Copyright

Picture by GDJ via Pixabay

PLEASE NOTE:

I am not a lawyer, nor a legal expert. Due to my work in video game development, music production, filmmaking and uhh… not to mention my past life of crime, I have had to make myself familiar with law, including copyright law.

I have a general familiarity with the subject from the perspective of someone who needs to frequently exercise and understand these rights, and of course the many things I have been told when I’ve asked legal advice from my lawyer.

This article is about some of the interesting and eye opening things I’ve learned over the years, and how the law itself sometimes contradicts public perceptions of the law. It is not to be used as legal advice, and if you’re actually doing anything which is juridical, please refer to more qualified sources. This article has no legal value and is only written for the purposes of intrigue.

Law is a very interesting subject. I’ve written on it before, but I have more thoughts as I’ve learned a lot about it. Both from the perspective of a criminal, but also from the perspective of studying civic and legal history.

In fact, I have studied so much civics that I was able to pass the US BAR practice exam on my first attempt. Including modules in criminal, constitutional, tort and civil law. I basically made educated guesses based on my understanding, and turns out I was mostly correct in my reasoning regarding matters such as due process, comparative liability and similar things.

One thing that did open my eyes was how the law is such a different thing from what people think it is. A lot of stuff that people think is legal is sometimes criminal, and similarly, a lot of stuff that people think is criminal is often legal.

On top of that, law is also a deeply political thing. There’s a lot of institutions that will at the behest of corporate interests mislead the public about law and how law works.

We commonly see this when it comes to copyright law and dialogues about fair use.

Often when you ask a “legal expert” about fair use, they are quick to tell you that fair use is a dubious concept, and that it has little legal value. That you must always seek authorisation, and that copyright holders often have very draconian control over content and how to publish it.

Very few such experts will mention the Three Step Test of the Berne Convention, or the World Trade Organisation’s ruling that the standards of reproduction in the Berne Convention’s three step test are not incompatible with the five point test of fair use.

In other words, while the language of fair use is not very reliable, the functions of fair use are reflected in the Berne Convention which is in fact a legally substantial convention.

Is that to say that you have clearly defined rights and exceptions to unathorised reproduction of copyrighted works? No. But it is to say that it is a far more relative matter than what popular perceptions on the subject would have you believe.

If you’ve ever watched a film with an FBI copyright warning, or that now widely mocked “You wouldn’t steal a car” PSA, then you may be under the impression that copyright law is no different from criminal law. This is also very misleading. It is true that there are federal amendments to copyright law, and that as such, to some degree, it is a FBI matter.

But on the other hand, these PSAs are internationally distributed. I’ve never been to the US, but I still get FBI warnings. Chances are you may have seen them as well. Obviously the FBI does not have any kind of power in those situations. Neither does the US federal court.

They do have indirect influence since the Berne Convention is in many ways in our modern times following its long development, a product of American authorship. But the FBI warnings are in most contexts very nonsensical, and they only put the FBI logo on them to intimidate people more or less.

The Warner Brothers do not have a secret FBI phone number that they can call every time that they start seeing blinking lights on their movie piracy radar at the Hollywood Anti-Piracy Command Centre. They do not use NASA-manufactured satellite dishes to pick up on illegal router signals from your modem unless you download and install NordVPN.

That stuff is very fictional. In fact, the copyright warnings themselves often give that away. “Any unauthorised redistribution” etc. etc.

Unless you’re the one redistributing then you’re probably not going to get any visits from the FBI.

In my criminal past I’ve rubbed shoulders with just about every variety of crook. From petty thieves, software pirates and credit fraudsters, to war criminals, contract killers and deep web hackers.

The only time I’ve ever heard of someone getting FBI visits for doing stuff on the internet was when they threatened the US president. And the person who told me that story was a paranoid schizophrenic who had a bad day, and said some stuff they weren’t serious about. FBI dropped in, asked some questions, and then left after they understood how it was just empty words made under duress.

This was during the Trump administration so they were doing a lot of housecalls at the time…

Moreover, there is actually a big distinction between willful and unwilful copyright violation. For instance, if you make a song and sample something from another song using the Fair Use doctrine, being unaware of how this doctrine is not always legally reliable, then you’re unwilfully violating copyright.

That’s not really stealing. You can still be liable for what is called equitable remuneration (paying the copyright holder for services rendered), or fines. But that’s a civil violation, more comparable to unpaid parking tickets rather than stealing a car.

A good example of willful copyright violation would be for instance The Pirate Bay.

And what’s interesting about The Pirate Bay is how their most serious crime wasn’t actually reproduction of copyrighted materials, what got them into such big trouble was making money from the copyrighted materials through ad revenue.

Because that added a concrete monetary value to the impact of their violations. Had they been running the sites without any source of profits or revenue, then it would have been far more difficult to measure damages or liability.

That isn’t to say that they wouldn’t still have been legally liable, it’s just to say that the process of proving such liability, and the extents of such liability, would’ve been a lot less straightforward.

We often hear from video game publications that big game titles lose astronomical amounts of money to piracy. But what is rarely mentioned is how these figures are measured. Which is usually through a series of flawed assumptions.

What they do is take the number of downloads from pirate websites, and multiply them with the retail value of the game in question.

So if a game has 100.000 downloads on a torrent site, and it cost 60 USD at release, then the company issues a press statement that piracy lost them six million dollars worth of sales.

And they can give those figures to a journalist and make some pretty alarming headlines about the influence of piracy, but if they gave it to a judge in a court room, it would likely not be as uncritically accepted as proof.

Because for one thing, you’re comparing a product available for free with a product that costs 60 dollars. That’s a wide margin of consumer incentive.

For another, this assumes that each download is a unique download that reflects a single user. It does not account for technical issues, failures, or people who may have uninstalled the game and then downloaded it again at a later point.

For a third, and this is very important, it assumes that the people who downloaded the product are all part of the consumer market. A lot of people who use sites such as the pirate bay do not live in places that have signed the Berne Convention or similar treaties, and whose nations have no obligation to recognise such laws.

Moreover such countries may also not even publish or sell the game in question, and as such, would not be particularly viable for estimations of commercial loss.

And for a fourth, which is something that’s very interesting, it ignores all the people who pirated the game, enjoyed it, and then paid for the product.

This is actually a phenomenon that’s been studied in recent years, and there are even some data to suggest that software piracy can often add sales that would otherwise not happen due to how consumers are becoming more cautious about misleading marketing of games.

Some customers will simply not spend their money unless they can try the product first.

In Viet Nam they sometimes even use piracy websites as metrics for how successful a published item is due to this phenomenon of how piracy websites can help market a product.

And for a fifth reason, this also assumes that everyone buys games at retail prices. It does not account for consumers who are happy to wait for a sale, or who are savvy with coupons and the like.

And for a sixth reason, it also ignores those who may download a pirated version of a game they bought, which happens more often than you’d think. Video games will sometimes have what is known as DRM Software, which stands for Digital Rights Management. These softwares are set up to limit what people can do with a video game in terms of access. Generally intended to prevent two people from installing and playing a single copy, or similar stuff like that.

DRM Software is highly varied. Sometimes they are simple items that require someone enters a serial number before installing a game as to assure they have a legitimate copy, and other times they are Orwellian pieces of spyware that will constantly monitor all your user activity and require you to stay connected to the internet whenever you want to play a video game.

As such there’s a lot of legitimate reasons to download a “cracked” video game without some of these very intrusive and also often dangerous DRM systems that can make your computer more susceptible to hacking and security risks.

A lot of these DRMs are also badly programmed and often require the publisher to maintain large server networks in order to function. Fable 3, for instance, had such a DRM system, and eventually the publishers found it commercially unviable to maintain the DRM servers and shut them down. Resulting in millions of paying customers being locked out of the game they paid for.

Is it illegal to pirate a game in such a circumstance? Probably. Is it unethical? Not even slightly. You paid for that game.

As such, DRM Software is a little bit like the Corsairs of the online pirate world. Because they permit publishers to limit and sometimes also violate the rights of the license holders, but they have legal permission to do so. No different from the many pirates who would plunder rival nations with a letter of marque.

Which also brings us to another big part about copyright law. Which is actually true about any kind of larceny. Namely, is it actionable?

If you’ve ever been burglarised, then chances are you called the police. Following this, the police arrived promptly at the scene with flashing blue lights, as a swarm of men in black coats and sunglasses began cordoning off the area, taking photographs, gathering samples of evidence and sending off dozens of zip-bagged articles to the forensic crime lab…

This is exactly what happens in your mind while you wait a whole week for two tired looking officers to knock on your door a week later, ask for some details, file a report, tell you you’ll get a copy of the report in the mail for insurance purposes, and then never do anything else.

In theory, you could commit a bank robbery in broad daylight, and tell everyone who sees it your full name and address. As long as you leave no evidence that prove your guilt beyond a reasonable doubt, then you’ll get away with it. In real life that would likely be impossible, but within the confines of a thought experiment, that’s how the law works.

Chances are you’ve unwittingly committed dozens of crimes in your lifetime, but because they are unenforceable, no one cares.

And that’s important to understand about copyright law. You have rights guaranteed by organic law, which is the strongest and most important law. This means that people can’t spy on you, they cannot violate your privacy, they cannot force confessions out of you, and they cannot do a lot of stuff needed to enforce the comparatively trivial crime of copyright violation.

In other words: Yes, companies can in fact do stuff in order to enforce their licensing of copyrighted works, but what they cannot do is to commit a series of even worse crimes in the process.

That’s often why DRMs have very lengthy terms of service that makes you waive certain rights to privacy and voluntarily allow them to spy on you.

What makes that process so unethical is that they generally don’t present you with such terms until after you’ve paid for the product. Meaning they are essentially holding an item you own for ransom.

Granted, there’s always refund options, but if you buy the product at a brick and mortar location then you’ll still make the losses of time and possibly transportation costs. So yes, it’s very much what ethical philosophers would refer to as “A dick move.”

So how does it work then? Who are these Blade Runner corporate shadow agents who are sent out to perform the wetwork of TOS Compliance?

I’ll tell you, because as it just so happens, I know someone who works with license enforcement at a big computer company. For anonymity’s sake I will not mention the company, but I can say it’s a Blue Chip Company. It’s big, it’s international, it’s worth billions, and it reflects the conventions that are normally used in modern business practice.

And they don’t just go after anyone. If you got a pirated version of photoshop to make memes on the internet, they couldn’t care less. They go after companies who have an estimated asset value of a certain number. I won’t say the exact number, but I would say it would reflect the value of a small company that’s doing decently for themselves.

That’s because they will only invest resources into pursuing a case where people may actually afford paying for the software. This isn’t the police where you get tax funding, it’s a company division of actuaries who need to weigh cost vs. gain.

So what happens then when the corporate agent runs the scanner software in their sunglasses, only to have the building they’re looking at start flashing red as a small piece of text says “UNATHORISED USER DETECTED” starts blinking on the lens overlay?

That’s when they pull out their trusty rappel gun and start scaling the wall before making their way into the vents…

According to Hollywood’s suggestive tone regarding these things.

In truth, what really happens is that they send an email saying something along the lines of “Hey, can’t help but notice your entire design staff is running torrented versions of our software. Please buy the licenses within X amount of time, or we’ll file a court case.”

That’s it. They politely ask people to buy the software. Granted, it’s a somewhat mandatory purchase, but that’s it. No special agents, no rappel guns, no midnight raids. It’s just businesspeople doing business things.

In fact, you can even negotiate with them. Be like “Oh hey there, couldn’t help but notice your threat. Here’s the thing: We can’t afford that right now. Is it cool if we set up a financing plan?”

And then the claimant might think “Okay well getting the cash eventually is better than getting no cash when the company goes bankrupt following obligations to pay court fees they also won’t be able to afford.”

And so on.

So my point is that copyright law is very flexible. It’s made even more flexible by the fact that as long as you’re a paying customer, then your usage is defined by licensing terms, and even these terms are regulated.

Terms of Service need to use lawful language. They can’t make any kinds of demands they want. If a TOS is ruled to be unlawfully written or unenforceable, then in some cases the company might lose all rights to the transaction terms and the customer has effectively no obligations to follow such a TOS.

Which is common among smaller and independently published works where people do not use legal counsel to write the terms of service.

There’s also a lot of different kinds of intellectual property things to understand. Such as trademark, proprietary, copyright, disclosure agreements and gag orders.

And they revolve around any number of fields including creative works, publishing industry, medicine and journalism.

And a lot of it also differ in the distinction between what is legal and what is litigious.

For example, let’s say you’re sitting at a restaurant, and you overhear two businesspeople talk about some kind of company secret. They suddenly notice you, and how you now know their big million dollar idea.

They might say that’s privileged information relating to the proprietary assets of their company, and they might be right in saying that. But they would also be misleading you, because you never signed an NDA. They voluntarily said that information in a crowded restaurant. So if anyone’s getting sued, it’s them.

That’s because an NDA is litigious. It’s not based on a directly written law, it is based on the framework of contractual language which may be reinforced in a legal court.

You don’t commit a crime when you break a contract, rather, you render yourself liable to certain actions which may be performed by the other party of such a contract.

And not only does the contract need to make it clear what such liabilities are, but they must also follow a series of legal guidelines in doing so. For instance, a contract cannot say “If you break the terms of this contract, then you must work in one of our coal mines for 5 years.”

But it can specify that you may owe them money if you break the terms of the contract, or that they reserve the right to fire you, or that they can terminate any business dealings you have with the other party.

It could hypothetically coerce you into working in one of their coal mines for 5 years by giving you the option of doing that instead of paying restitution that reflect the salary one would get from working at a coal mine for 10 years. But that would have to be a separate thing.

Contracts can still hold a lot of power over people, and there are a lot of ethical issues with contract law.

And one such issue is of course how most artists are not businesspeople, nor legal experts. They may not always be aware of what their legal rights are, what kind of options they have, or even how valuable their works are. This allows a lot of publishers and even agents to take advantage of artists.

One very vital criticism of copyright law is how it is for the most part shaped by the interests of publishers, not artists. It’s publishing companies who have the lobbyists and political insiders when it comes to copyright legislation, particularly in institutions such as the World Trade Organisation.

The WTO is quite infamous for using coercive and unethical political practices when it comes to pressuring poor countries into acting against their own interests to the benefit of rich countries.

WTO will often file lawsuits and issue sanctions against countries that have laws relating to health and safety, the ban of using toxic or dangerous chemicals in food, environmental protections and similar things that are deemed as violations of corporations’ rights to profit and do business.

That’s one of the reasons why the WTO has been targeted by third world nations. The rare instances of terrorism is of course in my opinion misguided and a tragedy, but I also think there are real and underlying issues that motivate a great deal of indignance.

Moreover the WTO do not give third world countries a lot of legal recourse when it comes to their draconian issuances, meaning that even very legitimate and reasonable acts of resistance are considered unlawful.

And these defenders of sweatshops and toxic spills are the same people who are in many ways the executive branch of international copyright law. That’s a problem if you’re not a rich guy. If you’re an artist who makes the rich guy into a rich guy, then you’re not going to be given much consideration.

Truth is that the music industry has boomed since the introduction of copyright law. BUT, musicians have become more and more struggling. This is because prior to copyright and broadcasting monopolies, most musicians had a far bigger market to participate in. Musicians were local. Every establishment, pub, bodega, cafe and night club needed live music. There was always work for local talent. But with the advent of publishers and broadcasting companies, one musician can play a million venues. And you only need to pay them for the recording.

That’s how a musician can make a couple of thousands for a song that will be heard by a few dozen millions, and it’s the publishing companies who rake in the lion’s share of those profits.

And this began with radio and television.

In Michael Parent’s Democracy For The Few, he spoke about the darker history of radio and television. Because radio wasn’t very different from the internet in its early days. Most radio stations were managed by ordinary people. Such as community groups and places of education. People had varied, local, and independent media that would broadcast music, share news, and discuss the important matters of the day.

Such media was very popular and very democratic. It was managed and overseen by people who had the same interests in public welfare as the public itself, and the fact that they were localised meant that there was plenty of job opportunities for musicians and performers.

And guess what? Same was true about TV stations, same was true about newspapers and the printing press. Same was true about the telegraph machine. The internet is no modern invention, it is simply an iteration of what has been a centuries long struggle for the public’s voice to be heard.

And that is exactly why the big companies that controlled the printing press went ahead and used all their resources and legal insiders to lobby for the broadcasting license.

This put the infrastructure of public media behind a very high wall of means testing. This meant that unless you could pay the fees to possess a license and also lease the radio waves to broadcast, then you were branded a radio pirate.

And that resulted in a lot of crackdowns and raids on people who did independent broadcasting.

And the result of this very undemocratic chapter of legal history was the birth of the media mogul. A character who didn’t really contribute any artistic content, or innovations to infrastructure, but who simply held a lot of exclusive rights to use what was once part of the commons.

Because the airwaves are highly subsidised things. The license fees do not pay for the upkeep and the maintenance of modern broadcasting networks. The people pay for that. The same people — who are seen as pirates for using the airwaves without the blessings of the corporate moguls — are also being robbed blind when they put money into the public coffers to pay for infrastructure that private companies then use to make mountains of money.

This is yet another example of the corsairs, the legally sanctioned pirates. And their damages to the incomes of others make websites such as the pirate bay look like a single drop in a very deep sea.

The most scandalous of plunderers in the piracy world, 16th century or otherwise, have always been those who were given the blessing of the state to do it. Who had the means, the resources, the social status and the institutional power necessary to petition the government for exclusive rights to do things that are illegal to others. Who are able to demand double standards in the law.

And that is an issue far bigger than just a small legal reform. That requires us to examine deeply philosophical questions about the commons, and ethics, and the rights of nations. That is not merely a matter of crime and punishment, but also one of democracy and justice.

Because as it stands, the system of publishers, rights holders, claimants and licenses, is a system that’s been built by the mercenary tactics of usurious industrialists and the many crooked politicians in their pockets.

It is impossible to meaningfully address the meaning, the obligations and the rights of people with regards to art, information, and the commerce of such things, without also addressing the long history of how the law has been abetting the powerful few at the expense and exploitation of the ordinary many.