The Pirated States of America?

Jacob Mendelsohn

Graduated with a BA in Political Science and is currently working as an investigator for Continental Enterprises. Jacob will soon attend law school where he will pursue constitutional and intellectual property law. Hobbies include political activism, traveling, and horse training.

Why do we spend so much money fighting intellectual property crime? I guess it’s for the same reason I’ll be willing to fight someone who decides to take my new Ford pick-up for a joyride while while I’m asleep in bed.

Why is it, that Internet piracy so important, that in the past year, Congress has been overwhelmed with bills in the likes of SOPA, PIPA, and CISPA? Perhaps because the American public believes that ideas are important and worth protecting. Make no mistake; the ideas that are being protected are not just big media entertainment. They are your ideas. The ones you haven’t had yet; the ones that are going to make you rich. That is, unless some lazy person in China or New York steals it out from under you. Are these bills really threatening to violate our first amendment right, which allows us the freedom of speech? Only if you think that free speech includes someone showing up at an elderly person’s house selling a driveway full of substandard asphalt. Because taking ideas from people is a crime just as stealing someone’s money and possessions. But isn’t it true that these bills are producing government censorship modeled after China; a country allowing no freedom on the Internet? Only if, by freedom, you mean the right to do anything to anyone, so long as you don’t get caught.

But wait, haven’t you heard? It’s these kinds of bills that are killing innovation and allowing larger companies to destroy start-ups before they even have a chance. Some media and entertainment corporations are pushing for these bills to pass because they are frightened by the idea of competition. They refuse to comply with the idea that, in reality, it’s their fault for the success of pirating in the first place, due to their lack of a more convenient service. As most will say, the real issue of piracy is not about a piracy problem, it’s about a service problem. How could congress vote for something that is clearly unconstitutional and old fashioned? Can’t they get with the times?

As a graduate with a political science degree who is currently an intellectual property consultant and investigator, as well as a future law student studying intellectual property, I can only look at the issue of piracy in one way. The media has done a great job destroying bills such as SOPA by telling them it is government censorship and it is going to end up getting users arrested or shut down as the result of a single unintentional offense. The media says it will demolish innovation and kill jobs as well as the internet. The truth is, this is simply not the case.

Intellectual property is a company’s most important asset, especially since the advent of globalization and the Internet. Intellectual property is more than a famous name; it is how companies reach customers. It is why they are able to do business profitably and create jobs. Intellectual property is, in itself, purchasable, tradable, and can be given to your children. In short, intellectual property is real property like your house, car or phone. If your job was selling cell phones and somebody broke into your warehouse and stole a ton of inventory and started selling them on the street, is that acceptable? Is that just friendly competition? No. There should be, and is, a law about someone steeling your inventory and selling it. The difference in today’s market is that thieves are using the Internet to break into virtual warehouses and steal a brand’s value. Since the internet is a quickly expanding marketplace of ideas, there are actually few laws that protect businesses from the theft of their most valuable possession: their identity. Piracy is costing every company huge amounts of money because for every fake product people purchase, there is one less real product being sold. For every fifty-dollar counterfeit that someone buys for a Christmas gift, there is fifty dollars that is not going to be spent on legitimate merchandise that Christmas. It is not only the company that sells the real item that suffers, but every vendor who has something legitimate to sell.

So, can Internet piracy be stopped?

Recently,  Jason Worrell, an INN contributor, wrote:

Every time one piracy site gets shut down, after months and months of investigation and litigation, another dozen sites pop up on the internet. Every time new anti-piracy technology comes out in DVDs, CDs, and MP3s, programs are written to remove these new protections before they even hit the shelves of stores. Even if every piracy site on the internet was shut down (which is an absolutely impossible task for a slow-moving government such as our own) what is stopping me from buying the new Tupac Hallogram Tour DVD and burning hundreds of copies of it for my friends and fellow rap fanatics.

If the task of stopping piracy, or even slowing it down, is so impossible, why is the American government wasting so much time and money on the issue. I’m sure it’s out of some sort of misguided sense of justice and has nothing at all to do with the millions of dollars spent lobbying the government by media corporations in the past couple of months.

The true answer is yes, piracy can be stopped. Individual companies can, and have, successfully shut down online pirating vendors. The real question is, how much time and money does it take to accomplish the task? The laws that companies are lobbying for will not allow the government to police the Internet. The government is not interested in taking on that task. How can the government possibly know the licensing strategy for every single trademark that has been filed and who is or is not an actual licensee? These laws will not give power to the government and allow the government to independently stop pirates. These laws are giving power to companies, big and small. It’s giving power to entertainment and apparel companies. It protects the future for upcoming companies who are innovative and creative, who believe the promise that they will be able to legally protect their ideas. Those who risk their capital to make sure new ideas make it into the marketplace and into your living room are counting on the promise that their constitutional right to control their own property is not going to be rampantly disregarded.

What does the constitution say about the larger issues? Well, it does say you have the right of free speech. But is this really a free speech issue? Nope. It is a commercial crime, theft, and forgery issue. It is crime against property. Many argue that with these bills, using any brand images or music in a blog will get the user indicted, but the truth is that the bills will do no such thing. They specifically state that the user has to be making money off of the pirated item or infringement in order to be prosecuted. This means that these “online censorship” bills are only targeting commercial use, not creative and artistic use. And even then, in my experience, only companies who exist solely for intellectual property theft are shut down and prosecuted. For most people, an educational cease and desist letter is mailed to the infringer with a rather restrained and friendly reminder that the vendor does not actually own what they are selling. An innocent user will kindly take it down from their store and move on to other profitable merchandise.

Just because the playing field changed from brick and mortar storefronts to online storefronts does not make theft okay. Even if piracy cannot be completely stopped, it isn’t justified and it certainly shouldn’t be legal.  Laws are still needed that allow private companies to protect their brands both globally and domestically. The real crime isn’t killing free speech by passing these laws; it is killing property rights by not passing them.

Terrible problems like war, hunger and pestilence are going be solved one day by somebody’s hot-off-the-press creative ideas that nobody ever thought of before.  Unless, that is, they are pirated first.

The reason we don’t steal Tupac’s new DVD is the same reason we don’t steal our classmate’s iPod from his dorm room.

 

See also In Shallow Seas We Sail 

 

 


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  • Boratsanchas

    lol totaly agree with downloading and selling is bad, but fuk off i will continue to download and use for personal use, you charge to much for your shit product that is the problem people would pay if you dont rip us off that simple. and you would sell more coppies.

  • txlibertarian

    “Many argue that with these bills, using any brand images or music in a
    blog will get the user indicted, but the truth is that the bills will do
    no such thing. They specifically state that the user has to be making
    money off of the pirated item or infringement in order to be prosecuted.”

    That’s an incredibly misleading, if not actively deceptive passage. Individuals have been (and will continue to be) prosecuted for downloading media illegally. 30 seconds worth of googling gave me this link: http://money.cnn.com/2011/06/10/technology/bittorrent_lawsuits/index.htm

    I’m not coming down on either side of this discussion, but you at least need to use legitimate points to argue your case, rather than simply trying to smooth the waters with a fallacious argument of “We’re from the government, and we’re here to help.”

  • Aaa

    You clearly don’t understand the big picture, dumbass

  • Guest

    Of course I will not steal Tupac’s DVD or classmate’s iPod. But I would copy Tupac’s DVD. Sadly I don’t know how to copy an iPod yet.

  • Shizuppy

    Artists should all be starving.

  • Sauerkraut

    Your a complete tool. Piracy is not theft, its merely copying. The theft-metaphor is problematic in the sense that a key element of stealing is that the one stolen from loses the object, which is not the case in file sharing since it is copied, or the loss is radically different from losing something tangible, like your bike.  

  • Dimmox

    LOL…Intellectual Property (I.P.) is the biggest scam in the world that is being perpetuated to reinforce and affirm America’s and Western Europe’s hegemony of the world.  Before the the neo-liberal ideals of the 1970′s took full effect, intellectual property was considered a joke and lawyers practicing it as nobodies.  This was the case because society viewed information along with the expansion and growth of knowledge as the pre-eminent goal of academia.  Yes, credit should be given where it is due, but the things being patented and made into intellectual property is ridiculous.  Explain to me how it is beneficial for society to have a patent for food?  Moreover, explain to me how a company can lay claim to patenting a fruit such as an apple, in the manner Monsanto does with soy beans?  

    Why is it that at the turn of the 20th century society did not hold this ideal of Intellectual Property in the Big Pharma industry as it does today?  Why was penicillin not patented? Because people at the time understood that things that can help make civilization better are meant to be used by all to improve their material circumstances.  If I.P. had its’ way civilization saving cures such as penicillin would never be available to the average Joe, in the manner that AIDS/HIV medication (or cures because there are very very expensive cures that run in the millions of dollars).  Moreover, explain to me why Big Pharma is not jumping at the opportunity to distribute the cure that Cuban biologist and scientist have found for Throat, Lung, and Mouth cancers?     So yes keep supporting the protection of ridiculous I.P.s that serve no purpose besides to satisfy the greed of some particular individual.  Yet this individual, and many like him, refuse to realize that they were able to ascertain anything in this world thanks to the mechanisms of society and the tax payers who support it.  Thus, to force society to have to pay extra, to satisfy the greed of an individual who was able to invent or ascertain the knowledge to invent thanks to the protections and mechanisms provided by the state and society, seems unfair to me.  When one looks at I.P. in this manner, it appears it is not as beneficial as you have argued for. So yes even though you have a Political Science degree from some university obviously the school failed to teach you how to think 5 steps ahead and not be short sighted about immediate quarterly gains.  LOL! The guy who wrote this is obviously a joke HAHAAHA!!!

  • Doug

    Reading these comments makes me long for the day when thieves did not feel like they had to offer pseudo-intellectual justifications for taking what did not belong to them.

  • WrinklyOldGit

    In America a childrens toy was patented many years ago – it was the hula hoop.

    The “hula hoop” was known for centuries in the Phillippines before being “patented” in the USA.

    A country that allows age old toys to be patented and which allows the human G gnome to be patented is patently feeding the world bullshit. If you decompile virtually any bit of marketed software you will find pirated routines included – that is the real reasons companies don’t want you to decompile their programmes.

    • CadronBoy

      Amen!  I even bet a good portion of the source code underlying this web page was pirated…i.e. copied…

  • Atomdreams

     “American public believes that ideas are important and worth protecting.”

    Bwahahaha…which American public are you talking about? All the “real” people I have talked to don’t give a crap about intellectual property. If those companies, like Sony, are so worried about pirates then they shouldn’t sell the means to copy. CD/DVD/Blueray burners, blank CD/DVD/Blueray discs, etc…

  • Bill

    Sounds like a lawyer trying to make work for himself…..How about we focus on keeping kiddy porn off the internet, and hopefully prevent ruining some little kids life? OH wait theres no PROFIT in that….instead we will keep pirated video games and movies out of the hands of those too poor to pay for them. We can do this as long as we can force people to pay 50-70$ for a buggy game. If however they can test a pirated version and see how crappy it is they won`t buy….
    North america is just afraid of competion from the rest of the world, because of our over inflated and unsustainable life style we can`t compete and we know it.

  • WrinklyOldGit

    America is the only country I know of where an old idea that has been around for hundreds of years can be patented, and makers of that products for decades before the US patent was issued can be sued for infringement.

    What am i referring to?  The Hula Hoop.
    Known in history in the Philippines but patented world wide by the USA.

    Likewise patenting the G-gnone – its like patenting the elephant – and claiming worldwide rights for something made by God or Nature.  As stupid as patenting sunlight and charging you for getting too much of it when you get sunburnt.

  • The real truth

    Puleeze, your analogy of the $50 being spent on a piracy piece of merchandize means there’s not going to be $50 spent on something legitimate makes no sense whatsoever. If anything, the person who spent $50 on something would actually spend more on other things, knowing they saved money off the retail version of the product. People who pirate things like music, software, ebooks etc. were never going to buy them in the first place, how does that not compute with you? They download these items for free, it’s not like iTunes, Amazon or even the online store for the retailer were ever going to see these people purchase from them. And, even so, the people who pirate things end up buying music they actually enjoy through these same avenues (iTunes being the biggest one).

    People’s rationale is: I don’t want to spend $10 on an album I’m only casually interested in but I’ll buy the album I’m really digging. Same with movies, software, ebooks etc. And comparing a movie download to someone walking in a stealing an iPad isn’t even close to the same thing. An iPad is a physical item, it actually costs money for the screen, processor, casing etc. A digital download costs a manufacturer… wait for it, nothing! There’s no overstock, inventory, shelf space, packaging etc.

    People use the car analogy too (like you did) and it’s not even close to the same scenario. Losing a vehicle costs real money, digital downloads costs nothing. In fact, try to claim your mp3′s or movies through your insurance company if you lose them or they’re stolen, see how hard they laugh.

    I’ll say this for you, you’ve already got the irrational thinking down to be a lawyer (and that’s not a compliment). You and countless other lawyers seem to think digital downloads are worth money when, in fact, they are nothing. They can only make a company money if they are sold online, not present a loss if they are stolen or reproduced. Remember how the whole music and movie industry was worried about cassette and VHS tapes (and people copying movies and TV shows) and how the industry was going to suffer? I seem to recall Avatar making over a billion dollars a couple of years ago and the Avengers making close to a billion this year. U2, the Rolling Stones and Madonna all recently had tours where they made $400 – $750 million each for touring… these are pure ticket sales and doesn’t even take into consideration merchandise or album sales either.

    I’ll end off by saying this: Adobe figures 60% of it’s version of Photoshop being used currently around the world is pirated. Adobe took in just over 2 billion in revenue so far in 2012 and there’s still 4.5 months left in the year (and this is only for the first 6 months reported as well). If any company lost 60% of it’s merchandise (like GM, Amazon, A&P, Walmart etc.) they’d be out of business, not making 2 BILLION in revenue. Only in the software world can a company report sales being lost (through piracy), still make a huge profit and actually be able to make more money through tax losses (through the reported claims of piracy) and through courts with copyright infringement and actually whine about it.