Global
warming isn't just about global temperature. That's the typical context, but
what about society's warming to an
idea or a transformation? One might argue that global warming is now turning up
the heat on copyrights. If this is true, then the current definition of piracy
might be subject to a big thaw.
Are Copyright Zealots the New Copyright Devils?
A wise
colleague of mine said that recent events have pushed us further into the
"cultural normalization of IP piracy." His comments were sparked by the State
Bar of Nevada's recent investigation into three Righthaven attorneys.
The Righthaven
investigation was recently reported upon by Vegas Inc., which summed up the Bar's enquiry as follows:
This week's development may answer a question Righthaven observers have
been asking for months: whether any of its attorneys would be formally
questioned about charges by a federal judge that the company made "inaccurate
and likely dishonest" statements to the court as it pursued its copyright
infringement lawsuits.
The referenced
case is Righthaven LLC v. Democratic
Underground, LLC, 791 F. Supp. 2d 968 (D. Nev. 2011) [enhanced version available to lexis.com subscribers], in which Judge Roger L. Hunt said:
the Court believes that Righthaven has made multiple inaccurate and likely dishonest statements to the Court. Here,
however, the Court will only focus on the most factually brazen: Righthaven's
failure to disclose Stephens Media as an interested party in Righthaven's Certificate
of Interested Parties. ...
Making this failure more egregious, not only did Righthaven fail to
identify Stephens Media as an interested party in this suit, the Court believes
that Righthaven failed to disclose Stephens Media as an interested party in any
of its approximately 200 cases filed in this District.
(emphasis
added)
Copyright Piracy: It All Depends on Your Side
of the Fence
My
colleague went on to clarify his position by saying that in our culture, "IP
piracy seems to be legitimized by the mere fact that people are doing it."
Basically, the arguments raised by Charlie Nesson in defense of Tenenbaum get a
pass, but Righthaven's lawyers are threatened by disciplinary action for
overzealously enforcing copyright. And corporate lobbying by the entertainment
and movie industries in support of SOPA is condemned, while it's okay for
Google to subsidize the opposition. It's his opinion that these shifts in
cultural attitudes are far more threatening to intellectual property than any
of the unfriendly legal theories.
In the
book, Who Owns Culture, Professor Susan
Scafidi of Fordham University mentions that IP owners must depend on the
law to generate boundaries in the public mind. Consequently, the boundary does
not depend solely upon the law but also upon what the public thinks of the
boundary. She notes that in terms of property, the public mind seems to have a
technological blind spot. It can see the crime in a record store burglary but
not necessarily in the sharing of MP3s. This is what she describes as the
"disjunction between intellectual property law and the lack of societal
consensus regarding what should be respected as 'property.'"
The Masses + Technology = A Coup against Piracy
In the Tennenbaum case,
the First Circuit reversed a file-sharing/copyright infringement award ($22,500
per infringed recording/a total of $675,000) for reaching constitutional issues before questions of
common law remittitur. On remand, Charles Nesson recently argued:
here the plaintiff corporations are responding to the conduct of
millions of independent people, but are attempting to punish Tenenbaum for the
actions of all of them. Punishing Tenenbaum for the offenses of others makes
the award against Tenenbaum wholly disproportionate to his offense. The
Copyright Act is being applied to punish Tenenbaum not only for his own actions
but also for the aggregate actions of others, and for the effect of the decline
of revenues in the music business on non-parties.
....
By all appearances, Congress never contemplated that non-businesses or
non-competitors would be targeted as they have been in this unprecedented
litigation campaign brought by the Recording Industry Association of America.
All agree that Congress never intended juries, as opposed to judges, to impose
the statutory damages called for by the Copyright Act. But in the new context
created by the intersection of computer technology, the internet, music, and a
thoughtless ruling by the Supreme Court that juries should decide statutory
damages, a noncommercial actor double-clicking a mouse on a personal computer
triggers liability which is obviously excessive by any standard.
(footnotes
omitted)
Nesson brings
these broader contexts -- the punishment of one for the punishment of all and
excessiveness as defined in the current reality - to bear upon the rights
holders. The subtle suggestion is that in this new world, the borders of
individual piracy must shrink in
proportion to the growing borders of communal sharing. It is also suggested that current technology should blunt
our sense of punishment, making excessiveness dependent, not upon actions, but
upon the technology used to facilitate those actions.
As
expected, the Tennenbaum plaintiffs don't see
things in such broad terms. They maintain piracy in its Petri
dish, preferring to focus on the individual and his detrimental actions:
Joel Tenenbaum is a long-term, hardcore, and willful copyright infringer
whose misconduct caused Plaintiffs to suffer incalculable harm. Plaintiffs
asserted claims on only 30 sound recordings, but the evidence at trial
demonstrated that Tenenbaum intentionally infringed literally thousands of
sound recordings over a period of nearly ten years by using multiple
peer-to-peer networks to download and distribute these recordings without
authorization. He even acted as an original seeder to the networks by putting
copies of new works online for other people to take. Tenenbaum knew his conduct
was illegal, yet he deliberately broke the law-even, quite remarkably, during
the course of this lawsuit.
....
Plaintiffs' witnesses testified that the ever-multiplying infringement
caused when a song is illegally shared results in injuries ranging from lost
revenues to diminution of copyright value to a diminished capability to
identify and promote new artists to layoffs within the industry. Plaintiffs
also demonstrated that the only legal means by which Tenenbaum could engage in
the actions he undertook would be to obtain a blanket license to reproduce and
distribute the 30 songs without limitation, which would essentially represent
the entire value of each of the copyrighted works and vastly outstrip the cost
of purchasing a single copy of each song for personal use.
(citations
omitted)
This Isn't Your Grandfather's Piracy
Copyright,
being a body of law, has a general shape and boundary, but copyright
enforcement isn't so cut and dry anymore. Enforcers might be labelled
legitimate, or they might be labelled trolls, or they might be labelled
tyrannical, as was the case with SOPA/ACTA. Likewise, piracy itself is no longer easily
defined. The volume and normalcy of file sharing seems to cut against its
illegality. And in the case of SOPA, the public outrage and the Internet
blackouts demonstrate that piracy's definition can be easily vetted by our
vocal and technologically reactive society.
Some might call this the "cultural
normalization of IP piracy."
But others
will see it as the will of the public mind.
1. Susan Scafidi, Who Owns
Culture 15-16 (Rutgers University Press) (2005).
....
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