Hollywood’s pirate cure is worse than the disease

By Jack Shafer
December 16, 2011

The American entertainment complex—Hollywood, the networks, the stations, cable,  the record labels—has placed before Congress a simple request: Give us a law to punish Google, PayPal, the Web ad industry, and anybody else doing business on the Internet who may play some intermediary role in connecting foreign “pirates” to consumers seeking illegal access to copyrighted content.

The House of Representatives and Senate have bowed to the entertainment complex’s request. The House bill is called the Stop Online Piracy Act and the Senate’s genuflection goes by the name of the PROTECT IP Act. Rather than just punishing copyright violators, these bills would give the U.S. government new powers to black out Web sites, impose new monitoring rules on search engines and other Web services, rejig the architecture of the Internet, short-circuit the usual due process for Web sites, and authorize new surveillance for a government that just can’t seem to get enough. (See Alex Howard’s learned delineation of the bills from late November.)

So grand is the entertainment complex’s umbrage that I half expect its next move will be to petition the Department of Justice for the authority to shut down the electric utilities that provide power to any and all computers it suspects are pinching its intellectual property.

A survey piece about the SOPA/PIP controversy in yesterday’s New York Times gave Tom Rothman, the co-chief executive of Fox Filmed Entertainment, the opportunity to spout his industry’s pique. He says:

Our mistake was allowing this romantic word—piracy—to take hold…It’s really robbery—it’s theft—and that theft is being combined with consumer fraud…Consumers are purchasing these goods, they’re sending their credit card information to these anonymous offshore companies, and they’re receiving defective goods.

Oh yah, sure, youbetcha. The entertainment complex missed its big chance to suggest the word “murder” to describe illegal downloads. And it spends many sleepless nights worrying about all the victims of credit card fraud.

If allowing the word “piracy” to take hold was a mistake, that mistake is now more than three centuries old. Adrian Johns’s exhaustive history of the subject, Piracy: The Intellectual Property Wars From Gutenberg to Gates (2010), explains that in the late-1600s, people were already comparing word thieves to cutlass-swinging brigands. One dictionary defined pirate as “one who unjustly prints another person’s copy.” The Oxford English Dictionary points us to these lines of verse in a poem from 1700: “Piracy, Piracy, they cry’d aloud, What made you print my Copy, Sir, says one, You’re a meer Knave, ’tis very basely done.” Also availing themselves to the word “piracy” to describe literary misappropriation were such writers as Defoe, Swift, Addison, Gay, Congreve, Ward, and Pope, Johns writes.

Piracy has lodged itself in the vernacular because it perfectly expresses the joy of taking a risk to get something for nothing (or get something for an  ”it fell off a truck” price). Surely an entertainment veteran like Rothman should understand the joy in defying authority, especially arbitrary, imperious authority.

I don’t doubt Rothman’s assertion that some consumers have had their pockets picked while purchasing pirated media, but I’ve yet to meet anyone who complains about it. Yet resorting to this sort of hyperbole is just the Hollywood way of winning an argument. In 1982, Jack Valenti, then head of the movie business’s trade association, told Congress in 1982 that the VCR was “to the American film producer and the American public what the Boston Strangler is to the American woman at home alone.” The happy Hollywood ending to that copyright Armageddon? The VCR made the movie industry ridiculously wealthy by creating a new sales channel.

Pirates and the “intellectual-property defense industry” (Johns’s delightful phrase) have been clashing at least once a century since the end of the Middle Ages. Sometimes cultural changes spur the fight, as in the Enlightenment era when the first modern copyright and patent systems took hold, he writes. But leaps in technology drive the conflict, too, as the histories of inexpensive movable type, the piano roll, the Victrola, the VCR, the personal computer, and the Internet prove. The faster that technology moves, the more vicious the fight. In recent decades, the piracy debate has moved to those new industries that have persuaded the government to expand the IP rights to their plant seeds and genes. (And, yes, the agriculture and pharmaceutical industries have allied themselves with the entertainment complex in this current political battle.)

What stinks about SOPA and PIP is that they would establish a new legal order to replace the imperfect but fair one created by the Digital Millennium Copyright Act of 1998. Imagining a worst-case scenario precipitated by SOPA-PIP, Alex Howard writes:

Imagine a world where YouTube, Flickr, Facebook or Twitter had never been created due to the cost of regulatory compliance. Imagine an Internet where any website where users can upload text, pictures or video is liable for copyrighted material uploaded to it. Imagine a world where the addresses to those websites could not be found using search engines like Google and Bing, even if you typed them in directly.

Imagine an Internet split into many sections, depending upon where you lived, where a user’s request to visit another website was routed through an addressing system that could not be securely authenticated. Imagine a world where a government could require that a website hosting videos of a bloody revolution be taken down because it also hosted clips from a Hollywood movie.

The only way to stop piracy, the entertainment complex would have you believe, is to give its and the government’s warships the power to stop, inspect, and track any packet sent on the great sea of the Internet, and impound the ones it doesn’t like. As someone who creates “intellectual property” (I shudder at the phrase) for a living and works for a huge company that owns slews of it, I have a vested interest in this fight. But SOPA or PIP would do excess damage to free speech, free association, free commerce, and innovation in the name of scuttling the Internet’s scurvy pirates. As the character Ramon Miguel “Mike” Vargas says in Orson Welles’s Touch of Evil, “A policeman’s job is only easy in a police state.”

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21 comments

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Customer receiving defective goods?

One has to approach the Law with “clean hands”.

What about some of the rubbish these studios produce and spend millions on promoting.

Posted by Jozi | Report as abusive

I don’t understand the entertainment industry. They are trying to exploit the consumer with excessive prices on products. Buying a DVD movie for $50 look to me as largely excessive. Be more reasonable and you will see the piracy largely diminish.

There is an unreasonable transfer of wealth for many years now. As an exemple, Lady Gaga winning $90 millions in 2011 and lead singers winning around $30 millions in annual revenues. Leading role actors, director and producers in movie business are also all in the multi-millions range.

Sell your movie in the range of $5 to $10 and you will sell a lot more. then you will see the piracy disappear.

Posted by jacqo | Report as abusive

It’s fun to rail against the greed of the entertainment industry, but what about those who make their livings from creating entertainment, music, art or literature? Is it okay to steal from them, as well? If I write a popular song, am I greedy for wanting the royalties? Or do I need pick up another job to keep food on the table so that anyone not only could have my song for free but could pass it on to others?

And why shudder at the phrase “intellectual property?” Isn’t that what it is? Aren’t the fruits of your own labor your property? Is it okay for someone to take a sculpture or a painting that you created and sell it to someone else without compensation or even your permission? Or its it just okay if it can be copied and pasted or downloaded?

On the other hand, intellectual property law has gone overboard in the other direction: the Copyright Act of 1998, better known as the Mickey Mouse Protection Act, is a good example. And SOPA and IPP would seem to be following the same path.

But how do you balance the rights of creators with the desires of people who either look to make a profit by selling the creations of others or the people who believe that all content on the Internet is free? Therein lies the conundrum that, to date, has not found a solution, either legal or technological.

Posted by TexasBill | Report as abusive

I agree that lower prices will have more of an impact on piracy along with better data security technology. If the government can’t stop piracy with all its current powers, it won’t with additional powers.

Posted by M.C.McBride | Report as abusive

US copyright law is a disgraceful creation of bribery and payoffs. Current law despicably creates near eternal copyrights and does nothing, absolutely nothing to encourage the production of works of art, thought, or any creativity at all.

The law desperately needs reform.

There should be a large, large distinction between a creator and the purchaser of that creator’s rights. Now there is none. A creator should have an initial right of exclusivity for 22 years after creation, renewable for an additional 11 years, for a total of 33 years. After that, the work should enter the public domain. Such rights should be inheritable by the spouse or legal descendents of the creator, but by no one else.

Importantly, the creator should not be able to sell more than a 50% interest in a creation, directly or indirectly. A purchased copyright should expire in 15 years and should not be renewable.

This would support artists and those who would exploit those artists, but the primary rewards for creation would remain in the hands of the creator. It would remove the insidious and evil corporate copyright monsters from our legal and artistic scene.

Any system that locks up a person for 50 years for copying a song is evil. Evil! There is no doubt. It is an evil that through payment of bribes has further corrupted our governance and legal systems. They contribute little and do a very great deal of harm.

Time to limit copyrights, including existing ones. And time to limit trading in copyrights. They are not real estate.

Posted by txgadfly | Report as abusive

I completely agree with strong copyright law but penalties should be in line with intent. In addition you shouldnt punish intermediaries. Lets look at yahoo, facebook, google, etc. What do they replace?

Things like the US Mail. If 30 years ago a pirate mailed a bunch of brochures selling or giving away fakes would the post office get sued?

Stick to punishing the guilty – dont fk with the worlds new distribution systems.

Posted by John2244 | Report as abusive

Between this law and the one Congress just passed allowing the indefinite detaining of U.S. citizens without a trial, America is starting to look more like Nazi Germany or Soviet Russia then the country the Continental Congress organized.

Posted by 1stMartain | Report as abusive

They can pass a law, but who decides, who regulates, who enforces? I can see it now, some “legit” company accuses a foreign online entity of piracy and then what? The FBI sends in a crack team to sort it all out? Or do we create yet another govt. bureaucracy to oversee these crimes? Right. In today’s penny pinching, anti-govt. climate this Congress is going to create and fund a new online piracy watchdog agency? Ain’t gonna happen.

Posted by IntoTheTardis | Report as abusive

So why treat art as property??

And now they are copyrighting and patenting plants and human genes. Blue eyes are next. It is so totally out of hand. Art is something, all right, but it is not “property” let alone “intellectual property”. Now we have people who are claiming to control cultural artifacts that belong to us all as a people. Might as well copyright the image of the White House. Why not the word “is”?

The whole thing is ridiculous. And making never-ending copyrights so that MGM can sue people instead of making movies is stupid. They got their money back in the first year from movies or they never got it back.

Why create a cause of more litigation? It does not stimulate art. It is just a legal fiction.

Posted by txgadfly | Report as abusive

Why treat art as property? Because it is the property of the creator to do with as they wish. No different than a person’s real estate. At the creator’s desire, it can be bought and sold or even rented. Just like trespassing, it’s wrong to use another’s creation without either compensation or permission.

People don’t think it’s right to steal the products of someone else’s efforts; why is it okay to steal music, art, literature or other creation?

Posted by TexasBill | Report as abusive

Americans should champion and celebrate SOPA. The government is expanding its powers to protect the ill-informed, unintelligent, vulnerable voting public which is always a good thing.

I would also like to see the government expand even more and regulate private use of the Internet. Before that though, we must institute two new taxes: Internet usage and e-commerce. Internet usage is an untapped resource for our beloved government to dip into for revenue. E-commerce is the same and could bring in even more money into the coffers.

Americans would vote for these in a heartbeat because they know the government knows what is best for them, their lives, and know best how to spend money.

Less privacy and less freedom is a good thing! In turn, the government will protect, nurture, and give us everything we need and deserve to live our lives.

Posted by FlamingLiberal | Report as abusive

These bills died in committee, at least for this session.

Posted by Debayan | Report as abusive

Welcome to the Communist States of America…

Posted by onex23 | Report as abusive

Another revenue enhancer:

1. tax copyright and patent royalties on an accrual basis at a rate of about 25% to help cover the astronomical cost of “protecting” intellectual “property”. A Federal “intellectual property” tax, a non-deductible Excise Tax to help pay for all the public money used to make these “property holders” some of the richest people in America. And the taxpayer will still be subsidizing these parasites.

2. tax 50% of damages related to copyright and/or patent “infringement” judgments, and 60% of settlements. We should be generous and let them deduct these payment. :)

Why tax the devil out of residential real property and let these hundreds of billions go untaxed? People get to take shelter and stay alive in residential property. This is a higher public good than watching last year’s NFL games. The richest people in America, by numbers, are in the copyright and royalty check endorsing business. Time for a change!

Posted by txgadfly | Report as abusive

it’s too late. the genie is out of the bottle. they need to embrace the internet and realize that content delivery has changed.

Posted by MrZox | Report as abusive

I like txgadfly’s idea – if these things are the great things then the owners should pay a property tax on them to support the policing of them. Once again we need LESS government. I see it now – being sent to jail for taking a picture someone who standing in front of a movie theater and you get a copyrighted movie poster in the background. How far will they go?

Posted by richinnc | Report as abusive

The odd thing about piracy is that it also leads to sales. Often people access pirated material (Movies/Music/Games/Software) for the sake of experiencing/trying it out. If they like it, they usually go out and buy it for the sake of having a genuine copy complete with labels/artwork/whatever. If not, well in the windows trash bin it goes.

Then there is the argument that the “pirated” industries are not really losing anything because users would not buy the material anyway…even if they didn’t have access to a pirated copy.

Posted by HAL.9000 | Report as abusive

You know something is seriously wrong when you can get 5 years for pirating Michael Jacksons music, but you only get 4 years for killing him.

Posted by hephaestus42 | Report as abusive

Let’s establish one point from the off. Copyright Infringement is not theft, it has never been theft, and will never be theft. Don’t believe me? Try the US Supreme Court, who ruled in the 1980′s that it’s not, in the case Dowling V United States.

Of course, I’m pretty sure anyone facing copyright infrignement charges would LOVE for it to be deemed ‘theft’. Steal a 2 (12 track) CDs from a store and you’re looking at a petty theft charge, maybe $100 fine total. Infringe 24 tracks online by just offering them for upload, and even if you never uploaded a byte, you’re liable for 24 counts of infringement, each with a MINIMUM of $750 each ($18,000) and you have to pay for your own defense on top of that.

There are 4 infringement cases that are of note, two resulted in guilty verdicts with hefty fines (30x $22,500= $675,000 for Joel tenenboum, and 24x$80,000 for Jamie Thomas) and two dismissed for lack of evidence. In one of the dismissed cases, RIAA investigators pretended to be the defendant’s parents, and phoned her child’s school to collect evidence (pretexting).

Perhaps the biggest shock, though, is that that most independent studies have shown copyright infringers to be BETTER consumers. Just like those that taped shows off the TV in the 80′s were those that also bought tapes, and led to Hollywood DOUBLING their income through the 80s (over 55% of Hollywood’s revenue came from VCR tapes by 1987)

I’m a writer too (got a book coming out in less than 2 weeks), used to be a copyright enforcer for a record company, worked in TV too (and got patents as well) and yet I’m totally opposed to all these laws. It’s protectonism of an entrenched monopoly business practice. It’s about milking consumers for more money, and preventing competition. It’s all about anti-capitalism welfare for bloated companies made of middlemen, petrified that their easy life of being a parasite is almost over, and frightened that they’ll actually have to get a real job, and do something productive.
And THAT is what SOPA/PIPA is about.

Posted by KTetch | Report as abusive

Here is another take on SOPA.
Why does Facebook build a huge datacenter in Sweden? SOPA only works inside the US. Google already has a huge center in Finland.

In five years most US IT companies have abandoned the US and moved their HQs to Europe. Why? There are 300 mil people inside the US and 6,5 bil outside.

So, enforce SOPA/PIPA like it was North Korea and in five years US will have 100 mil unemployed and a bunch om media bosses happy that nnone can download the next Die Hard. The fact that noone outside the US will ever know about the movie doesnt bother them.

The US will be as isolated from the rest of Internet as N Korea is isolated from electricity.

SOPA only applies to traffic passing the US border, not traffic between Norway and China. It is like when your internet connection drops at home. You can see your own computers but nothing else. The rest of the world works well anyway.

Merry christmas.

Posted by Nicklasodh | Report as abusive

I think I agree with many of these comments. If the entertainment business didn’t charge such outrageous prices (same as Sports), Piracy wouldn’t be nearly as attractive to both the seller and the buyer.

The flip side is that Piracy is still illegal, and they need to nail both the perps and their customers. Think prostitution, where the “pro” and her “John” are both arrested.

Posted by JamVee | Report as abusive