On pirates and piracy

The media industry's wholesale takeover of creativity is the real piracy.

Jolly Roger by Joe Shlabotnik, on FlickrWe’ve heard a lot about “piracy” in the last few months. But as you’d expect, there’s a lot of confusion, particularly by the folks doing the name-calling, about what pirates really are.

Pirates aren’t petty thieves, snatching a video or two from the local video rental shop. Pirates were (and are) after the big kill: the galleons filled with gold from the new world, the oil tanker that can be held for a few million dollars in ransom. If we’re going to talk seriously about piracy, it’s not kids downloading the odd song or TV episode, nor is it third-world software developers downloading the ebooks that I’ve edited and written. That’s shoplifting at worst, and while I’m not going to condone shoplifting, it’s a cost of doing business, and not a particularly large one. As Tim O’Reilly has argued, and as O’Reilly’s sales indicate, the additional exposure you get through piracy more than compensates for any “lost sales,” especially since the sales you lose are the sales you were never going to make in the first place. Sites that sell copyrighted music that they have not been licensed to sell are a more serious problem, but again, this is a problem that’s easily solved by making your work as widely available and as easily accessible as you can; this will put parasites out of business.

That’s not to say that piracy isn’t an issue. Just that it’s a different issue than the one the MPAA wants us to think about. There is some major league piracy going on, and it’s all about the abuse of copyright by the major copyright holders. It’s hard to think about Righthaven except as an instance of piracy. (And Righthaven ended up where most pirates historically ended up.) The Digital Millennium Copyright Act (DMCA), which has been widely used to suppress parody, unfavorable reviews, and the like, was a huge intellectual property land grab that fully deserves the name “piracy.” At O’Reilly, we had a narrow escape a few years ago. “Head First Java” starts each chapter with an image taken from an old movie for which the copyright had expired, placing the movie in the public domain. Someone collected several of those movies into DVDs and copyrighted the DVD. Luckily, we discovered it (and were able to find new images) before we published the book and ended up with a court summons. That too is piracy. So is much of the patent trolling that’s currently going on: one small but particularly painful example is Luma Labs’ decision to take their product off the market because of a worthless patent claim. They determined that they’d almost certainly win in court, since their product was demonstrably based on prior art going back to 1885, but they’d almost certainly go bankrupt paying the legal fees.

The Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA) have to be understood in this light: it’s just another IP land grab. It’s an attempt to frighten those who would compete with the established media companies, an attempt to assert monopolistic control over creativity. The ability to take domains offline without due process, even on the basis of inadvertently linking to copyrighted material, is nothing if not an attempt to legitimize theft on a grand scale. Because there is no due process, a defendant can’t respond until he’s already out of business; and then, it’s a matter of whether the defendant can outlast Hollywood in their ability to pay legal fees. “Justice” is meaningless if you run out of money before you get to the end of your case.

Let’s look at what would have happened historically if we had today’s copyright regime. Many of Shakespeare’s plays are based on older works. Many of the histories go back to Holinshed’s “ “Chronicles of England, Scotland, and Ireland,” and if you’ve read Holinshed and Shakespeare side by side (I have), there’s more than just an occasional chance echo. What would Shakespeare have owed to the Holinshed family? Would they have been able to take him “offline” under the DMCA? “Hamlet” is believed to be based on a lost, earlier “Hamlet” (called the Ur-Hamlet, possibly written by Thomas Kyd, one of Shakespeare’s contemporaries) that has been lost. With modern IP law, we’d still be paying royalties to the unknown author of the Ur-Hamlet, and we wouldn’t have Shakespeare’s masterpiece.

Then as now, borrowing wasn’t limited to theatre. Mashups, which have been repeatedly attacked by the entertainment industry, are by no means a new art form; they’ve been central to creativity for years (related examples are embedded below). Bach’s “Goldberg Variations incorporate a number of popular songs of the era, including the always popular “Cabbages and Beets drove me away from you,” in its entirety, along with “Get closer to me, baby” (that’s what the German really means, except the “baby” part). So did Beethoven’s sonatas, particularly the second movement of the magnificent Opus 110 piano sonata (“Our cat had kittens” and “ I’m a slob, you’re a slob“). I could list examples for pages; musicologists spend entire careers searching for this stuff. The complexity with which these songs are woven into a much greater piece is amazing, but they’re there, they’ve obviously there once you know what to look for, and they go way beyond what would survive “fair use” and the DMCA, let alone SOPA and PIPA.

Even more fundamentally, there is no such thing as creativity that doesn’t rely on the past. Sometimes the links are very subtle and hidden; sometimes they’re out in the open, and we don’t notice them only because we’ve declared Bach and Beethoven “great composers” and forgotten the popular music of their day. Our peculiar post-Romantic notion that all real artists somehow create their works out of nothing is partly to blame. Nothing could be further from the truth. And it’s not just art. In a very rare moment of humility, Isaac Newton said “If I have seen further it is by standing on the shoulders of Giants.”

So the notion that creativity can be owned, and that any use of someone else’s ideas requires compensation, is nothing but an attempt to steal all of creativity. Whoever can pay their lawyers the most wins. Anyone smell pirates in the room? I am not willing to sacrifice this generation’s great artists on the altar of Hollywood. I’m not willing to have the next Bach, Beethoven, or Shakespeare post their work online, only to have it taken down because they haven’t paid off a bunch of executives who think they own creativity.

The Constitution of the United States provides a legal basis for copyright and patent, but it’s for a specific purpose: it’s “To promote the Progress of Science and useful Arts.” We’ve gone way beyond that now, with patent and copyright piracy: our notion of intellectual property is now hindering both science and art.

In Book IV, section 4, of St. Augustine’s “The City of God”, Augustine tells the parable of a pirate captain who is captured and brought before Alexander the Great. The emperor says “How dare you terrorize the seas”? The pirate captain replies, “How dare you terrorize the whole world? Because I only have one ship, I’m called a pirate; because you have a great navy, you’re called an emperor.” The difference between a pirate and an emperor is one of scale only. And that’s the position we find ourselves in here: the Motion Pictures Association of America (MPAA) and its allies have twisted the discussion so we’re talking about the wrong thing. We shouldn’t be talking about the small-scale piracy of individual movies (which probably helps sales in the long run, as we’ve observed in the publishing business). We should be talking about the real piracy, the wholesale takeover of creativity by the media industry. That’s the piracy we should be outlawing.

Photo: Jolly Roger by Joe Shlabotnik, on Flickr


This work is licensed under a Creative Commons Attribution 3.0 Unported License.

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  • The Constitution of the United States provides a legal basis for copyright and patent

    I wouldn’t be so sure. See The 18th Century Overture.

  • kudos and agreed, except for one disputable detail.

    In a very rare moment of humility, Isaac Newton said “If I have seen further it is by standing on the shoulders of Giants.”

    That was no moment of humility. There is considerable reason to believe he was taunting his main rival, Robert Hooke, who was of short stature.


    • Well, maybe a backhanded bit of pseudo-humility :-) It’s very hard to think of Newton having a humble moment…

  • Adam

    (How)Should digital art be paid for?

    • This is a solved problem. iTunes, Amazon, BandCamp, O’Reilly Media, the Pragmatic Programmers, Netflix, and others have all solved it. I occasionally buy print books, but usually buy ebooks. It’s been a long time since I’ve bought a CD. I still tend to buy DVDs, but that probably won’t outlast the year.

  • With regards to Newton, you made your point about creativity and the past in more than one way there (adding to cariaso’s post).

    John of Salisbury, 1159 CE:

    “Bernard of Chartres used to say that we are like dwarfs on the shoulders of giants, so that we can see more than they, and things at a greater distance, not by virtue of any sharpness of sight on our part, or any physical distinction, but because we are carried high and raised up by their giant size”

  • Alphastart

    Yes, Beethoven lived in a wonderful world– if you happened to impress the Prince. If you didn’t, well, you were banished from Vienna.


    The fact is that all of these copyright rules are democratic compared to the alternative of sucking up to the rich and hoping that they’ll write another check.

    Don’t forget that the copyright rules would have forced Beethoven to share some of the bounty he got from the rich. The other musicians would get some licensing fees even if they werent’ as talented as performing as Beethoven.

    If O’Reilly could get books without paying the authors, would royatlies go up or down. Forgive me for being cynical, but I can’t see O’Reilly or any other publisher rushing to actually pay MORE when they get it for free without worrying about copyright.

    So I’m thankful for all of the hassle of copyright because it enforces democracy.

    • Alphastart–I can’t speak for other publishers, but O’Reilly does, from time to time, publish books that have been released online for free by the author. In these cases, we always get the author’s explicit permission (even if it isn’t required by the author’s license), and we always pay royalties (unless the author explicitly declines payment).

  • Natalia Ventre

    I agree that “the sales you lose are the sales you were never going to make in the first place”, but I dislike the Robin Hood idiosyncrasy of buying copyrighted material and distribute it to the masses via one-click-hosting solutions.

  • If you were using public domain still images from motion pictures that had entered the public domain, the fact that someone put those movies onto new DVDs and copyrighted the DVDs does not affect the status of the images you were using.

    It’s possible that any digital cleanup that was done on those movies would be enough to make it a derivative work, although that’s dubious, but that would only affect you if you bought their DVD and took images that they had cleaned up.

    Copyright in a DVD made from existing PD materials would only cover the menus, any additional material created, possibly any restoration work done, and the packaging design.


  • JohnCha

    “The secret to creativity is knowing how to hide your sources” – Albert Einstein

    You’re exactly right. Creativity and ideas can’t be owned, because they are never 100% pure. They are always based to some degree on someone else’s ideas or creativity. This is why the Government only gives ownership to patents for a limited time period, and it used be true for copyright, too, which was only 14 years at first, now it’s virtually forever with life+70 years plus the perpetual 20 year extensions.

    Copyright reform is long overdue. Before we even think about messing with the Internet, we should overhaul copyright laws first, and bring copyright to the 21st century.

  • Hi Mike.

    I liked your post and the way that it turns the question of piracy upon itself, but I still felt like there were about three dramatic ideas missing, so I wrote those up and put them on my web site briefly:


    I fear I was too verbose in that essay and perhaps I will edit it more later — but basically, those ideas are (1) that easy copying has led to an absurd situation where you can buy things without getting them; (2) that copying is both absurdly natural and restricting copying is absurdly natural, so that we feel entitled to do both; and (3) that the media companies today face an absurd situation where they fight for their lives — and as Y Combinator said, they might do quite a bit of damage on their way down.

  • Dear Mike !

    good excurs about an important topic… for medias as I am a producer for radio its a very “hot topic”.

    An interesting aspect about “piracy” by the small stealers ( private consumers ) has a positive effect onto radio programmes and its quality. During the 90ths most of the big radio stations/networks in Germany decreased their journalistic part… mainly playing all long day up and down the top10 charts (which is very boring for the listeners) just to use music as a frame for selling advertising, music was like a cash cow maker… in Germany where i am settled we call this kind of radio “wheedle-station”.

    By the internet the consumer of music can get music from everywhere, legally… listening on youtube.com, soundcloud or radio-on-demand like mixcloud or last.fm let decide the user and let find him what he likes.

    A research study of 2009 shows, that young peoplein UK own in average 17,000 music tracks in their computers… a huge music database compared with the old times, when we teenagers in the 70th recorded FM via cassettes and cut the magnet strips into new mixes.

    Nowadays with modern software, rip-programmes, radio recording players of web radios its a one button click to manage all this from user’s side, even (s)he is absent, with timer can configure such tools to get nearby everything what they are interested in.

    In consequenses there is no yealing about this… many years music industries only proclaimed the fight against this “mis-use” in their view… but this is wrong… as music is “culture” and not an industry product the young marketing chiefs of the music labels or product managers of the global players had been trained in universities…

    Music by its nature is a result of cultural processes, e.g. protest music, ritual music, devotional music… The Love Parade in Berlin was a cultural ritual that in the best years more than 1 milllion met on the streets and presented their dance/street walk rituals via medias to the world… as soon the Love Parade became too commercialized, it died… Culture never can be mis-used commercially, this is the lesson the Marketing CEOs, attorneys, courts should learn… if culture is surpressed into a commercial format and protected by laws as an industrial product, its the end of every society… we see this clearly now with the Occupy movement, linked with Attack, Anonymous, WikiLeaks etc. ….

    People already have undestood, that cultural values (in form of music, intellectual property (e.g. Books) etc….) cannot be treated like producing a car in a factory…. the people are clever, not silly… why paying for trash/trend music sold on a CD at a prize of 15 Euros if it is not worth qualitatively… it was a mistake to create “Boy groups” like designing technically an industrial product, or all these high commercialized casting shows. That is a misuse of culture… and the consumer recognizes this as (s)he can compare it with pure music you can find on youtube etc. …

    If you visit the music exhebitions or panels, no single word the music industries is talking about such aspects… keep silent about.

    In consequences what happens in radio to come back to my own field of experience: we moderators, journalists cannot reduce our job to pick up “playlists” like a juke box…. the itmes of boring “wheedle-stations” is gone. What counts for the listener is the “spoken word”. This is the real job of a radio moderator… to entertain, teach, talk by using the language and by qualitatively content of real substance…. people can create their own playlists like a jukebox on their own, but what they need are the background informations, the journalistic part which only can be done in a full time job from side of a “radio man” is what counts (again)….

    So “piracy” helps us to keep on the right path, as the consumer is less silly as described as a criminal from the power people (politicans, lawyers, investors etc…). We should read the signals in the right way…. people are willing to buy if it is worth the money (or less the value they think to get). If a consumer has the feeling, that he is pulled over the desk, naturally he will avoid to pull the money out of his pocket…. enough crowdfunding projects clearly show this. If an upcoming artist need a fund for his new CD or concert tour, he get financed by his fans, by the listeners as they want be part of this community, part of sharing the taste of music…. so we are back again where music belongs to. Its a cultural value. So it has to be… and by the nature of music it always will be, as it was since thousands of years.

    So fare… Warm greetings from Europe/North Germany – ElJay A.

  • @Chris Drost: “(2) that copying is both absurdly natural and restricting copying is absurdly natural…”

    …. herefor I can complete my comment about “music” as a cultural value (same you can see books, writings, poems etc….).

    No, its not absurd… before we had the Internet or other tools to copy (like copy mashines, printers, smart phones with cameras, cassette recorders etc…..) there already existed a form of copying. It existed since hundreds and thousands of years.

    Theatre groups travelled from city to city and played on the market places and did “story telling”… they teached the simple people (who were analphabets) what was going in the country or at the court of their reigns/kings…

    Its a kind of copying/repeating process. Did the actor later come to the inhabitants of the village to forbid them talking about these stories or repeating these stories ? NO…

    Such informations, datas, knowledge had been overhanded from brain-to-brain… and with a clear deal: the audience only paid, so long they liked the story and had the feeling to be enterained well… if the actors did bad, they got thrown tomatoes and eggs on their heads.
    The eldest copy tool was our brain to memorize what our ancestors had heard from travellers coming from other parts of the country… till today this method exist in Indian music culture of North India and South India, so called Hindustani and Carnatic music (its the Indian form of classical music). An oral teaching…. from generation to generation, over hundreds of years… the result is different “schools of music” (so called Gharana-s).

    Same “journeymen” were on the road, a method to go on the walk and by finding work to learn from different masters…. it was an ancient form of “copy and paste”…. the deal was simple: I give you my time for working, you give me your knowledge by showing new technics and little bit food…. there was no money paid. Such Journeymen still exits in France… but they use nowadays their car no more walking on own feet *laugh*.

    Nothing has changed till today… instead it is a copy and paste from brain to brain, it is from computer to computer. The hard disk is an expansion of our brain…. we must know where to find it, we must know how to deal with these informations to turn it into knowledge.
    We need this (cost free) copy and paste via computers, via the internet, urgently. Why ? Because human race is functionally working like an ant hill or bee colonies…. all looks chaotically…. there are cleaners, workers, fighters, feeders… does anyone pay money ? Does any bee or ant pay one cent ? No… but they create something huge, without paying any money, without banks, without stock exchanges.

    The Internet so I believe as I grew up with the web since 1991 and with computers since 1981 is a cybernetic system… Too often this is forgotten. “copy and paste” is required to find the answers to all the problems the human race has in this one world by its tremendous growth… We already do this deal… most of us use Google… this giant delivers us what we need, without paying, and herefore we allow Google to present us advertising… its a deal with “access to informations” against “time” (the time of the user to take notice of advertising).

    If all would have been regulated by paying money for every kind of (illegal) copy & paste, we still would sit like monkeys on the trees (its a methapher).

    So to copy without owning it, like lending it, is something very normal. Its another problem behind and maybe thats what you mean: The lack of moral…

    If a journeymen comes back after 3 years on the walk from village to village and starts his own handcraft enterprise he keeps up the tradition with pride and honour… same as he experienced, he follows the traditions (see the Hanseatic tradition) to the following generations of craftsmen as he remembers: as a young upcoming “pupil/student” he learnt by the knowledge of the well experienced ones and he became what he is, a successfully craftsman on his own. Its all about moral and ethics… giving and taking. A fair deal (mostly).

    This spirit we loosed in our societies.. we see corruptive politicans who become president because they have hundreds of million dollars for their voting campaigns… they can kill legally by starting wars… while a normal person who killed by car accident another human comes for many years into prisoin. Disgusting (luckily I live in Germany as a country where we do not have such conditions of “money rules the nation”).

    It goes fare back the problem…. so long we have an educatoin system, which is organized by such power people to surpress upcoming generations (e.g. a young student in USA has to pick up a credit for his university degree so he aleady begins with life of profession with debts) so long the corruptive system will live on… dependency was always a method of power people to control the masses… today we have no more landlords, but we have media tycoons… Forbes 500 global players…. but the princips of controlling the power like many hundreds of years ago are the same as humans are still humans.

    We need “street movements” more than ever to stop this misuse by power people, by money makers on the stock exchanges and unmoral methods in the financial markets…. it became a hydra during last 25 years…. The occupy movement is an ethical movement/revolution. Too many yet have not understood this (Rec.: I am not member of Occupy).

    OK. THat’s it… just some thoughts about.

  • Wu Ming

    I think your argument regarding mashups is flawed: internet mashups will never produce a new Bach or Beethoven.

    Maybe we have entered the era of the death of the author, but that has nothing to do with making big media companies look as the bad guy.

    And, lastly, the sheer amount of illegal downloading of copyrighted material made viable by digital means makes the whole “they wouldn’t buy it anyway” argument very questionable.

    Maybe a big publisher like O’Reilly can deal with that, but it is no coincidence you guys have moved beyond the selling of books. Smaller publishers may not have the same luck.

  • Thanks for this lucid analysis. Much needed. You’ve nailed it.

  • Off-topic I know, but: those piano recordings sound to my untrained ear like they’re played on the same instrument. Is that you at the piano?

  • The problem is that nobody, but the big organizations (such as Google, Wikipedia, etc…) knows or understands what SOPA/PIPA is. They were just acting based on what Google and Wikipedia told them about SOPA/PIPA.

    I’m not an advocate of SOPA/PIPA but the fact of the matter is there were only very few people who actually took the time and read, on a very objective website, what these 2 things mean.

  • Chris

    m4a. Really?

  • Surely the “piracy compensates by providing free publicity” argument cannot be used to justify piracy!

  • Diane

    Hallelujah! Someone who actually put into words just what crooks the other side actually are! Pirates some of us may be, but Apple and Co. are robber barons!

  • The only Robber Barons in this country is our government. But I do agree with your article and its very important to keep piracy in check.