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.