Can Copyright Piracy Withstand Global Warming?

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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