It is not every day that New Zealand features prominently in the kind of legal stoush that has been described by one US news outlet as “one of the most important copyright cases of all time”. According to US authorities, Kim Dotcom and his cohorts are modern-day pirates – the scourge of honest traders trying to make a buck by shipping their wares across the world’s digital oceans. Dotcom’s lawyers argue that he and his company are simply providing a service protected under US copyright laws.
Megaupload, the file-sharing website Dotcom helped to found, is said to be responsible for 4% of the world’s internet traffic. Yet the millions of customers who use the site have been surprisingly muted in their response to the arrest of Dotcom and others on charges of racketeering, money-laundering and internet piracy.
It has to be said that Dotcom (aka Kim Schmitz) bears a striking resemblance to that old-fashioned kids’ cartoon character Captain Pugwash. That is not to debate the legal merits of the case, which is up to the courts to decide. However, it is timely to consider the sort of issues that are at stake.
Back in the 60s, when radio pirates took to the high seas to try to break state monopolies of the airwaves, the justice of their cause seemed clear. Significant public support ensured they eventually got their way. But it is far from clear there is significant public support for file-sharing sites that serve as digital lockers for what some claim are stolen goods.
It is, of course, possible that a crackdown by the US will simply encourage more traffic to sites in countries less sympathetic to American concerns. But just because it is difficult to keep on top of the supply of pirated material doesn’t mean that we should simply give up. We should also continue to work on the demand side of the equation.
Predictably, some have accused New Zealand of kowtowing to the US. But New Zealand police co-operating with the FBI is not the same thing as New Zealand politicians changing New Zealand policies to suit the commercial interests of Uncle Sam. Nor does it signal any endorsement of controversial anti-piracy legislation yet to be passed in the US, which is strongly opposed by prominent websites such as Wikipedia.
It is still far from certain that that legislation will proceed, given the opposition of US President Barack Obama, who is rightly concerned about its draconian nature. But such legislation, and similarly clumsy lawmaking attempted in New Zealand, does serve a useful purpose if it helps promote debate about the issue.
The core of the problem is that many teenagers and twenty-somethings have been raised in an age in which it is a given that “information wants to be free”, as US writer and activist Stewart Brand once famously noted. US journalist Chris Anderson has been another prominent advocate of this philosophy. In his 2009 treatise on “free-conomics”, he argued that it is pointless trying to use “laws and locks” to put a price on information in the digital realm, because the force of economic gravity will eventually win.
But as rival journalist Malcolm Gladwell has noted, Anderson has conveniently ignored the rest of Brand’s original thoughts on the subject. Information, Brand observed, is not always a cheap date: sometimes it wants to be expensive because it can be “immeasurably valuable to the recipient”. It is this tension that causes “the endless debate about price, copyright, intellectual property, the moral rightness of casual distribution”.
If morals have anything to do with it, then the digital generation’s admirable capacity for empathy might be cause for hope. Surely they can be made to understand that piracy is not a victimless crime. Take, for example, local movies Sione’s Wedding and the hugely successful Boy. In both cases, the availability of pirated copies is believed to have significantly dented box-office and DVD sales. That only makes a tough industry even tougher, and even more reliant on taxpayer support.
Some people appear happy to give their work away on the web, but those who want – and those who need – to be rewarded for their talent have every right to feel cheated when they see others profiting at their expense.
The life of a modern-day pirate might seem to some every bit as romantic and exciting as those we know from fiction, such as Captain Pugwash and, more recently, Captain Jack Sparrow. However, it doesn’t hurt to remind ourselves that real pirates are simply thieves in drag.
WE HAVE RECEIVED THE FOLLOWING LETTERS IN RESPONSE TO THIS COLUMN
The Editorial (February 4) says piracy is “believed to have significantly dented box-office and DVD sales” on Boy and Sione’s Wedding. Here are some facts. In 2006, we released Sione’s Wedding to what was an opening week New Zealand box office record, but we could immediately see the impact of piracy in the results from the Manukau cinemas. What should have been our No 1 location was not in the Top 10. Manukau returned $32,000 in week one – around 3-4% of our gross.
Fast forward to last week, when we opened Sione’s 2: Unfinished Business. We set a new opening week record and the results from Manukau and Sylvia Park (which wasn’t open in 2006) show the difference. Manukau took $99,000, Sylvia Park took $73,000. In one week the difference was $140,000. That was the cost of piracy to one picture, in one location, in one week.
Copyright piracy is theft. Those who profit from it are thieves. They do not deserve our sympathy or support.
CEO, South Pacific Pictures
The inflammatory language widely used by those claiming to be injured – and, sadly, also by the US legal system – makes problematic an objective discussion of the dissemination of intellectual property. Piracy by definition is robbery, with the use or threat of violence. References to pirates and piracy are clearly intended to connote serious – even dangerous – wrongdoing. The casual use of this terminology is particularly offensive now that true piracy has re-emerged on the high seas.
I am pleased to see the Listener has at least recognised “that real pirates are simply thieves in drag”. But that, too, is incorrect.
Both theft and larceny imply loss of possession by the owner. According to Wikipedia, “In common usage, theft is the illegal taking of another person’s property without that person’s permission or consent with the intent to deprive the rightful owner of it” (my emphasis). Copying material does not deprive the rightful owner of it – only its potential sales value.
The issue being discussed in this article is the copying of “art” with no inherent value other than as intellectual property that can be sold. It involves no violence, or even threats of violence. And the “victims” are hard-pressed to calculate their losses, which are exclusively in the form of lost sales opportunities. Such financial losses are routinely and grossly overstated, typically calculated by assuming that every person who casually (maybe even inadvertently) downloads a file would pay the full manufacturer’s recommended price if it could not be downloaded without cost.
Without defending this copying or the rapacity of those who may profit by encouraging it, I respectfully suggest the use of different language that more appropriately captures the essence of the “crimes”, most of which are generally small-scale and frequently inadvertent.
The concept of copyright emerged as a way to protect creative works in an era where the reproduction/dissemination of such works involved significant cost and effort, making reproduction the logical place to restrict dissemination. Since the day of the photocopier – and now with the internet – the cost of dissemination is essentially zero, calling into question the whole notion that dissemination of artistic works can be regulated. Certainly we need to re-examine the notion that traditional copyright law can be used to protect material created primarily to be sold as entertainment.
Professor James Goodman
Department of Computer Science,
University of Auckland