Minerva Access is the Institutional Repository of The University of Melbourne
Author/s:
LOBATO, RAMON
Title:
The six faces of piracy: global media distribution from below
Date:
2008
Citation:
Lobato, R. (2008). The six faces of piracy: global media distribution from below. In R. C.
Sickels (Ed.), The Business of Entertainment (Vol. 1): Movies (pp. 15-36). Westport,
Connecticut: Greenwood Publishing Group.
Publication Status:
Published
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http://hdl.handle.net/11343/35070
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The six faces of piracy: global media distribution from below
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CHAPTER 2
The Six Faces of Piracy: Global Media
Distribution from Below
Ramon Lobato
The VCR is to the American film producer and the American public as
the Boston strangler is to the woman home alone.
-Former Motion Picture Association of America president
Jack Valenti
Rip, mix, burn.
-Apple iTunes marketing slogan
The public profile of debate around intellectual property (IP) issues has
Ilever seemed higher than in the last decade. Newspapers regularly feature
coverage of piracy prosecutions, columnists debate the pros and cons of copyright extensions, studio-funded antibootleg promos appear on DVDs and
ill cinemas, and Hollywood trade papers overflow with updates on changes
ill copyright law, international trade regulation, and studio IP policy. A fiJJIIiliar cast of characters appears again and again-the teenage downloader, the
mrporate bigwig, the struggling independent artist, the "foreign" pirate-cumlerrorist.
In most public discourse, piracy either looms large as scourge and scandal
or is talked up as the way of the future, but rarely is it analyzed systematically or contextualized historically. Rarely is the focus shifted away from the
(,thics of piracy and toward its broader contexts-its legal history, its ecoIlomic functions, and its implications for knowledge and information distrihution on a global scale. Through a series of six critical readings of piracy,
I argue that we should understand it as, among other things, an alternative
Movies
The Six Faces of Piracy
distribution systemftr media content, one of considerable complexity and potential. Piracy's "cockroach capitalism" seeks out profit in markets untouched or
underserviced by existing media institutions, providing in many instances
the only available forms of film culture. 1 From this perspective, piracy is
not only a form of deviant behavior but may also offer routes to knowledge,
development, and citizenship.
postwar period also irritated the studios. And with the invention of the VCR,
home-based illegal dubbing became the biggest nightmare yet for the movie
industry, which feared that its entire existence was under threat. As ludicrous as this sounds today, it tells us something interesting about both the
history and the future of the "war on piracy." While the studios strategically
play up their purported financial woes when it is useful to do so, global theatrical revenues in fact rose 20 percent in 2006, which suggests that despite all
the hype piracy is having little impact on the industry's bottom line.? A rerent study by the criminologist Majid Yar supports this conclusion, arguing
that the piracy "epidemics" decried by industry moguls are often a product of
PH. campaigns by the studios combined with legislative changes that declare
llIore and more everyday audiovisual activity illegal,8
I shall have more to say later about the extent to which piracy threatens
()r bolsters the existing power structures within the entertainment industry.
Ilowever, to fully appreciate the implications of piracy, we must first examine
I he legal framework against which it is defined.
16
DEFINING PIRACY
Piracy networks can be considered part of the informal sector, that subterranean zone of the economy that is largely untaxed, unregulated, and
unmeasured. 2 However, piracy is distinct from other areas of the informal
economy, such as the drug trade, because pirate goods are not technically
illegal in their own righ t. Rather, the illegality of pirate products is usually a
function of their reproduction and sale.
The U.S. film industry's flagship lobbying body, the Motion Picture Association of America (MPAA), defines piracy as "the unauthorized taking,
copying or use of copyrighted materials without permission,"3 and is keen
to remind us of its economic and social cost by invoking dramatic statistics
such as these:
• The major u.s. studios lose $6.1 billion globally each year as a result of
piracy.
• Losses to audiovisual industries worldwide are estimated at $18.2 billion
annually.
• More than 34 million illegal discs and 3,362 burners were seized in antipiracy operations in 2005.
• 80% of global piracy originates from outside the United States, with
especially high levels of pirate audiovisual consumption occurring in
China (90%), Russia (79%), and Thailand (79%).
• Piracy operations have links to terrorist outfits, prostitution rings, drug
smugglers, and other organized crime syndicates."
Other industry bodies such as the Cable and Satellite Broadcasting Association of Asia (CASBAA) define piracy more broadly, as "any form ofrevenue leakage from any point in the value chain"5-a definition that perhaps
highlights the way in which piracy often functions as a scapegoat for the
industry's own structural problems.
It is important to note that piracy is as old as cinema itself Every new distributive technolo~y has ~iven rise to its own bO~('ynHIll. In the early years
of the medium, u.s, distributors wen' pla~ued by "bicydin~" and "jackrabbitin~," wl\('rcby film prints wen' SITI'CIH'd ill ullapprovl'd V('nUI'S or extra
scn'I'llill~S wen' put Oil withlllit till' distributors' 1ll'l'Il1issioll.'1 TIll' mar!H't fill'
I n .. uu I\HntlulI' IlI·int,," !IlHI hPi\J!!t" 1\I,,,i,tf·,inll pfillilltlU'llt that PIlHtrl!'pd in the
17
A BRIEF INTRODUCTION TO COPYRIGHT
Copyright law is conventionally understood as a common-sense way of
protecting the rights of cultural producers, rewarding them for their efforts
IIl1d filstering future innovation. The extent to which copyright in its present
lilJ'1l! does these things is open to some debate; however, what I would like to
IHlJ!:J!:est here is that, as well as being a legal framework, copyright is also a
historically and culturally specific ideology, one founded upon modernist noIIOIIS of innovation and deeply embedded in capitalist thought and practice.
1"01' (his reason, it is important not to take its normative claims as gospel.
The history of copyright is a long and convoluted one and has been the
~1I",il'd of numerous scholarly works from across the disciplines. 9 InterI'~t ill~ly, one of the earliest forms of copyright was a de facto form of state
1l'lIsorship-in sixteenth-century England, a group of publishers known as
tilt' Stationers Guild were granted the right to publish commercially on the
I Illlll iI iOIl that they steer clear of anything critical of the Crown. Other precl'dl'lIls rail be found in ancient Greece, Italy, and The Netherlands. However,
1l11 ..~1 scholars trace the origins of modern copyright to early eighteenthI 1'IIIIIl'y Ellgland-and specifically to the passing of the Act of Queen Anne
III I', 10, The Act of Anne provided authors and publishers with the first
c,,,III/'('c'a"'e period of monopoly control over their intellectual labor (for a
1"'l'Iod 01' ',I, years, extendable once only), after which a work would enter
11110 what would Ill'conw \mown as the publil: domain. This was considered to
III' II lilir trade-ofl' bcl W('l'n the colllpclinJ!: delllands of individual authors and
11\'11 ~ol'il'ty, which was pn'sunll'd to IWlll'lit frolll a li'l'ely accessible archive
1I1.1I111l1'1I11Il'/ullIl'lioli
19
'1'hc' ~Iohali/,atioll ol'mpYl'i~hl law has IWl'lIl1l1dc'l'way silln' I Ill' Iiltl' lIilll'tel'lIth Cl'lItllry. III IIi/W, till' B('l'IH' ConVl'lItioli fill' till' I'l'Otel'tion of Literary and Artistic Works was siJ!:lll'd hy a nlllllhl'r of Ellropean nations and
would go on to becollle the key telllplate fllr globetl copyright regillles of the
twentieth century. III An AnJ!:lo-A merican aJ!:reement was also signed in 1891,
harmonizing some of the discrepant traditions in both nations. This process
was consolidated and extended with the 1948 Brussels Convention (which
granted copyright protection to cinema) and the 1994 Agreement on TradeRelated Aspects of Intellectual Property Rights (TRIPS), which formed part
of the final Uruguay round of the General Agreement on Tariffs and Trade
(GATT). The GATT's successor, the World Trade Organization (WTO),
has been a prime disseminator of the "new world order in knowledge" ever
since, supporting policies that tend to favor established players in the agribusiness, information technology, entertainment, and other IP-based industries.!! Those few recalcitrant states that have attempted to water down their
copyright protections-a group that has included, at various times, Hong
Kong, China, and Brazil-have generally either been bought off with trade
incentives or disciplined with restrictions and embargoes.!2
Three key points can be extracted from this potted history of copyright.
First, copyright regimes-particularly in their current "hard" incarnationfunction to convert knowledge into capital. Copyright is thus inextricably
linked to the development of free-market capitalism and what is sometimes
dubbed information capitalism. Furthermore, we should be aware that
copyright's reach extends beyond the realms of the economic and the legal
and into the cultural: It designates forms of cultural production as either
legitimate or illegitimate based upon a set of values that privilege "progress" and "innovation." In contrast, the public domain is always defined
negatively-as that which is "left over after all other rights have been defined
and distributed."!S
Second, copyright terms have been steadily increasing, meaning that knowledge and cultural production are kept out of the public domain for longer and
longer periods. Copyright terms now extend up to 70 years after the death of
the creator in many territories. Term extensions have been a key feature ofrecent U.S. trade deals, such as the 2004 U.S.-Australia Free Trade Agreement,
which required that Australia fall into line with the restrictive IP framework
outlined in the U.S. 1998 "Sonny Bono" Copyright Term Extension Act. (As
one would expect, this Act was the result of intensive lobbying on the part of
American software and media corporations. Disney led the charge, motivated
by the fact that its copyright on the infinitely profitable Mickey Mouse was
set to expire. For this reason the Extension Act is commonly referred to as
the "Mickey Mouse Protection Act.") Similar agreements have recently been
signed with many other nations. The U.S.-Korea FTA is expected to have a
particularly harsh effect on the Korean film industry, which has been booming
II\'C'I' till' last d('cade, as it '"l1/Hlatt's till' parlilll disnllllltlilig of OIH' of till' Iwy
driVl'rs of the indllstry's SIl(T('SS: II donll'st IC sl'I'een qllota. Finally, wherever
II' illdllstries have political dOllt, constallt P"('ssun' Illr further extensions
('xists. For example, an alliance of British record companies, with the help of
IIgilig rod{ stars such as The Who's Hoger Daltrey, mounted a high-profile
1'llIlIpaign in 2007 to lobby for legal changes in the European Union (EU)
wi Ih the aim of instituting a new music copyright term of 90 years.!4 This
proposal was eventually rejected by the British government-however, it is
olily a matter of time before it is put back on the agenda.
Third, it is important to note that art and business are not always diametI'ically opposed in IP debates. The history of copyright is full of examples of
cultural producers who, understandably, have been more interested in their
lI)mllleS than in the future of the public domain. Wordsworth, Twain, and
I)id\ens were all champions of copyright, as are the band Metallica and the
director George Lucas contemporarilyY Even Spike Lee, a radical filmmaker
IIn:laimed for his unflinching analyses of contemporary racial politics, has
hC'('1I a vociferous defender of his own IP rights. 16 We should also note that
mpyright law has on many occasions been used as a legal tool to protect
I he rights of individual artists against corporate interests. For example, the
"'llllral rights" (droit d'auteur) provision of European copyright law (to which
thc' United States has long objected) was the basis for John Huston's court
\'ictory over MGM in relation to the colorization of the 1950 film The Asphalt
.llInK/e. 17
This complication duly noted, the implications of current copyright regimes
lill' many types of cultural production are quite alarming. One frequently
cited example concerns an independent filmmaker whose documentary on
opera stagehands unintentionally included four seconds of The Simpsons.
(During one take, the program had been playing on a TV set in the background.) Despite obtaining the personal blessing of Simpsons creator Matt
(,roening, the filmmaker was threatened with a lawsuit by the copyright
holder, Fox, which demanded a whopping $10,000 clearance fee. The filmIllaker's legal advice suggested that even though the sequence would probably be covered by "Fair Use" provisions in U.S. copyright law, which allow
I he use of copyrighted material in certain circumstances, the potential court
hattie would most likely be decided by the size of each side's legal team-and
~iven the resources of Fox's parent News Corporation, the filmmaker had
little chance ofsuccess. 18
As this episode suggests, copyright has strayed a long way from its origilIal purpose, and Fair Use provisions cannot always be relied upon to protect
I he rights of cultural producers. So where does this leave piracy? Violations
(.1' an ethical/legal system can only be considered inappropriate if we believe
ill the principles and the efficacy of that system to begin with. Thus, if we
accept that copyright is a flawed system built around a specific political and
20
Movie.
I'COIIOlllic worldvil'w, dOl's Ihis 1I0( occasioll a l'I'lIpprlliNlllof' pirllll' I'l'productioll:) Giwll thl' hi~h viNihility of' CUIT('lIt Ilt'halt's al'OI1I1I1 fil('-sharill~ ami
ui~ital 11' law, is it lIot tillle to cOllIplicatl' the COllllllOIl-S('lIS(' assulllptions
that int()J'Jll our llnuerstalluin~ of copyri~ht allu, in so uoin~, to open up a
series of vantage points on its opposite number-pi racy-which do not necessarily involve its reflex condemnation?
With this aim in mind, what follows is a series of critical readings of piracy from six different perspectives.
RETHINKING PIRACY: SIX CONCEPTUAL MODELS
Piracy as Theft
Let us begin with the most common understanding of piracy. As I have
outlined so far, IP regimes understand creativity to be a form of capital.
Copyright is the regulatory mechanism that oversees this property system,
ensuring that markets remain healthy and that levels of protection for IP
rights-holders are on a par with those extended to other property owners,
such as land owners or car owners. From this perspective, it is suggested,
copyright is something that should be not only defended but also legislatively boosted and pedagogically entrenched. Piracy, on the other hand, is
imagined as a parasitic act of social and economic deviance.
Writers such as Pat Choate and Paul Paradise are representative of this
conventional reading of piracy, which is in line with mainstream political and
legal thought throughout the West. 19 In the arena of film, this approach to
piracy is best exemplified by the aforementioned Motion Picture Association
of America. The MPAA's antipiracy activities have been the envy of other
sectors of the IP industries because they resulted, at least until the emergence of peer-to-peer (P2P) technologies, in the virtual eradication of largescale commercial movie piracy in the United States, Australia, Canada, and
most of Western Europe. No one has been more vocal in their denunciations
of piracy, nor more florid in their rhetoric, than the MPAA's former president Jack Valenti. A former aide to Lyndon Johnson, this powerful lobbyist
ran the MPAA from 1966 until 2004. He contributed significantly to several
landmark legal offensives, including the failed 1984 Sony Corp vs. Universal
City Studios ("the Betamax case"), which sought to stamp out the booming
home video industry, and the much-maligned Digital Millennium Copyright
Act in 1998.
Now deceased, Valenti was a legendary orator in his day. During Congressional hearings for the Betamax case, he famously quipped that "the VCR
is to the American film producer and the American public as the Boston
strangler is to the woman home alone." He regularly referred to piracy as
"a pandemic" that robs IP industries of what is rightfully theirs, and he was
~1
IIINOII"lllof'lIlallill~(lj'('quI'lItly IIIINUhNllllllllllt'd) l'OIIIlI'clioIlS hl'tWI'('1I piracy
opl'ratiolls alld t('ITorist ~I'OUPS illd\l(lill~ 1II'zhollah, IlallJas, the \HA, AI
Vlll'da, alld LashIHI-('-Toiha.'JCI
'I'hl' MPAA's war 011 piracy has sOIl~ht tOl'llIhl'd an ethics of copyright
III I hI' ~Iohctl milldset. In the past, M PAA ad campaigns have attempted to
1'111111(1'1' the widely held belief that piracy only harms the stock options of
"'lIdiolllO~llls by presenting the auuience with stories from Hollywood techIlIl'illllS and tradespeople regarding the threat posed to their livelihoods
h,V illq,!;al copying. MPAA competitions such as the "Xcellent Xtreme ChalIt'ngl''' offer OVDs and Hollywood studio trips to children who submit antipll'IH'y essays. The organization's Web site even promotes a cheerful "Copyright
1\111101" ~allle (www.copyrightkids.org) where children can familiarize themIll'l\'l'S with the virtues of IP by registering their own poems, paintings, and
t1rllwill~s t()I' protection. 21
Ilowever, much of the MPAA's rhetoric unravels upon closer inspection.
Stlliislics from the MPAA on piracy losses tend to defy the most basic te111'1101 of'economics because they are often based on calculations that presume
111111 jtll' each movie accessed illegally a legitimate version of the same film
~OI'S ullsold. This logic is fundamentally flawed, for it ignores the influence
lit pricin~ levels and distribution in media consumption. For example, legal
VIIS/VeO hire in Korea has traditionally been very cheap and accessible
Ihllllils to an extensive network of local family-run stores. 22 As a result, piIIII',V levels have been very low for much of the last few decades. In China,
hlI\\'l'V 1'1', where cinema admission and legal movie purchasing is much more
I'Xlll'lIsive in comparison to average wage levels, piracy is rampant. 2S
I'urthermore, reports of industry "losses" are usually based on gross
1'111111'1' than net figures and are necessarily suspect given that piracy's subter1IIIII'all and disreputable nature means attempts to quantify it are speculative
III Ill's!." I And even if such figures were reliable, the purported piracy boom of
11'1'1'111 years has as much to do with increasing amounts of everyday activity
Ill'III/!,' criminalized as with verifiable increases in illegal activities. As Majid
"III' argues, piracy statistics tend to function as self-fulfilling prophecies:
1:IIJigh figures put pressure on legislators to criminalize, and on enforce1III'nt agencies to police more rigorously; the tightening of copyright laws
/'l'IIduces more "copyright theft" as previously legal or tolerated uses are
prohibited, and the more intensive policing of "piracy" results in more seiwres; these in turn produce new estimates suggesting that the 'epidemic'
('( llitinues to grow unabated; which then legitimates industry calls for even
lIIore vigorous action. 25
I,i1\!' the music industry's campaigns against illegal downloading, the film
Illdustry's war on piracy is in many senses a public relations exercise aimed
MOYi••
TIl••IX ....,."IIIY
lit n'illlill'l'illg a d('li'n'lltialn'llItiollship to copYl'ight at th(' I('wl oj' (,wl'yday
COllsumptioll alld showillg til(' "vulll('rahl(''' sid(' of a profitahl(' alld quasioligopolistic illdustry. Ilow('v('r, this rhetoric is somewhat disillgenuous, fi)r
piracy is still above all a filrm of tiltll ('onsumption, and this consumption can
often be made profitable for the studios in other ways. As Toby Miller has
argued, piracy breeds a "Hollywood habit," familiarizing global audiences
with American product and softening up markets for future exploitation. 26 It
also adds value to prenegotiated product placement deals, increasing revenue
streams via the back door. Finally, it is worth recalling that digital piracy is
actually Hollywood's own digital Frankenstein: Not only is it a side-effect
of technology developed by the major studios, but it is also made possible in
many cases by DVD preview discs secretly copied by u.s. technicians during
postproduction-and even, in one memorable case, by an Academy of Motion Picture Arts and Sciences member. 27
Let us move now to another perspective on piracy, one that sees copying
as a potential business model rather than a form of deviant behavior.
lItlivity, lilt· ris(' oj'digital t('ChIlOlo!J;.Y, 1l('W It'v('ls oj'('(l/IlIIl('ITial autollomy ti)r
('Idllt's(' husillesses, alld th(' h'chllOlo!J;IZlItloll Ot'lllliSS production practices. In
11Il'!, Warller Bros' Chill('s(' op('rlltioll chos(' as its first hOllle video liccnsee a
wc,II-I(llowll piracy outfit (th(' Xianlw t:ompally), which makes a mockery of
11H' MI'AA's moralistic IP rhetoric. 2 !1 My poillt here is that piracy is still a lu11'111 iw filrm of business, that wealth is still created and exchanged-it's just
flillt th(' distribution of this wealth takes a ditlerent form.
'I'h(' recent history of DVD technology offers another example. ConsumI'I',~ shopping fc)r new DVD players are often faced with an interesting choice.
( )111' call huy an expensive brandname unit loaded with all the irritating antilopyillg mechanisms that make life difficult (region coding, Macrovision,
lOpy protection, and so on). Or, for half the price, one can choose a generic
111'111111 that will allow you to play what you want, where you want, when you
WIIIII -fill', in many cases, the manufacturers of these units are not part of
\'1'1'1 ically integrated audiovisual empires and have little to gain from the
I'll t I'll time and expense that is required to install copy-prevention technolnv.,v ill their players. 3o
Piracy as Free Enterprise
While several of the alternative approaches to piracy that I outline here
involve a critique of capitalism, one does not. This perspective--what we
might call the extreme laissez-faire model-reads piracy as the purest form
of free enterprise. Unimpeded by restrictive legislation and monopolistic
market structures, piracy from this vantage point can be appreciated as a
flourishing of commercial activity catering directly to market needs.
For example, certain economists have argued that greater economic efficiency can be achieved in a liberalized regulatory environment where the
reduced returns to copyright holders would be offset by the productivity
gains arising from lower prices and wider availability of cultural goods. 28
A recent editorial in The Economist (July 2, 2005)-which is hardly a bastion
of anticapitalist sentiment--even suggested that copyright terms should be
stripped back to 14-28 years in order to boost innovation. In other words,
a persuasive argument can be made on economic grounds alone that strong
copyright is undesirable. Indeed, if we push this argument to its logical limit,
it becomes possible to read piracy as the quintessential form of free enterprise. This view suggests that the two competing objectives that copyright
seeks to balance--collective progress and individual profit-are in fact collapsible into a brave new world of unbounded capital and information exchange.
Contemporary China provides an excellent example of these contradictions.
The nation's thriving pirate economy is often represented as the Mr. Hyde
to global capitalism's Dr. Jekyll, but it is more than this. In many ways, piracy
is a side-effect of the boom in "legitimate" enterprise that has followed China's
accession to the WTO, as it is based upon factors such as increased consumer
11('n' we have two competing models of capitalism: on the one hand, an oli."opolistic, vertically integrated, top-heavy capitalism that perpetuates itself
flll'!lIlg11 collusion with the state via technical standards, trade deals, copy1'1v."1 I'cgimes, and so on; and, on the other, a less formal, often extra-legal
\'III'il'ly of enterprise that operates between the cracks in existing economic
_II'III'lurcs and frequently outstrips its legally sanctioned counterpart in efIItll'llt·y, speed, and flexibility. This second model resembles what film theo1I~t.~ ('huck Kleinhans and Darrel Davis refer to as "cockroach capitalism."31
TillS is an apt metaphor: cockroaches, like pirates, tend to live in cracks and
01111'1' dark spaces; they move fast and multiply quickly; they feast on what1'\'1'1' scraps are available; and they are extremely difficult to squash.
( )wr the years Sony has evolved from cockroach status to pest-killer. Dur1I1~, IIH' afi)rementioned Betamax case, the Japanese electronics giant was still
11I1'v.I,ly a hardware manufacturer and was thus on the receiving end of the
~ 11'1\ 1\' s anti-home video offensive. It was portrayed by the studios as a rogue
1llIIIPOIllY trying to erode copyright protection and destabilize the industry.
1'\\0 d('cades later, Sony is now in the opposite position. Its recent attempt to
_lIol'!' lip IP protection in the face of cockroach competition involved conceal11lf', spyware and data-collection utilities in the copy-protection software on
~IIII,V BMG CDs-a sneaky strategy that became a public relations disaster. 32
TIH' laissez-faire approach to piracy is gaining traction as the P2P revolilt \011 l()rces the culture industries to develop business models based around
11'\1'1111(' sources other than box office admission and record sales. It has precl'dl'lIls in other informal economies. One example is the adult industry-a
l4 !I'V wne that remains one of the more profitable sectors of the entertainment
11I11I'11I,t even though piracy levels may run at up to 85 percent. 33 However,
MOYle.
"'e SI" ..... Of PINev
rlltl)('r thllll 1H'1l101lIlill~ thl' loss 01' tlH'ir 1'IistollH'rs astutl' porll dislrihutors
accept piracy as a ~iVl'1l alld huild this illto tl)('ir husilll'sS lIIodl'ls. As the
CEO of adult distrihutor Nectar Elltl'rtailllllellt has COllllllentetl, "If somcone's stealing my stun; I sec it as great PH and ~reat marketing,"'%
Whereas Valenti sought to damn piracy through t1iscursive connections
to porn and the criminal underworld, the laissez-faire brigade might notice something more productive in this connection. Such is the logic of the
shadow economies. However, this fact reminds us that piracy is always more
than an ethical issue--it is at the same time economic, social, and, as we shall
now see, political.
whllt shollid ri~httilily hl'lollg to liS 1111 thl' lilH'ratill~ potl'ntial of' di~ital
te'l'hllology.
Ilowever, it is Lessi~, a fiJl'IIII'r Youn~ Hepuhlican turned Stanf()rd law
profi'ssor anu free-speech activist, who is the 1II0st prominent figure in this
~rollp. Lessig is the man hehinu Creative Commons, an easy-to-use alterIIl1t iVl' to copyright that has been attracting considerable attention within
1'I'('lItive industries circles. Sf; Creative Commons operates on a "some rights
I'l's('rveu" principle. Artists who license a work under the Creative Commons
~'ystl'lII may still benefit financially from copyright protection, but they also
V;iVl' permission for the work to be used creatively by others (as samples, as
~olll"('e code, and so on) or for nonprofit purposes.
J,essig's influential books The Future ofIdeas and Free Culture have become
hihles for the online libertarian movement. The latter is grounded in the
IIlfill'lllation-wants-to-be-free rhetoric of cyberpunk. It argues that important
fiJl'llls of cultural production are under threat from the "copyright warriors"
whose restrictive IP laws are in fact harming free enterprise. In Lessig's words,
Piracy as Free Speech
Arguably the most effective critiques of current copyright regimes have
been coming from a group of vocal, tech-savvy American liberals. Often
affiliated with the open-source movement and such bastions of "technolibertarianism" as Wired magazine and the Electronic Frontier Foundation,
writers including Lawrence Lessig, Siva Vaidhyanathan, Michael Strangelove, and 1. D. Lasica have published popular critiques of copyright culture
over the last few years, helping to give the issue a degree of public visibility.55
They argue that copyright's intended balance between free speech and the
free market is increasingly favoring the latter over the former: Consumer
rights are being compromised, and the future of innovation is under threat.
Furthermore, these writers-and many others-feel that the piracy issue is
inextricably linked to the right offree speech.
The sympathies of Lessig and his contemporaries tend to lie with consumers and "creatives," They are concerned, on the one hand, with the harsh
penalties that P2P downloading attracts, with our inability to legally transfer data between different pieces of hardware, with the bugs and spyware
that jam up our computers, with the monopolistic practices of Microsoft, and
with other user-related issues. At the same time, they seek a way through
the copyright minefield for directors, writers, musicians, DJs, animators, and,
above all, software developers, via legal recognition of appropriative cut 'n
paste techniques as legitimate forms of expression.
In his book Copyrights and Copywrongs, Vaidhyanathan analyzes the history
of copyright as it has applied to literature, film, music, and software, arguing
that the current hard-lockdown phase of IP regulation is stifling creativity.
He proposes a system of "thin protection" as the best way to ensure the fair
compensation of creatives while still fostering a culture of innovation and
freedom of information. Strangelove takes a more anarchic approach in his
study The Empire if Mind, lamenting the Internet's devolution from a space
of culture-jamming and activism into a commercialized sphere ruled by IP
autocrats. For Strangelove, piracy is a progressive act designed to take back
Overregulation stifles creativity. It smothers innovation. It gives dinosaurs a veto over the future. It wastes the extraordinary opportunity for a
democratic creativity that digital technology enables. S7
The sentiment expressed here is libertarian in that, like the laissez-faire
(' x tr('mists referred to earlier, Lessig sees state regulation as a threat. His
argument valorizes innovation for its own sake; it is a reformist position that
S('('l\s a softening of certain aspects of the existing IP regime rather than
Ihe wholesale overthrow of the political and economic systems of which it is
II component. Lessig is very clear about this, insisting at one point that his
"'lIessage is absolutely not antimarket,"S8
Although Lessig notes that piracy has been a constitutive feature of the
l'Olltent industries since the invention of mass communication technologies,
hI' shies away from celebrating piracy per se. In fact, he declares on many oc('asions his opposition to "theft," drawing a line in the sand between acceptable
pi racy (cut 'n paste cultural production, culture jamming, remix culture) and
stealing. But as Kativa Philip correctly notes, there is something a little U.S.!
Euro-centric about this argument, given that many of the "bad" pirates Lessig
has in mind are "foreign" in origin, or at least are constructed as such. This is
a point to which we will return shortly. But in the meantime, let us consider a
lillirth reading of piracy, this time from the vantage point of cultural theory.
Piracy as Authorship
While the readings of piracy offered so far have revolved around material
issues of access and economy, it is possible to approach the phenomenon from
26
MoYie.
othl'l' pel'spl,ctivl'S as Wl'll. 1'0stlllOdl'l'lI tll('ol'y, lill' IlIstlllll'I', has critiqul~d
11' law hy attaellilt~ a COIICl'pt at tIll' Vl'l'y Il('al't of thl' disl'ouI'SI': t1utlwrship.
Jacques Derrida, Michel Foucault, alld Holalld Bal'thes, allloll~ others, have
all oflcred trenchant critiques of such concq>ts as ori~illality, illnovation, and
expression, revealing the ways in which these common-sense notions are in
fact saddled with all kinds of historical and ideological baggage.~H By pushing
some of these ideas to their logical limit, it may even be possible to appreciate
piracy as a form of cultural production in its own right.
However, before examining the postmodern critique of copyright let us
consider how the legal frameworks around IP define originality. Copyright
law makes a distinction between an idea and its expression. While ideas cannot
be copyrighted, their expressions, in the form of films, books, poems, songs,
and so forth, can be. This distinction presents several problems. First, the
line between an idea and an expression is often a rather arbitrary one. 40 Second, it has also been argued that the definition of authorship that is codified
in copyright law is tipped in favor of those types of cultural production that
are commodifiable (and thus marketable and saleable) and that are "fixed" in
certain types of recognized sign systems, such as written language or musical notation. Many other forms of cultural production are excluded from "
copyright's scope-for example, oral texts and traditions, physical forms of I
dance and theatre, and community-based knowledge and information. 41 So,
in effect, the kind of authorship privileged by copyright and IP discourse
frequently functions as a
gate that tends disproportionately to favor the developed countries' contribution to world science and culture. Curare, batik, myths, and the dance
"lambada" flow out of developing countries, unprotected by IP rights, while
Prozac, Levis, Grisham and the movie Lambada! flow in. 42
As a result, copyright tends to privilege those forms of cultural production
in which Western cultural industries specialize. This is no accident; on the
contrary, it accurately reflects the historical, social, and cultural specificities
that have shaped the Euro-American legal traditions upon which copyright
is founded.
Copyright also tends to erect boundaries between "legitimate" and "illegitimate" cultural activity. What passes for originality or appropriation,
as opposed to theft or forgery, is in most cases determined by IP law rather ,
than any universal standards of creative conduct. Some interesting examples
of these tensions can be found in postmodern art of the 1980s. The American
artist and provocateur Jeff Koons was famously sued for producing a sculpture
(StringcifPuppies, 1988) based on a kitsch postcard image. His contemporary ,
Sherrie Levine rephotographed the Depression-era images of Walker Evans \
and exhibited them under her own name, while the video artist Douglas
Th. IIlx ..... ., Plflev
27
C'"Ie1lll SI'I'I'I'llI'd a slowed-dow II Vl'I'SIOII 01' I Itt eIIl'oell'S I'.~vdw (I DUO) alld
lillll'd 11 '.N Ilou/' I'.~vdw (I !J!):I). All thi'S\' wodls WI'I'I' at tl'lllptill~ to lIlalw illt1'1Il'1l1l1t poillts ahout what collstitull's all "ol'i~illal" art wol'11 alld to hi~hli~ht
llw hlind spots of copYl'i~ht law, which ofll-I's Illalty artists little more in the
WIt,Y 01' protectioll than the easy puhlicity of a ready-made scandal.
A lillltous attack on conventional notions of authorship was mounted in the
htll' IIltHls hy the French semiotician and cultural theorist Roland Barthes,
W"O~I' I'allonical essay "The death of the author" is one of the key texts of
111I • IIIIOdl'I'1I theory. Arguing, among other things, that "it is language which
"1'1,ltlls, lIot the author," Barthes seeks to cut the text loose from the anchors
11I'II"icll'd hy what we understand as authorship. Instead, Barthes sees creativUy IIl1t as the unique expression of an artist's subjectivity but as the selection
illlell'lIllthillation of fragments of already-existing discourse:
WI' IlItow now that a text is not a line of words releasing a single "theologi1111" nll'aning (the "message" of the Author-God) but a multi-dimensional
in which a variety of writings, none of them original, blend and clash.
'1'1", (c'x t is a tissue of quotations drawn from the innumerable centres of
lulllll'l', ..
IT]lle writer can only imitate a gesture that is always anterior, never
1I1'lgilla!. I lis only power is to mix writings, to counter the ones with the
lit 1",l's, ill such a way as never to rest on anyone of them. 4S
.""I'C'
Tlli,s Illodel of authorship has significant implications for the categories of
1I1'1v,tnali ty, innovation, and authenticity upon which copyright law is founded.
II, liS Ill(' saying goes, there is nothing new under the sun, and the role of the
IIl'lls' III' writer is simply to rearrange existing discourse in new combinaIhltlS, tlll'lI what makes a pirate any different from an artist? Only the fact
fliitl till' pirate rests too longon one particular site, resisting copyright's call to
11111\'1' 1I11111g in a timely fashion.
Nil\\!, this argument may work at a theoretical level, but how useful is it
WIIl'11 applied to today's mediascape? Well, recall the famous Apple slogan
"tip, IlIix, burn," which explicitly situates creativity at the point of reproIhlt t11111, Or consider the form of originality valued in DJ culture and how
lhl. elitli'l's from the modernist model of the self-contained, unified art work.
1'111111 111'1'1' we are only a small step away from the interpretation of piracy as
ill 11'lit iVl' act in its own right.
I'lll.s argument is especially pertinent to film, a profoundly collaborative
tlll'dllllll which is subject to an array of value-adding processes in its voyage
1111111 sludio to consumer-processes that have traditionally swallowed up
II", 1"III's share of a film's revenues (distributors retain upwards of 80% of
hllllll' "ideo takings, for exampler-and that at the level of narrative and style
1l1'll'lI'lItly involve slight variations on a handful of well-worn themes anyway.
The Ilx PIO.. Of Plnev
MOVie.
Tallillg all tllis illto an'olillt, call WI' I'l'ally claim that it is thc l'Opyright
holder who is the SOIl' "author" of a fihni '
Piracy as Resistance
While film industry lobbyists decry piracy, postmodernists read it as an
intrinsic component of authorship, and the IT community sees it as either
a necessary evil or a potential business model, others have read piracy as
a form of subversion. Numerous studies by progressive cultural critics and
Marxist political economists have drawn our attention to issues of ownership, power, and resistance within the media industries. Rather than being
the creative expressions of their copyright holders, films are understood differently within this tradition-as "commodities whose value is derived from
the labour that makes them."45 Seen from this perspective, copyright is a legal
institution that converts information and labor into capital for the benefit of
a small coterie of multinational corporations. Thus, piracy-as a rejection of
this economic order-has a certain political value.
Some of this may sound similar to the libertarian readings discussed earlier. Key differences exist, however. Unlike Lessig, many political economists
are decidedly "antimarket." They consider the media to be a system of control and exploitation that operates in the service of capitalism. Furthermore,
they insist on the importance of class, whether in reference to the IP-rich
capitalist barons or the workers whose surplus value they extract.
For example, Ronald Bettig's authoritative 1996 study Copyrighting Culture argues that copyright represents a strategy of property regulation and
market colonization. He provides a detailed history of copyright law, highlighting the "essential connection between the rise of capitalism, the extension of commodity relations into literary and artistic domains, and the
emergence of the printing press."46 He notes how the U.S. government, in
close consultation with industry bodies like the MPAA, has institutionalized
copyright culture globally through such means as trade sanctions against
recalcitrant nations, FTAs with built-in IP boosters, multilateral initiatives
such as GATT and the WTO, and increased infringement penalties and enforcement efforts. 47 For Bettig, pirate circuits are spheres of commercial activity that have yet to be "recolonized" by transnational audiovisual empires.
Bettig thus implicitly positions piracy as a practice that, in its obstruction of
capitalist domination, represents a form of resistance.
A similar argument is posed by Toby Miller and others who, in their influential book Global Hollywood, opened up a new area of class analysis within
media studies by exploring the political economy of film labor, Their interpretation considers not only the creative talent but also the "be1ow-the-line"
workers who paint the sets and drive the delivery vans. They argue that
intellectual property laws are one of the key enablers of the major studios'
%9
1''IploitatiVl' pral'licl's: "11"s trallslill'llIlItioll of IllIowh'dgl' illto property tl'aIlltllllllllly prioritizes oWlll'rship OVl'r UNI', ITl'lItms OVl'r audiences and pro.1111'1 iOIl over reception,"'" Global JJII/~V7(l1iIid lists numerous examples of
IlI'lIvy-lwnded II' "cnfi)rccnwnt," such as Disney's lawsuit against a Florida
_rlto;)1 over thc copyrighted cartoon charactcrs paintcd on its buildings.
'I'lle'y arguc convincingly that thc MPAA's war on piracy is about markets
1'1I111e'1' than morals: In their eyes, IP law is a "strategic weapon" used to
"llIhl'icate international exhibition and open up new areas of information
1II1I1Iagl'ment."Hl Here, as in the work of Bettig, piracy is implicitly valorized
IIII' its challenge to Hollywood's hegemonic "new international division of
rlllilirallabor."
TIll' Ilong Kong-based film theorist Laikwan Pang puts forward an extll'lIll' version of this argument in her recent book Cultural Control and Glo/J1I11~lIlion in Asia. In what often amounts to a romanticization of piracy, Pang
"ltl'llipts to theorize pirate media "as a critical interrogation of today's inh'l'lIational cultural politics."50 She argues that Hollywood pilfers content
(_I,Yit's, stars, and so on) from Asian cinemas while hypocritically waging
,hl'lol'ical war against the East on the grounds of copyright infringement,
1"01' "allg, the only difference between the two forms of piracy is the techni1111 Issue of legality, which is itself defined according to legal structures that
111\'111' IIollywood.
Ilowever, Pang's totalizing rhetoric-and the propiracy argument in
1(1'1I1'l'al-can tend to obscure more than it reveals, There is little point
1''IlIllillg all pirates as subversive agents, just as there is little to be gained
1t'1I111 hlindly damning Hollywood and all it represents. We should not only
Ill' I hinking of piracy in terms of theft and resistance, of right and wrong;
WI' also need to start thinking about what it can do for communities across
tile' glohe by assessing its social, cultural, and economic effects as well as its
1I1l11'ai implications.
WI' need to think in terms of access.
Piracy as Access
Hl'cent work from postcolonial, legal, and development studies has offered
1lIllIpelling, new interpretation of piracy, one that is concerned less with its
l'llill's than with its potential. This approach is interested in the transformaIIII' aspects of piracy-in piracy's capacity to disseminate culture, knowl.'dgl', and capital. It interrogates the relationship between technology and
dl'II'lopment, asking not "whose property?" but "whose future?"
I':arlier on, I referred to the familiar cast of characters that populate the
d,'hall's around piracy: the teenage file-sharer, the struggling cultural produl't'I', the corporate bigwig, the pirate-terrorist syndicates, and so on. Missill!', from this picture are those forms of everyday piracy that take place in
II
The 81. "0" of Plraev
Movl••
_It'1I1 dl'Ctl'icity Ill'l'ause no "ot'lil'illl" soun'l'S l'xis!. I\l'col'dillg to Liang. the
thl' dl'vl'loping world, For instann', IIHIII,Y l'olllllilinitil's an'n't illdlldl'd ill the
killd of Marxist 01' 1illl'I'tal'ianl'ritiqlll's olitlilll'd pl'l'viously Ill'("IIIS1' tht,y may
not belong to a worl<ing class pl'l' Sl', 1I11ICh less the cl'e(ltive class to whom
Lessig addresses his arguments, Political economy's binary division between
owners and workers has less to otiCI' those who exist beyond the boundaries
of the latter category and who may indeed have something to gain from the
technological modernity of pirate media.
In a compelling essay, the feminist/postcolonial theorist Kativa Philip un- ,
packs some of these issues. Drawing on the work of Michel Foucault, Philip
invites us to reconsider the familiar narrative of "technological authorship"
from the perspective of "sites in the global south which are perceived, in
the liberal democratic discourse of development stages, to be mired in the
'not yet.'''
"P0I'OIlS legalities" that characterize Iiti.' in nllll'h of the developing world
III1IY Ill' till' only routes through which contact with the modernity that the
WI:NI talH's tell' granted may be realiZl'd. Piracy is theretelre not solely about
11Iol'lIlity, freedom, or even resistance; it's also about "ways through which
I".ople' ordinarily left: out of the imagination of modernity, technology and
IIIl' global economy [find] ways of inserting themselves into these net-
WllrI, S."f,'2
What does it mean that, at the very historical moment that technological
authorship seems to become widely accessible, the law marks off certain
authorial spaces as transgressive? What difference does it make that a particular kind of ripping off happens on the margins of the industrialized
world, among the "less developed" members of the WTO, at the apparent
edges of the reach of western liberal democratic law, where the lines between authentic original and corrupted copy are being blurred by street
vendors and high-tech entrepreneurs?51
Philip thus suggests that the libertarian reading of piracy exemplified
by Lessig uses the type of commercial piracy practiced in Asia as a kind of
black sheep against which the free-software movement can define itself In
other words, she argues that the war on piracy is also about the struggle for
authority and power on the global stage. In this geopolitical arm wrestle,
"copying" has a double meaning: On the one hand, Asia is encouraged to
imitate the West by replicating its political and economic systems and by
promoting responsible digital citizenship; but on the other hand, alternative forms of "copying" (pirate reproduction) are strictly forbidden. Such an
argument pushes debates around piracy into a whole new territory. By connecting everyday piracy to development and global politics, Philip makes a
compelling case for taking piracy seriously as a route to social, economic, and
political change.
One of the inspirations of Philip's critique is Lawrence Liang, a legal
scholar based at Bangalore's Alternative Law Forum (www.altlawforum.
org) whose work has also been influential in this debate. In the essay "Porous
Legalities and Avenues of Participation," Liang develops this argument by
emphasizing the fact that legality itself is a relative concept. He notes that
millions of Indians live in a state of illegality every day of their lives, forced
by socioeconomic circumstances to bribe officials for essential services or to
31
i
1\ third and final writer who has been able to give some experiential detail
III till'sl' arguments is the Indian new media theorist Ravi Sundaram. In the
llb~lIl'bing essay "Recycling Modernity: Pirate Electronic Cultures in India,"
I'lllndaram defines "recycled pirate modernity" as an urbanized, everyday,
'1IIIIIt'gal sphere characterized by speedy, small-scale practices of circulation
("lit 111'1' than production). This is a culture of cassette-based music trade, DIY
IIIIlIpliter networks, cheap mobile phone repairs, and pirate VHS/VCD movh'~; a "world of informal technological knowledge existing in most parts of
Illdia, where those excluded from the upper-caste, English-speaking bastions
III lilt, cyber-elite learn their tools."53 Sundaram's "recycled modernity" is a
_I.t 1)1' practices that conform neither to the boosterist hype of economists
(India as a brave new world of service-sector innovation) nor to Marxist
Inllde,ls of economic imperialism (India as a source of cheap labor and an
1III.1"I'( of exploitation). It is founded upon a variety of piracy that is not by
.I"'inition oppositional or countercultural and has little in common with the
Ililld III' cut 'n paste postmodernity fetishized by Western academics. Instead,
Mlindaram presents recycled modernity as "a strategy of both survival and
Innovation on terms entirely outside the current debates on the structure
lind imagination of the net and techno-culture in general."54
These three theorists alert us to the fact that there is a great deal at stake
In dl'bates around piracy, more than just the revenues of Hollywood studios
lind t he leisure options of metropolitan elites. They help us to see that con_111111'1' rights issues, important though they are, tend to pale in comparison to
piracy's potential as a productive force. As a form of information distribution,
pll'i1l'y has made a plethora of new social practices possible: grass-roots organl/at ion through pirated spreadsheet software, photocopied technical manuIlls, bootleg copies of banned novels, online activism facilitated by cheap IBM
I'I' 11Ilock-offs, new forms of youth culture based around illegally procured
1'1 )s and tapes, and so on. In other words, piracy is a distributive technology-it
"Ilables ideas, knowledge, and cultural production to circulate in and through
~Ill'il'ly-and should be recognized as such.
Film is particularly important in this regard. As the most prestigious
III (hI' culture industries (if no longer the most profitable), cinema is still
1111 l'lltlrmously influential educative technology. It teaches us how to think
IIl1d It'el; it offers pleasures of immeasurable power and value. This is why
Th. Six IfitWIfPlfUV
thl' issu(' of filrn distrihution is liS importllnt liS an'l'SS to sof'twllJ"(' Or hoo!{s.
Pirlltl' circuits disseminllte all llinds of media, li'on) Ilollywood bloddlusters
to more localized I(lrms of cultural production. 1\ prime t~xample of this can
be found in Nigeria's enormously successful video-film industry. Sometimes
dubbed "Nollywood," this networl{ of producers and distributors pumps out
hundreds of films a year, none of which get shown in cinemas (most cinemas
in Nigeria have shut down or been turned into churches). Instead, films are
shot quickly on video or on digital and distributed cheaply on VHS and ven
Operating completely outside conventional channels of film production, distribution, and exhibition, Nollywood has become the country's most vibrant
form of popular culture, not to mention a booming economic force in its own
right. It has its own star system and a rising international profile. But the
keys to its success have been low production overheads and efficient distribution networks that, as the anthropologist Brian Larkin has documented,
evolvedfrom pre-existingpirate circuits radiating out from the city of Kano, circuits that had previously moved bootleg Indian and American movies around
the country and into neighboring nations. 55
This is a powerful example of the productivity of piracy-of how illegal
film distribution cannot only redistribute existing content according to market demand but also open up a space for whole new industries, new economies, new forms of cultural production, and new possibilities of change and
survival. 56
CONCLUSION
Bearing in mind the maxim that those who engage in crystal-ball gazing
end up eating crushed glass, I would like to conclude by offering some tentative speculations as to the immediate future of the war on piracy. It seems
likely that the protections offered to rights-holders by global IP law are unlikely to be diluted in any meaningful way in the short term, notwithstanding the odd reprieve for early-adopting Western consumers. IP debates will,
however, become increasingly visible in public discourse and will continue
to function as a crossover issue for development NGOs (nongovernment
organizations), antiglobalization activists, technolibertarians and consumer
groups. As broadband penetration and technological literacy levels rise, digital piracy will flourish despite the obstacles that studio-funded digital rights
management (DRM) technology will place in its way. In the wake ofiTunes,
digital technology will present the entertainment industries with new distributive models, but it is likely that these will tend to favor the established
players or to replace old corporate giants with new ones. In other words, the
distribution bottleneck will continue to be the primary obstacle for both consumers and producers, even as our cultural industries become increasingly
complex and interconnected.
In highlighting piracy's produrtiw pOIt'lltilll, It,t nl(' J"('ilt'ratl' that I am not
1IIC1Iinting a moral ddl'ns(' of pil'llt'Y p('r S(', Pirllcy do('s indeed hurt (some)
IllrnlllalH'rs alld artists, but giwII th(' ('xtrt'mt'!y low rates of return otlt~red
to illtlt'pendent artists by most ('xisting Inarltet structures, which privilege
distrihutors over producers, it is worth taking all other alternatives seriously.
I II ot hl'r words, we should be open to the possibility that pirate distribution
ol't('11 functions as an enabling energy rather than-or as well as-a form of
,'('ollomic parasitism.
Thl' open-source movement is helping to show that profit and ethical inIClI'lnation management are not necessarily incompatible, but this alone is unhltt'!y to lead to progressive forms of copyright law. Instead, what is required
11\'('1' the medium to long term is a deeper interrogation of the very foundations
"pOll which our proprietary models onp are constructed. This is by nature an
IIllt'rdisciplinary project, one in which academics, filmmakers, programmers,
c'I'ononlists, lawyers, artists, consumers, and community groups may all find
II voice. After all, there is more at stake here than entertainment. Skirmishes
11\'('1' DVD ripping and music downloading are linked in important ways to
IIt·hatt's over affordable AIDS drugs, agribusiness patents, the "evergreening"
III' pharmaceuticals, and the future uses of the human genetic code.
1\101 the most visible tip of this IP iceberg, the piracy debate may well inf1uc'lll,(, outcomes in these related fields. For this reason, media scholars have
hilt h the opportunity and the obligation to become more involved with issues
Iii' distribution and to contribute in some small way to the debates taking
Illan' around one of the most pressing issues of our time.
NOTES
Many thanks to Kyle Weise, Polona Petek, Audrey Yue, Sean Cubitt, and Sun
IlIlIg fi)r generous feedback and assistance.
I, I)arrel William Davis, "Compact Generation: VCD Markets in Asia," Ristorz'It/Journal of Film, Radio and Television 23, no. 2 (2003): 165-76. Davis credits film
1IIt'orist Chuck Kleinhans with usage of this term.
'2, Philip Mattera, Off the Books: The Rise if the Underground Economy (London:
I'ltllo Press, 1985).
:1. "Anti-piracy," Motion Picture Association of America, http://www.mpaa.org/
I
IlIl'acy.asp.
'" "MPAA Asia/Pacific Piracy Fact Sheet," Motion Picture Association, http://
IIl1wmpaa.org/AsiaPacificPiracyFactSheet.pdf; LEK Consulting, "The Cost of Movie
I'lracy" (Singapore: Motion Picture Association, 2005),
:" Magz Osborne, "Pirates Find More Ways to Plunder," Variery, June 30,2003,21.
Ii, Kerry Seagrave, Piracy in the MotionPieture Industry (Jefferson, NC: MacFarland
'Ilitl Co., 2003); see also Jane M. Gaines, "Early Cinema's Heyday of Copying: The
1'00 Many Copies of L'arroseur arrose (The Waterer Watered)," Cultural Studies 20,
110,
:,1-3 (2006): 227-44.
Movie.
7, "( ilobal 'I'1ll'atl'iclll 1(('\'('1111(' 1(('IHllllul.~ ill 'Oli," 'I'hl' / /fJ/~v'll'(l/Jd 1I1'/'fJI'II'I; .JlIly '2[),
'2007, II, p,
H, Majid Yal', "'1'111' (;Iobal 'Epid('mic' of Movi(' 'Pil'acy': Cl'illl('-WaVt' or Social
COllstructionil" Mniia, Cullum and SOl'il!l;Y '27,110, [) ('20()[)): (j()7-1Hi.
9. See, fill' example, Honald V Bettig-, CopyriKhlinp; Culturl!: thl! Political El'onomy qflntellectual Property (Boulder: Westview Press, l1!9li); Laikwan Pang, Cultural Control and
Globalization in Asia: Copyright, Piracy, and Cinema (London: Houtledge, 2006); John
Frow, "Public Domain and the New World Order in Knowledge," Social Semiotics 10,
no. 2 (2000): 173-85; Lawrence Lessig, Free Culture: How Big Media Uses Technology and
the Law to Lock Down Culture and Control Creativity (New York: Penguin, 2004), and The
Future ifIdeas: the Fate ifthe Commons in a Connected World (New York: Random House,
2001); Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise if Intellectual Property ,
and How it Threatens Creativity (New York: New York University Press, 2001/2003).
10. Interestingly, the United States was not a party to the Berne Convention until
1989. Berne's moral rights (droit d'auteur) provisions were not recognized by the
United States-though some legal protections for creators can be found in other
areas of U.S. law-and were phased out in the final version of the GATT. This fact
is as a reminder that America's championing of unified global copyright regimes has
been rather selective in nature.
11. Frow, "Public Domain,"
12. See Bettig, Copyrighting Culture; Shujen Wang and Jonathan Zhu, "Mapping Film
Piracy in China," Theory, Culture and Society 20, no, 4 (2003): 97-125.
13. Frow, "Public Domain," 182.
14. See Katie Allen, "Musicians' Copyright Pleas Fall on Deaf Ears," The Guardian,
July 24, 2007, http://business.guardian.co.uk/story/0,,2133762,00.html.
15. Vaidhyanathan, Copyrights and Copywrongs. Lucas, on record as a strong defender
ofIP regimes, is nonetheless considerably more lenient than his contemporaries when
it comes to Star Wars fan activity, and his championing of digital technology has had
some positive implications for alternative models of film production and distribution.
16. "When Mr. Lee's film Malcolm X came out in 1992, he took some of his friends,
'muscle,' he calls them, to 125th Street with baseball bats to clean the bootleg copies otfthe street." Linda Lee, "Bootleg Videos: Piracy with a Camcorder," New York
Times, July 7, 1997, D1.
17. Toby Miller et aI, Global Hollywood 2 (London: British Film Institute, 2005).
18. Lessig, Free Culture.
19. Pat Choate, Hot Property: The Stealing if Ideas in an Age if Globalization (New
York: Knopf, 2005); Paul Paradise, Trademark Counterftiting, Product Piracy, and the
Billion Dollar Threat to the US Economy (Westport, Conn.: Quorum Books, 1999).
20. Miller et aI., Global Hollywood 2; Nitin Govil, "War in the Age of Pirate Reproduction," Sarai Reader 4 (2004): 378-83, http://www.sarai.net/publications/readers I .
21. 'Tipping Hollywood the Black Spot," The Economist, August 20, 2003; Govil.
22. The VCD (Video Compact Disc) format has an interesting history, though most
people outside Asia and certain parts of Africa and Latin America are oblivious to its
existence. Essentially, the VCD is a CD-rom containing a single MPG file that can be
played on standalone VCD players, often around the size of a Discman, as well as on
most DVD players and computers. They can store 74 minutes of audiovisual content,
Th. ISlx PIG. or PiNey
'I'
~1I1t
Ii 1I11'III1,~ Ihlll lwo 01' lhl'l'(' S('plll'lIlc' V( 'I)s 1II'('I'I'qllil'l'd Ii 1I11),~II('allll'l'IiIIlIS, alld
'lIltho 1111.1 vid('o of sli/l:hlly low(',' qllillily Ihall II VIIS cassl'lil', VCJ)s hav(' 110
"'1"111_, (Opy pl'otl'I'tioll, 01' 1'I'/l:iOll ('()dinK IlIvI'1I1('d ill thl' ('ady 11HlOs by Philips alld
""II.V, who ,~oOIl aballdoll('d lhl' till'mal, V( 'I) Il'chllolo/l:y W('lIt on to bl'coml' especially
t*'ltl,11I1' ill Asia (I'XCI'pt Japan) dllrillg- the mid- W110s, See l'idly 1111, "The VCD Experll'llll'," III .·/Silill Ml!dili Studil!s: Politil's qj',""u!!ju,tivitil!s, cds. John Erni and Siew Keng
(Mllld('II, Mass.: Blackwell, 200iJ), iJiJ-7'2; Davis, "Compact Generation," 173.
III "AMIII J'ij.\'hls Piracy with Gov't, Corporate Help," Variety, November 13, IWOO, 88.
.. Wllil/I: 1111.1 Zhll, "Mapping Film Piracy in China,"
III
"Till' (;Iobal 'Epidemic' of Movie 'Piracy,' " 690.
IW TlIl"Y Milll'r, "lIollywood 2010," address to the Centre for Screen Business, AusII'MIlIlIl J'ilrll, 'I'devision and Hadio School, May 2006, available at http://csb.aftrs.
,,'h"
"'"111
""I'.
""11 11111
17 «'Ill'llliru'
(~aridi,
who once played a cop on NYPD Blue, was investigated by the
~IH III 'JOIII, fill' copyright infringement. An Academy member (and thus an Academy
'\"'111 .1M .1".1/1:('), he had reportedly been selling his Oscar screener DVDs to a pirate optl11I01I1I S('(' I)aIHlY Birchall, "Thieves Like Us," Sight and Sound, October, 2000, 32-36.
_111111111 hlll,s bl'tween "official" film industries and the pirate underworld also exist in
I1tlll'l Itllllliril's: In Hong Kong it is widely known that producers sell finished copies
HIIIII'"l1wn films to piracy outfits in order to recoup tax-free profits. "The Triads and
IIl1l1g 1\1I11g- Film Industry," BBC World Service, April 2006, 22 minutes, http://
l4' '" \\' 1,111'.1'1',111, I worldservicelprogrammes/ramlglobalperspective/part4.ram.
Ifll 11l'lli/l:' ('opyrightingCulture, 103-6.
I" S.'" Slillj!'n Wang, Framing Piracy: Globalization and Film Distribution in Greater
I '~'"" (I ,II II halll, Mass.: Howman and Littlefield, 2003), 87; Douglas Clark, "IP Rights
1"lIh'III'"1 will Improve in China-Eventually," The China Business Review, Mayhml', ',!IIlIO, '2'2-29,
1111 «'hl'lIp Chinese VCD and DVD hardware is not entirely outside the established
1111 ~ of lransnational audiovisual industry capital as chip and component patent
IItljn~"'~ hav!' to be leased from the likes of Time Warner, Hitachi, Sony, and Philips.
Willi 1'" ",,"ninK Piracy, 51-53.
ft I I )IIV IS, "( ~ompact Generation."
Ihl 1\/111,,1' l't aI, Global Hollywood 2,246; "How Sony Became an Ugly Sister," The
"/Il"II'rt~ I hoI' 18, 2005, 6, Business section.
II"
1'llIs lig-lire is an estimate by Australia's Adult Industry Copyright Organisation
1.II1111t'd SI'I' http://www.aico.org.au/access-and thus is likely to be somewhat ex"1'111."1111,'.1; however, the fact that the porn market is subject to higher levels of piracy
Ihllil 1I11wr sectors of the entertainment industry is commonly accepted.
ill I )lIl1a Ilarris, "Porn Pirates Go Unpunished," Variety, January 24, 2005,8.
il~ I,,',.,ig-, Free Culture; Vaidhyanathan, Copyrights and Copywrongs; Michael
~111I1If',t'loVI', The Empire if Mind: Digital Piracy and the Anti-Capitalist Movement
( III, 111110: lIniversity of Toronto Press, 2005); 1. D. Lasica, Darknet: Hollywood's War
"~'"II\llhl' J)lgital Generation (Hoboken, NJ: J Wiley and Sons, 2005).
ill ~;"", 1(11" example, Tony Flew, "Creative Commons and the Creative Industries,"
\lflIt" ,111.1 Arts Law Review 10, no. 4 (2005), http://www.law.unimelb.edu.au/cmcl/
II 101 It • ""tl'nts 104.html; Brian Fitzgerald, "Creative Choices: Changes to the Cre-
t''''
"II.
Movie.
36
uliV!' ('OIlIlIlOI\S," IHl'lhll 11l11'nllllirJl/lil .·lllslmhll lllmr/'omllllg ('1111111'1' 1I11t! J'ohlY II'~
1','1'-1'1).
(~()()[,):
:'17.
Lessi~, /irff ('1I1I1II'f, UHJ .
Ibid., '2'27 .
.'39. This field of literary theory has been the subject of enormous debate acrOll8
several decades, and it is impossible to do any kind of justice to the argument here, I
However, the following texts are good places to begin: Roland Barthes, "The Death,1
of the Author," in Image-Music-Text, trans. Stephen Heath (London: Fontana, 1977),
142-49; Michel Foucault, "What is an Author?" in Language, Counter-Memory, practic~:'1
Selected Essays and Interviews, ed. Donald F Bouchard, trans. Donald F. Bouchard and,
Sherry Simon (Ithaca: Cornell University Press, 1977), 113-.'38; Jacques Derrida, "Limited inc abc," in Postmodernism: Critical Concepts, ed. Victor E. Taylor and Charles E.
Winquist (Evanston: Northwestern University Press, 1977/1998), 416-503.
40. Pang, Cultural Control and Globalization in Asia.
41. For an interesting discussion of the relationship between Western IP law and
Maori cultural production, see Barry Barclay, Mana Tuturu: Maori Treasures and Intel- i
lectual Property Rights (Auckland: Auckland University Press, 2006).
42. James Boyle, cited in Miller et aI., Global Hollywood 2, 2'24.
43. Barthes, "The Death of the Author," 143, 1 4 6 . \
44. For details on home video royalty structures, see Edward Jay Epstein, The Big'l
Picture: The New Logic ifMoney and Power in Hollywood (New York: Random House"l
2005); Janet Wasko, How Hollywood Works (London: Sage, 200.'3). For further informa-:j
tion on the cultural dimensions of film distribution, see Ramon Lobato, "Subcinema:,
Theorising Marginal Film Distribution," Limina: A Journal if Cultural and Historical1
Studies 13, http://www.limina.arts.uwa.edu.au/_data/ pagel 59120/Lobato.pdf.
45. Miller et aI., Global Hollywood 2,5 (emphasis added).
46. Bettig, Copyrighting Culture, 9.
47. This argument is especially pertinent at the present moment given the U.S.
government's ongoing attempts to combat piracy in China and to bring the PRC into,
the global IP fold.
48. Miller et aI., Global Hollywood 2, 226.
49. Ibid., 216.
50. Pang, Cultural Control and Globalization in Asia, 82.
51. Kativa Philip, "What is a Technological Author? The Pirate Function and Intellectual Property," Postcolonial Studies 8, no. 2 (2005): 207.
52. Lawrence Liang, "Porous Legalities and Avenues of Participation," Sarai Reader
5 (2005): 12, http://www.sarai.net/publications/readers/.
53. Ravi Sundaram, "Recycling Modernity: Pirate Electronic Cultures in India,"
Sarai Reader 1 (2001),9.'3, http://www.sarai.net/publications/readers/.
54. Ibid., 96.
55. Brian Larkin, "Degraded Images, Distorted Sounds: Nigerian Video and the Infrastructure of Piracy," Public Culture 16, no. 2 (2004): 289-314.
56. Ibid; Sean Cubitt, "Distribution and Media Flows," Cultural Politics 1, no. 2
(2005): 193-214.
.'11'.
I