 |
| But if I could download one from the internet... |
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 |
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
You Wouldn't Steal a Carouselambra (other Led Zeppelin songs are available)
![You Wouldn't Steal a Carouselambra (other Led Zeppelin songs are available)]()
Reviewed by Ellie Wilson
on
Thursday, April 14, 2016
Rating:
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Posts
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.
ReplyDeleteHowever 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.
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.
ReplyDeleteObviously 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.