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Part III
of
What Pirates Say To Copyright.

(WTF? Start from the beginning)

The copyright debate rests on an argument both inherently false and absurdly simplistic.

Piracy is stealing.

The contortion of the language has been so successful that the matter of “What is piracy?” in many people’s minds is settled beyond doubt. Questioning it is like questioning whether “Earth” refers the third planet from the sun. If you didn’t happen to read the blog posts of the authors I quoted last time, Lilith Saintcrow kindly offers a summary of this point of view in her post on “Why do I have to keep explaining to people that stealing is wrong?”

The answer to her question is simple: she’s not talking about stealing. She’s talking about copying.

Stealing:

  • deprives the original owner of the item. If I take your car, then you no longer have the car.
  • can harm the original item. If in order to take your car, I smash the window, then your car has a broken window.

Copying:

  • Leaves the original item with it’s owner. I copied that question above from Lilith Saintcrow’s blog, and I bet you it’s still there.
  • Leaves original item in tact. If I copy a file from my desktop to a flash drive, the original does not self destruct.

I will ask you again, as I asked you last time:
For a moment forget about whether piracy hurts or helps. Forget about whether it is moral or not. Forget about whether it is illegal or not. Forget about whether it should be illegal or not. Let’s say we don’t know.

Before we make conclusions on the effect, the morality and the legality of piracy, we must know what it is. Piracy is copying not stealing. By any definition in the English language that does not include assaulting people at sea, piracy is not stealing. It is copying.

This is something that almost no artist wants to hear because it lies at the foundation of the copyright defense. But it needs to be heard. A debate that continues on flawed foundation is a debate not worth having. The question is, if a foundation is removed do the arguments resting on it collapse?

Not really. To be fair, the notion that copying is theft wasn’t pulled out of thin air. There are two justifications for it: one concrete and one ideological. The concrete logic goes like this:

copying = loss of sales = loss of money

Fair enough assumption. But generally untrue, or at least most attempts at verifying this logic have failed. Even the US Government Accountability Office, in it’s 2010 report on counterfeit goods admitted that anti-piracy stance was based on assumptions and that previous studies that it had relied on were unsubstantiated. You can download it here.

But the concrete arguments are not the major problem. Were these the extent of the copyright argument, it would be relatively easy to solve. The more difficult argument is the ideological one. That is, when it comes to ideas, creation = ownership.

A creator sees the work that he or she slaved over, possibly for years, as theirs. In exchange for their work they deserve control over how that idea is presented, distributed and used in the world. And it is not necessarily about what the author gets–most writers anyway know they could make more money doing, well, pretty much anything else. Rather, it is about what the fan gives in exchange. Even sentimental value has a number. It may be $0.99 it may be $9.99 it may be $19.99. And even if sharing the work freely does not deprive the creator of these numbers, a person simply cannot take something of value for free. It’s not right, because all that time that the artist puts in demands a return. A price is not so much a salary as a contract between fan and artists where both admit: this piece is worth something.

And as if sharing the work wasn’t bad enough, changing it is a cardinal sin. Derivative work can be offensive and demeaning to the author and his or her original work (think pornographic fan fics.) Even benign and tame derivatives breaches the contract between fan and artist–or as industries frequently refer to them, creator and consumer. In this model, the artist creates the art and the fan consumes it. If things mix and the question “Who is artist and who is fan?” no longer has a clear answer, the model falls apart.

But while the debate allows for the ideology for the copyright holders, it rarely extends pirates the same courtesy.

Artists rarely see the sentimental value behind copying art. Sure, many of the people who download a book aren’t going to buy it, but they’re not going to buy it because they aren’t going to read it. But the people who would buy the book will buy the book because they want to buy the book. Fans share books because they love them, because they want others to love them. Fans share art because they know the risks and they care more about the art than about the consequences.

Likewise, artists who use other artists in their work do so because they love it. No body writes fan fiction because they hate the original work. If they hate the original work, they put it down and move on to something else. Maybe they make a parody of it on youtube. But they do not spend hours and hours extending the story, coming up with their own story, and weaving the two together.

Just because a piece of art contains elements of another work does not mean that piece of art is unoriginal. While a fan fiction may contain the seeds of another’s characters and story world, the final form melded with the fan’s own ideas is unique. While readers in western countries don’t normally see fan fiction on bookstore shelves, this is not the case in other countries. Japanese Dōjinshi manga is a rich artistic movement filled with creativity despite the fact that much of it is basically fan fiction. While technically illegal, fans are lucky enough to be rarely pursued by the original creators who recognize that enhances the community around their work.

A while back, I showed the clip of Danger Mouse’s brilliant mashup of the Beatles and Jay-Z to a Beatles fan. His reaction? This isn’t the Beatles. It’s got their music in it, but it is something else. He was right. It is not the Beatles. It is not Jay-Z either. What is it? It’s Danger Mouse. The elements he used were preexisting but the unification and presentation of them was new and original.

But don’t people have the right to control what happens with their own ideas? Sure. If a writer writes a story and keeps it in a box under their bed, nobody can take it or make anything else from it. That story belongs to them because no one has ever heard it. So long as it remains in the dark, it doesn’t exist in anyone else’s mind. But as soon as a story is told, it exists in the public mind. Copyright defenders say you cannot take away the right of a person to control an idea from their own mind. But is it right to take something away from the public mind once it has been put there? Can you take away the rights of one person to have an idea just because it was inspired by someone else’s? Thanks to the application of current copyright laws, you can.

Or in the words of the fake Mark Zuckerberg from The Social Network:

“Look, a guy who builds a nice chair doesn’t owe money to everyone who’s ever built a chair.”

If you’d prefer to hear it from a real person, listen to what Arjen Kamphuis, open source activist, says to a writer at a panel on copyright:

“In order to create those books, you used lots of knowledge that was given to you by society that spent 10,000 years building up that knowledge. You don’t have to pay most of those people who figured out how to do all those things that make it possible for you to even learn how to write, and to write and have a house… There’s a ton of knowledge that makes your life possible and you get that for free essentially. So then why is it then that we have to protect your knowledge?”

>HAR 2009 panel with Brein
(Part 4/8 @ 0:47)

It’s a harsh question. But Kmphuis goes on to say that he is not in fact in favor of abolishing copyright, but rather modifying it’s terms, and he could be right. It is not the idea of copyright that is necessarily wrong. Writers are passionate about their writing, and perhaps, if nothing else, it is that passion that deserves some protection. But the current protections put the absolute right to an idea in the hands of one designated creator, and consequently remove the rights of many potential creators to creatively expand or improve upon that idea and make something new or to freely share the original and grow the fan community without the express permission of the designated creator.

Artists have a tendency to believe their art is unique and cannot be improved upon. This belief is practically a requirement, for if an artist were to admit that their work might be based on elements something else–something that is not definitely in the public domain anyway–would open them up to lawsuits or at the very least severe criticism. And from asserting uniqueness it is hardly a leap to asserting ownership and from that, control. But whether it is an honest belief or a fear of the consequences, why can anyone, through the mangling of one word, assert the right to prevent someone else from sharing or improving an idea with one of their own?

There is so much talk of what artists deserve, but what of the artists whose work is now illegal? What do they deserve? And what of the community that without which a book would be a lonely manuscript collecting dust in a dark corner? What do they deserve?


Up next:
Piracy’s not theft, it’s just scary.
Is there human cost to abolishing copyright?

And after that:
What to do?
We can rant at the dinner table every night, but it is what happens when we wake up the next morning and walk out the door that matters.


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