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Counterpoint: Piracy of Cultural Works

I am taking the position that piracy of cultural works is not beneficial in its current form.
To clarify these terms, piracy does not refer to banditry on the open seas, but rather “the
unauthorized use of another's production, invention, or conception especially in
infringement of a copyright”1 as defined by the Merriam-Webster dictionary. “Cultural
works,” for the sake of this discussion, refer to entertainment and associated media,
especially film, music, and software. I will primarily be focusing on the online piracy of
cultural works limiting the scope of the discussion away from physical piracy, such as
fake designer goods.

To start, it is crucial to recognize a distinction put forward by Richard Stallman, founder


of the Free Software Foundation. Stallman makes the important distinction between
“free as in free speech” and “free as in beer” and voices the need to separate the two. In
the media and in general discourse, these two categorizations are frequently lumped
together. While I support “free as in free speech,” which allows for increased creativity
and access to knowledge, an effort to legitimize a “free as in beer” doctrine for
copyrighted works is unacceptable.

To start, let us examine the case of Girl Talk, an artist often mentioned in the debate over
copyright infringement, or piracy, relating to media. It is clear that Girl Talk adds a great
deal of his own creativity and skill to produce his successful works. Nonetheless, it is
undeniable that at least a small portion of this popularity is due to the acclaim, hard work,
and talent of the artists he samples. A significant fact is that Girl Talk charges for his
albums, a price which consumers decide, and for his performances, such as Yale’s recent
Spring Fling.

His newest album Feed the Animals is available for free online. However, consumers are
incentivized to pay for his album by the promise of enhanced features, quality, and even a
physical CD for the increasing-tiers of price paid. The most surprising element of this
album sale is that it is distributed under a Creative Commons Attribution-Noncommercial
license.2 That is, anyone is free to distribute, remix, and use his work, but not for
commercial gain. Isn’t this exactly what Girl Talk is doing in the first place? It seems to
be okay when Girl Talk distributes, remixes, and uses copyrighted works for commercial
gain but it is not okay when others do the same to his work. This stance seems
hypocritical and undermines his credibility since he is applying a double-standard. He is
therefore not purely a free culture activist as many claim.

While Girl Talk should not pay millions or hundreds of millions of dollars in damages as
Tehranian’s example of “Professor John” suggests as a possibility, he should be properly
attributing and financially contributing to the artists whose work he uses. Artists
routinely pay the proper licensing fee to sample songs, such as TI and Rihanna’s smash

1
“Piracy.” Merriam-Webster Dictionary. http://www.merriam-webster.com/dictionary/piracy
2
“Girl Talk – Feed the Animals – Illegal Art.” http://74.124.198.47/illegal-
art.net/__girl__talk___feed__the__anima.ls___/
hit Live Your Life which prominently sampled O-Zone’s Dragostea din tei. No less
should be expected of artists such as Girl Talk. An updated copyright regime should be
formulated whereby all artists, including Girl Talk, are compensated for their work in
amounts that are not prohibitively expensive. This would allow a negotiation of terms
that allow fair use while discouraging piracy.

Next, let us consider the landmark case of the Pirate Bay. This is an especially salient
example as it encompasses illegal online sharing of copyrighted film, music, and
software. Monique Wadsted, the prosecuting lawyer in the Swedish Pirate Bay trial,
made an important point that was a major factor in determining the ruling in favor of the
prosecution. Wadsted argued that content has costs associated with its production that, if
not borne by consumers and those delivering the content, would result in an unsustainable
business-model in which the current production of cultural works would be impossible.3
This is one of the fundamental considerations in opposition of the piracy of cultural
works.

The co-founder of the group that created Pirate Bay, Piratbyran, named Magnus Eriksson
passionately argued for the opposing side and for the validity of the Pirate Bay’s model.
Many of these points blur the important distinction discussed earlier, however.
Eriksson’s first assertion is that “File-sharing is a neutral endeavor.”4 But this file sharing
is hardly neutral as it has been estimated that the costs of piracy totaled $20 billion this
very year.5 This huge financial blow to businesses hurts the bottom line of established
companies not only jeopardizing the savings of individuals invested in the business and
the future employment of its workers, but also preventing the producers of cultural works
from receiving just remuneration for their innovation.

Eriksson continued by saying that “[the Pirate Bay] has great opportunities to be at the
center of a dynamic cultural life where you don't need large resources to participate and
get a global reach, where hidden gems from the cultural history can be revitalized.”6 The
ability to democratize the current system and let any and all individuals participate in the
production and distribution of new content is indeed appealing. But in practice, this ideal
is not always carried out. In fact, there has been a clear connection drawn between online
copyright infringement and decline in the sales of the corresponding copyrighted
material, such as the case of the music industry.7 Therefore, “dynamic cultural life” is
actually damaged by piracy through sites such as the Pirate Bay.

Eriksson claims, in connection to regulation of the exchange of online cultural works,


that “the option to monitor all communications, fight all new technologies and spread a
culture of fear in what should be a free and open communication network is not a

3
“Is Online Piracy a Good Thing?” CNN.
http://www.cnn.com/2009/SHOWBIZ/Movies/04/17/online.piracy.for.against/index.html.
4
Ibid.
5
Cieply, Michael. “Digital Piracy’s Spread Prompts Hearing.” New York Times. April 6, 2009.
6
“Is Online Piracy a Good Thing?” CNN.
7
Liebowitz, Stan J. “File Sharing: Creative Destruction or Just Plain Destruction?” The Journal of Law and
Economics. Chicago: The University of Chicago Press. 2006.
desirable option.”8 This defense is a bit extreme as fighting against copyright
infringement is neither monitoring “all communications,” fighting “all new technologies”
or spreading “a culture of fear” (emphasis added). Copyright holders do not seek to
monitor all communication but only to stop gross copyright infringement whether in the
public or private sphere. Companies representing the creation of new cultural works
embrace original new technologies and frequently pay for the proper licenses to use them.
Finally, such companies have no desire to “spread a culture of fear” and alienate their
customers.

Eriksson concludes by stating that, “Anti-piracy efforts must be seen [in] the light of a
counter-revolution against [information sharing] that goes all the way to the very
infrastructure of the Net.”9 This is an extreme claim. Again, adapting to new
technologies can be mutually advantageous to content producers and users. It is only
when gross copyright infringement comes into play that anti-piracy efforts must target
these infractions.

This “free as in beer” use of the service has been defended by its owners as “free as in
free speech,” a confusion of these two important categories which questions the validity
of the Pirate Bay’s defense and ultimately led to a ruling against the website. As a result,
the success of copyright holders in the Pirate Bay trial gives international precedent that
rampant copyright infringement will not be tolerated by international law or the
international community.

On April 1st, 2009, slightly preceding the verdict of the Pirate Bay trial, the
implementation of a new Swedish anti-piracy law has curbed internet traffic believed to
be connected to piracy of cultural works. In short, anti-piracy efforts can be effective in
carrying out their objectives.10 Although there has been some backlash, the important
point to consider is not whether such programs can work or not, but how they must be
implemented to work effectively.

The current relationship between cultural works and piracy of said works is not beneficial
and is worsening, as is evidenced by Canada entering the Office of the U.S. Trade
Representative’s (USTR) “Priority Watch List,” relating to piracy of cultural works, for
the first time.11

Reform of our current system is in order and this change must be well thought out. “Free
as in free speech” activists are justified in fighting against an overcorrection or over-
restriction of rights in response to the clampdown, on “free as in beer” activities,
demanded by copyright holders. This is especially true if tools crucial to the sharing of
and access to information, such as the Google search engine, are threatened by new
8
“Is Online Piracy a Good Thing?” CNN.
9
Ibid.
10
“Swedish antipiracy law: Traffic Down, ISP Rebels.” CNET News. http://news.cnet.com/8301-1023_3-
10220679-93.html
11
“USTR Releases 2009 Special 301 Report.” United States Trade Representative.
http://www.ustr.gov/Document_Library/Press_Releases/2009/April/USTR_Releases_2009_Special_301_R
eport.html
legislation.12 The most important point of consideration, however, must and should be
curbing “free as in beer” piracy of cultural works to reward creativity and incentivize
innovation.

12
“A turning point for online piracy?” CNN blog. http://scitech.blogs.cnn.com/2009/04/20/a-turning-point-
for-online-piracy/

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