Disrecognized Space

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Contesting the corporations: Online piracy, theft, and control

Online piracy is frequently portrayed as a form of theft in the popular media and by industry groups, yet it is really a form of intellectual property (copyright) violation. Portraying piracy as theft, however, creates a narrative that skews piracy as a moral and social violation. This essay discusses the differing legal and popular narratives of theft and how these apply to online piracy. While corporations have taken a defensive legal reaction to piracy, the social and cultural aspects of piracy provide more relevant understanding of piracy and why individuals engage in it. As the theft narrative continues to be promulgated, it is argued that pirates can actually be considered ideal neoliberal practitioners while those corporations which embrace new technology and the distributive means of the internet actually gain rather than lose income.

Piracy of intellectual property has long been an issue but especially since the ready availability of home copying technology, such as cassettes, rising to prominence following the advent of digital technologies. Napster (Jones, 2011, p. 441), particularly, set an ongoing pattern of industry bodies being caught unawares, and responding with a race to shut down sites and prosecute offenders.

Lawrence Lessig is one of the most prominent voices arguing against the increasing restrictions imposed on intellectual property, pointing out that the internet is a technology that lacks “respect” for copyright: any material is equally faithfully copied and forwarded, regardless of what it is (Lessig, 2004, p. 18). Where analogue technologies produced degraded copies at each recopying, digital technologies promise a perfect copy each time. Major copyright holders and corporations (usually one and the same) see this as a threat to their income. This conflict has dramatically been described as a “war” and offenders as “terrorists” (Lessig, 2008) as cultural, political and economic norms are redefined and restabilised between the new “remix” culture and old centralized models.

Music piracy illustrates this point of conflict in determining the new norms of copyright and sharing online, as Condry (2004, p. 344) comments: it is a cultural problem that is being attacked as an economic issue by reactionary reinforcements of old business models. Yar (2005, p. 681) suggests that, at the same time that demand for consumer goods is increasing dramatically across many new global markets, copyright owners are pricing their products beyond the financial reach of many in these new markets. Indeed, pirates, in Condry’s discussions with his students (2004, p. 356) turn the language of “theft” back on to the music companies and their perceived lack of ethics. Condry concludes (2004, p. 358) that music piracy is not perceived as theft by his students, but is seen as part of encompassing fan subcultures. The people most likely to “steal” music are precisely those who are most engaged with the product. Condry points out (2004, p. 347) that the urge to make music (and, presumably, to listen and share it) dates back six millennia. Jones (2011, p. 446) addresses music piracy from different perspectives, including the audience, noting how the internet amplifies the socially connective and personally defining uses of music. Surveying the literature, Sassower (2013, p. 54) observes that copyright is a contested space, centring on the tension between global capitalism and resistance. Indeed, one of the defining characteristics of the postmodernist condition is destabilization (Sassower, 2013, p. 3). Unlike the portrayal of pirates by corporations, Condry confirms (2004, p. 348) that a function of music is cultural bonding through sharing it. Pirates, rather than rejecting capitalism by stealing, can actually be seen as strict adherents of capitalism, seeking the most amount of product for the least payment (Condry, 2004, p. 348) in a strict application of Thatcherite neoliberal market strategies (Yoder, 2012, p. 383).

Piracy is portrayed, especially by those with vested commercial interests, as “theft” yet it is only theft in a very loose sense. Lessig (2004, pp. 83-84) discusses how copyright is a kind of property that has commercial value and can be stolen, yet it is not like ordinary property since it can be appropriated without the original being lost by its owner. While the advertisements on DVDs shame us by claiming “You wouldn’t steal a car” (haxorcat, 2007), how many of us might do so if we could still leave the original car behind, safe and unchanged, with its owner? Ironically, the music accompanying that advertisement was used without permission (Whitehouse, 2012).

Theft as a legal crime is defined by laws which differ from jurisdiction to jurisdiction (Yar, 2005, p. 678). US law is only one of these, but much of the corporate pressure to stop piracy comes from there so it is worthwhile to consider the concept of theft under US law. Green (2002, p. 208) explains that theft actually includes three concepts that must be met: unlawful taking, movable property and an intention to deprive the rightful owner of this property. Property was initially a very limited concept, but this has been expanded over time to include increasingly less “real” objects (Green, 2002, p. 210). The current definition is unclear, and often decided by case law, but Green (2002, p. 211) suggests that “anything that is part of one person’s wealth and that another person can appropriate” is a working definition. He suggests that it is more important to consider, rather than “property”, what rights are protected: where intellectual property is concerned, these rights are “thin” or less strong, especially since they can be cancelled out by concepts such as fair use (Green, 2002, p. 215). Green concludes (in the context of plagiarism, but the principles are the same for piracy) that the three tests of “theft” can be met, though often only with difficulty in terms of the third condition (Green, 2002, p. 228). He finds that “theft” has a certain moral and expressive meaning that is not well-suited to intellectual property and the violations to which it is subject (Green, 2002, p. 241).

O’Sullivan (2008) notes Hegel’s description of property as just as much a metaphysical concept (“whether one’s will has possessed the external object”) as a physical description. She goes on to observe that concepts such as copyright, intellectual ownership and authors’ rights are, at a fundamental level, not about physical objects as much as investments, and it is this capitalist notion that drives and underpins much of the piracy debate. This is an important point, since the anti-piracy campaign is not so much about protecting works or creators’ rights (or even creators’ income) as about restricting access to product in order to maintain and preserve the profitableness of income streams.

Regardless of the emotive language used in anti-piracy campaigns, prosecutions against internet piracy are conducted under copyright law, not property theft laws, as Yar (2005, p. 678) and the list of cases given by Smith (1997, p. 3) evidence, and this is the clearest indication that corporations and prosecutors recognize that piracy, even though it may be a crime, is not, by definition “theft” but a particular breach of intellectual property rights. The Recording Industry Association of America (RIAA) demonstrates this dichotomy between language and law at its website, where it describes how piracy is a copyright crime yet the same page states unequivocally that, if you upload pirated copies of material “without the permission of the copyright holder, you’re stealing” (RIAA, 2013).

Framing copyright violations as “piracy” and “theft” automatically leads to legal sanctions being used as a tool to stem these breaches as industry bodies pursue legal action rather than innovation (Jones, 2011, p. 441). Whether such an approach is effective is contested: such a blunt instrument appears to have little discernible impact on the problem. A number of countries have imposed laws applying graduated penalties to illegal downloaders, such as France’s “Hadopi” legislation. When Koster (2012, p. 329) investigated the effectiveness of this law he found the situation was partially obscured by other changes in streaming and downloading, but concluded that the law achieved only modest gains, if any.

Yar (2005, p. 684) urges a nuanced approach to understanding piracy, including acknowledging that “piracy” represents a conjunction of many factors among which are social, economic and technological narratives. The discourse of “criminals” and “pirates” emanating from corporations is just one among many self-interested representations of this conjunction, portraying it as a symbolically amoral action (Yar, 2005, p. 687). Organisations such as the Motion Picture Association of America (MPAA) and RIAA continue to frame piracy as a property issue, as recently evidenced by curriculum materials for primary school children in California which explicitly describe copyright violations as “stealing” (Kravets, 2013) while ignoring legitimate uses of such material.

Such claims by industry groups are nothing new. Lessig notes that they go back at least as far as the popularization of piano rolls. Each new technology has been represented as a threat to existing market shares: cassette tapes and video recorders, in particular, have been met with the same claims of destroying industries as the internet is subject to today (Lessig, 2004, p. 60). Lessig does not condone piracy, but he notes the exaggerated nature of such industry claims and, especially, how new technologies do not usually result in obliterating creativity but, rather, realign it with the new technologies.

In 1996 Johnson and Post noted the conflict that exists between territorial laws and the lack of such territorial borders online. It is a place that transcends and violates such borders and, while cyberspace can no longer be considered a totally separate space from the offline world since it is now inextricably linked to so many activities, it still offers a widely disseminated, cross-border medium that subverts traditional legislative powers. The internet itself was created to enable free transmission of data, and the enclosures that copyright represent could not be imposed on it (Castells, 2001, p. 168). Nonetheless, corporations have, if anything, only grown more steadfast in their refusal to negotiate with new cultural norms online, and resorted to frequent legal actions to attempt to maintain their dominant power, as Bowrey and Rimmer (2002) describe. This conservative approach, they note, is usually portrayed as a binary opposition. Of the oppositions they enumerate, that between centralization (control by a few global corporations) and decentralization (the underlying nature of the internet) and, by extension, that between the Status Quo and New Economy, are particularly pertinent to the piracy debate.

Whether piracy is actually an economic harm (and hence a form of “theft” of income) is problematic (Yoder, 2012, p. 382). Studies (often from industry bodies) can indicate massive losses, usually based on the untenable assumption that every illegal download is a lost sale, while others clearly show that, at least for certain populations, such downloads increase sales (Cox, 2013) — most importantly when the economic constraints of downloaders are factored into corporate business models – or that piracy has no statistical significance on sales (Oberholzer-Gee & Strumpf, 2007, p. 38). There is also evidence that piracy is decreasing as companies utilize the internet to enable the profitability of their products, most notably through streaming services such as Netflix and Spotify, rather than a reactionary appeal to legislation and criminal prosecutions. Page (2013, p. 23) finds (in relation to torrented files in the Netherlands) that access through Spotify reduces piracy. While the accuracy of figures is disputable, similar trends have been found globally in other studies, such as those conducted by NPD Group (Graham, 2013), Ipsos (Andy, 2013) and the London School of Economics (Cammaerts, Mansell & Meng, 2013, pp. 7-10). Other approaches include the recent prominence of Kickstarter, as demonstrated by Aaron Dunn’s campaign to crowdfund a complete recording of Chopin’s music, allowing him to make the recordings freely available (Cotner, 2013). Piracy can also have a similar effect for films (Han, 2013) by creating a word-of-mouth campaign advertising them, though this does not extend to blockbuster films (which are already heavily advertised). Clearly, if providers can offer easy access at a small cost, many people who previously resorted to piracy will choose not to do so. Significantly, RIAA figures for 2012 show, despite claims of burgeoning piracy, a steady revenue stream (Friedlander, 2013, p. 3). In this cases piracy, rather than “theft” is actually “profit”.

Barthes (1972, pp. 111-113) has written of mythic speech as a “second-order semiological system” where the Saussurean signified and signifier have been subsumed into a signifier that itself becomes part of another sign. This forms a kind of speech that Barthes (1972, p. 108) states is a message. The framing of intellectual property breaches as “theft” and “piracy” by corporations is just such a mythologizing of speech: the signified (“piracy”) also now contains the sign “theft”. It is, presumably, intended to evoke a visceral and moral repugnance at such breaches, yet the entertainment industry simultaneously glorifies the swashbuckling (but highly illegal) activities of pirates in films such as the “Pirates of the Caribbean” franchise (Samuelson, 2012).

There are a number of more nuanced ways of understanding piracy than simply labeling it “theft”, as Lindgren and Linde (2012, p. 2) point out. One of these ways is as a collective political action enacted in cyberspace as a resistance to the dominant powers of capitalism (Lindgren & Linde, 2012, p. 3) allowing the public to participate in redefining copyright norms directly (Yoder, 2012, p. 386). Rather than traditional political action, such resistance online is diffuse, and forms what Lindgen and Linde (2012, p. 4) term a subpolitical practice – a form of developing political action enabled by online networks – that subverts traditional left/right dichotomies through the numerous communities of pirates and diverse reasons for piracy (Lindgren & Linde, 2012, p. 11). The internet, by its distributed nature, decentralises power and makes it easy for small groups or individuals to resist hegemonic powers (Lindgren & Linde, 2012, p. 16) by reducing the costs of engaging in such action, while making old models of copyright impractical and difficult to enforce (Yoder, 2012, p. 385).

Online piracy is not theft, either in the strictly legal sense of a deprivation of property, nor in the colloquial sense, though it is clear that corporations want to portray piracy as theft in order to construct a morally loaded narrative that presents pirates as unethical, criminal individuals. Piracy is, however, a punishable crime under intellectual property laws, though that approach is clearly less morally loaded, especially in the context of the contestation of copyright laws in an online environment. Financially, it is also arguable that piracy is not theft since, in many cases, piracy and business models that work with the new social norms being negotiated online actually leads to increased income to corporations, rather than a loss. Clearly, the situation regarding copyright, piracy, and applicable business models is a highly contested and shifting space where various groups are jostling for power and control. Most importantly, in a postmodernist, destabilized world, the individual consumer is provided with the tools to balance out the pre-existing power imbalance favouring corporations, and to engage equally in this debate.

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