Piracy and the Captains of Industry

This essay was originally prepared for bilingual publication in 2011, discussing some of the under-examined social dimensions related to digital piracy.


1. A Conflicted Metaphor

Understood properly, the word “piracy” (when used in reference to the illicit distribution of commercial media recordings) is today used in a highly metaphorical sense. The metaphors surrounding this usage are rooted in commonlaw principles like “a right to the fruits of one’s labor,” carrying a distinct — and calculated — bias against those who engage in or defend such activities.

Piracy on the high seas typically involves depriving some other party of something valuable, and keeping that something away from others. Today, pirates are often seen demanding a ransom in exchange for the release of what has been unlawfully taken, often by violence or threat of violence.

The emotional bias contained in the metaphorical usage of the word “piracy” largely derives from a natural sense of empathy. Formulated in terms of The Golden Rule: nobody wants to be the victim of pirates, and so individuals are dissuaded from victimizing others with acts of piracy. The meaning is that unlawfully acquiring or re-distributing commercial media recordings is reprehensible because it deprives those that made the recording of their due profits. The fallacy in this logic is the assumption that everyone who partakes in “piracy” would have otherwise been a paying customer.

Those targeted with litigation on behalf of industry are typically individuals who distribute illicit commercial recordings: maybe bootleggers — but not pirates. What these individuals are copying — or, perhaps more precisely, what they are distributing (rather than hoarding) — originated as a lawfully acquired record of some human activity (rather than some tangible thing that has been forcibly taken from another party).

The point at which a particular copy of a particular recording ceases to be lawful and becomes illicit often occurs when one person decides to share with another something that one found enjoyable. Sharing is valued among friends and relations, and is taught as a virtue from a very early age. Shared experiences also constitute the basis of culture (and we would seem to possess some genetic imperative to understand our subjective experiences in terms of shared cultural terminologies, such as the languages of art and music, poetry, metaphor, and law). There is something intensely personal and fundamentally human about this type of sharing. It also brings many people pleasure to share something pleasurable with others.

The relationship between who makes a commercial recording for mass distribution, who pays for it, who takes a risk, and who profits, is subtle and in many ways counter-intuitive. Due to the terms under which bands typically contract with studios, relatively few bands see much profit from album sales, except insofar as an album serves to advertise a live act or to promote some other branded merchandise. “Pirates” are not, therefore, stealing from those who would profit from “the fruits of their labor.” Rather, in commercial media recordings, the profit to be had is typically with those who maintain a particular system of production and distribution that, over the course of decades, has evolved as an increasingly influential part of culture. Part of this influence concerns the success with which private corporations have lobbied governments to enact favorable laws and policies.

Where there is theft in contemporary “piracy” it is where industrial corporations use planned obsolescence as a form of coercion to shape markets and ensure continued profits. Vinyl recordings were popular for a long time; in the past few decades, a rapid succession of tape formats, optical media, and various digital file formats have been used to ensure ongoing sales for older recordings. The upgrade cycle serves a similar purpose in the software industry. Marketing creates the flawed perception that these coercive pressures are actually progress, that this progress will continue indefinitely, and that repeated investments in the industries that deliver this perpetual progress will continue to yield dividends without diminishing returns. “Piracy” therefore provides a simple means for individuals to opt out of dysfunctional and exploitive market conditions.

If anything is held ransom, it is the lives of consumers: the cloud computing and software-as-service models currently on the horizon will require consumers to purchase network access indefinitely to “have” their personal data or the applications they purchase. Consumers will be turned into the digital equivalents of tenant farmers. Digital TV standards like the HDMI interface are marketed as more advanced than their analog predecessors, but are primarily meant to force analog equipment out of the market entirely. The strategic purpose behind this push is ostensibly to prevent the “piracy” of copyrighted content, but in practice, it is just as likely to inhibit legally protected “fair use.” The result is that legitimate forms of cultural discourse are unduly censored.

2. A Brief Anecdote Regarding Media Literacy

In 2007, I was helping a handful of elementary school students conceive, produce, and exhibit short video projects. They were very adept at operating the video cameras and at figuring out how to use the editing software, but teaching them to see the artifice behind the motion picture arts proved to be challenging. Techniques like cinematic montage, for example, are at once so obvious and again so subtle that it’s easy for somebody who has grown up surrounded by motion pictures to overlook the deliberateness of such conventions.

To help my students understand the artifice of conventional motion pictures, I developed an assignment stretching across multiple class meetings. The students would record their favorite TV commercials at home and then bring the recordings to school to discuss. After discussing the commercials in terms of structure, content, and style, students would re-write the commercials in their own idiom, in some way that could be practically videotaped at school. The students would then produce their re-writes.

It then struck me that this assignment was entirely impossible. And it struck me that what made the assignment impossible was a technological limitation that did not exist in the technology of the previous decade. In 2007, very few young families had VCR’s in their households. A great many households, however, had DVD players — which lack the ability to make new recordings. The DVD — presented by industry marketing as superior to analog videotape — turned home video into a strictly consumer technology, unlike its more flexible predecessor, the VCR, which facilitated sharing.

The conventional connotations of “progress” suggest that newer products are more advanced and should provide greater functionality or somehow be more versatile than their predecessors; yet here was an ordinary case where the clearly useful ability to make new recordings was engineered out of existence in the more “advanced” iteration of a common household product.

The idea behind the assignment was straightforward: take this thing that is in your home — a broadcast TV commercial — something literally sent through your body every moment of every day on the way to making some corporation a profit — this thing that is explicitly made to be reproduced and talked about — and which is even distributed free of cost — and bring a copy to class to discuss. Based on the technological experiences of my upbringing, this should have been simple. Based on the historical state of the art, this shouldn’t require sending young children home with expensive equipment from the school.

3. Artificial Scarcity is a Consequence of Commercial Mass Distribution

The mass dissemination of recorded media represents a change in culture perhaps of the same order as the introduction of writing or of language. The complex interlocking social tapestry the recording arts represent is increasingly the subject of an aggressive cultural imperialism: industrial corporations in democratic societies serve a similar function as planning bureaus in centralized economies. Where the recording arts specifically are concerned, however, this planning function concerns many of the most basic elements of culture itself. Moreover, this planning is conducted by powerful private entities, rather than spontaneous initiative or democratic governance.

The origins of this circumstance can be traced at least to the early 20th Century, where the studio system evolved alongside the recorded media arts as a means to diminish the risks associated with production. Vertical integration gave studios control of talent, production, distribution, and exhibition. This amount of control made the market as a whole more predictable: not entirely predictable, but, on the margins, predictable enough for certain risk-averse corporations to gain a competitive advantage (often involving additional marketing and public relations, as with the invention of “the star”). By the late 20th Century, the era of vertical integration was largely complete, with established monopoly powers in control of major industries (and maintaining this monopoly power with the cooperation of governments).

Perhaps the post-vertical integration era is best described as oligopoly: a strategic symbiosis of granular, metastasizing forces that can’t really afford to actually compete with eachother, but which engage in the artifice of competition in order to give themselves the aura of legitimacy, and to furthermore harvest new ideas where artificial scarcity by necessity breeds innovation (which is to say: among monopoly-like powers, efficiency is irrelevant because resources are practically unlimited).

The scarcity of gold is the origin of its value: demand is high relative to the availability of supply. For products like commercial media recordings, which are explicitly made for mass production, it does not make sense to talk about value as a function of scarcity. This is so with many industrial products, where, due to the volume of raw materials purchased and the extensive use of automation, the manufacturing cost per unit can be quite low relative to the sale price.

Many industries create artificial sources of relative scarcity (through high prices, for example, or through limited edition manufacturing runs, or restrictive licensing agreements) to dictate the cost of their products in the market (rather than rely upon the self-regulatory characteristics of the price system, which can be quite unpredictable at times). Disney, for example, does not keep their entire catalog in circulation, but re-releases classic titles periodically. Because classic Disney titles are important cultural touchstones, and Disney can use licensing agreements and merchandising to, in certain respects, manage the long-term social perception of their products, there is a relatively predictable profit to be had whenever Cinderella is re-released on home video or in a cinema.

4. Compilation, Remix, Recycling, and the Blues

The metaphor of “piracy” is meant to influence the attitudes of individuals such as to restrict or otherwise constrain certain social practices, treating culture at once as a diamond mine and as a contagion. True, some of these social practices are illegal, but in this case the more powerful accuser wrote the rules of the game: the laws don’t serve the needs of individuals, but rather of private corporations. Corporate profit motives are turning governments against citizens. As the ongoing financial crisis makes clear, morality and legality are not always the same (though there is often substantial overlap). Sometimes laws are immoral (such as those governing slavery in the early United States).

Much of the behavior involved in “piracy” — when seen in a slightly different context — is considered virtuous. The development of the American gospel and blues traditions (and subsequently jazz and rock) can, in an important respect, be understood in terms of an aural “recycling” or “wisdom” tradition. Early blues and jazz musicians frequently recycled rhythms, melodies, and lyrics as part of a discursive tradition, prolifically incorporating these borrowings into new compositions.

Due in part to the violence of racial hatred, the precise origins of the blues are obscure. The same systematic erasure of cultural heritage that inspired Malcolm X and other African Americans to relinquish their surnames also courses just beneath the surface of the contemporary music industry’s most successful products.

The same traditions of compilation, remix, and recycling that gave rise to the blues also gave rise to the Bible: the Old Testament is clearly a compiled text, and the four Gospels of the canonical New Testament draw upon earlier sources (such as the Coptic Gospel of Thomas and the hypothetical Q source).

Incredibly (or ironically), the same traditions that gave rise to some of our culture’s most revered forms of expression are essentially outlawed today — except where corporations with vast resources can wield legislative influence to claim greater portions of the public realm.

What the remix artist intuits — and passes on to his or her audience — is that the collection, collation, recombination, and redistribution of cultural artifacts are ancient and respectable practices, which figure prominently into the very foundations of many cultures. Cultures depend on shared experiences, and it is profoundly problematic for culture that it is increasingly becoming proprietary.