Lambert 1(Robert) Curtis LambertEnglish 101Professor Bolton25 July 2012 Research Paper “Working Title” One of the major issues plaguing Hollywood and the entertainment industry today is theongoing debate of the definition of media piracy, and where to draw the line within the lawsgoverning copyright and ownership. Lawrence Lessig’s essay, “Some Like it Hot,” deals withthe age old question: how does the law effectively curtail the downloading of music and moviesfor free, and in this same arena, how do we actually define stealing of digital media? This is not anew phenomenon, as Mr. Lessig’s essay repeatedly states, the only thing new with this issuetoday is the type of medium being used to pirate other artist’s works. There are still manyunanswered, and unasked, questions within the on-going debate of how to legally address andcorrect the apparent plethora of media piracy that exists in our current digital world.Nevertheless, lawmakers want the artist’s whose works are being pirated to continue to bepatient as the laws protecting their copyrights are ever evolving. The current age of digitaltechnology reproduces and improves upon itself at a staggering pace, and new legislation simplycannot be amended in the same time frame. The entertainment industry has spent the better partof the last 30 years, since the first blank VHS tape was sold, trying to determine how to curtailthe rampant growth of the media piracy industry. The contention between artist’s and the lawsgoverning copyright infringements are directly connected to the time it takes to amend thelegislation to be inclusive of any new medium that is capable of recording or downloading theirworks. The precedent for media piracy laws have been set since before the turn of the 20th
Lambert 2century, and although the type of media continues to develop and progress at a rate beyond ourability to keep up, the basic statute of the law has not changed: if one duplicates and/or sells oruses someone else’s media, in any form, without their written or express permission, then theyare breaking the law. Before the turn of the 20th Century the entertainment industry has been working diligentlyto reduce copyright infringement. Case in point: Hollywood was founded on two productionstudios refusal to pay royalties to Thomas Edison, who owned the rights to the inventions thefilm industry was utilizing at the time. The studios were so determined not to pay Edison what hewas due, that they moved from the east coast of the United States to the west coast, which wasout of the local jurisdiction of Edison’s patents, thus Hollywood was born. The studios managedto produce films using his copyrighted technology for seventeen years before the laws on piracywere finally amended. Unfortunately for Edison by the time the copyright laws had changed thestatute of limitations on royalties [money owed him] had passed; therefore Hollywood legallyowed Edison nothing. Subsequently, the advent of Radio and Cable television followed suit, andthe artists whose works these new mediums were profiting from fell victim to the same lack ofurgency in the courts that Edison had been faced with. Sadly, this is the same story we can findtoday, just change the names and the type of medium, and it could be 2012 instead of 1900.There is still no urgency within the courts today to amend the laws in a more pressing timeframe. Arguments abound by researchers and media pirates alike, that the entertainment industryis over-reactive and overly zealous on this point. In an essay for the CATO Institute, “InternetRegulations & the Economics of Piracy,” Julian Sanchez had this to say: …I remain a bit amazed that it’s become an indisputable premise in Washington that there’s an enormous piracy problem, that it’s having a devastating impact on U.S. content
Lambert 3 industries, and that some kind of aggressive new legislation is needed to stanch the bleeding…our legislative class has somehow determined that—among all the dire challenges now facing the United States—this is an urgent priority…But does the best available evidence show that this is inflicting such catastrophic economic harm—that it is depressing so much output, and destroying so many jobs—that Congress has no option but to Do Something immediately?...the data we do have doesn’t remotely seem to justify the DEFCON One rhetoric that now appears to be obligatory on the Hill. (par. 2)In making this comment Mr. Sanchez reveals that he and Mr. Lessig are of the same opinionwhen it comes to the time factor and media piracy: be patient, the copyright laws will catch up,eventually. This opinion should be somewhat alarming to the CATO Institute where this essaywas first published since their website states their mantra to be “…a public policy researchorganization — a think tank — dedicated to the principles of individual liberty, limitedgovernment, free markets and peace.” What Mr. Sanchez does not address is the violation of theindividual liberties and rights of the artist’s attached to media piracy that the CATO Institutepurports to be founded on protecting. Anyone with a computer can now have access to anycopyrighted works via the Internet. Research has proven that there are billions of dollars inrevenue that is lost around the globe, directly linked to illegal downloads. The World Wide Webhas made every artist’s work readily available at the click of a button, yet, Mr. Sanchez fails togive any statistical data to support this counterargument. Research compiled by John Gantz andJack B. Rochester for Pirates of the Digital Millennium : How the Intellectual Property WarsDamage Our Personal Freedoms, Our Jobs, and the World Economy, shows that since 2004 themusic industry has lost over four billion dollars annually worldwide and the movie industry haslost over three billion dollars annually in the United States alone, all due directly to illegal
Lambert 4internet downloading of pirated media. No thought is given by most Internet users as to whoowns the works found on the Internet or how to pay for it if they choose to download it, and tocomplicate matters further, there continues to be no sense of urgency in legislating these artist’srights. Throughout history artists have been grappling with the advent of new technology andhow to harness it for the betterment of their craft, all the while trying to prevent others fromusing the same technology to illegally duplicate their creations. While testifying before the U.S. Senate Committee on Commerce, Science andTransportation, February 28, 2002, Jack Valenti, President and CEO, Motion Picture Associationof America [MPAA] had this to say: At this precise moment…works [movies] are in ever multiplying numbers swarming illegally throughout the so-called file sharing sites (a more accurate description would be “file-stealing” sites)…There is one truth that sums up the urgency of this request to Congress…if you cannot protect what you own you don’t own anything. (1)Mr. Valenti eloquently states what most of the entertainment industry feels is the root of theirstruggle with the current copyright laws: what do these artists actually own if they have nocontrol over who has access to it? In Pirates of the Digital Millennium, Gantz and Rochester goon to address the question and to clearly define in each medium what piracy is, or at the veryleast, what it should be. They list several statements as being officially on record in the dispute todetermine fair ownership of copyrighted property: They’re stealing our content…we consumers should not have to pay so much…Think of the artists. This is piracy! You are depriving them of their livelihood…Yeah, right, except the media companies have never cared about the artists…all the revenues go to the
Lambert 5 corporations…Nothing was actually taken. The original (copy) still exists…Piracy inhibits the creation of new art. What’s the incentive…? (27)This familiar rhetoric on illegally downloading or copying material could have easily taken placewhen Napster first started sharing music illegally over a decade ago on college campuses, oreven today when dealing with YouTube downloads, or Peer-2-Peer file sharing. The irony here isthat this documented testimony is paraphrased from a case addressing copyright infringement inEngland from 1774: Donaldson v. Beckett. This particular case was the catalyst for the copyrightlaws instituted by the founding fathers of the United States of America, a full two years beforethe U.S. Declaration of Independence was signed. The struggle society continues to have with the term media piracy is theconnotation it evokes of one being a thief. One can easily contend that when our constitution waswritten by our forefathers they could not have known we would be dealing with the Internetwhen they established our early copyright laws. In fact, when PC’s and the Internet wereinvented no one could grasp the impact it would have on the world at large, much less recordablemedia. Johnny Ryan puts it best, in his report “New Audiences, the Fourth Wall and ExtrudedMedia,” Since Thomas Edison’s first recording of “Mary had a Little Lamb” on a tinfoil cylinder phonograph in 1877, the recording industry has undergone several crises of technical transition: from cylinder to disc, then from acoustic to electric recording, to magnetic tape, to cassette, to 5-inch compact disc in 1982, to MP-# in 1992. The expansion of the Internet access among PC users from the mid-1990’s may have produced the most seismic shifts yet. (par. 1)
Lambert 6Ryan makes a strong point here: no one could have foreseen the global impact digital technology[Internet] would have on the rights of artists, as well as keeping the copyright laws current andunderstandable for those wishing to legally access and download various forms of mediumsthrough the Internet. Most college students would never consider plagiarizing a work for anessay or research paper, any more than they would rob a store or break the honor code at theirUniversity by cheating on their final exams. On the other hand, they seem to have no issuedownloading and sharing music through a Peer-2-Peer file sharing network, even though mostwould admit that they know it is wrong, they just don’t see it as illegal, and therein lays theproblem. To curtail some of the illegal downloading the primary responsibility must fall to thejudicial system to expediently implement clear and concise laws that leave no room for any grayarea. The current copyright laws are so muddled and unclear even Judges struggle to effectivelyinterpret the statutes. In the fall of 2005, the Subcommittee on Courts, the Internet, andIntellectual Property of the Committee on the Judiciary House of Representatives of the 109thCongress, 1st Session, heard testimony dealing with this very issue and the overwhelmingmajority of their opinions, once again, were dissenting on the actual wording of the lawsgoverning copyrights, including the rights to privacy of the American public. Two of theCommissioner’s concerns dealt with the monitoring of digital media and how it may adverselyaffect American’s rights of privacy. In Content Protection in the Digital Age: The BroadcastFlag, High-Definition Radio, and the Analog Hole , February 22, 2005 the Committee heardtestimony via a written statement from Commissioners Copps and Adelstein dissenting on theCommission’s recommendation due, in part, “…because the [regulations did] not preclude theuse for content…already in the public domain…and because the criteria adopt[ed] for acceptingdigital content protection technologies fail to address…the impact…on personal privacy” (99).
Lambert 7The legalese by lawmakers continues to make it very difficult to decipher when it is permitted tomake a copy of something for personal use [material in the public domain] and when it is againstthe law to do the same. The judiciary system has even come across several issues where theyhave had to take a moral and ethical stance on what is right and wrong in specific cases, somedealing with copyright infringement and others dealing with people’s rights of privacy. All ofthis continual debate among lawmakers does nothing but stymie the progress of the issue athand: how are we going to monitor and/or control the illegal downloading of movies, music,literature, and other digital intellectual property? With all the testimony given before Congressand the Senate, local and state courts, as well as a multitude of appeals of the same, there is stillno clear definition of who is breaking the law, how to monitor the illegal downloading of digitalproperty, or how to even charge violators, much less prosecute them. The Motion PictureAssociation of America [MPAA] requires that all film distributors issue a federal warning at thebeginning of their films that are sold on the retail market warning against piracy and theimplications of illegal distribution. Yet, at any at any given time illegally downloaded films canbe bought on the streets and on the internet, some of them new releases that are still in thetheatres. Nevertheless, there are very few documented cases of perpetrators being charged forthese crimes, and even fewer being prosecuted. The current laws clearly do not work because ifthey did, the rate of media piracy would be declining instead of increasing. The vast majority of the media that is duplicated is done legally and the artistswhose work is being recorded, in any fashion, is compensated according to the law. Although ithas become increasingly difficult to monitor and protect the rights of artists in the mediaindustry, due largely to the fact that digital technology changes and advances at lightning speedin today’s market, it is not altogether impossible to keep a watchful eye. For example, as
Lambert 8previously stated, today’s media savvy youth culture sees nothing wrong with Peer-2-Peer filesharing. It is an accepted practice, largely by teens and college students, to download and sharefiles among themselves, without ever paying for the data or media being shared. The questioncontinues to be: how do we hold the YouTube generation accountable to the piracy laws? Peer-2-Peer file sharing dismisses any importance to copyright laws and infringements. The claim thatpiracy of developing media technology is not new rests upon the questionable assumption thatthere is always going to be a certain element in society that does not adhere to these seeminglyrandom piracy laws, and we need to be patient, while giving the courts and the laws theopportunity to catch up. When it comes to the topic of media piracy, most of us will readily agree that takingsomeone else’s property without their permission is stealing. Where this agreement usually ends,however, is on the question of ownership of digital technology and its availability to the massesthrough the internet. Whereas some are convinced that if the information is floating around incyber space then it is theirs for the taking, others maintain that there has to be some way ofpolicing this issue more thoroughly so people are paid according to the law for their work. OpenUniversity of the United Kingdom produced a film in 2007 entitled, DIY TV, Where the SmallScreen Is the New TV Screen. In the segment “DIY TV: Everyone is a Superstar,” one of thecommentators makes this query, “…now with the advent of DIY TV, you can all make your ownTV and you can all become superstars. The question is, are you ready to become a celebrity?”The overwhelming reply to that question by most people, certainly the YouTube generation,would be a resounding “YES!” The fact that most of the people that want to be superstars on theinternet are amateurs will not deter them, nor will any thought be given to who will have legalrights to the material that they would produce. The problem that would ensue is a continuum of
Lambert 9one that already exists for professional artists: who will own the rights of the works once they arepublished to the web? In conclusion it would be easy to concur that the inability to render a legal decision oncopyright royalties has been a problem since the media piracy debate began at the end of the 18thcentury, and the discussions we are having today about how to reign in media piracy are not new,only the technology we are debating is new. However, the artist whose work is being stolenthrough illegal downloads and rampant media piracy is continually asked to accept that all piracyis not wrong and to give the courts time to decide accordingly on each individual account. Thereal struggle the entertainment industry has with this approach has more to do with the negligibleattitude of law makers than it does with the artist’s willingness to allow the laws to be amendedand updated. The original basis of the law is very clear and leaves no room for error on thissubject. True, the laws have to evolve and adapt as the mediums change, but the rudimentarybasis of the original piracy laws are still applicable: artists own the works they have created andwe owe them monetary compensation when we use their said work, even if we don’t profit fromit ourselves. Anything less is stealing.
Lambert 10 Works CitedDIY TV, Where the Small Screen Is the New TV Screen. “DIY TV: Everyone is a Superstar.” Open University, 2007. Films on Demand. Web. 11 July 2012. <http://digital.films.com/PortalViewVideo.aspx?xtid=38812#>.Gantz, John and Jack B. Rochester. Pirates of the Digital Millennium : How the Intellectual Property Wars Damage Our Personal Freedoms, Our Jobs, and the World Economy. Prentice Hall/Financial Times, 2005. EBSCO eBook Collection. Web. 11 July 2012.Lessig, Lawrence. “Some Like it Hot.” The Norton Field Guide to Writing with Readings and Handbook. 2nd ed. Eds. Richard Bullock, Maureen Daly Goggin, Francine Weinberg. New York: W.W. Norton & Company, 2010. 88-92. Print.Ryan, Johnny. "New Audiences, the Fourth Wall and Extruded Media." A History of the Internet and the Digital Future (2010): n. pag. SIRS Issues Researcher. Web. 11 July 2012.Sanchez, Julian. "Internet Regulation & the Economics of Piracy." Cato Institute 17 Jan 2012: n. pag. SIRS Issues Researcher. Web. 18 June 2011.Subcommittee on Courts, the Internet, and Intellectual Property of the Committee on the Judiciary House of Representatives of the One Hundred Ninth Congress, First Session. Content Protection in the Digital Age: The Broadcast Flag, High-Definition Radio, and the Analog Hole. Washington, D.C.: U.S. Government Printing Office, 2006. Print.