Sunday, 11 May 2014

Pirate Party Talking Points: Copyright

I've put together a brief list of talking points for the Pirate Party to use wherever and whenever they want it. The idea is to educate the public about us and what we stand for.

Why "Pirate Party?"

Well, the name gets people's attention.

The Swedish Piratpartiet, founded on 1 January 2006 under the leadership of Rickard Falkvinge, was the first pirate party. The party's name was derived from Piratbyrån, an organization opposed to intellectual property. Members of Piratbyrån had previously founded the BitTorrent tracker The Pirate Bay. Piratbyrån was an organization founded to oppose the lobbyism of the anti-piracy group Antipiratbyrån. The "pirate" label, which had been used by the media and film industries in campaigns against copyright infringement, is therefore a reappropriation of the word

- Wikipedia

Read Rick Falkvinge's own account of it here. The point is, as a general rule, our ideas on piracy, etc., have been shaped by industry lobbyists, who have baked their views into our governments' policies. This has been so successful that even questioning the copyright and patent regime is considered to be somewhat outrageous in the mainstream.

We need strong intellectual property protection

Oh, no, we don't. First of all, there's no such thing as intellectual property. The term is a catch-all used to describe copyright, patents, and trademarks, none of which are treated as property under law, despite attempts to make that happen. The reason is, copyright, patents, and trademarks are what is known as "intangible assets," meaning you can't physically hold them. They are monopoly privileges, and treated separately under law. Conflating them allows maximalists to confuse the public about what they are, what they are for, and who is supposed to benefit from them and why.

The people who benefit most from intellectual property rights (IPR) "protection" are rightsholders. In theory, these are the creators of the artistic works and inventions, etc. In practice, go and read your employment contract. Have you seen the part where your bosses own what you create? You are not the rightsholder unless it's mentioned in your contract. In mine, anything I invent belongs to the company, not me, for as long as I work for it. As for protection, you have the right to sue infringers. Criminalizing infringement means you have to prove it, as a rule; good luck with prosecuting the infringers if they're big companies or powerful lobbyists. Meanwhile, they're getting websites shut down on suspicion of infringement. One rule for them, another for us.

Pirates are thieves who want everything for free

Infringement is not theft, and is not treated as such under law.
Copyright holders frequently refer to copyright infringement as theft. In copyright law, infringement does not refer to theft of physical objects that take away the owner's possession, but an instance where a person exercises one of the exclusive rights of the copyright holder without authorization. - Wikipedia

Maximalists and IPR advocates move the goalposts by saying that infringers are stealing potential profits. However, statutory damages do not require a showing of lost profits or the infringer's profits and there's no way of adequately proving how much profit is involved, hence the statutory damages. Actual harm is so hard to prove in these cases, a figure had to be invented and applied. In any case, infringers are often either reacting to a situation in which they have few or no legal options to provide what they want at a fair price. Think about it; there's a new film out and all your friends are talking about it. Perhaps you're online and they're talking about this great new programme on the telly. You want to watch it but... it's not available in the UK for the next six months on Cable/Satellite TV. It'll be out on DVD if you don't mind waiting for a year. Eventually, it'll come out on mainstream terrestrial TV. Yeah, right. The Pirate Bay beckons...

Who are the real thieves?

Our current copyright regime is allowing the market to be distorted by permitting the suppliers to set the terms on which their content can be accessed and enforcing this with criminal sanctions for those who won't either accept them or do without. If HBO didn't have the weight of legislation behind them, they'd have to provide fans with what they want the way they want it at a price they want to pay. But they're not obliged to, are they? They're protected from actual market forces at our expense. The ISPs will want to recoup their costs, after all. From all of us.

Copyright terms were recently increased by twenty years. Given the struggle Sir Paul McCartney has endured in trying to win back ownership of the copyright to the Beatles back catalogue, I bet he's annoyed about this. There's also the matter of works being taken from the public domain and fenced off again, instantly making infringers of us all if we made use of them without getting the required licences. Now that's theft. Actual theft.

Let's not forget that the labels, etc. often fail to pay the artists they claim to be fighting for.

How can creative workers be paid without copyright?

Other business models are available. It's madness to try to make a living out of selling copies of things when copying has never been easier. Pre-funding projects via Kickstarter and other fundraising sites has been around for some time. Personal appearances, merchandizing, sponsorship... the possibilities are endless. Infringers aren't necessarily freetards. Most of them want to support the artists, etc., they like, and are eager to pay for what they want, but if the item they want is not available where they are, or there's not a legal option for them to use, what do you expect? Infringement occurs when people are not content to do without.

Why should copyright terms be reduced?

They're far too long as it is. The Case for Copyright Reform, by Christian Engström MEP and Rick Falkvinge, provides the background for our thinking on this, but basically, copyright was never intended to be a property right and was never treated as such in law. It started out as a censorship tool, continued as a protectionist measure for printers, and has continued as such to this day. In America,

Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. - Wikipedia

The "times" have become less limited and the purpose of copyright is being extended to serve (ostensibly) as a welfare scheme for creators and their families to the third and fourth generation, the idea being that it can serve as a sort of family heirloom. But copyright was never meant to be for that, it wasn't set up for that purpose, and as sorry as we feel for those people, we have problems, too. Copyright laws are interfering with our own rights to property ownership; we're getting to the point where nothing we buy will truly be ours; we'll just be licensing it.
In fact, in a rather astounding statement to the Association of American Publishers, Nadler claimed that the idea that "you bought it, you own it" is somehow extremist:
“The ‘you bought it, you own it’ principle is an extreme digital view and I don’t think it will get much traction,” he said, referring to the mantra of proponents of the right to resell digital goods.

Oh really? The specific discussion concerned people wanting to be able to resell used ebooks, just like they can resell regular books. But, really, the idea that "you bought it, you own it" is somehow extremist? Isn't that a fundamental concept in property rights? In fact, we've highlighted how copyright maximalists are trying to destroy property rights by denying people the basic ownership rights over things they bought. - Mike Masnick, Techdirt

That's not the best part: we're also headed towards a concept of national copyright; intellectual output by the people, for... who, exactly? I'd guess it's "the people who are supposed to be providing more jobs because they're being taxed less." This is all being driven by the idea of creative output as property that is not subject to market forces, protected by the force of law at our expense. We don't benefit from it so what exactly do they mean by "The nation's?"

We all infringe every day*

Considering the bleating and whining we hear from the pro-IPR enforcement people, you'd think they were being robbed blind on a daily basis. I suppose they are. In the eyes of the law, each and every day, we all infringe in one way or another. This is not a subjective opinion; this is what the law says, you dirty pirate.

Do you forward your replies to emails to preserve the email trail? Well, each time you create a work by typing, doodling, or anything like that, your work is automatically copyright, whether you register or not. You've infringed on someone else's email and they can legally sue you (although they are unlikely to).

Shared pictures online that your friends took without asking them first? How could you?! They can take you to the cleaners, mate.

Like a bit of drawing, do we? A bit of doodling on the old notepad while on hold or in a boring conversation? What have we been drawing, then, eh? Because if it's a cartoon character or anything like that, you're liable, sunshine.

Got a tattoo of your favourite pop star? Fictional character? You thieving little so-and-so! That's unauthorised reproduction, right there. Well you'd better keep it covered because if you roll up your sleeves to display it, you're engaged in a public performance. I hope you've paid your licence fee!

You only went and sang Happy Birthday in Pizza Hut, recording the whole thing on your mobile, didn't you? Well, well, well... you've engaged in an unlicenced public performance of a copyrighted work, my poppet. Then you made an unauthorised reproduction of the artwork on the walls. It doesn't matter whether you were aiming at them or not you should have either got permission from the artist or pixellated it out before uploading it to YouTube and sharing it on Facebook. Oh dear, oh, dear, oh dear. Think of the starving artists!

Needless to say, linking to copyright material can get you into trouble. See Richard O'Dwyer and Anton Vickerman for details. Of course, they're more likely to come after you if you're making money from it, so I hope to goodness you haven't got a blog with adverts on to monetise it...

And you really, truly think your blatant infringement doesn't matter? As the surveillance net tightens you will begin to feel the effects soon enough. And that's why I don't vote for the Conservatives or Labour parties, children.

*Hat tip: Techdirt.

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