Pirates’ Manifesto

Illegal downloading and filesharing has become a hot political issue as media multinationals pressurise politicians to come up with a way to effectively legislate against it. In this article ‘the Enlivened Bandit’ investigates the issue.

The growth of the Sweden’s Pirate Party (Piratpartiet) came as a surprise to most in the political mainstream and even many on the left around Europe. Spurred on by the court battle taking place in Stockholm in February and March this year, and by the eventual guilty verdict against the founders of the Pirate Bay website, the party – formed in 2006 – found itself gathering members and supporters at an unprecedented rate.

By November last year it had already overtaken the country’s Green Party in terms of membership, and did the same with the Left Party, Liberal Party and Christian Democrats following the Pirate Bay trial. By the time of the European elections in June this year it was the third largest party in Sweden – after the Social Democrats and governing centre-right Moderate Party. Most significantly its youth wing, Young Pirate (Ung Pirat) is now the largest political youth organisation in the country – claiming over 21,000 members.

Following the Swedes, Pirate Parties have started springing up around Europe and all over the world, from Brazil to Slovakia, including a group in the UK – and they have even formed an international organisation for the various groups to co-operate through and co-ordinate activities. Their principal areas of concern – as with the Swedish party – are internet filesharing, the scrapping of patent protection and the dangers of the “surveillance society” – all thoroughly modern social and technical issues, and increasingly closely linked with one another.

Since the early days of filesharing there has been an ongoing battle between sharers and the film and music recording industries, most famously reaching the public consciousness over the filesharing service Napster in 2000/’01. Since then the industries have oscillated between targeting websites and sharing software, and attacking individual filesharers with threats of criminal proceedings – so far the Recording Industry Association of America (RIAA) has filed 40,000 lawsuits against individual music fans, mostly in the United States – or other punitive action.

The latter approach has most recently settled on the strategy of targeting users via their internet service providers (ISPs). For example the French National Assembly this September narrowly passed a piece of legislation including a provision for a “three-strikes” policy for those found to be sharing copyrighted material – get caught downloading three times and your ISP cuts off your internet access. However the new law faces challenges from opposition groups through the Constitutional Court, who overturned an earlier form of the legislation, as well as through the European Parliament, on the grounds that internet access is argued to be a “fundamental right” (though the clause giving rise to this challenge could itself be revoked by politicians desperate to clamp down of filesharers).

A similar mechanism was trialled in the UK by ISPs Tiscali and Virgin Media (now the sole provider of cable broadband in the country) – over the last two years, in collaboration with the British Phonographic Industry. However it seems unlikely to be enforceable on a voluntary basis, meaning the UK government is facing, and heeding, pressure to follow France and introduce a legally-binding system to penalise copyright infringement.

This raises many issues regarding both online privacy and the judicial process. If ISPs are empowered by the government to spy on their users’ online behaviours, the nature of the internet as a tool for political change will be seriously challenged, as people will be far more conscious that what they are viewing is under scrutiny – whether it’s a copyrighted TV show or a website for planning direct action. Questions about how the collection and storage of users’ information could be regulated and controlled begin to assert themselves amongst anyone with a healthy distrust of state and corporate power.

In addition, the empowering of private companies to administer punishment – including effectively barring individuals from a hugely important aspect of modern life – without any due process, is a major departure from normal legal practice, and raises many practical questions as well as political ones. For example what about people sharing an internet connection, or a public wireless connection? Or the other myriad situations where people other than the account holder use a connection? Can ISP decisions be challenged in court? If so, who will pay for it?

Pieces of eight

Let’s now consider what filesharing means to the industries involved, and whether they might be justified in responding to it in the way they have done.

First let’s look at TV shows: one increasingly common form of internet piracy in the last few years hasn’t involved filesharing at all, and instead has taken advantage of the expansion of cheap server space to allow the “streaming” of film, TV and other clips directly through web browsers – including sites like YouTube and TV station services like the BBC iPlayer.

But other hosting sites carry copyrighted material without permission, and other sites provide listings with links to the host-sites, meaning copyrighted material isn’t hard to find.

One of these latter sites, TV-links, had its Netherlands-based server shut down by Gloucestershire police, in collaboration with the Federation Against Copyright Theft (a UK trade organisation representing the film and broadcasting industries) and its webmaster arrested in October 2007, the police force having seemingly arbitrarily decided that even providing links to copyrighted material was against the law. The webmaster, David Rock, who ran the website as a hobby, was later released without charge, “pending further investigation”.

But where do these TV shows come from? And who pays for them?

Of course in the UK we have the BBC – paid for directly via the TV licence – a flat-rate tax on everyone with a television. So when the BBC’s profit-making trading arm, BBC Worldwide, charge £20 for a DVD of a BBC show – you have already paid for the content.

Other TV stations are funded in whole or in part through advertising revenue. So we have paid for that content too – or at least the consumers of the world have paid for it in the increased prices of consumer goods needed to pay for their advertising costs.

So copyright in these circumstances means very little from a moral standpoint – it is the assertion of a right to make people pay for something that – in general – has already been paid for. The advent of DVD sales has undoubtedly had an impact on television funding, but it is relatively recent, and there’s no reason it should be set in stone. So long as advertising (including more insidious forms such as product placement) remains a major component of the capitalist sales effort, for better or worse, commercial television shows will continue to be made.

Hooray for Holywood?

Movies are a little more complicated, as unlike TV shows, feature films have always been required to make money directly – through box office sales, as well as through DVDs and other merchandise.

The industry, for example through the Motion Picture Association of America (MPAA), claims that internet piracy is costing the industry hundreds of millions of dollars a year.

But the methods of the film industry bodies like the MPAA for estimating loss due to piracy are simplistic and incorrect in their assumptions. In particular the calculations tend to be based on those used for “traditional” piracy or bootlegging – where illegal copies of movies are sold by professional bootleggers, where a financial exchange is still taking place but without any money reaching the copyright-holders.

Internet-based filesharing on the other hand involves the free exchange of material. Films can be streamed or downloaded – sometimes with advertising to support server costs – or can be exchanged via peer-to-peer (P2P) networking. BitTorrents, or simply torrents, for example, are a form of P2P protocol particularly useful for sharing large files such as those used for movies. The sharing is divided between downloaders and “seeders” who have whole copies of files stored on their computers, meaning bandwidth use is distributed amongst users – and the more people sharing a file, the faster it can be shared.

As files are shared amongst individual users on their home computers, there is no need for server space, and so files are exchanged for free. There is no financial transaction taking place, beyond paying for internet access.

When calculating losses the film industry assumes that each copy – including each digital copy – that is made but not paid for represents a loss equivalent to one full-priced copy.

But in reality each download doesn’t represent a “lost sale” for the studios. Users often download far more than they would ever choose – or could ever afford – to buy in the absence of the option to download. Also as distribution has been taken on voluntarily by users it costs the copyright-holders nothing.

That people still want to see new movies, and still want to go the cinema to see them, continues to prove itself with record box office sales (for example Hollywood ticket sales reaching 28 billion US dollars in 2008), even in the face of the global recession. The trend in recent years towards DVD sales as a necessary component of the income base making feature films profitable might face a challenge, as might the bloated profits of the big film studios, but the fact remains that as long as people have access to disposable income, the film industry itself isn’t in any serious danger.

Facing the music

The recorded music industry faces a particular challenge in adapting to the technological changes that have accompanied the growth of the internet. Internet-based music distribution – both through illegal filesharing and through legal sites like Myspace and iTunes, has revolutionised the way people listen to music. People have access to much more music than they did before, benefiting both listeners and artists who want their music to be heard. Technological advances have also made it possible to make decent recordings on home computers, by-passing the industry completely.

The RIAA claim that music piracy in general costs the industry over $12 billion (USD) globally each year. However this figure faces the same problem as those used by the film industry – it makes no sense to assume that every downloaded file represents a lost sale. Other even larger figures widely quoted in the media seem to be complete fictions, and are used for scare-mongering about the effects on the industry.

Album sales have continued to fall since peaking in 1996, at the height of the success of the CD format, and total revenues from recorded music also continue to fall from their high in 1999. However the extent to which filesharing has contributed to the decline has been greatly exaggerated, and other factors – including growth in other areas of entertainment, and the selectivity of legal download services like iTunes (why buy an album of filler when you only like two songs?).

Some research has suggested that there is not a very strong connection between filesharing and the drop in sales – for example comparing numbers of downloads with sales of particular records has failed to show a correlation, and other studies have suggested those downloading music are more likely to spend money on music too. However it would be naïve to suggest that filesharing has had no impact on the drop on sales.

Whatever the causes, the decline has caused a serious change in the way the industry is structured – for example with artists now making more money from touring and merchandise than from recordings, labels are demanding a cut of that income as well, in return for promotional activities.

The music industry is attempting to adapt to new technology in a number of ways, and it remains to be seen how successful it will be. The increasing popularity of online music streaming services such as Spotify and Pandora – allowing access to vast libraries of music, paid for through advertising or subscription fees, still face a serious challenge to become sustainable while paying artists and labels royalties. Extending subscription services to downloads has also been mooted as a method to ensure artists can receive income from recordings.

It can be hard to take this demand seriously when obscenely wealthy artists like Elton John and Metallica place themselves at the forefront of anti-piracy campaigns. Whether Elton can afford to buy a sixth house in some far corner of the globe, or Lars Ulrich can start a new £10million modern art collection aren’t exactly pressing issues for most music fans. A similarly unimpressed response can be engendered by labels cashing-in on recently deceased or even long dead artists, using +70-year copyright legislation to profit from decades-old recordings.

But it’s hard to ignore the issue in discussing new or unestablished artists, or those who’ve never made it big – particularly with left-wing icons like Billy Bragg arguing for a better distribution system for music that makes sure artists get paid. Some people will choose to download from big names but will buy from new artists, from indy labels etc. There is a big difference between someone on a decent income downloading a newcomer’s debut record and a high school student downloading the latest Metallica album – an important point that most discussion of the topic tends to ignore.

Davy Jones’ locker

Of course if everyone – irrespective of income, fear of reprisals, misplaced bourgeois morality, or genuine respect for particular creative work – were to download all their music and movies (and computer games and software) for free, to stop going to gigs, buying merchandise and visiting the cinema – then those industries would die out. While we can rightly argue that this is unlikely, the fact does underline the gist of any rational opposition to piracy – and in some cases (particularly games and software, where the only product is a digital one) is impossible to counter. Universally free access to things like computer games, movies and music isn’t tenable while those things remain commodities to be traded in a capitalist marketplace.

But piracy makes no claim to provide an answer in itself. Just as the real-life pirates of the so-called Golden Age, stealing riches from the boats of plundering European colonists, didn’t have an answer for imperialism; just as shoplifting doesn’t fix the problems of poverty or supermarket domination; just as street art can only hint at reclaiming public space from private developers and profiteers; just as union strikes can’t resolve the problem of exploitation once and for all – internet filesharing is a response to, not a resolution of, the problems caused by the commodification of culture and the massively uneven distribution of wealth under capitalism.

It is interesting to consider that it is mainly amongst young people that filesharing is commonplace. There are a number of possible reasons for this: firstly technical proficiency is obviously a factor. Those of us who have grown up with the internet better know what it is capable of, what we can get away with, and how to go about using it. Secondly there is relative poverty – young people are high school students, college and university students, unemployed, or if employed then highly exploited and underpaid. We can’t afford to rent a DVD every time we want to see a film, or to pay £12 for each new album we think we might want to listen to. Young people aren’t sitting on massive bank balances laughing at the musicians or film-makers (or software developers, etc.) who make the stuff they enjoy. It is not often a choice between buying and downloading – it’s a choice between downloading or being denied access to a large part of our culture.

But importantly young people also have less invested in the system. They are willing to question intellectual property rights, and as the success of the Pirate Party shows, to challenge them. Our aim should be to extend that challenge, to confront not just intellectual property in these areas – which as we have seen are not at all straightforward – but in every sphere. While the various Pirate Parties have attempted to eschew standard left/right political labels (much like many in the green movement before them), their interests and perspective can’t help but point them in a left-wing direction – for example the Swedish party has a radical policy on bringing pharmaceutical research into public ownership, originating from their disdain for international patent protection.

The left has to engage with these issues – including fighting any attempt to criminalise and prosecute filesharers, and actively opposing the erosion of civil liberties by handing governments and private companies the right to spy on everything everyone does once they’re connected to the internet. On piracy itself, the left should support the rights of artists and others to be paid for creative work, but at the same time recognise that we live in a totally unjust world, and that on the whole, for now at least, internet piracy makes it a little more just, rather than a little less.