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Thursday, 14 April 2016

You Wouldn't Steal a Carouselambra (other Led Zeppelin songs are available)

But if I could download 
one from the internet...
Led Zeppelin are currently facing a jury trial to determine whether 'Stairway to Heaven' infringes copyright in Spirit’s ‘Taurus’. 

The case has been discussed previously on IPKat here when the SCOTUS effectively removed the equitable bar of laches from claims for legal damages and profits arising from copyright infringement.

The sensationalised way in which especially cases concerning popular, even beloved subject matter are described reveals a substantial problem with public perception of IP, in that the words “stolen”, “theft”, and of course “piracy” are liberally used with questionable accuracy. This week's reporting of the upcoming ‘Stairway’ trial has been no different [see, for example here, here, here or here].

The essence of the recent ruling was not an investigation of stealing, but a finding that there is sufficiently substantial similarity between the pieces of music for a further trial. So why do so many news sources that should know better continue to frame the issues into a theft narrative?

The over-use of terms condemning copyright infringement as theft is nothing new. The notorious Motion Picture Association of America anti-piracy advert [above – and which, ironically enough, was reportedly using music without permission] hammered out a message that illegal downloading is stealing, piracy, and (for the avoidance of doubt) a crime. The notion of illegal downloaders being pirates is widespread, and was of course adopted by torrenters who formed themselves a Pirate Bay.

Robin Thicke was found 
to have copied
from Marvin Gaye in 2015
However, leaving aside the whole enormous realm of illegal downloads, peer to peer sharing, torrent sites and the self-identified pirates -- the same rhetoric of theft and even piracy persists in the realm of music copyright disputes that have nothing to do with downloads at all. For instance, the judgment in GrandUpright v Warner Bros Records, a case concerning music sampling case opens rather ominously with ‘Thou Shalt Not Steal’. When deciding that George Harrison had unconsciously copied from The Chiffons, the judge in Bright Music v Harrisongs called what he had done 'pirated'.

The problem with using ‘theft’, to mean copying, imitating or sampling is that it oversimplifies the analysis involved in copyright infringement. It conveniently ignores the limitations inherent in the scope of copyright protection: fair dealing/fair use. Referring to infringers as ‘thieves’ creates obviously unsympathetic connotations, and apparently establishes binary theft/not theft question to be answered when in fact the lines may be rather more blurred. Using “theft” as a catch-all to describe intellectual property infringement has been called by Patricia Loughlan “inaccurate and manipulative distortion of legal and moral reality”.

The language used publicly to describe copyright disputes should be chosen more carefully than it has been of late. This will help reveal the nuance and qualitative and quantitative assessment that goes into determining copyright infringement, without reducing the question to the simple, unwieldy one of theft. The general public are perfectly capable of grasping the difference between imitating music sounds and what stealing means; there is no need to vacuously conflate the terms for their benefit any longer.

The IT Crowd’s mischievous take on ‘that’ MPAA advert: here
Led Zep’s not-as-iconic-as-Stairway-to-Heaven Carouselambra: here

2 comments:

Andy said...

It is perhaps tempting to think that use of the words 'pirates' and 'piracy' in the context of copyright is a relatively recent innovation, dreamt up perhaps by some publicist working for the Motion Picture Association of America or a large record company. In fact its use goes all the way back to the seventeenth century, some sources cite the phrase ".. some Dishonest booksellers, called Land pirats.." from as far back as 1668.
However it was Daniel Defore who from around 1705 did the most to popularise the terminology in his essays railling against the widespread practice of printers and booksellers reproducing the writings of others without permission. It was Defoe's frequent pamphleteering which was largely responsible for the Statute of Anne in 1709, the world's first true copyright law. It is thus arguable that the use of piracy allusions pre-dates the use of the word copyright.

Thomas Dillon said...

This is confused. If a copyright exception applies ("fair use" or other) there is no infringement. No one suggests that someone who is not an infringer is a pirate. Nor would most people call accidental infringement (such as the My Sweet Lord case) piracy. Piracy is deliberate infringement and as Andy points out a usage hallowed by time.

Obviously copyright infringers are not guilty of theft, any more than people who illegally abstract electricity or (before the law was changed) people who dishonestly obtain an electronic bank transfer. But all these can fairly be described, in a non-technical way, as theft.

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