Update – 4:25 PM Saturday: Thanks to a tweet from Barry – here’s a link to an article on Torrent Freak, which is about another case of industry insider uploading. In this case the insider was targeted, not the torrent site, however industry seems to regard killing torrent technology as more effective than policing it’s employees.
Before I start – A Happy New Year to all – and a milestone – my 101st article!
DoubleSpeak from Sookman
Hum, what to say. Barry publishes an article titled ITIF Report: Strategies for Reducing Digital Piracy.
Now that is exactly what the report is named, no doubt about that. And Barry’s quotes are accurate. But…
Barry isn’t stupid. Doctor Robert D. Atkinson, President of The Information Technology & Innovation Foundation isn’t stupid either. It appears that they know George Orwell too damned well. Remember that beautiful line in Orwell’s classic book 1984, ‘We have always been at war with Eastasia?’
What we have here is a classic form of Doublespeak. To quote Wikipedia’s article on Doublespeak, ‘Doublespeak (sometimes called doubletalk) is language constructed to disguise or distort its actual meaning, often resulting in a communication bypass. Doublespeak may take the form of euphemisms (e.g., “downsizing” for layoffs) or deliberate ambiguity.’
But wait you say – doesn’t everyone use the term piracy for copyright infringement? I mean there’s even a Pirate Party which has evolved into a worldwide political movement. Much to my surprise, I found out when researching this article that the usage of the term piracy for copyright infringement actually predates the concept of copyright infringement! From Wikipedia:
For electronic and audio-visual media, unauthorized reproduction and distribution is also commonly referred to as piracy (an early reference was made by Daniel Defoe in 1703 when he said of his novel True-born Englishman : “Its being Printed again and again, by Pyrates”). The practice of labeling the act of infringement as “piracy” actually predates copyright itself. Even prior to the 1709 enactment of the Statute of Anne, generally recognized as the first copyright law, the Stationers’ Company of London in 1557 received a Royal Charter giving the company a monopoly on publication and tasking it with enforcing the charter. Those who violated the charter were labeled pirates as early as 1603.
The legal basis for this usage dates from the same era, and has been consistently applied until the present time. Critics of the use of the term “piracy” to describe such practices contend that it is pejorative and unfairly equates copyright infringement with more sinister activity, though courts often hold that under law the two terms are interchangeable.
Fascinating. So historically the term ‘Piracy’ was used for ‘Copyright Infringement’ before ‘Copyright Infringement’ legally existed. But we are getting sidetracked. One side of the argument is trying to paint the other side as thieves and murderers. Not a very nice move on their part.
OK you say – everyone called copyright infringement piracy. Why should I? Let me posit you a question. If your entire Ninth Grade high school class decided to take swan diving lessons from the Observation Deck of the CN Tower without parachutes, would you allow peer pressure to make you join them?
Right. You wouldn’t. You’d think they either were idiots, or pod people. But you wouldn’t follow them. So when you are talking about copyright infringement, call it copyright infringement – not piracy.
And remember – these people aren’t idiots. They are using DoubleSpeak to try to gain an advantage in the discussion about Copyright and it’s place in the modern world. By using a pejorative, they wish to convince the general public that their side is in the right, without there being a substantive discussion of the benefits and costs to the public of our current copyright regime. Even more important to them however is that they do not wish under any circumstances to get involved in a discussion of the benefits and costs to the artists of our current copyright regime! Oh my god, that would be terrible!
No. I’m serious. I’m not sure that Barry understand this. He isn’t an artist after all (artist being defined as writer, composer, musician, film maker, photographer, painter, etc. – in simple terms a human or other intelligent being capable of producing works which can be copyrighted). I’m not sure that Robert Atkinson understand it either, after all he’s a gunslinger for hire who’s organization has taken conflicting positions in the past. Both will claim loudly that what they are doing is for the benefit of the artists, while a rational evaluation will show that it’s not the artists that benefit – it’s the middlemen. Specifically the CRIA, RIAA, MPAA, IFPI,, etc., etc.
So what exactly is going on if Barry doesn’t understand what he’s doing? Well, let’s take a look at a story that was in Barry’s Computer and Internet Law Updates for 2009-12-28 about an Italian case where a court has ruled that BitTorrent Sites May Be Censored In Italy according to TorrentFreak (note that this story was sent from Barry’s Blackberry – if you wish to go directly to the article click here.
I don’t know what the legal costs have been for the IFPI (probably the industry organization involved according to an earlier TorrentFreak article, but you have to question if the looked for increase of sales would cover them. There is no proof that I know of, that blocking downloads actually causes an increase in sales. But let’s assume that there is. If 1% of the cost of a $10.00 US Compact Disc was be used for copyright enforcement ($0.10 US), and the cost of legal representation was $10,000.00 US, then they would have to sell an additional 100,000 Compact Discs to break even. But could they afford to spend 1% of their revenues on enforcement? What if they only spent 0.1%? In that case they’d have to sell and extra 1,000,000 Compact Discs. The math makes sense. The economic reasoning doesn’t.
And when you add up every other ‘Enforcement Action’ that has been taken against ‘Piracy’ the economic justification makes even less sense. So as my Dad would have put it – ‘What the hell is going on here?’
After banging my head against the wall for a long time, I’ve finally come up with a theory or sorts. It fits the facts. It makes better economic justification than ‘Enforcement.’ But it does sound a little bit paranoid. Like something a crazy ‘hatred-driven style of Maoist Guard’ might come up with… So let me lay out the evidence that I’ve seen. Almost all of it is public, so unlike the other side I will provide documentary links (yes, I’m being nasty again). When my evidence is anecdotal, I’ll tell you.
Case 1 – OINK.CD
OINK.CD – Oink’s Pink Palace was a torrent site that specialized in music. Music professionals such as Trent Reznor of Nine Inch Nails was a member. If we can take the industry representative (IFPI) who spoke to reporter at face value the reason for the raid on OINK.CD was pre-release music. Think – pre-release music. Just where would they have gotten that? In other words the industry was using the police to shutdown a service that their own employees were using! They couldn’t catch them on the inside, so they dumped on Alan Ellis, even arranging for a BBC camera crew to film the raid on his flat. Based on statements made by police at the time, it appears that the IFPI lied police and prosecutors (the police statements were bizarre to say the least).
Now this is where it gets anecdotal. I have friends in low places, and they allege that some of the alleged 60 pre-release albums were deliberately uploaded by the labels. If this is true, and it comes out in discovery (this case is under British law, and it is a criminal case, Regina V. Ellis, so I do not know if Mr. Ellis would be able to do discovery on the IFPI or the labels), it could cause problems for the prosecutors.
For an excellent article about the implications of the OINK.CD enforcement effort check out this article at Demon Baby.
Case 2 – EliteTorrents
EliteTorrents was a general torrent site. To the best of my knowledge it is the only torrent site that has the distinction of being taken down by the Federal Bureau of Investigation. Their crime? A movie industry insider uploaded a ‘pre-commercial release work’ which hasn’t been identified, but is rumored to be Star Wars Episode 3. Right. A movie industry insider commits an act of copyright infringement (is it copyright infringement if the act was done by someone who worked for the company? It couldn’t be classified as theft – nothing is missing!) Unfortunately for EliteTorrents the torrent (not the video) was uploaded to their server. Result is that the site admin spends four years in jail, another admin gets eighteen months, and an uploaderescapes jail but looses his job. Whether he is the uploader who actually uploaded the file that brought everything down isn’t mentioned, but it is doubtful, since he worked for Lockheed Martin. Oh. and a movie exec says that the release made no difference at the box office.
Case 3 – Demonoid
Demonoid is an odd one. While it is a private tracker, it is so high profile that you could consider it the CIA of the tracker world. Demonoid has been up, and down, many times over the last few years, changing country of origin at least once because of legal issues. Wikipedia has an article describing this.
Case 4 – The Pirate Bay
The Pirate Bay is probably the most infamous torrent site, and people who were involved with it started the original original Pirate Party in Sweden. The Pirate Bay claims that it is legal under Swedish law, and usually posts legal threats to their website, often with smart aleck responses.
In 2008 Nine Inch Nails released their newest album under a Creative Commons license on The Pirate Bay. Their move was apparently a great success, with the band making a good profit. They’ve also allowed their fans to put together their own packages like this one and use the Pirate Bay for distribution.
More recently Director Hanna Sköld released her feature film Nasty Old People. On the front page of her website she put a torrent link. The tracker she choose to host her torrent was The Pirate Bay. It was a great film, if you haven’t seen it I highly recommend it. Oh, and she’s taking donations, I sent her $20.00 US to thank her for her work.
So looking at the cases above, and considering how little economic benefit that industry has gotten from them, why are they doing this?
Easy. It’s an anti-competitive act. If the requirement for Internet Service Providers to block The Pirate Bay stands, Italians won’t be able to enjoy Hanna’s film, or the latest Nine Inch Nails album. By blocking the alternative distribution methods that independent artists are adopting (Finnish producer Samuli Torssonen also uses The Pirate Bay), they limit the market that the independents are using to reach their customers. If the independents can’t distribute using the alternate channels, their only choice is to use the big, established, distributors.
Now that may sound paranoid, but look at the evidence. The actions that the industry organizations are taking aren’t cost effective if what they are doing is trying to increase their sales by blocking ‘supposedly illegal’ downloads of the product they distribute. However if they can manage to convince legislators that Torrent technology should be made illegal, then a competing distribution system cannot form, and all distribution continues through them.
What do you think?