Creative Piracy

some small portion of this is going into the next newsgrist – has anyone
seen the book yet? it may not actually be out til the end of the month.

j
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Some Like It Hot

Wired - Issue 12.03 - March 2004
http://www.wired.com/wired/archive/12.03/lessig.html?tw=wn_tophead_6

OK, P2P is "piracy." But so was the birth of Hollywood, radio, cable TV,
and (yes) the music industry.

By Lawrence Lessig

If piracy means using the creative property of others without their
permission, then the history of the content industry is a history of
piracy. Every important sector of big media today - film, music, radio,
and cable TV - was born of a kind of piracy. The consistent story is how
each generation welcomes the pirates from the last. Each generation -
until now.

The Hollywood film industry was built by fleeing pirates. Creators and
directors migrated from the East Coast to California in the early 20th
century in part to escape controls that film patents granted the inventor
Thomas Edison. These controls were exercised through the Motion Pictures
Patents Company, a monopoly "trust" based on Edison's creative property
and formed to vigorously protect his patent rights.

California was remote enough from Edison's reach that filmmakers like Fox
and Paramount could move there and, without fear of the law, pirate his
inventions. Hollywood grew quickly, and enforcement of federal law
eventually spread west. But because patents granted their holders a truly
"limited" monopoly of just 17 years (at that time), the patents had
expired by the time enough federal marshals appeared. A new industry had
been founded, in part from the piracy of Edison's creative property.

Meanwhile, the record industry grew out of another kind of piracy. At the
time that Edison and Henri Fourneaux invented machines for reproducing
music (Edison the phonograph; Fourneaux the player piano), the law gave
composers the exclusive right to control copies and public performances of
their music. Thus, in 1900, if I wanted a copy of Phil Russel's 1899 hit,
"Happy Mose," the law said I would have to pay for the right to get a copy
of the score, and I would also have to pay for the right to perform it
publicly.

But what if I wanted to record "Happy Mose" using Edison's phonograph or
Fourneaux's player piano? Here the law stumbled. If I simply sang the
piece into a recording device in my home, it wasn't clear that I owed the
composer anything. And more important, it wasn't clear whether I owed the
composer anything if I then made copies of those recordings. Because of
this gap in the law, I could effectively use someone else's song without
paying the composer anything. The composers (and publishers) were none too
happy about this capacity to pirate.

In 1909, Congress closed the gap in favor of the composer and the
recording artist, amending copyright law to make sure that composers would
be paid for "mechanical reproductions" of their music. But rather than
simply granting the composer complete control over the right to make such
reproductions, Congress gave recording artists a right to record the
music, at a price set by Congress, after the composer allowed it to be
recorded once. This is the part of copyright law that makes cover songs
possible. Once a composer authorizes a recording of his song, others are
free to record the same song, so long as they pay the original composer a
fee set by the law. So, by limiting musicians' rights - by partially
pirating their creative work - record producers and the public benefit.

A similar story can be told about radio. When a station plays a composer's
work on the air, that constitutes a "public performance." Copyright law
gives the composer (or copyright holder) an exclusive right to public
performances of his work. The radio station thus owes the composer money.

But when the station plays a record, it is not only performing a copy of
the composer's work. The station is also performing a copy of the
recording artist's work. It's one thing to air a recording of "Happy
Birthday" by the local children's choir; it's quite another to air a
recording of it by the Rolling Stones or Lyle Lovett. The recording artist
is adding to the value of the composition played on the radio station. And
if the law were perfectly consistent, the station would have to pay the
artist for his work, just as it pays the composer.

But it doesn't. This difference can be huge. Imagine you compose a piece
of music. You own the exclusive right to authorize public performances of
that music. So if Madonna wants to sing your song in public, she has to
get your permission.

Imagine she does sing your song, and imagine she likes it a lot. She then
decides to make a recording of your song, and it becomes a top hit. Under
today's law, every time a radio station plays your song, you get some
money. But Madonna gets nothing, save the indirect effect on the sale of
her CDs. The public performance of her recording is not a "protected"
right. The radio station thus gets to pirate the value of Madonna's work
without paying her a dime.

No doubt, one might argue, the promotion artists get is worth more than
the performance rights they give up. Maybe. But even if that's the case,
this is a choice that the law ordinarily gives to the creator. Instead,
the law gives the radio station the right to take something for nothing.

Cable TV, too: When entrepreneurs first started installing cable in 1948,
most refused to pay the networks for the content that they hijacked and
delivered to their customers - even though they were basically selling
access to otherwise free television broadcasts. Cable companies were thus
Napsterizing broadcasters' content, but more egregiously than anything
Napster ever did - Napster never charged for the content it enabled others
to give away.

Broadcasters and copyright owners were quick to attack this theft. As then
Screen Actors Guild president Charlton Heston put it, the cable outfits
were "free-riders" who were "depriving actors of compensation."

Copyright owners took the cable companies to court. Twice the Supreme
Court held that the cable companies owed the copyright owners nothing. The
debate shifted to Congress, where almost 30 years later it resolved the
question in the same way it had dealt with phonographs and player pianos.
Yes, cable companies would have to pay for the content that they
broadcast, but the price they would have to pay was not set by the
copyright owner. Instead, lawmakers set the price so that the broadcasters
couldn't veto the emerging technologies of cable. The companies thus built
their empire in part upon a piracy of the value created by broadcasters'
content.

As the history of film, music, radio, and cable TV suggest, even if some
piracy is plainly wrong, not all piracy is. Or at least, not in the sense
that the term is increasingly being used today. Many kinds of piracy are
useful and productive, either to create new content or foster new ways of
doing business. Neither our tradition, nor any tradition, has ever banned
all piracy.

This doesn't mean that there are no questions raised by the latest piracy
concern - peer-to-peer file-sharing. But it does mean that we need to
understand the harm in P2P sharing a bit more before we condemn it to the
gallows.

Like the original Hollywood, P2P sharing seeks to escape an overly
controlling industry. And like the original recording and radio
industries, it is simply exploiting a new way of distributing content. But
unlike cable TV, no one is selling the content that gets shared on P2P
services. This difference distinguishes P2P sharing. We should find a way
to protect artists while permitting this sharing to survive.

Much of the "piracy" that file-sharing enables is plainly legal and good.
It provides access to content that is technically still under copyright
but that is no longer commercially available - in the case of music, some
4 million tracks. More important, P2P networks enable sharing of content
that copyright owners want shared, as well as work already in the public
domain. This clearly benefits authors and society.

Moreover, much of the sharing - which is referred to by many as piracy -
is motivated by a new way of spreading content made possible by changes in
the technology of distribution. Thus, consistent with the tradition that
gave us Hollywood, radio, the music industry, and cable TV, the question
we should be asking about file-sharing is how best to preserve its
benefits while minimizing (to the extent possible) the wrongful harm it
causes artists.

The question is one of balance, weighing the protection of the law against
the strong public interest in continued innovation. The law should seek
that balance, and that balance will be found only with time.

[Excerpted from Free Culture: How Big Media Uses Technology and the Law to
Lock Down Culture and Control Creativity, copyright by Lawrence Lessig,
to be published in March by Penguin Group (USA) Inc. Reprinted with
permission of the publisher.]