‘No black flags with skull and crossbones, no cutlasses, cannons, or daggers identify today’spirates. You can’t see them coming; there’s no warning shot across your bow.
Yet rest assured the pirates are out there. [ ] The pirate’s credo is still the same – why pay for it when it’s so easy to steal’
When I joined the music industry in 1992, the unauthorised copying of recorded music was not top of the list of economic threats to the corporation. Bootlegging, which is a term used for the exploitation of unauthorised recording of live music, was at least as big a concern, especially in the USA.
As for the unauthorised copying of authorised recordings, the campaign which had been launched in the 1980s under the Jolly Roger logo of a cassette and crossbones, and which declared that ‘Home Taping is Killing Music’, had run its course. It was parodied, and at least partially discredited by the sustained healthy growth of the music industry in developed markets.
Domestic 'piracy' (home-taping and private sharing) was seen as quite distinct from commercial piracy. The music industry was well aware of large scale unauthorised cassette and CD manufacturing activities. These had been going on since the invention of the recording formats, especially in Latin America, Eastern Europe and Asia. The scale of such activities was relatively measurable. Fighting piracy was a priority of the industry trade bodies (RIAA, BPI and especially the IFPI) and their anti-piracy initiatives and reports were closely monitored. However, the overall feeling at that time was that piracy was manageable, especially when pirate copies were often physically distinguishable and inferior to the authorised versions. It thrived mostly in foreign markets which were still underinvested by the major record companies. Ironically piracy served, to some extent, as an informal and unacknowledged source of market-research and market-making, prior to increased investment in some territories. Once commercially organised piracy had grown to a certain level, it was indicative that record companies could justify asserting their rights and investing more heavily in that territory, always presuming that the local government had an appetite for enforcing its copyright laws.
Piracy was also indicative of which artists and genres were most in-demand in those markets. But to put all of this in the perspective of the time, even if some territories had worryingly high physical piracy rates, it was believed that at a global level piracy represented less than 10% of the total market. As long as it was kept below that level, it would not substantially inhibit the continued growth of the authorised market.
By 2000, the industry view of piracy had changed dramatically. Home-taping, and even CD ripping and burning, were to some extent measurable by sales of blank units. By contrast peer-to-peer filesharing played on the worst fears of music executives. Not only could they not control the dissemination of music, they also had no idea how to measure or monitor what music consumers were actually doing. All they knew was that millions of people were accessing filesharing sites, and that hundreds of millions of digital music files were being shared. In the worst case, if one were to judge music consumption simplistically by the number and source of music files on iPods and on computer hard drives, one might have imagined that the market had inverted, and was now 90% ‘pirate’ and 10% authorised. Such a change in the perception of the threat of unauthorised copying called for a drastic response, in both actions and words.
There have been several strands to the record companies’ digital anti-piracy strategies including:
technological protection measures (encryption, DRM, spoofing, surveillance)
the development and promotion of attractive authorised digital services.
In the short-term, the focus was on trying to constrain or disable, rather than enable, new forms of consumption. An aggressive litigation strategy, especially through the RIAA, is well documented and decried in the blogosphere. Starting in 2000 and continuing to the present, lawsuits have been brought against a sequence of filesharing sites: Napster , Grokster, Kazaa, Limewire, eDonkey, The Pirate Bay, Megaupload, to name only a few.
These actions have, in isolation, been mostly successful, but as each one was forced to close, others sprang up to satisfy the huge demand of the burgeoning filesharing community. Legal actions against deviously clever file-sharing services were very unpopular with active file-sharers, and regarded by new-age technologists and web-savants as futile given that the infrastructure of the internet does not recognise territorial customs and laws. Nevertheless, the traditional industrial logic was clear enough: seek the protection of the law against alleged infringements of copyright and shut the services down.
In contrast to the understandable industrial reaction of pursuing identifiable filesharing services, a parallel strategy drew much less, if any, public support. This strategically questionable and alienating development was the pursuit of individual users on a grand scale. Exploiting provisions of the 1998 Digital Millennium Copyright Act (DMCA) subpoenas were issued in the USA to internet service providers(ISPs)requiring them to reveal the names and identities of alleged infringers. Huge numbers of individual lawsuits followed, and between 2003 and 2006, the RIAA had brought lawsuits against more than 17,000 individuals. Public opinion soon turned against the industry when unwitting or naïve users such as young children and grandmothers were caught in the dragnet approach.
Whilst legal action against consumers, persistent up-loaders and filesharing services has continued to this day, the music industry has moderated its aggression. Another focus of its attention was to lobby for statutory solutions which make it easier for content owners to get ISPs to co-operate in giving fair warnings to infringing users which, if ignored (‘3 strikes’), could lead to the suspension of the users’ internet service altogether. Such a provision was one of the most notable elements of the UK’s Digital Economy Act (2010) but proved slow and contentious to implement, and was eventually abandoned.
Consistent with its reputation as a nation with high standards and rules of cultural and intellectual property protection, the French government was the pioneer of the 3 strikes concept in 2009 with the previously mentioned law known as Hadopi. However, even in France the law provoked anger and was revoked in July 2013, amidst questions of its effectiveness and arguments that the punitive penalty of cutting internet access was draconian and disproportionate to the offence.
The idea that internet access has become accepted as a basic human right was evidenced in 2012 when a UK Court of Appeal reversed an order which was preventing a convicted child sex-offender from using the internet. The judge remarked that it was ‘entirely unreasonable to ban anybody from accessing the internet in their home’.
There is already much written on the topic of record company reaction to file-sharing, and I do not intend to go into detail on the legal developments. Of more relevance to the theme of this book are the moral question of copying and the narrative of piracy which has been adopted in these corporate digital anti-piracy strategies, especially in the ‘education’ of the public about copyright-infringement.
The US has been more active than the UK in this regard, and the film industry has been much more visible in its campaigns than the music industry. Perhaps the best-known example is the short video (49 seconds in length) produced by the Motion Pictures Association of America in 2004 and included for several years thereafter as part of the anti-piracy warnings on DVDs and amongst trailers in cinemas. Against a music soundtrack which includes a police siren, a girl sits in a bedroom downloading a movie, interspersed with footage of various types of street theft with the captions:
You wouldn’t steal a car; you wouldn’t steal a handbag, you wouldn’t steal a television; you wouldn’t steal a movie.
Downloading pirated films is stealing.
Stealing is against the law.
Piracy. It’s a crime.
Consistent with the forced viewing of the ubiquitous copyright warning text which was incorporated into DVDs, this video could not be skipped, meaning that legitimate purchasers of the video were forced to view it each time they viewed the movie. It was heavily criticised and, like the old ‘Home-Taping is Killing Music’ campaign, it has been much parodied.
In an ironic twist, the composer of the music commissioned for the video brought a legal action based on the fact that it was only intended for use at a film festival, and its wider copying and exploitation within millions of DVDs was therefore unauthorised. Although he was ultimately successful in his legal action, it was a long and messy process. This is a good example of the problem with copyright law: it is complex to understand and to administer and, more importantly, the degree of ‘wrongness’ of any given instance of copyright infringement is difficult to nail down, and therefore to legislate for, and to prosecute.
For all these reasons, it is well worth examining the societal role of the pirate, historically and symbolically, in more depth.