Ask Author Law

A hostile question from a Pirate Bay supporter

December 22, 2014

Tags: Pirate Bay, Bit Torrent, File Sharing, Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, IP Law, Intellectual Property

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: You should get your facts straight. You tweeted that various blog posts and tweets about the shutdown of the Pirate Bay were wrong and that members of the Pirate Party condoned theft. You said that copyrights could be “owned.” You are wrong! The copyright industry guards the rights of special interests over the rights of individuals. According to one leader of the Pirate Party: “The Pirate Bay have made themselves famous through more than ten years of existence as a guiding star on the Internet sky, against all odds, despite all attacks from the copyright industry. That’s made them into one of the most important symbols of freedom in our time, rightly celebrated worldwide.”

Another Pirate Party leader said: “If The Pirate Bay should disappear forever, it’s a given that other sites will fill the void over time. File-sharing cannot be stopped, it’s a global grassroots movement. But to make it work in practice, we need search engines like The Pirate Bay, capable of handling traffic from millions of people worldwide.” So why don’t you get down off your high horse and get with it instead of being a weak-willed apologist for the copyright industry? Long live The Pirate Bay! The efforts continue! Sharing is Caring!

A: Wow! You are entitled to your opinion, but I completely disagree. File sharing technology isn’t the problem. It’s the fact that you’re using technology to rationalize theft that I find so appalling. File sharing makes it easy to steal, but that doesn’t make stealing right. It’s also easy to get into a private yard along a residential street. Does that make it OK to step into someone’s yard and take the soccer ball sitting by the fence just because you happen to want a soccer ball and there’s one there? I say no. It’s not OK to declare that something should be “free” and then help yourself. Piracy is just plain wrong and glamorizing it doesn’t erase this fundamental flaw in your logic.

The word copyright means, literally, the right to copy. It is the legal expression of a fundamental property right that has existed since the earliest civilizations, but only emerged as distinct legal right after invention of the printing press. Before printing, the rights in words and symbols were perceived as a single property right that arose as soon as they were carved in stone, painted on skins, written on paper or fixed in another tangible medium of expression. Printing technology didn't change the concept of written works as property, but it triggered awareness of an important distinction -- the difference between the tangible object upon which written words were fixed and the intangible expression of a unique work created through the writer's selection and arrangement of those words. This distinction between physical property and intellectual property formed the basis of copyright law. Copyright was the first intellectual property right recognized in law as the technology revolution unraveled new strands in the ancient bundle of property rights.

Once you understand its history and how it works, copyright is actually quite straightforward. The first copyright was granted by a king to an early printer. It conveyed the right to own and use a printing press to reproduce and distribute various written works and established the legal rights related to the publication of written works. Of course, copying technology has evolved exponentially since the printing press was invented. But I contend that copyright law has marched along with the advancing technology to create, preserve, and protect the property rights of authors in their creations. In the United States, copyright law is authorized in the Constitution and spelled out in a federal statute, the Copyright Act (Title 17 of the United States Code). Copyright is internationally recognized as a basic human right essential to a civilized society. International copyright law, as embodied in treaties, organizations, associations, tribunals, laws and agreements, plays an increasingly important role in a changing world by protecting the rights of individual human beings to property, prosperity, access to information, and freedom of expression.

Since the advent of the internet, there have been wild and misguided claims that copyright law is outdated and that information wants to be free. Such claims are simply not true. You critics of copyright are really asking: "Now that it's cheap and easy, isn't it OK to steal words, music and art?" And I repeat that the answer is no. Copyright infringement is theft, pure and simple. Copyright owners are just as entitled to be protected by the law as are the owners of jewelry, bicycles, and soccer balls. Copyright law is clear and basic – words, pictures and sounds expressed in a distinctive way and written down or otherwise fixed in a tangible medium of expression are the property of the creator. "Thou shalt not steal," is a core tenant recognized in virtually every civilized society and it applies to the rights of authors today. No civilized society recognizes a right to steal physical property, even when it's easy to do so and tempting to rationalize. No civilized society recognizes the theft of intangible property, either. Copyright law has consistently adapted along with technology. Just as laws, both civil and criminal, provide penalties and sanctions for the theft of jewelry, bicycles, and soccer balls, copyright laws provides penalties for the theft of authors' rights. Stealing is stealing. And it's always been wrong.