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Pirates of the Digital Millennium: PrefacePREFACE
It was a quintessential New England fall morning—crisp, sunny, cold—that day in November 2002. We were two old friends and colleagues, getting together for breakfast to catch up, talk about our work, our children, our lives.
John, the researcher, was just finishing up a massive project at IDC on the economic impact of worldwide software piracy. Jack, the writer, smelled an important story in the making. We were both amazed at the extent of worldwide copyright violation, astounded at how fast Napster had grown, sad at its demise and the loss of one of the easiest to use software programs we’d ever seen, and amused at how quickly KaZaA had filled its shoes.
Little did we know that the casual activity known as file-sharing, or downloading MP3s, would explode in the news six months later when the Recording Industry Association of America began issuing takedown orders on college students. And even though we knew our kids—boys in high school, college, and beyond—were downloaders, we didn’t really understand how they felt about what they were doing, about what the music industry was doing, or about copyright infringement in general.
Nor, when we met, did we understand the wildly complex facets of copyright law—for example, how it was rewritten 11 separate times during the 1900s, each time granting longer and longer terms of copyright. We had no idea that Mickey Mouse’s copyright (1928–2023) would outlive his creator, Walt Disney (1901–1966), by 57 years. We had yet to grasp the full extent of worldwide media piracy and its impact on the global economy.
Before we left the breakfast table, we were talking about working together on another book, 20 years after our first collaboration— a widely popular book called The Naked Computer—was published. Our agent and publisher shared our enthusiasm for this new book, and soon we were once again writing together.
We have entered the digital millennium, where most, if not all, of our media have been (or soon will be) rendered into the strings of ones and zeroes a computer chip understands. The world is awash in media and entertainment devices, personal computers, Internet connections, and broadband transmission. We’re surrounded by MP3 players, TiVo, Personal Video Recorders, CD burners, iPods, laptops, Playstations, and more.
Technology has unsheathed a sword of Damocles that makes it possible for us to enjoy media—software, computer games, music, movies—in ways that were not possible 20 years ago. At the same time, it threatens the long-held right of artists and copyright owners to expect a fair return for their intellectual capital and the sweat of their brows. Yet as the media for gaming, music, movies, and computers become ever more interchangeable, so will the public’s expectations that they ought to have the right to use them in all the new and different ways they choose.
These two viewpoints are in serious conflict.
When we began writing Pirates of the Digital Millennium, we held some cherished, all-American beliefs. We believed business is entitled to a profit. We were convinced that black marketeers in other countries are hurting the world’s economy by stealing and replicating computer software and games, movies, and other forms of intellectual property. We assumed kids don’t really understand copyright and that they’re stealing from record companies and artists.
But after a year of researching and writing, we didn’t end up in quite the same intellectual place we started. This book was a journey of personal discovery. We hope it will be the same for you. We have been forced to scrutinize our personal philosophies and our understanding about what motivates people. We’ve had to travel the timeline of copyright protection from the Middle Ages until now to see how it has evolved. We’ve had to understand how business, politics, and law mix in today’s information society. We’ve had to ask: What freedoms have we given up in the name of copyright protection?
Our discussion concerns intellectual property: its use and its value. On one hand are those who believe that anything they conjure up, anything that transforms an idea into form, is intellectual property. On the other are the individuals who believe just as passionately that the entire notion of intellectual property is at best a farce, at worst just another way to suck profits out of the ether. In between these two extremes is a spectrum of social, legal, and ethical points of view.
“There’s a battle outside and it’s ragin’,” sang Bob Dylan in “The Times They Are A-Changin’.” This battle pits media conglomerates against teenagers, artists against artists, technology providers against content providers, nations against nations, Internet service providers against entertainment companies, media companies against their best customers—and even law enforcement against organized crime.
The ownership of intellectual property has been passing from the minds of artists and into the bank accounts of media businesses for at least 200 years. Yet since the passage of the Digital Millennium Copyright Act of 1998, some of those in the media business have developed a lockdown mentality that many people feel threatens their right to enjoy the media they buy however they see fit, as well as the public right of fair use. The concerns discussed in this book rise way beyond simply being able to legitimately download a song from the Internet: They extend all the way to your right to not sit through commercials when you watch a recorded television show. There are those who believe the American model of capitalism, along with American intellectual property, should be promulgated throughout the world economy, with the same terms of sale and use for their products as in the United States, regardless of disparities in economic status or local customs regarding ownership and copying. And there are those who don’t.
We found ourselves asking a number of these questions as we traveled the road from blank page to completed manuscript: Do we have a right to use media we license or buy in any way we see fit? Do the media publishers have a right to profit for decades from their acquired intellectual property? Is downloading stealing or civil disobedience? Is enforcement curtailing piracy or making it worse? Can we expect to change the hearts and minds of the global citizenry to a capitalistic point of view? Could the software companies and media firms do something different to alleviate the problem? How bad is the problem? Whose problem is it? Why do pirates pirate? And why don’t others?
This is our invitation to you to take a journey into the heart of intellectual property darkness with us.
WHAT’S IN THIS BOOK?
Here’s a roadmap for the 10 chapters of the journey you’re about to embark upon with us:
Chapter 1, Are You a Digital Pirate?, presents an overview of the ideas and social situations regarding the licit and illicit use of copyrighted intellectual property. We ask you to evaluate your own behavior, or that of people close to you, to determine if you, or they, are pirates of the digital millennium.
Chapter 2, Is it Copyright or the Right to Copy?, presents a history of modern copyright in what we generally regard as Western civilization, beginning with monks in the European Dark Ages and moving (somewhat regressively) through English law to American issues of fair use and the sanctity of ideas. A table of the political history of copyright concludes the chapter.
Chapter 3, Us Against Them?, explores the war over intellectual property use, providing a fair and balanced perspective of all the competing camps. It’s the scorecard—the playbook—of the conflict.
Chapter 4, Inside the Corporate Intellect: A Day at Microsoft, explains just what goes into software development, in terms of human intellectual capital and corporate resources. Next time you think how cheap it is to make a CD, remember this chapter and that the aluminum and plastic disc is a very small part of the cost.
Chapter 5, Inside the Sausage: The Making of the Digital Millennium Copyright Act, sets out what led to the creation and passage of this piece of legislation, which has caused one of the most pitched battles between copyists and capitalists in the history of copyright.
Chapter 6, Global Fallout, explores the worldwide effects and aftereffects of digital piracy. We’re not talking about kids downloading tunes here. In some cases, organized crime is a major player. We explore what it takes for a less privileged country to gain economic footing with our intellectual property.
Chapter 7, Dude, Where’s My MP3?, focuses on youth, primarily American, who regard access to the Internet as an ordained right and anything on it as fair and free game. Yes, a game: If the copyright holders find a way to protect their intellectual property, the game is to crack it.
Chapter 8, Eliot Ness or Keystone Kops?, looks at the attempts— and we do mean attempts—to stem the tide of international piracy and download thievery. While the RIAA did put the fear of God in America’s downloaders for a short while, most have come to believe that detection and punishment are unlikely—and it appears they may be right. Ditto for the rest of the digital planet.
Chapter 9, Angel on My Shoulder: What’s in It for Me?, asks you to examine your own beliefs and ethics in making a personal determination about what’s right and what’s not, what the other guy does be damned. We all have to take our own ethical stand.
Chapter 10, Through the Fog: The Future of Intellectual Property, sums up what we’ve learned in the foregoing nine chapters, and extrapolates from that some solutions to the problem. Here you can test our logic and vision, and add your own.
The Afterword, following Chapter 10, describes each of our personal journeys, where we reveal our views to you. Don’t peek until you’ve read the book, though!