No Safe Harbor: Questions Concerning Copyright

BRAD HALL

In my years with the United States Pirate Party, I have been interviewed by various news outlets and students doing papers on third parties for various classes. I always answer student questions whenever such an e-mail appears in my inbox. Below are a sampling of their questions and my responses to them. I hope these students all received A's for their effort. Also, I am a big anime/manga fan, and that definitely comes out in this series of questions and answers. While this essay was originally written in 2010 and has existed for some time on the main USPP website and elsewhere, this version is newly updated.

1. Do you personally acquire digital media through file sharing? Downloading copyrighted material breaks several laws, and it is not the Pirate Party’s goal to break the law, simply to bring the law’s perspective into the digital information age.

2. How would content producers profit, if their media is being provided free of charge? The easiest way would be advertising. The people who make the songs that are the most listened to and the most downloaded or whatever, would receive the larger share of the revenue pie. Of course, as a friend pointed out to me previously, “Okay, advertising. Where does that money come from? As they say, every action has an equal and opposite reaction. You’re funded with advertising, someone else lost that advertising dollar.”

While an advertising-supported model has its limits, there are several models that have worked well for several companies/people.

Anime Network and Crunchyroll both have a system in place where you can watch some anime for free. Then you can watch more and other anime for a price. The price ranges from $7 per month to a yearly pass of $70 per year. I have no idea how many subscribers they get at any price. They also host a few advertisements. I have no idea how many or how much money those generate. Presumably it’s enough to keep them in business.

Kodansha recently came up with an idea of releasing manga (Japanese comic books) as a series of iPod/iPhone apps. It's a great idea, but there is that one major hurdle to cross: Apple itself. Apple is the gatekeeper for everything that is sold on the iTunes Store. If Apple does not approve of something, it does not get sold.

Selling on Amazon's Kindle ebook store would be another possibility. The overhead is lower for an Internet-based store than it is for a brick-and-mortar store. Also, there would be no physical objects to ship, so manga created for distribution on a Kindle (or other ebook reader) could retail for a lower price.

There is a comic called Megatokyo (www.megatokyo.com). It’s an American comic done in a “manga style.” Usually every Monday, Wednesday, and Friday, one page is uploaded to the site. The comic has a pile of followers, including myself. The way the author monetizes it is by selling a “low bandwidth version” (book) and shirts and other things that pop up in the comic.

Every page that has ever been uploaded to the Megatokyo site is still there so anyone can go back and read the series from the beginning at any time. This is particularly helpful for new fans who want to join the story.

Though, the only way that would work with manga is if the original writers release it online the same way. Of course these pages would have to be translated into nearly every language that the fans speak to ensure they keep coming back to the primary site and not some third party site that offers the pages translated to their language.

The difference between Megatokyo and any other manga is Megatokyo was made from the beginning to be a webcomic. If you read today’s page and get frustrated and want to read the next page, or the next chapter, tough. You have to wait for the page along with everyone else. You can’t go to some website and download the entirety of the series.

While flipping through an issue of one of my favorite manga series, Loveless, I can find no t-shirts that Soubi or Ritsuka wear that make me say “Oooh! I want that shirt!” though, some weirdo fangirls might go for the cat ears or something. Maybe a messenger bag. Every series has a messenger bag. Or maybe make a tie-in MMO.

In Loveless, the villains meet up in Wisdom Resurrection, a fictional MMORPG that appears to be based on Final Fantasy XI. That’s where they hold some of their meetings. Maybe they could make an MMO based on that. Maybe take a cue from Turbine and make it free-to-play, but make money via micro-transactions.

Turbine is a company that makes video games. Two of their game series, Dungeons & Dragons Online and Lord of the Rings Online used to be MMORPGs (Massively Multiplayer Online Role Playing Games) that operated under a subscription model, for so much money per month, you could play. Starting in 2009 Turbine started making these games free-to-play. You could still pay a monthly fee to receive certain advantages such as the ability to carry more gold and items, but you could play the games, to their completion, without paying a cent if you wanted. Many new players flocked to the games.

The third idea is to create a Hulu-like site where everything is free and available from all the major manufacturers. Force people to watch an ad or read an ad or whatever for x number of pages viewed.

The other problem with manga is this: “What’s good?” If you walk into a Books-A-Million any day of the week, you will find a pile of manga titles. Manga isn’t like a “funny book” where you can pick up any issue and know what’s going on. There’s a story. If I picked up Loveless volume six and read it without having read the previous five volumes, I’d have no idea what was going on.

“Thanks grandma… Full Metal Alchemist volume 73… thanks… yes grandma, this is one of them Japanese manga comics.” Never mind the fact I hadn’t read volume 1-72.

With a manga, you have to read about 2 or 3 volumes to figure out what the story is. That’s a cost of around $30 and who knows how many weeks/months/years of waiting for new volume to come out. And even then? Who knows. With 8 volumes of Loveless, I have spent $80, if each volume costs $10.

For $80, I could buy every Stephen King book I’ve not read yet.

As of this writing, Naruto, the most popular manga series currently in circulation is up to volume 58. Each volume retails for $10, then the entire run would cost $580, and that's before taxes. What kind of person has that kind of disposable income?

I was happy when Shonen Jump was released in the US several years ago. Shonen Jump is a manga anthology, each issue contains several chapters of a few different manga in it. I bought a subscription and had it active for a few years. I started to care less and less about it once Sandland concluded. Then I let it lapse. I have no idea what’s in it now.

Like I said, they don’t make it easy for people to find a new manga to get into. Why spend money on a series you might hate when you can pop onto a website and read a few chapters of it, heck, why not read the whole thing? A coalition of comic book and manga publishers in the US and Japan has been pushing for litigation against at least 30 illegal scanlation websites.[1]

Scanlation is a portmanteau of “scan” and “translation” it refers to the act of obtaining the original (usually Japanese) language release of a manga (either by physically obtaining a copy or downloading a raw copy, a copy that is still in its original language).

Diehard fans translate their favorite series and release it on one of several popular scanlation websites. Manga isn't the only thing that can be scanlated, though, when it comes to anime, the word used is fansub.

Sure, one of the manga scanlation sites that’s under attack by the coalition is a Google Top 1000 website with page views that hover in the billions, but the questions are:

A. How much manga on that site is available commercially in the US? I talked to a friend of mine and found that he enjoyed a certain manga. Only nine volumes of that series were legitimately translated and released in the US, out of 20 volumes altogether. Then, for whatever reason, the US company that was legitimately translating and releasing it, canceled it. There are still 11 volumes unreleased in English. The friend went on to tell me how he read the rest of the series online as it was the only place that he could read the entire series. Oh, and that series had to be translated into English by a fan who enjoyed that series as well. I felt my friend's pain, as the company that had been releasing Loveless in the US decided to drop their license.

That’s just an example of something we used to have, but don’t have any more. What about the series that never came out here at all?

B. Would the people who read the manga online have bought it? This goes for the ones not released here as well as the ones that are. It’s the old question about downloading MP3s. Is it really “theft” if no physical item was removed?

Clearly there is a massive demand for easily obtainable manga and anime.

There are several authors who make pretty good money by releasing their material for free on their websites while also selling books. Cory Doctorow, an author (who also has an essay in this collection) does just that. By having the digital version of a book advertise for the printed version, it allows his work to spread further than it would have otherwise.

With today's print-on-demand companies, no one has to deal with a big publisher. This book you're reading right now, No Safe Harbor, was published as a free-to-download PDF. But, a print-on-demand version was also created. These POD companies print books as they are sold, so there is no warehouse to maintain a backlog of unsold books.

If we take that idea back to manga, it would be incredibly easy for a US or Japanese manga publisher to release content on a website for reading, and then have a system set up with a print-on-demand publisher to print only the copies of the full volume that are ordered by either bookstores or people. Of course, the thing that most likely stands in the way for such a system is rights and licensing of materials across several countries, hiring of translators, and other support people, as well as fear.

Fear?

Yes, fear. Most companies know how to make money doing what they are doing. They are afraid to try something new for fear that their house of cards could tumble down. They fear that which is new. Song writers feared player pianos, musicians feared radio, television broadcasters feared the VCR, music publishers feared Napster. It's a cycle of fear.

3. Why do you think piracy is illegal? The idea that sharing anything online is piracy is absurd. Actual piracy requires forceful and aggressive acts, committed against those who would keep a cargo safe from harm. The cargo in this case is the freedom to act. We would take it from those who jealously guard it for themselves and divide it amongst everyone in the country.

The Pirate Party wants to “raid” the law and “carry away” (repeal) laws which do not serve those on our metaphorical boat. The trick of it is: we’re all in the same boat. It is in service to those on our boat (the United States) that we aim to help.

We are not willing to accept that file sharing should be banned (and will take steps– once we have party members in office– to ensure that any laws in this regard are adamantly opposed, since technology isn’t the problem, but rather education about what its proper use is). On the other hand, we do agree that there is a significant amount of wrong being done to our rights in the name of protecting those whose sole aim for over 50 years has been the control and manipulation of human minds. Brainwashing our population is against our national interest in maintaining a democracy.

4. Should file sharers be punished? Should file sharers who sell the content for a profit be punished?: Back in the day, before the Internet. People would create “mix tapes” these were audio tapes that someone had painstakingly recorded a few songs from several vinyl records or other tapes to. Typically these were given to friends, not “friend” in the Internet sense, but friend in the local sense. You could really only physically hand these mix tapes to people you knew in person. These tapes were generally given as a kind of sampler, like a “this is the kind of music I’m in to, and I think you might dig it as well” kind of thing.

These tapes were given freely to people, and usually didn’t contain more than one or two songs by a particular artist. To the purveyors of mix tapes, these were not only seen as somewhat free advertising for artists, they were believed to be fair use (which is a tricky thing to actually prove), and then there’s the Audio Home Recording Act, which made the companies that created and sold blank audio tapes and tape deck recorders pay royalties to music writers and music publishers, whether or not the tapes were used to copy music. So right there, that was almost like the government saying it was legal to make mix tapes. (However, that does not make the old Napster or burning CDs on your computer legal).[2]

But, the second part of the question has to do with the selling of such content for profit. That is undeniably wrong. In November, 2010, I wrote a USPP newsletter item about a trip I made to the flea market. On this particular trip, I found a man selling obviously bootlegged DVDs on recordable media with the names of the films written on them with a Sharpie. That guy was breaking the law.[3]

He should be punished, as should other people who try to sell other people’s content for money. He is just as guilty as someone who would rent out the use of your car without you knowing, and without you receiving any of the proceeds thereof.

Okay, that’s probably a bad analogy, but it’s still not good.

As a counterpoint, I will say this: I have read that the only group who can use file sharing without problem is radio broadcasters as they do have to catalog each song and artist they play and pay royalties to the appropriate music writers and publishers organizations, so even if they download a song to play on the air, they’re still paying the original writer and publisher of the music.

A side note, notice I said nothing about the person who actually sings the song. Back when the royalty rates were first organized for these things, it was decreed that the song writer receive a portion and the song publisher receive a portion as the song itself was seen as an advertisement for the singer (and their band)’s albums. Of course, there are some songs that were written by the singer, so in that case the singer does get a royalty.

5. Do you think we can come up with a compromise to current file sharing laws? Before you can come up with a compromise to current file sharing laws, you first have to figure out the why. Why do people share files? There are a pile of reasons. One is money, we’re in a financial crisis. People are losing jobs left and right, the amount of disposable income people have is decreasing, yet the price of content is increasing rapidly.

A number of people believe that content should be free and easily accessible. One way for that to happen is through an advertising supported model. Several years ago, one such service, called Ruckus existed for several years. It was only open to people who could sign up with a .edu email address, ostensibly, college students. You could download songs, for free. New songs, and even older songs, were added all the time. It was great! I loved it.

There was a few problems though: while you could download songs to your computer and play them offline, you could not remove them from your computer or burn to a CD or transfer to your iPod or other music playing device. They were locked to your computer, and so were you if you wanted to play your music.

The song files also only had a life of 30 days, you had to log back into the Ruckus website and Ruckus Media Player in order to renew the license on the songs.

That was a problem I could live with. But, then one day in 2009, the party ended. Officially, Ruckus said the problem was “overcrowding” – clearly the demand was there for a free music service. Too much demand.

There are two more free music services that recently came online, Spotify and Pandora. I have not had enough time using those services to pass judgment on them.

6. Do you think the laws should adapt to evolving technology? Yes. The problem with the current laws of the United States is that the vast majority of them were written in the 1700s or had lobbyists and corporate interests in mind, and not the average citizen. The original term of copyright was 14 years, renewable to a further 14 years for a maximum of 28 years. Copyright now is “70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first” that’s not exactly a “limited time” while technically, it is, but for the vast majority of the people alive today, we will all be dead in 120 years, so to us, that’s not a limited time, that’s a lifetime, plus several years. I would love for copyright to return to its original 14-year term.[4]

7. If you were an artist, would you support free distribution of your content? Yes. I intend to release most, if not all material I have created under a Creative Commons license, like the one this book uses. However, several years ago, Prince released his latest album, not in stores, but in the newspaper. Anyone who bought a copy of “The Mail on Sunday” received a free copy of his latest album, Planet Earth. Also, he had concert dates for 21 days in London that completely sold out, most likely due to his free CD advertising.

While this is a different kind of “sharing” than the kind the Internet is blamed for, the principle is the same: Would any of the people who received the free album bought it before? Would they have gone to Prince's show too?

8. Do you believe piracy is stealing? I believe I mentioned it previously, but, everyone who pirates an album, would they have bought that album had the pirated version not been available to them? I think not, at least not in every sense.

Downloading an album is different than walking into Best Buy or where ever, grabbing a CD, and walking out of a store without paying for it.

When you download an album, you’re just making a digital copy of it. Nothing has been removed. The original copy of that digital file is still on whatever computer it originally came from.

But when you go into a store and walk out without paying for the CD hidden in your jacket pocket, that is stealing. The retail industry has a word for it, “shrink” as in “shrinking profits” – it might take a while before the store realizes the CD has been stolen. As long as their computers say they still have one copy of an album on the shelves, they will not order more as they believe they still have one in stock. In this way, stealing one album could in turn lead to further lost sales than just one CD.

9. Who benefits the most from piracy? In the long run, no one benefits from piracy. Let’s say you like Band X, you download all of their albums, you give your friends copies of those copies, and those copies propagate exponentially. On one hand, Band X now has a pile of fans, every band wants a pile of fans, right? But, on the other hand, now that you and a pile of friends you’ve never met have copies of Band X’s albums (for free, mind you), Band X is showing that they haven’t sold many albums because you and your “friends” have downloaded them. Why would Band X make more music when they don’t make any money from it? What record label would allow a band that doesn’t make money to release more albums? In the end, the record label decides not to renew their contract.

However, on the other side of the coin, the band now has many fans. These fans could channel their love of the band into ticket sales for a live tour. Several years ago the British band Radiohead left their record label, EMI, and proceeded to record a new album. Instead of releasing it as a CD, the band decided instead to release it on the internet using a “pay what you want” pricing structure. You could pay nothing for it, or you could pay a penny, or you could pay considerably more. The band went on record as saying they had made more money on the sales of that album than they had receieved for the digital sales of all their previous albums combined.

That marked the start of the self-releasing superstar band. Recently Hawthorne Heights and others have left their labels to become independent bands. While this does not stop piracy of their albums, without a record label, the band keeps more money of the sales they do make and are freer to make the artisitic decisions they want, not what upper management wants.

10. Do you agree with Google’s censorship of terms related to filesharing (torrent, utorrent, bittorrent, rapidshare, megaupload) in the autofill and instant features? What Google is trying to do is move the blame away from themselves in this matter. By having “torrent” pop up in an auto complete window would almost be like Google suggesting someone to download something using bittorrent. But, Google’s results themselves have no qualms about filling the results pages full of Rapidshare and Megaupload links. So basically, Google is trying to cover its rear in that it wouldn't “suggest” those words to you, but won’t stop you from clicking on links from those sites. If it did stop users, then that would raise several net neutrality issues that Google does not want to contend with, such as controlling where users go online.

11. Do you agree with the claims that piracy is hurting the music industry? I believe I touched on this item before in another question. But yes, I would say piracy is having an effect on the music industry. How big of an impact? I don’t know. And I’m willing to doubt the information and research the music industry is pushing forward on the matter. How can they know how many copies of a given album would sell if the Internet didn’t exist?

There are many reasons (and possibilities) why the music industry is hurting. One could be lack of good music, of course, everyone has a different idea of what good music is. And that’s one thing that could also be hurting the music industry: The glut of musicians. Back in “the day” there were fewer genres of music and the channels to get to that music was narrow as well. Everyone was listening to the same bands, so everyone bought the same records. You had Rock, Country (far different than the Country of today), Folk (which could be considered an offshoot of Country), R&B, Classical, and maybe a few others I can’t think of off the top of my head.

Today, just by looking at what I have on my shelf (I am an avid music lover and have over 200 CDs and I’ve not counted how much I have on vinyl) we have: Classic Rock, Contemporary Rock, Metal, Emo, Alternative, Trance, Video Game music, Eurobeat, J-Pop, Para Para, Canadian Folk, Finnish Prog Rock, American Prog Rock, Canadian Prog Rock, The Beatles (so good they have their own genre), Punk, Hardcore, Vocaloid, Surfer, Rap, R&B, Gangsta Rap, Screamo, Film soundtracks, Broadway play soundtracks, etc, and even some of those genres have subgenres that splinter infinitely.

So you see, a kind of splintering has occurred in music, we have more of it and getting more every day (or every Tuesday if you’re going by store release dates). I would love to see a study that seeks to see if this “hurting of the music industry” could be explained by this splintering. Bands aren’t selling millions of copies of albums anymore, but a few hundred thousand, if they’re lucky.

12. How do you view the current court cases of Joel Tenenbaum vs the RIAA and Jammie Thomas vs the RIAA? Thomas was the first person to be brought to trial for downloading music. She was brought to trial over 24 songs. The case kept being repealed and the amount of money figured for the settlement kept changing. At one trial she was told to pay $222,000. At another trial, $54,000. At a third trial, she was told to pay $1.5 million. At the $1.5 million dollar level, that amounts to $62,500 per song.

Per song?

Twenty-four songs, right? Okay, that’s around 2 CDs worth of music, give or take. What if she shoplifted this music instead? What if she shoplifted however many CDs she'd need to steal to come up with the 24 songs she was brought to trial over?

In Florida, if caught for shoplifting an item that costs less than $300 the maximum fine would be a fine of up to $500 and/or two months in jail for the first offense. Even the penalty for a 3rd offense isn't as severe as having to pay over a million dollars. In that case, the crime is upgraded to a felony, a fine of up to $5000 and/or five years in prison.[5]

That’s outrageous.

Not outrageous in the sense that Florida's fine and prison sentence is insane, it isn't. It's that the law in this country right now seems to think that if a computer was used in any way to commit a crime it makes it far more serious than if a computer was not used.

These were some great questions. Given that I’ve put these on the website (and this book) where anyone can read them now, I’d love to see some new questions from students.

Clearly there are far more ideas for this kind of thing than I have put forth. This is just a start.