Much as Anderson Cooper once quipped that the surest way to find Osama Bin Laden would be put the Yale alumni association on his tail (“If Osama bin Laden was a Yale graduate they would know what cave he was in, exactly.”), surely the most effective way to put an end to piracy on the high seas off the coast of Somalia would be to extend the territorial reach of American copyright law, then put the American entertainment industry on the case.Â
Anderson Cooper was kidding.Â (The Yale alumni association doesn’t track down missing Yalies.Â The Yale *development office* tracks down Yalies, and then only if there’s a gift in the offing.)Â And so am I, sort of.Â The RIAA’s suits against Somali pirates would be as effective as the RIAA’s suits against American filesharers and filesharing technologists.
Still,Â a Swedish court ruled today that the BitTorrent tracker operated by The Pirate Bay violated Swedish copyright law under its version of a “making available” theory of infringement.Â Whatever the final outcome of the case, it seems likely to have relatively little effect on the spread or availability of copyrighted content via BitTorrent.Â The resulting commentary will continue to focus on the mismatch between contemporary technology and arguably outdated economic models.
But that’s not the point.Â It’s increasingly clear to me that these cases aren’t really about economics or business; they aren’t really about preserving or creating incentives to produce or distribute copyrighted works of authorship; and they are only marginally about preserving paleolithic business models.Â These cases are about ethics, about right ways and wrong ways of producing, acquiring, and using knowledge, and about good people and bad people.Â The rhetoric of “free riding” in IP is a cousin of the same theme, and IP ethics shows up in contemporary patent law with gnashing of teeth about patent “trolls.”Â
It is customary for IP critics to seeÂ arguments about IP ethics as rhetorical coverÂ for power plays andÂ capitalism run amok.Â Â Â Â Perhaps we should take the ethical argument seriously.Â Properly elaborated, I think that this is a playing field where the critics can gain the upper hand, if the ethical argument is carefully explored and elaborated.Â But calling a service “The Pirate Bay,” even if it neither stores nor serves any copyright content, doesn’t help the cause.Â That spits in the eye of the enemy.Â An honest pirate isn’t a pirate at all; he’s a monarch.Â “When I sally forth to seek my prey / I help myself in a royal way. / I sink a few more ships, itâ€™s true, / Than a well-bred monarch ought to do; / But many a king on a first-class throne, / If he wants to call his crown his own, / Must manage somehow to get through /More dirty work than ever I do.”Â In other words, it is good to be the king.Â We all know that there is no such thing as an honest pirate unless, of course, it’s a Hollywood-sponsored pirate.
There’s actually quite a bit of historical evidence, drawn from trademarks and in particular from fashion and from agricultural products, on how to defeat piracy of IP. The method that has positive correlation has three elements:
(1) A price for the authorized good/service that does not greatly exceed the price for the pirated good/service;
(2) A discernable — not necessarily huge — difference in ancillary value provided with the authorized good/service; and
(3) A customer-perceived system of reliable quality control.
So far as I’m aware, direct suppression campaigns have a 0% success rate in the long run; those who remember the casual-outerwear market in the 1980s probably have an inkling of that already!