There is a growing

movement about collective is free, free is right, sharing of information should be

unrestrictive.” “That comes in conflict with copyright, so beat it!” he ironies.[4] To

those who share these thoughts Glickman answers “It is ridiculous to believe that

you can give a product away for free and be more successful. It defies the laws of

nature. Would a clothing store give all their clothes for free? Of course not. (…) if

you do not make a profit in this world, you are out of business. That is just the laws

of human nature.” [5]

WEAK ALTERNATIVE PROPOSALS

However, not all opponents think like how Sherman and Glickman. Many of them

claim that they oppose piracy too. Nevertheless, Chris Dodd says they have not

putted forward effective means to stop it yet. “It’s way past time for Google and its

allies in the technology community to move beyond their pro forma ‘we oppose

piracy’ rhetoric, and offer concrete, effective solutions that will actually shut down

rogue sites.” He goes further and says that some of the provisions in the legislation

are opposed because, without some of them (he gives the example of the search

engines provision), there would still remain a gateway to access “stolen”

copyrighted material and counterfeit goods.[43]

With this line of thoughts, the leading alternative to the SOPA and PIPA, the OPEN

Act, is also criticized. This time, Sandra Aistars, the executive director of Copyright

Alliance, argues that it would be problematic for the artists who are most affected

48


y copyright infringement, “The bill would establish a process that would be

impracticable and unattainable to all but the wealthiest corporations, and would

essentially require people to buy access to the justice system.” According to

Aistars, the bill requires “that the copyright owner pay for the cost of the

proceedings” and that would “deny many independent artists their day in court.”[15]

OPPOSING SIDE

Somehow surprisingly, there were companies trying to influence the Congress on

the SOPA question as well. Software and Internet industries also donated money,

although in a much less extent and this time to prevent SOPA.[45] From the list of

opposing companies we find Google, Facebook, Yahoo!, Lea-Linux, Mozilla

Foundation and even Writers Guild of America, among others.[85]

But still, the opposing side is not easy to target, it is wide and decentralised like

Internet. It is mainly constituted by its users, who had their voice projected by it

through what the read and write culture authorships. Unlike the supporting side, the

protesters here are a mass of anonymous people. For the purposes of this debate I

am going to use mainly the opinions of engineers, technologists and lawyers,

familiar with the inner functioning of the Internet, that expressed their opposition.

49


ARGUMENTS

The opposition is so strong that they not even consider an adaptation of the

legislation. "I think this is not a question of refinement", said Andrew Bridges, a

partner at Fenwick and West who represents technological companies on

copyright, "I think this is a question of 'Hell no!'"[90] The problem is that, as David

Martin, the International Trademark Association's appointed rapporteur on Acta,

who has strongly condemned it, said: "The intended benefits of this international

agreement are far outweighed by the potential threats to civil liberties."[79]

LACK OF RESULTS

The argument used generally for legislation against piracy is that it is useless, it will

not work. “Over the past decade, copyright holders have successfully shut down

scores of Web sites and file-sharing services in a quixotic effort to halt the illicit

circulation of movies, music and software online. None of it has made a dent in

overall levels of piracy, and bills like the Stop Online Piracy Act (SOPA) and Protect

Intellectual Property Act are unlikely to fare any better.” says Julian Sanchez, n

American libertarian writer, in The New York Times.[113] “If the proposed

solution just will not work, after all, why bother quibbling about the magnitude of the

problem?” says him again in another source.[114]

Piracy will always exist no matter what are the controlling measures, especially

nowadays when infringing copyrights is so common and decentralized. In fact,

according to Peter Sunde, from the Pirate Bay, the “new generation” does not even

consider paying for intellectual property. “It's the way they're brought up. Music is

free to them. They don't consider music being something you pay for. They pay for

clothes. They pay for stuff they can touch.”[5] The journalist David Carr agrees,

“anybody who has spent time around a twenty something consumer knows that

piracy is a thorny fact of life for content companies.”[28] As Lawrence Liang, from

the Alternative Law Forum, says “One can always try to create artificial boundaries,

technological boundaries which prevent us from sharing files. But how do you

create a wall or a boundary against the very basic desire of sharing?”[5]

50


In the The Starfish and the Spider, Ori Brafman explains the “unstoppable power of

leaderless organizations”, giving the example of the starfish: as it has a

decentralized neural structure, it permits regeneration. According to Siva

Vaidhyanathan, from the University of Virginia, piracy can be included in this kind

of leaderless resistance, which comes from the decentralized architecture of the

Internet. “You can sue people forever. You can sue a handful of college students,

university students in the United States. You can sue the investors of Napster, and

Napster. You can sue the company that provided the software for Kazaa. But it

doesn't shut anything down.”[5] After the Napster lawsuit we saw an emergence of

a lot of more decentralized file-sharing services, meaning that to fight file sharing is

fighting the fundamental structure of the internet.

The bills that caused so much polemic in December 2011/January 2012 would

interfere with this fundamental structure. Experts believe that by meddling with web

registry of domain names, the result would be less security and less stability. In an

open letter to members of the United States Congress, stating their opposition to

the SOPA and PIPA Internet blacklist bills, a group of 83 prominent Internet

inventors and engineers stated that “types of network errors and insecurity that we

wrestle with today will become more widespread, and will affect sites other than

those blacklisted by the American government.” [6] But it would still not stop

downloaders, they would still be able to access a blocked site just by entering its IP

address instead of its name.

Technological and content companies were sensitive to this argument. They

started seeing that these extreme laws would not work and they could actually hurt

the industry, which is why Apple Inc. now opposes them, as does EMI, among

others. As U.S. Representative Jared Polis of Colorado says, relatively to SOPA,

“We need balance when attempting to solve this problem; it’s clear—when even

content companies are opposing it—that SOPA is not a balanced approach.”[72]

ECONOMY THREATS

In fact, another big argument used by the opposition is that one: it could hurt the

technological industry as it creates new and bigger barriers to entry for web start-

51


ups, threatening innovation and job creation. As Julian Sanchez said, these bills

“may not effectively choke off access to supposed "rogue sites" overseas, but it

does threaten innovation by imposing new burdens on U.S. start-ups and scaring

investors away from cloud storage services and new platforms for user-generated

content.”[103] The reason is that it lets companies sue any site they feel is not

doing their filtering well enough. First of all, as the Representative Jared Polis

remembered, this could be “ripe for abuse as companies could use a private right

of action to block a competitor out of existence.”[72] Second, it “would require huge

overhead spending by Internet companies for staff and technologies dedicated to

monitoring users and censoring any infringing material from being posted or

transmitted. This in turn would create daunting financial burdens and legal risks for

start-up companies, making it much harder for brilliant young entrepreneurs with

limited resources to create small and innovative Internet companies that empower

citizens and change the world.”, explained Rebecca MacKinnon, a former journalist

from CNN, to New York Times.[91]

So, these law suits could easily bankrupt new search engines and social media

sites, but not only. In a video done by Stop American Censorship organization they

warn that “these laws are ambiguous enough that important social media sites

could become targets. Lots of innovative websites could look like piracy heavens to

the wrong judge, like Tumbrl, Sound Cloud, YouTube. Wherever people express

themselves, make art, broadcast news or organize protests, there will be plenty of

TV footage, movieclips, copyrighted music mixed in.“[16] Harry Heyman, from

Foursquare, location-based social network with millions of users, shares his

worries: “Foursquare, like really any other business in the Internet, is user

generated contented and things people are talking about online. The idea that, if

just a small percentage of those people were talking about things that were

copyrighted, they can come in and shut down our whole site is really terrifying.“

[125] These bills “will create an environment of tremendous fear and uncertainty

for technological innovation, and seriously harm the credibility of the United States

in its role as a steward of key Internet infrastructure.”, as it is written on the open

letter of the Internet engineers. [6]

52


But the implications are believed to be far broader and far more reaching than

simply shutting down of companies. Cindy Gallop, an advertising consultant, says

“At a very fundamental level, I worry that this is going to stop money being made at

every level of business and society.” Bryan Michael McGeary, Director of the

Engine Advocacy, clarifies “Our economy shifts and changes just by the hour. We

cannot predict where it is going to go tomorrow, but we know that technology and

innovation is going to lead the way. We do not need to do things that make it

harder for people to start businesses, we need to do things that facilitate that.”

[125]

FREEDOM OF SPEECH ENDANGER

Laurence H. Tribe, a lawyer and a professor of constitutional law at Harvard Law

School, said in an open letter about the Web that SOPA would “undermine the

openness and free exchange of information at the heart of the Internet. And it

would violate the First Amendment.”[134] The amendment prohibits the making of

any law impeding the freedom of speech. In the same letter cited before, the group

of Internet engineers observes that “all censorship schemes impact speech beyond

the category they were intended to restrict, but these bills are particularly egregious

in that regard because they cause entire domains to vanish from the Web, not just

infringing pages or files. Worse, an incredible range of useful, law-abiding sites can

be blacklisted under these proposals.” [6]

To date, the leading role the US has played in this infrastructure has been fairly

uncontroversial because America is seen as a trustworthy arbiter and a neutral

bastion of free expression. If the US begins to use its central position in the

network for censorship that advances its political and economic agenda, the

consequences will be far-reaching and destructive. [6] Rebecca MacKinnon, a

former CNN journalist, assumes that the bills would “emulate China’s system of

corporate ‘self-discipline’ by making companies liable for users’ actions”, although

the supporters refuse this idea. The intention is not the same as China’s Great

Firewall, they do not aim to censor political or religious speech as in China, but the

practical effect could be similar. [92]

53


So, the burden would be on the Web site operator to prove that the site was not

being used for copyright infringement; consequently, the effect this would have on

user-generated sites like YouTube would be frightening. Recent academic research

on global Internet censorship has found that in countries where heavy legal liability

is imposed on companies, employees tasked with day-to-day censorship jobs have

a strong incentive to play it safe and over-censor — even in the case of content

whose legality might stand a good chance of holding up in a court of law. Why

invite legal hassle when you can just hit “delete”? [92] As Paul Kedrosky, a venture

investor, stated, also on The New York Times, “100 percent effective anti-piracy

would require North Korean levels of state control.” [75]

In addition, the Internet engineers call the IDP and DNS blocking censorship and

connect it with the technical consequences pointed out before. “Censorship of

Internet infrastructure will inevitably cause network errors and security problems.

This is true in China, Iran and other countries that censor the network today; it will

be just as true of American censorship. It is also true regardless of whether

censorship is implemented via the DNS, proxies, firewalls, or any other method.”

And they keep trying to draw the attention of the government: “The US government

has regularly claimed that it supports a free and open Internet, both domestically

and abroad. We cannot have a free and open Internet unless its naming and

routing systems sit above the political concerns and objectives of any one

government or industry. [6]

ACCUSATIONS

Copyrights reinforcement opposition also spreads some accusations to the other

side.

LOBBYISM

I am not going to explore the accusation of obvious lobbyism of direct subornation

pointed by Maplight [45], since it is, unfortunately, a common practice in the United

54


States of America. [69] Besides that, the supporters are also accused of providing

misleading data in order to convince government to act on their behalf — the

numbers advanced for the piracy damages look suspiciously high. According to

Julian Sanchez, “the movie and music recording industry have gotten away with

using statistics that don’t stand up to the most minimal scrutiny, over and over, for

years, to hoodwink both Congress and the general public.” “We should at least

begin with the recognition that we are not dealing here with impartial academic

studies produced by a university or government research agency.” [114]

And even ignoring the numbers of those losses, they are not really losses when

they happen within a given country, it is a transfer of income, not a loss. Who says

this is the study Media Piracy in Emerging Economies by Social Science

Reshearch Council. “Money saved by consumers or businesses on CDs, DVDs, or

software will not disappear but rather be spent on other things - housing, food,

other entertainment, other business expenses, and so on. These expenditures, in

turn, will generate tax revenue, new jobs, infrastructural investments, and the range

of other goods that are typically cited in the loss column of industry analyses.” [73]

Continuing with Julian Sanchez “If the content industries want a genuinely effective

way to reduce global piracy, they should spend less time and money lobbying for

new regulations, and focus on providing innovative services that make piracy

unattractive” concludes Julian Sanchez. [113]

IGNORANCE

Moreover, one of the reasons, pointed out by the opposition, for these bills to come

out so unbalanced is ignorance by the ones who are proposing them. Legislation

almost always has unintended consequences — things that the politicians never

anticipated when they drafted the bill. In the world of technology and internet,

these unintended consequences are even starker, because, words of Nicholas

Holland, “the legislators barely know how to turn on their blackberry devices. And

now they want to create board legislation that will govern the entire internet.” [54]

This lack of understanding might be because of a cultural divide. Carr cites Yancey

Strickler, one of the founders of Kickstarter (a Web site that helps raise funds for

55


creative projects) “The schism between content creators and platforms like

Kickstarter, Tumblr and YouTube is generational. It’s people who grew up on the

Web versus people who still don’t use it. In Washington, they simply don’t see the

way that the Web has completely reconfigured society across classes, education

and race. The Internet isn’t real to them yet.” [28]

Several examples of this fact might be given. An extreme one is Senator Ted

Stevens's poor understanding of the Internet, despite the fact that he was in charge

of regulating it. He said: “Ten movies streaming across that, that Internet, and what

happens to your own personal Internet? I just the other day got… an Internet was

sent by my staff at 10 o'clock in the morning on Friday. I got it yesterday [Tuesday].

Why? Because it got tangled up with all these things going on the Internet

commercially. […] They want to deliver vast amounts of information over the

Internet. And again, the Internet is not something that you just dump something on.

It's not a big truck. It's a series of tubes.” [40] He was referring to an e-mail

message as ‘an Internet’ and blaming bandwidth issues for an e-mail problem

much more likely to be caused by mail server or routing issues. Writers and

commentators derisively cited several of Ted Stevens's misunderstandings of

Internet technology, arguing that the speech showed that he had formed a strong

opinion on a topic which he understood poorly and this has been serving as serving

as an argument for why this kind of laws should not be in the hands of senators

and others.

Another one example was pointed out by the computer culture journalist Joshua

Kopstein. Relating to SOPA, when the security issue was brought up, the U.S.

Representative Mel Watt of North Carolina seemed particularly comfortable about

his own lack of understanding, admitting “I’m not a nerd” before the committee.

Nevertheless he admitted he did not had the knowledge, he downplayed the need

for a panel of experts. The Representative Maxine Waters of California followed up

by saying that any discussion of security concerns was “wasting time” and that the

bill should move forward without question. This proves a refusal to understand

what is undoubtedly a complex issue, dealing with highly-sensitive technologies.

[77] It is no longer ok to not know how the Internet works.

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ANALYSIS OF AUTHORSHIP’S MODELS

Picking on what Yancey Strickler pointed, this war is generational. And we can

replace the generations by authorship connected to different kinds of media. We

have a kind of authorship that is seeing its interests being threatened and so is

over protecting them without measuring the effects it would have on the other, and

we have the other that is overreacting on the possibility of having its interests

threatened as well.

Recalling the problem statement, I am going to analyze those threats and figure out

how are they being affected by the discussion of new copyrights legislation.

AUTHORSHIP FROM CLASSICAL MEDIA

It is true that the interests of the classical authorship representatives — the

supporting side of the copyrights reinforcements — have been suffering from the

later changes. Authors are the central subject of study here, but the publishing

industry (that was always intimately related to the authors until now) is where the

real business is, and it is the most influential stakeholder since they are the owner

of the copyrights from this kind of authorship.

In what I am calling here classic media — books, radio, television, newspapers,

film, etc, — at the heart of all of them there is a very clear distinction between the

producer and the consumer. The materials are produced by a set of professional

authors, and consumers are the passive receiving end of the cultural conversation,

which is controlled by the publishing industry. The digital era and the Internet are

changing and threatening all of this process. “All these things are taking the

copyright industry totally by surprise, and they're scrambling with and not able to

deal with. For the next generation, it is just part of the media landscape.” [5]

Explains Raph Levien, from Google.

What I would suggest is not to analyze the digital era as some kind of a unique

break but to see it as a moment which accelerates things that have already

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happened in the past. If we compare the changes going on right now with the ones

from the printing press, we will see that the threats from the considered classical

media at the time are about the same to the ones nowadays. And who says

printing press can say broadcasting or home recording, although probably in a

smaller scale.

THREATS

The problems that led to the creation of copyrights were the free flow of risky ideas,

the uncontrolled copies, and the raised competition by a new kind of media. Lets

believe that censorship is not on the agenda of reinforcements this time —

although control over ideas would probably be a consequence, free flow of ideas is

not considered a threat in our world anymore. Nonetheless, the other two threats

can be imported.

ONLINE PIRACY

In the universe of classical media, where you need to get distribution, there are

gatekeepers that stand in your way. You need to satisfy a lawyer that what you

have done is legal and permissions have been obtained to be published. [5] Thanks

to the Internet, the gatekeepers have been removed and, with the gates open,

there is a lot more infringement happening, bringing undesired consequences.

Online piracy, no matter how accurate are the statistics on it, is indeed a problem

— much about it was already said along these pages — and the existing legislation

alone is not capable to resolve it. Even if a country had actually found a resolution,

there is not an international one yet. The same way the non-internationalization of

the law created parallel markets in the 18 th /19 th centuries, it is creating one now as

well, and it has a much bigger scale, since the world is more ‘global’ today.

Talking about the U.S., where most powerful of those companies of classic media

are, they are required to abide by American laws. They must pay their employees a

certain wage, they need to pay for the installations, hardware and other technical

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material, and, of course, all the software used has to be legal (a decent amount of

money has to be paid to software companies to use the systems that they built

[although there is also free software]), among other things. All of this makes their

production process to be expensive and difficult. In addition, they publish and

distribute the contents produced, and that is what really is the main purpose of this

industry. Specially in this area, they find themselves undercut by websites in

foreign countries, where the laws are more soft, and where people distribute their

products for free, not having in account any costs and efforts that were done to

make them. [26]

Nonetheless, this does not explain everything on the online piracy threat. The

cultural changes on the consumer practices are also very relevant. If, according to

the publishers in the 18 th century, public domain should not even exist, because

copyrights were common law; now, according to the general Internet user, there

should be only public domain. The general Internet user is now an author too and

for him “making money is not the point with culture, or media – making something

is the point” explains Peter Sunde, from the Pirate Bay (again). [5] Without money

on the equation, control copies is not such a big dilemma and that is maybe why

copyrights are not seen as common anymore (maybe they were not seen like that

by the public previously too, but this time people’s voices have more weight then

they have ever had before). Moreover, their infringement is as easy as clicking a

button and the quality of the copies is as good as the original.

These three factors — lack of an international law, the social acceptance of

infringements and the easy access to high quality copied contents — made pirating

completely generalized in society. The fact that piracy is so simple to commit is

worthy to be further analyzed.

AVAILABILITY

The easy availability of pirated products when compared to the legal ones is in fact

a big threat — and a self made threat in many ways. As it was already cited, the

Berne Convention says that the distribution of copies needs to be “such as to

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satisfy the reasonable requirements of the public”. However, the fight against

piracy made some companies go against this principle.

Digital rights management (DRM) is any technology that inhibits uses of digital

content that are not desired or intended by the content provider. [42] Content

providers claim that DRM is necessary to fight copyright infringement online but

those who oppose it argue that instead of preventing copyright infringement, it

serves only to inconvenience legitimate customers. For example, the game

company EA, to make their game Spore more difficult to pirate, required so many

proofs of authenticity from the users that the usability was serious compromised. It

was easier to download a pirated version that outlined those proofs in order to

avoid them. [49] Also, for a different example of unavailability, Game of the

Thrones, the American television show, was just available legally for the television

channel subscribers. There is no legal way for people from other countries to watch

it. The result is that it became the most pirated TV show of all times. [70]

Internet raised the standards of the availability of contents in a way with no

precedent, people want everything at a distance of a click. Today most of us would

never structure our day around a particular program because we know that it is

most likely available online. Gabe Newell, co-founder and CEO of Valve, an

American game development and distribution company, believes that actually

piracy stems not from price of legal contents, but from convenience. And it that is

why, according to him, piracy has become "a non-issue" for Valve. "In general, we

think there is a fundamental misconception about piracy. Piracy is almost always a

service problem and not a pricing problem. A pirate offers a product anywhere in

the world, 24x7. Our goal is to create greater service value than pirates.“ The

reasonable requirements the Berne Convention refers are now different. Content

industry needs to adapt.

COMPETITION OF NEW MEDIA

The need for adaptation comes from the introduction of the new competitive media

that is the Internet. To be precise, according to Clay Shirky, the Internet did not

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introduce a new competitor into the old ecosystem, the Internet created a new

ecosystem. [119] What does that mean and how is that a threat?

A profession exists to solve a hard problem, one that requires some sort of

specialization, and a professional often becomes a gatekeeper, by providing a

necessary or desirable social function but also by controlling that function (Ialready

had mentioned this metaphor). Sometimes this gatekeeping is explicitly enforced

(only judges can sentence someone to jail, only doctors can perform surgery), but

sometimes it is embedded in technology — as it was with scribes, who had

mastered the technology of writing. The scarcity of literacy was what gave scribal

effort its primacy and now the scribe's skills are eminently replaceable (not without

having had its share of polemic, as we know). In the same way, what we are

seeing now is that the problems of production, reproduction, and distribution are

much less serious and as a consequence, control over the media is less

completely in the hands of the professionals too. [119]

Classic media fears therefore becoming extinguish as the scribes were, and some

say that this is the real threat they are trying to fight, which is disguised with the

piracy reasons. [54] Sebastian Lütgert, from Pirate Cinema, states that “the panic

of the movie industry and the music industry is that people could actually start to

produce and that file sharing networks - file sharing technology enables them to

produce stuff.” [5] Danah Boyd, senior researcher at Microsoft Research,

replicates: not only do they do not like “when people rip and distribute media

content on the Internet, they throw a fit whenever teenagers make their own music

videos based on their favorite song. Even though every child in America is asked to

engage in remix in schools for educational purposes.” [26]

Professionals are always concerned with threats to the profession. Evidence that

the ecosystem is changing in ways they cannot control creates anxiety, even if the

change is good for society as a whole. Professional self-defense can then become

a disadvantage, as professionals rely on to care more about protection than about

progress [119], and so will the solutions architected by them.

Note: I had already described this when I talked about the introduction of other medias before

Internet and the control polices adopted.

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REINFORCEMENT DISCUSSION

The reinforcements on the copyright law proposed, if working 100%, would be the

solution to the threats of classical media. They would combat piracy directly in the

supply chain which would end up by also controlling the new media Internet, as the

opponents make clear.

Today it is globally accepted that the bills SOPA, PIPA and ACTA would have

consequences that overcome the benefits of it. As a result, instead of being

affected in a positive way, the parts interested on this legislation to move on saw

themselves in the middle of the big polemic we know. The Internet has a whole

social concept around it that makes it much more difficult to exercise any kind of

authority — unlike the radio where the severe solution found in America was

actually exercised. The proposals originated an extreme answer from the

opposition and a new threat was posed to the companies of this kind of media —

the hate of the decentralized Internet based organizations like Anonymous. Also, a

negative opinion about this industry was formed by the Internet users and it will be

difficult to erase.

Nevertheless, there is no doubt that the bills contributed to the raise awareness to

the piracy problem. According to RIAA, “prior to the lawsuits, only 35 percent of

people knew file-sharing was illegal, but after the initiation of the end-user legal

campaign, that number quickly rocketed to more than 70 percent.” [111]

Consequently, it called attention for the need of discussing and rethinking

copyrights.

It is worthy to remember that eventually a much more balanced solution for the

radio was found. Also, it is good recall that the content industry initially opposed

home recording, yet, at some point, this platform became very lucrative businesses

for them, when they decided to sell pre recorded tapes. Space for every media will

be found, the same way space was found for both ASCAP and BMI in the

American radio. Like Yochai Benker, from Yale Law School, stated, “music did not

begin with the phonograph and it will not end with the peer-to-peer network.” [5]

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AUTHORSHIPS FROM THE INTERNET CULTURE

Now I will analyze the authorships brought by the read-write Internet culture. We

know that the Internet is extending the concept of authorship in ways that are

sometimes difficult to comprehend, the intellectual property questions that these

new authorships pose will require some extension of old concepts — history shows

us that law is usually not side by side with technology and cultural changes.

Actually the main obstacles to these new kinds of authorship are indeed the

intellectual property consequences in force nowadays - the old problem of

information rights versus copyrights.

THREATS

As Yochai Benker said “one of the main battlegrounds in law, in technology now is

the extent to which it is possible to exclude people from information, knowledge

and cultural goods, and the extent to which it's possible to enclose it.” [5] Is it right

to put culture in a container and say you have to pay me in order to access it? This

has always been a big question but it has been magnified by the Internet, since

with it that container no longer exists - copies are not physical anymore.

Access to information was indeed amplified by the Internet. If we look at the

advantages of file sharing, every citizen gets all knowledge and culture of the world

at his fingertips. “Each citizen is enriched in a way not seen since the advent of

public libraries 150 years ago”, notes the Danish documentary Good Copy Bad

Copy. [4] The access to information increased, did the right to access it increased

in the same proportions?

The problem here is that accessing information through the Internet always means

to have a copy done, as Internet was constructed to work in a copy based way (see

the Internet chapter). The Internet culture does not criminalize it, contents done to

be consumed on the Internet are made for that - the purpose is for them to be

shared over and over, and the more sharing’s they have the more successful they

become. But what happens when the Information available on the Internet is not

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free to copy – is copyrighted? Now that information and culture are in much less

strict containers, do we really have the right to infringe their copyrights in order to

access it? Aaron Swarts, reddit.com co-founder, thinks so as he protested “Napster

was this huge global party of everybody suddenly had access to the largest music

library in the world. And what'd they do? Well, they went after Napster and they

shut it down.” [5] Media piracy is complicated, because access to content is access

to social status and power in a networked era. Some people are simply ‘stealing’

but others are actually just trying to participate in culture. [26]

CREATING RIGHTS VS COPYRIGHTS

This is in fact a very deep question, and it goes even deeper when we think about

new rights created by the Internet, the ones that should come associated with the

new kinds of authorship. The struggle to hold on to knowledge and creativity as a

commodity by force meets not only our strong urge to share and copy, but also our

strong urge to create and cooperate. According to Lawrence Liang “It's not so

much the fact that the Phantom Menace is downloaded 500 times, or 600 times

etc. (…) the real battle or the real threat lays in a shift in the ways that we think of

the possibilities of ourselves as creators and not merely as consumers.” [5]

The proliferation of material that is out there creates millions of new authors. Girl

Talk, the stage name of a successful musician specializing in mashups and digital

sampling, said in Good Copy, Bad Copy: “Everyone is bombarded with media now,

that I think we have been forced to take it upon ourselves and use it in our form. If

people were passing out paints on the street for free I am sure there would be a lot

more painters. That is exactly what is happening right now with remix culture on the

Internet.” [4] If everything is user-generated it also means that you have to create

something in order to be part of the society. [5]

Also, in this culture, things are produced because people care about it and not

necessarily because they hope other people will buy it. So what we see is things

made by the people for themselves. People take more of their cultural environment,

make it their own, use it as found materials to put together their own expressions,

do their own research, create their own communications and create their own

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communities when they need collaboration with others. Felix Stalder observes that

“people like to transform things and technology makes it so easy that there's no

way of stopping it.” [5] As Clay Shirky said on his book Here Comes Everybody,

“revolution doesn't happen when society adopts new technologies, it happens

when society adopts new behaviors”. [119] And society did. Now we are not only

consumers, we are also creators and, with this title, a number of new rights come

as well — creating rights.

COPY IN CREATING

Again, the problem here is that people want to create, but they are not asking

“Please may I use this? Please may I create?” [5] The wave of new kinds of

authorship creates a certain attitude that does not see information as a property,

which disrespects the ideas behind of the ‘old’ kind of authorship. A read-write

culture is, by default, permissive of efforts to improve upon, change, integrate, or

otherwise remix the work of copyright holders. [82]

One of the most successful albums of 2004, which, if it had actually been sold, it

might have been the biggest hit of the year, was The Grey Album which was

produced by DJ Danger Mouse. Danger Mouse took the vocal track from Jay-Z’s

Black Album (an hip-hop artist) and samples of The Beatles’ White Album and

mixed them together. He shared the disc with a few friends and they immediately

posted it on the Internet. Within weeks, thousands of people had copies of it.

Everything he did was basically illegal, but still it received a very positive review

from The New Yorker [50] and was named the best album of 2004 by

Entertainment Weekly. [1] The involved artists also had a good reaction: Jay-Z said

"I think it was a really strong album. I champion any form of creativity, and that was

a genius idea—to do it. And it sparked so many others like it... I was honored to be

on—you know, quote-unquote, the same song with The Beatles." [66]; Paul

McCartney also gave his opinion ”It’s, well, cool. When you hear a riff similar to

your own, your first feeling is ‘rip-off.’ After you’ve got over it you think, “Look at

that, someone’s noticed that riff.’” [128]

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Anyway, The Grey Album had an attempt to halt its distribution by EMI (the

publisher that owns The Beatles copyrights), despite the fact that both Jay-Z and

Paul McCartney said they felt fine with the project. As Paul V Licalsi said “If you are

taking a beat from a recorded piece of music, playing with it in the studio and

making it into something else, you are always risking, being hold in the court and

being sued for copyright.” [4] But “it was not my intent to break copyright laws. It

was my intent to make an art project.” [128], argued Danger Mouse.

Danger Mouse was not the first case. In 1990, the hip hop group N.W.A. saw itself

in a polemic because of the song “100 Miles and Runnin’”. What they did was to

take a copyrighted guitar riff, manipulate it and take it out to a totally different

context and use it as loop. The court decided that it is illegal to take anything from

a recording, and they also said it is not creative. “If you sample, you license”. [4]

Then why are people not licensing? Girl Talk, who produces mashup-style remixes

in which he uses often a dozen or more unauthorized samples from different

songs, answers “I would be happy to pay royalties for every sample on the record,

but, to actually license a sample, would cost millions of dollars, which I cannot

afford. Sampling would be this form of music that you actually cannot make music

out of it because you would have to give all your money away. In a theoretical

world, if I could clear every sample on there and have a million dollars to do it, it

would still take me probably 50 years to go through the legal process and that is

just absurd.” [4]

This leads us to an interesting question about copyright: who really owns what?

and what is the purpose of copyright? [4] Copyrights should protect innovation but,

on this scenario, they are an obstacle to it. According to the law, highly acclaimed

works of art, like Danger Mouse’s and Girl Talk’s among many others in other

fields, should not exist.

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REINFORCEMENT DISCUSSION

How and why are these new authorships being affected by this discussion?

Actually, the reinforcement proposed for copyrights is another threat for the

creation along the lines of the Internet culture. The result of transferring the

responsibility of infringement to web intermediaries would be them acting as

censors, as pointed by the opposition of the reinforcements. After that, the direct

alternative to not act as a censor is to make it so that there is no content to censor,

to hand over the creation of contents just to professionals.

Clay Shirky gives the example of a bakery that owned one machine that prints on

plates of sugar, so that children can bring in drawings and have it on top of their

birthday cake. What happened is that quite often children draw cartoon characters,

like Mickey Mouse – copyrighted material. It turns out to be illegal to print a child's

drawing of Mickey Mouse into a plate of sugar. It is a copyright violation and,

according to Clay Shirky, the policing for children's birthday cakes was such that

the bakery decided that they would not allow common people to bring their own

drawings. Since then, it is only allowed to choose from one of the pre fabricated

images available. [120]

On this case, amateurs lost their mean to design their own cake and that is what is

threatening all the amateur community — losing the platforms that allow them to

share their creations as well. Not only simple amateurship is threatened but also all

the other kinds of authorships that evolve around it, like collaborative authorships,

since they all depend on the same web platforms.

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FUTURE PERSPECTIVES

To sum up what we know so far, the latter reinforcements proposed do not seem

reasonable when it comes to protect the new kinds of authorship or even the

simple sharing of information. The law has not been greeting the new forming

culture using new digital technologies. Instead, it has produced the

presumption that these activities are illegal. It uses the wrong principle of guilty until

proven innocent instead of innocent until proven guilty, as the burden of proof for

legal versus illegal falls on the services that offer us these new capabilities.

Moreover, it does not seem effective to protect the things it proposes to, as it does

not have in account some characteristics of the Internet. In addition, revolted

responses have been made and the Internet is going to empower whoever is most

skilled at using the technology and best understands it in comparison with whoever

their adversary is.

NEED FOR BALANCE

There's a growing extremism that comes from both sides in this debate and a fact

that we should have learned many times over is that extremes are wrong. If on one

hand we know that when trying “to fully get rid of copyright infringement, the

consequences are unacceptable” as it is said in Good Copy, Bad Copy [4]; on the

other we know that it is unreasonable to think that music, movies, books or

anything else that can be put in digital form should magically all become free.

Thinking in this dichotomous manner does not help discussion and polarize even

more an over-polarized situation.

The contemporary intent of copyright is to promote the creation of new works and

only looking in one direction is a way to ruin innovation according to James Boyle,

a law Professor. “We can have a view that says we don’t need any rights at all –

someone spends hundreds of million dollars developing a drug and we are not

going to protect it at all – that under protecting would destroy much innovation.” But

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the other extreme direction — the direction chosen for the reinforcements

proposals — is over protection and it would destroy much innovation as well by

being only “focus on the protection of outputs and never on the need for inputs.”

[25] Maria Popova agrees: “what bespeaks the brokenness of this approach more

than anything is the complete lack of so much as an effort to measure the

economic benefits of everything the Internet enables.” [106] Balance is needed.

LOOK FOR OPPORTUNITIES

So the responsible for those pieces of legislations are more focused on costs than

benefits. “Someone sees that there is a potential market of five hundred thousand

people and a rate of illicit copying of 5% and there is a potential market of a billion

people and a rate of illicit copying of 20%, what would he rather have? The larger

market is going to be significantly better if you look at their costs and benefits –

certain retrieval is easier, distribution is costless, advertisement is better (viral

marketing) between other virtues – but he will simply focus on illicit copying.”,

points Boyle. [25] This narrowness is increasingly counterproductive.

There is a Chinese proverb saying that when the winds of change are blowing,

some people are building shelters and others are building windmills. Lawrence

Lessig uses the key example of iTunes to show that it is possible to achieve a

business model which balances access and control and is equally attractive to both

the consumers and the creators. “Steve Jobs was the first to see potential in this

new market made possible by digital technology. RO culture had to be recoded in

order to compete with the "free" distribution made possible by the Internet. iTunes

Music store was proof of this.” In addition, digital technologies have changed the

way we think about 'access'. Lessig insists, using Amazon as his premiere

example, that the future of entertainment and advertising lies in accumulating

information about a consumer and tailoring the product to their preferences. [25]

But not just traditional entertaining companies have the role of finding opportunities

of adaptation. Read-write Internet companies should also not overreact on the

possibility of threaten by copyrights, and should be able to understand the classic

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media problems as well and provide their model of authorship a space in their new

media. Google has actually been making efforts to do so. For example, the Google

service Youtube combines technology and the record labels catalog, all under a

VEVO tagging. [142] Furthermore, Youtube, when confronted with infringing

contents, incentives the rights owners to benefit through the exposure, advertising

and linked sales, instead of just blocking. [126]

Although new thinking is visible in many corners of the media sector, it is hard to

see much impact of these developments on the copyright policy. Like the study

Media Piracy in Emerging Economies refers “the structure of the licit media

economy is almost never discussed. Instead, policy conversations focus on

enforcement — on strengthening police powers, streamlining judicial procedures,

increasing criminal penalties, and extending surveillance and punitive measures to

the Internet.” “The failure to ask broader questions about the structural

determinants of piracy and the larger purposes of enforcement imposes

intellectual, policy, and ultimately social costs. These are particularly high, we

would argue, in the context of ambitious new proposals for national and

international enforcement.”[73]

COPYRIGHT IMPROVEMENT

It is not obvious that changes on the intellectual property might not require

strengthening of rights. The basic fundamental structure of the system is actually

good. “Intellectual property law is extremely valuable and ideas behind the system

we have are actually pretty sensible. It is seen as a limited and temporary

monopoly, which encourage innovation but at the same time it gives thigh control

over abuses.” [26] But then Internet caused a revolution and copyrights need to

evolve as well. Reinforcement is not the answer, a different kind of solution is

needed. The solution will have to legalize what has changed and is common

nowadays, and to realize the economic potential of that.

We are aware that fascinating and innovative new authorship, and business

models to accommodate them, are appearing around the globe where piracy is

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ampant. This fact suggests that we really need to rethink the idea of piracy in

those markets. Finding a way to acknowledge the new kinds of authorship as a

form of creative labor, and to codify this acknowledgement, is the next frontier in

how we think about copyrights in the information age. [106]

Concluding, this time copyrights have to evolve in a way that not only includes the

copying issue but also includes new models of authorship, to make sure that the

Internet evolves in a citizen-centric manner. “The purpose of copyrights or any

other law should be to serve citizens, and the purpose of technology should be to

improve our lives, not to manipulate or enslave us. Some form of balance between

the need for security and law enforcement on one hand and protection of civil

liberties on the other must be achieved.”, refers Rebecca MacKinnon, a former

CNN journalist. [92]

It has become clear that, at this point, neither SOPA, PIPA nor ACTA is a viable

answer. The parts that opposed them should now feel some responsibility to help

come up with constructive alternatives, as we need to take a step back to seek

fresh ideas and new approaches. [118] Rick Prelinger, Prelinger Archive thinks that

“we need to have a broad conversation - it's probably going to be an international

conversation where people who make things and people who use things – I am

talking about cultural works - sit together and think about what kinds of rules best

serve these interests.” [5]

At the moment, we still do not know how is that solution is going to look like, but old

businesses need to adapt themselves and envision new opportunities; creators

need to embrace the idea of their work be made available more freely; and new

businesses that are building out this read-write culture to hold this chance. The

ecology of free content should be able to co-exist with a less free one, so they can

compete, and the opportunity to develop the creativity in that competition can teach

one the lessons of the other.

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CONCLUSION

Mechanisms protecting classical media authorship are what threaten the

authorships of the read-write culture of the Internet, and vice versa. The changes

provoked by the widespread use of the Internet and consequently online piracy are

the biggest threats to the traditional media authorship nowadays, however, the

tools available to deal with this kind of infringement — copyrights — are not

working in an effective manner any longer. Furthermore, they lay an obstacle to the

creative rights of valuable new authorships, and that way they are preventing

innovation, something they intended to protect.

Copyrights have not been sufficiently adapted to this new era and my study shows

that a change of its system is needed. The proposals have so far been mostly

coming from the side of classical media. The reinforcements proposed go against

the non-responsibility of services that might provide facilities to infringement. Those

facilities are the same that provide the platforms that make possible the new kinds

of authorship so those laws would represent a big new threat for them, among

other unintended consequences.

The recently proposed bills did not turn into laws mainly because of the active and

generalized opposition they had. The strong opposition might have graduated and

generalized strong emotions against publishers’ monopolies and damaged their

image. Apart from that, it definitely drew attention to the problem and now the two

interested parties will have to work together on a solution — to improve copyrights

with the utopian goal of embracing all kinds of authorship and creating an

environment for creation stabilized in a way that there are no threats to innovation.

As it was proposed in the problem statement, this was just description of the

problem. Nonetheless, I hope to have contributed to the discussion and that the

future decisions on this matter will be as balanced and reasonable as this study

72


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