Do copyright laws benefit everyone equally?

My mom and I were recently debating about copyright law. She said it benefited everyone equally. She cited an example of a good friend, who has tracked down someone who had plagiarized her content and was using it for commercial purposes without permission. I countered by citing the Digital Millennium Copyright Act and instances on YouTube of companies causing content to be taken down. I noted that no law benefits everyone, especially now, and that a certain interest gains favor in the law. Still, my argument was weak I admit and I didn’t completely support myself with good examples.

To start on this investigation, one must look at the law of the land, the U.S. Constitution. As it turns out there is a copyright clause in the Constitution (Article I, Section 8, Clause 8). This provision allows Congress “to promote the progress of science and useful arts, by securing for limited times to authors and investors the exclusive right to their respective discoveries.” This can also be called the Copyright and Patent Clause, Patent and Copyright Clause, Intellectual Property Clause or the Progress Clause. Since there is no part relating to trademarks, these are protected under the commerce clause which says Congress has the power “to regulate commerce.”

One must understand the history related with the Copyright Clause. James Madison, a plutocratic delegate, said the U.S. Constitution should secure the copyrights of literary “for a limited time.” This led to the clause which was incorporated into the document unanimously and without debate. To enforce this, as one expects, laws were put in place. The first law, the Copyright Act of 1790 said people could have a maximum 28 years in which they would have rights to their work and the minimum was 14 years. In 1831, the maximum under the 1790 law became the minimum and the max copyright term became 44 years. Four years later, in the first case on copyright in U.S. history in 1835 (Wheaton v. Peters), the Court held that one’s unpublished writings where protected by common law but different from perpetual copyright. As years went by, the view of copyright by authorities changed. In Bobbs-Merrill Co. v. Straus, the Court held that copyright law protects a person’s right to sell and multiply their work at their leisure. Many years later, the court made another landmark decision (Nutt v. National Institute Inc. (1929), holding that copyright infringement occurs only when “the one charged with the infringement has made an independent production, or made a substantial and unfair use of the complainant’s work,” something that could be important to those advocating against copyright.

This all changed in the last half of the twentieth century. In 1954 and 1971, the U.S. ratified the Universal Copyright Convention, billed as an alternative to the dated Berne Convention. Five years later, a landmark law was passed: the Copyright Act of 1976. It made a minimum term in which copyright applies 75 years long with a maximum of the author’s life plus an additional 50 years. Copyright was also extended to unpublished works under the law. The next year, the court noted in Wainwright Securities v. Wall Street Transcript Corp almost as a footnote, something that would be important for the years to come, what fair use meant: “balancing the exclusive rights of a copyright holder with the public’s interest in dissemination of information affecting areas of universal concern, such as art, science and industry.” Efforts to clampdown intensified in the 1980s with the Piracy and Counterfeiting Amendments Act in 1982 which made those who distributed more than one thousand songs on a CD or other format could get a maximum five years in prison and $250,000 fine, For a second offense, it was another $250,000 dollars and another two years in prison. It was around this time that there was a sea of change in the air.

Around this time, the pirate movement developed, that opposed copyright laws or wanted them gone. But, this was nothing new as anarchists and others like Leo Tolstoy had rejected copyright in years prior. In the 1980s and the 1990s certain people pioneered the way and as a result, in order to understand the subsequent developments in copyright, it’s better to show it from their perspective. MIT Professor Richard Stallman really started it all in 1983 when he founded the GNU project. As part of this, four different freedoms for this software were preached, including: freedom to run the program, freedom to access the code, freedom to redistribute the program to anyone and freedom to improve the software. Two years later to further bolster the movement, the Free Software Foundation (FSF) was founded with the goal to give all the ability to freely modify, distribute or create software for computers. Also it promoted something that would be used often by this resistance in the future, the GNU General Public License or (GPL). As the 1980s wore on, the hacker subculture, which was finally beginning to organize after being in existence since the 1960s, but was weak and didn’t really have much political pull. In the land of copyright, the courts had decisions all over the place. Companies were allowed to copyright sounds in games, those that copied content that was unrecognizable were guilty of infringement, at the same time, computer software and program code was protected under copyright law. Even so, those recording with homes recording machines and manufacturers of such products did not violate copyright. But none of these decisions was because of a strong movement; it was not powerful at the time. As a result, governmental bodies went about their business on the issue: in 1988, copyright protection was extended with a law that implemented the Berne Convention and four years later, the Copyright Renewal Act expanded U.S. copyright law by restoring it for certain foreign works.

That same year, 1992, the movement won a victory in the U.S. Ninth Circuit Court of Appeals. In Lewis Galoob Toys, Inc. v. Nintendo of America, Inc. the court ruled that people could change copyrighted works for whatever personal use. By this point, the movement hadn’t really consolidated as a powerful force. In an unrelated issue, the court upheld and expanded the “Mad Magazine exception” (created in the 1952 ruling Irving Berlin et al. v. E.C. Publications, Inc.), in Campbell v. Acuff-Rose Music to protect commercial parody from violating copyright, saying it could be considered fair use. This was upheld again in a decision in 2001 with the decision in Suntrust v. Houghton Mifflin. Two years later, Stefan Wray created in his book Electronic Civil Disobedience and Other Unpopular Ideas a new concept, Electronic Civil Disobedience (ECD). Wray wrote: “As hackers become politicized and as activists become computerized, we are going to see an increase in the number of cyber-activists who engage in what will become more widely known as Electronic Civil Disobedience. The same principals of traditional civil disobedience, like trespass and blockage, will still be applied, but more and more these acts will take place in electronic or digital form. The primary site for Electronic Civil Disobedience will be in cyberspace.” Such a statement foreshadowed what future groups like Anonymous and other people involved in hacktivism would do. As this idea was new, it wasn’t used and the movement wasn’t strong at this point, so the march onward against sharing continued by the courts.

A district court decided in UMG Recordings, Inc. v. MP3.com, Inc., that the unauthorized copying of almost every music CD to MP3.com was not covered under fair use and constituted copyright infringement even if a user downloading such content had to prove they had bought it. The next year, copyright law changed for the worse. That year two laws related to this issue passed: the Copyright Term Extension Act of 1998, nicknamed the “Mickey Mouse Protection Act” by Lawrence Lessig and the Digital Millennium Copyright Act (DMCA). The latter extended the minimum term to 95-120 years or life with an extension of 70 years. This means someone could have a copyright intact at most for almost 200 years! Such a measure was exacerbated by the former, DMCA, which enforced the WIPO Copyright Treaty. This law made it illegal to circumvent measures now known as digital rights management (DRM) that limited access to copyrighted works even whether or not there is copyright infringement. Basically it heightened penalties for internet copyright infringement.

The crackdown on online file sharing fired up the movement which became angry at legislation like DMCA or the “Mickey Mouse Protection Act.” As a result, alternative means were produced, in other words, peer-to-peer networks, or p2p networks. The year after the legislation was passed, a high-school student, Jonathan Hess, created NeoModus Direct Connect, a major file-sharing network. That same year,Napster was founded, which became one of the biggest file sharing clients. The four record labels that dominate the music market plus industry organizations like RIAA, MPAA, and IPRI were mad at such a development and challenged Napster in court. In 2000, in A&M Records, Inc. v. Napster, Inc. the Supreme Court said that such interests could sue them for violating copyright law. Eventually shut down their service in 2001 after a court injunction against them, settled with these interests, paying millions of dollars in fees and royalties and in 2002 they declared themselves bankrupt. In light of these occurrences activist Lawrence Lessig wrote that:”…this is a war on file-sharing technologies, not a war on copyright infringement.” His sentiment was not helped when in 2001; a district court ruled that in Universal v. Reimerdes that DMCA was a constitutional piece of legislation, upheld by the appeals court.

As a replacement service, Gnutella, a p2p network was founded. It served a similar purpose to Napster. Also, eDonkey2000 was founded around the same time to compete with Gnutella. The service allowed users to download multiple pieces of a single file simultaneously. In 2001, BitTorrent and FastTrack were founded and both have stayed intact, not taken down by legal action. The next year, Slovenia-based torrent download site, Suprnova.org was created. In a troubling 7-2 decision in 2003, the court upheld the Mickey Mouse Protection Act as constitutional under the copyright clause, something dissenting justices John Paul Stevens and Stephen G. Breyer said allowed “perpetual copyright that undermined public interests.” This is interesting because the text of that clause in the constitution says Congress will secure “limited times to authors and investors the exclusive right to their respective discoveries,” but the law could keep copyright intact for almost 200 years as I mentioned earlier. This means that the court ruled on the side of those against file-sharing, instead of following the constitution as they are supposed to in the American political system. Luckily, American citizenry had a different view which meant that such file-sharers had a solid base of support. A CBS news poll says that 58% of Americans think it is acceptable in certain circumstances to download music. Only a year before, Gallup had found that 83% of 13-17 year olds “said that it is morally acceptable to download “music from the Internet for free,” which was different from another poll in which adults were almost evenly divided on the legality of sharing songs online. That same year, under this auspice, bitTorrent index isoHunt was born and activist Rasmus Fleischer founded Piratbyrån, a group which creates the symbol of the movement, which exists to this day.

On the year of the presidential elections in America, a French lobby group related to the pirate movement was founded. This group was called Association des Audionautes, and it helps Internet users who share files over p2p networks. The same year, FrostWire was created, which is still online, surviving as there haven’t been any court orders to shut it down. The year George Bush’s second term as President began; the pirate movement had numerous setbacks. The Supreme Court ruled in MGM Studios, Inc. v. Grokster, Ltd. that P2P file sharing companies could be sued for causing copyright infringement by their users. If that wasn’t enough, based on this decision, RIAA, forced eDonkey, one of the numerous file sharing networks to shutdown. The network as a whole wasn’t effected much because this service only was a small part of the overall network. For reasons unrelated to legal action, another network, NeoModus Direct Connect, closed its doors after they had transmitted three times more data that year than the competing p2p networks Kazaa, Morpheus, and Grokster combined. Luckily there was a glimmer of hope, entertainment companies suffered a defeat when a Canadian appeals court held in BMG Canada Inc. v. John Doe that putting files on a shared direct didn’t violate copyright and upheld the district court’s decision the previous year that if one downloaded a song for personal use, it wasn’t illegal. In another act of bravery for the movement, activists engaged in electronic civil disobedience by purposely violating EMI’S copyright on Danger Mouse’s The White Album by distributing MP3 files of the album in order to shine light on anti-copyright views and copyright reform. It got even better when in the place of the loss of these two networks and downing of a similar site, Suprnova.org, after legal troubles, the Dutch BitTorrent site, Mininova was created.

The pirate movement was at one of its strongest points in 2006. That year, another file-sharing service, Kazaa, was created and an indie documentary, Steal This Film, which follows the pirate movement was produced by the pro-pirate League of Noble Peers, and released on BitTorrent. The first pirate party was created in Sweden, which would expand over the next six years into national parties all across Europe (Germany, U.K., Czech Republic, Netherlands, Finland, Canada, Switzerland, Spain, New Zealand, Greece, France and Czech Republic) along with registration in two U.S. states (MA and FL). The main platform currently, as stated by the umbrella international organization, Pirate Party International, includes copyright and patent reform, defending free expression, free flow of ideas, and collaborative public policy along with supporting nonviolent action. Back to 2006, not everything that year was good for the pirate movement. There was a raid against The Pirate Bay, a three year-old symbol of the movement. Police shutdown the website and confiscated servers, seemingly with the political pull of MPAA. Still, the website quickly recovered and within nine days it was fully operational. After this act at the bidding of entertainment companies, over 1000 people nonviolently protested in the streets of Sweden against the raid and showed their solidarity with The Pirate Bay (TPB). This was also reflected in a poll by a Swedish paper, the Local, noting that “over 75 percent of those asked” from ages 18-20 “said it was OK to download illegally.” As a result, TPB had massive public support in the country.

Until 2008, not much happened in the world of copyright other than another saddening victory for entertainment companies and its cronies. IsoHunt, a torrent server, mentioned earlier, was taken offline after the primary ISP of the website downed the site. Quickly it was back online and running as usual, a site that exists to this day. In the year of Obama’s election as President, disturbing developments unfolded in relation to the pirate movement. Swedish prosecutors charged four operators of TPB with “promoting other people’s infringements of copyright laws.” This was followed by the next year where the “Pirate Bay trial” began in the country. The trial pitted the four defendants against the interests of entertainment companies and others: IFPI (representing two Swedish record labels at least), Antipiratbyrån or the “Swedish Anti-Piracy Bureau” (representing anti-pirate interests in Sweden) and MAQS Law Firm Advokatbyrå KB (representing some major film producers and video game creators like Blizzard Entertainment, MGM and 20th Century Fox). Later that year, the district court declared that the four operators of TPB were found guilty of copyright infringement and were told to pay a fine. They appealed this and in November of the next year, an appeal court increased the damages they had to pay but shortened their prison sentences. There was some relief that year with the decision in United States of America v. Dove where a US District judge decided that “each illegal download does not necessarily equate to a lost sale,” making it clear “once again…that a sheer number of downloads doesn’t necessarily equal monetary losses.”

When Barack H. Obama became President, it all changed for the worse. In 2009, he said in a speech about cybersecurity: “I remain firmly committed to…keep the Internet…open and free.” Such a statement could be put into question considering that the previous year, the PRO-IP Act had passed, which allowed the Department of Justice (DOJ) to get involved in “prosecuting major civil cases against copyright infringers” and created a so-called “copyright czar.” As a result, in subsequent years, the White House was in the side of entertainment companies. Before the government could jump in, industry efforts were intensifying. In the Netherlands, the music industry group there called BREIN, sued Miniova and the court ruled on their side, forcing the BitTorrent download site to remove 99.3% of their torrents, dramatically reducing website traffic. On the other side of the Atlantic, a court, ruling on the side of music industry association, RIAA, slapped a ridiculous fine of almost $2 million dollars or $80,000 a song on a Minnesota woman who illegally downloaded 28 songs. Her attorney said she was shocked because the songs she downloaded would cost 99 cents. One could guess such measures are meant to scare Americans from illegally downloading content such as music. Still, people would go out and do it anyway.

The next year, the government got in the game. It took down popular TV and movie streaming sites, even wanting to go after TPB and MegaUpload, but they were unsuccessful. Under the authority of 18 USC § 981 – Civil forfeiture and 18 USC § 2323 – Forfeiture, destruction, and restitution, neither which mention the word copyright, the dirty three (Immigration and Customs Enforcement (ICE), DOJ and the National Intellectual Property Rights Coordination Center (NIPRCC) began seizing websites. Such actions included the shutdown of Blogetery.com which meant that 73,000 WordPress blogs ceased to exist because the site supposedly violated copyright. Also that year, the dirty three conspired and shut down 82 websites that were accused of violating copyright. The latter partner, ICE, had its own crackdown mid-year, where several video websites were shut down for similar reasons. In the fall of the year, anti-piracy forces scored another victory led by the RIAA and LimeWire was downed after a four year battle with such forces, with the court saying it caused massive amounts of copyright infringement. At the same time, there was forces that fought back under the banner of the hacking collective, Anonymous, which used the tactics of Electronic Civil Disobedience against the sites of RIAA and MPAA, among others in retaliation to attacks against TPB. Still, this didn’t stop the “dishonest” downing of LimeWire: Pirate Edition as TorrentFreak put it because RIAA asserted that LimeWire was violating its injunction, causing the site to shut down.

In 2011, the effort went into high gear as 84,000 websites were downed, some wrongfully accused as TorrentFreak wrote at the time. During the Super Bowl, ten websites were shutdown even though the sites were link farms, not even hosting illegal material. Also that year, a case came to the United States District Court for the District of Columbia which ridiculously said that every downloader that used BitTorrent was also an uploader, so they could be charged for copyright infringement. Late that year, it didn’t get any better, 150 websites that supposedly were selling goods that were copyrighted and counterfeit were shutdown. In order to justify such efforts, ICE came out with a video saying piracy was wrong (focusing on films) and saying it cost people jobs. One YouTuber, Homer101010 fought back and made a video calling it “propaganda” since Hollywood movies rake in millions or billions of dollars in sales, concluding that the only reason government-led and industry-induced efforts were only occurring was “Hollywood Greed.” Such an effort by the entertainment and music industry to stop “online piracy” was only assisted by the United States District Court for the District of Minnesota which declared service providers are immune from claims against fair use material that has been taken down by such providers. This only strengthened the position of anti-pirate interests. Also around that time, Wired Magazine also had an expose showing that “top-ranking Obama administration officials, including the US copyright czar, played an active role in secret negotiations between Hollywood, the recording industry and ISPs to disrupt internet access for users suspected of violating copyright law, according to internal White House e-mails,” further showing their connection to anti-sharing interests.

This year, the offensive continued. The anti-piracy forces, led by the dirty three succeeded in shutting MegaUpload after a two-year investigation by a grand jury it was shutdown along with 18 associated sites. Later, the owners of the site were arrested by New Zealand police at the order of the U.S. prosecutor and in response Anonymous downed universalmusic.com. By this point, more than 157,000 sites had been shuttered in Obama’s administration, the most of any President in U.S. history. Even so, the President has recently considered an executive order officially to combat “online piracy in the U.S. and abroad” but really to keep him in the pocket of those against the sharing movement. The Supreme Court didn’t help any when it decided in Golan v. Holder this year that even though the copyright clause says authors have “limited time” to protect discoveries, copyright can be extended to works that were previously in the public domain. Huffington Post blogger Christina Gagnier wrote after the decision this January that “The decision is indicative of the way that Congress and the courts continue to treat copyright regardless of the merits of the “commons” that can be found in both debates surrounding the openness of the Internet and the utility of works in the public domain for society.” There was a victory for TPB when in February of this year, Sweden’s Supreme Court refused to hear an appeal the Pirate Bay trial, and the case ended like that. Still, anti-pirate forces continue to fight back and may have even taken TPB offline for one day in May of this year with a distributed Denial of Service Attack (DDoS).

As one comes to the present, everyone reading this must realize how copyright law doesn’t benefit them. If you live in America, probably see the FBI warning that says if you film the movie or copy it in any illegal manner it will result in a $250,000 fine and five year prison term, something that’s based on a 1982 law discussed earlier. Also, one must remember the words of Public Knowledge in the argument against the possible UMG-EMI merger:

“Claims that piracy will prevent the abuse of market power are directly refuted by evidence on consumer purchasing behavior, estimates of elasticities of demand by academics, and marketing research conducted by the music industry. The analysis demonstrates that the industry has chronically and grossly overestimated the role of copyright infringement in the development of digital distribution. Correcting this misrepresentation of the extent of infringement is necessary to ensure that policymakers have a proper understanding of the full benefits of digital technologies.”

People should tell their lawmakers that the current copyright laws benefit entertainment companies and their cronies and that the government is helping abed this action through propaganda. In addition, there are other parts of the pirate movement not really focused on this article including the Pirate Cinema is an independent cinema which is active in Brazil, Copenhagen, Berlin, Melbourne and Helsinki and those that argue for creative commons as copyright alternative, not necessarily against copyright completely. The Bob Dylan-ism in Sweetheart like You applies to illegal downloading directly: “Steal a little, they throw you in jail; steal a lot and they make you a king.” This is the case with downloading of content where just downloading a small amount of content can result in jail time and huge fine when the entertainment companies are raking in billions and billions of dollars. This is why electronic civil disobedience is mainly aimed at problems with copyright law which could include the use of file sharing networks to download content illegally. In conclusion, to help the pirate movement, the best thing to do is to: push for a change in the law, moving it back to the 1790 standard in duration of a copyright, advocating for the repeal of DMCA, and the Mickey Mouse Protection Act and educating people on how copyright law doesn’t benefit them and what they can do to lend a hand.

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