Although his name doesn’t appear in the Wikipedia entry for copynorms, they first came to my attention through Lawrence Solum at his superb Legal Theory Blog.
I mention this, because intelligent reasoning about copyright infringement requires thoughtful consideration of the impact of copynorms, a la Ed Felten’s Grand Unified Theory of Filesharing. Which prompts me to write a rant that will undoubtedly bite me in the ass at some time in the indefinite future.
So, anyway, in Australia the Attorney-General’s Department is responsible for the enforcement of copyright legislation. The latest issue of eNews on Copyright reports:
At the Cinema Owners Association conference, the Australian Federation Against Copyright (AFACT) launched its anti-piracy trailer. The trailer was produced by AFACT together with a coalition of film producers, theatres and other film industry suppliers and marks the start of a broad public education and awareness campaign in Australia aimed at increasing respect for copyright and reducing piracy and other copyright infringing activity. It will be shown on 1,907 theatre screens around Australia. The Attorney-General gave the launch speech, noting that when it comes to combating movie piracy, the film industry, with ready access to millions of movie goers each year is well placed to increase the awareness of Australians and to foster the development of a society that has greater respect for copyright.
The past couple of times I’ve been to the movies, I’ve seen what I assume this “trailer”. (You, too, can see it, as well as the AFACT corporate Web site.) It is woeful. It is laughably appalling. My distaste for it exists on three levels.
First, it’s astoundingly lame. It’s exactly the sort of lame that you expect when government or big business (or both) get together to produce an ad that’s expected to appeal to “youth”. (There’s another one that I’ve seen from the Queensland Government that is obviously written by older people trying to speak to young people in their idiom. It gratuitiously uses phrases like “fully sick” but then lets itself down badly by referring to gaol as “the big house”. Is there anyone under, say, 30 who uses “the big house” in a non-ironic sense? My tax dollars hard at work. It’s fantastic to see.)
Second, it’s wrong on a comparative level. The ad motivates its condemnation of movie piracy by saying “you wouldn’t steal a x”, where x is, successively, “car”, “handbag”, “television”, and “movie”. The first three are rivalrous resources. If I have a television and you steal it, then I no longer have a television. I am annoyed by this. This interferes with me quite directly. (The “movie” is a movie from a store, which is also rivalrous.)
Online content isn’t (exactly) like that—it’s a nonrivalrous resource. My downloading a movie without the copyright owner’s licence inconveniences the copyright owner, and everyone else, in precisely one way—I deprive the copyright owner of a quantum of revenue. And the owner may not have even been entitled to it anyway! If I wasn’t going to pay to see the movie, then there’s no loss. And are record companies and movie studios really crying poor? I’m already gouged—at BC&C, I pay $14.00 for the privilege of spending two hours in a darkened room. And when I go to the candy bar, I may as well just drop my strides and bend over.
Third, it’s wrong on a legal level. It concludes by saying that copyright violation (which, in the ad is demonstrated by a school-age girl using an obsequiously fake interface to download a movie off the Internet without a licence) is a crime. It is not. (The intertitles say: “Downloading pirated movies is stealing. Stealing is against the law. Don’t buy into it. Movie piracy: it’s a crime”. Which is strictly correct, but the overall impression is a little misleading.)
It is against the law, and it opens the violator up to a civil suit. The owner can seek an injunction, an account of profits, damages, possibly exemplary damages, and delivery up and destruction of all infringing items. These are not criminal proceedings; they are civil proceedings. Proof need only be established on the balance of probabilities, not beyond a reasonable doubt. There is no fine payable to the government. There is no risk of gaol time (unless you don’t comply with the court orders, in which case your time in the big house is for contempt of court, not copyright infringement).
It is only a crime if you do it by way of trade or to make a commercial profit. The same thing goes for circumvention devices: if you do it for your own personal edificiation, it is not a crime.
If the idea of the ad was to scare the pants off the impressionable youngsters who (one assumes and anecdotally hears) are wantonly breaching copyright, then it also patently doesn’t work. When I saw I, Robot, the mocking laughter at the ad was noticable. Cory Doctorow takes a flash photograph when he sees the U.K. version of the ad, and the audience cheers.
It doesn’t work, people. Copynorms aren’t changed with a government campaign. They aren’t changed because the copyright owners aren’t happy with them. They’re changed using an evolutionary process which, in my view, requires some element of reasonable argument. The reason to not infringe copyright might be because, Minority Report-style, the S.W.A.T. will bust down your door and arrest you for even thinking about double-clicking the KaZaA icon. It might be because a demonstrable harm to artists (as opposed to the pigopolists). It might be because, at an abstract level, a reasonable level of intellectual property protection resonates with the populace. Let’s judge the ad by its own criteria. It won’t “increas[e] respect for copyright”, and I doubt whether it will “reduc[e] piracy”.
Please, don’t give me any more lame ads. I won’t buy into it: it’s a crime.
