CHAPTER 2

The Six Faces of Piracy: Global MediaDistribution from Below

Ramon Lobato

The VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

-Former Motion Picture Association of America president Jack Valenti

Rip, mix, burn. -Apple iTunes marketing slogan

The public profile of debate around intellectual property (IP) issues has Ilever seemed higher than in the last decade. Newspapers regularly feature coverage of piracy prosecutions, columnists debate the pros and cons of copy­right extensions, studio-funded antibootleg promos appear on DVDs and ill cinemas, and Hollywood trade papers overflow with updates on changes ill copyright law, international trade regulation, and studio IP policy. A fiJ­JIIiliar cast of characters appears again and again-the teenage downloader, the mrporate bigwig, the struggling independent artist, the "foreign" pirate-cum­lerrorist.

In most public discourse, piracy either looms large as scourge and scandal or is talked up as the way of the future, but rarely is it analyzed systemati­cally or contextualized historically. Rarely is the focus shifted away from the (,thics of piracy and toward its broader contexts-its legal history, its eco­Ilomic functions, and its implications for knowledge and information distri­hution on a global scale. Through a series of six critical readings of piracy, I argue that we should understand it as, among other things, an alternative

17 16 Movies

distribution systemftr media content, one of considerable complexity and poten­tial. Piracy's "cockroach capitalism" seeks out profit in markets untouched or underserviced by existing media institutions, providing in many instances the only available forms of film culture. 1 From this perspective, piracy is not only a form of deviant behavior but may also offer routes to knowledge, development, and citizenship.

DEFINING PIRACY

Piracy networks can be considered part of the informal sector, that sub­terranean zone of the economy that is largely untaxed, unregulated, and unmeasured. 2 However, piracy is distinct from other areas of the informal economy, such as the drug trade, because pirate goods are not technically illegal in their own righ t. Rather, the illegality of pirate products is usually a function of their reproduction and sale.

The U.S. film industry's flagship lobbying body, the Motion Picture As­sociation of America (MPAA), defines piracy as "the unauthorized taking, copying or use of copyrighted materials without permission,"3 and is keen to remind us of its economic and social cost by invoking dramatic statistics such as these:

• The major u.s. studios lose $6.1 billion globally each year as a result of piracy.

• Losses to audiovisual industries worldwide are estimated at $18.2 billion annually.

• More than 34 million illegal discs and 3,362 burners were seized in anti­piracy operations in 2005.

• 80% of global piracy originates from outside the United States, with especially high levels of pirate audiovisual consumption occurring in China (90%), Russia (79%), and Thailand (79%).

• Piracy operations have links to terrorist outfits, prostitution rings, drug smugglers, and other organized crime syndicates."

Other industry bodies such as the Cable and Satellite Broadcasting As­sociation of Asia (CASBAA) define piracy more broadly, as "any form ofrev­enue leakage from any point in the value chain"5-a definition that perhaps highlights the way in which piracy often functions as a scapegoat for the industry's own structural problems.

It is important to note that piracy is as old as cinema itself Every new dis­tributive technolo~y has ~iven rise to its own bO~('ynHIll. In the early years of the medium, u.s, distributors wen' pla~ued by "bicydin~" and "jackrab­bitin~," wl\('rcby film prints wen' SITI'CIH'd ill ullapprovl'd V('nUI'S or extra scn'I'llill~Swen' put Oil withlllit till' distributors' 1ll'l'Il1issioll.'1 TIll' mar!H't fill' In .. uu I\HntlulI' IlI·int,," !IlHI hPi\J!!t" 1\I,,,i,tf·,inll pfillilltlU'llt that PIlHtrl!'pd in the

The Six Faces of Piracy

postwar period also irritated the studios. And with the invention of the VCR, home-based illegal dubbing became the biggest nightmare yet for the movie industry, which feared that its entire existence was under threat. As ludi­crous as this sounds today, it tells us something interesting about both the history and the future of the "war on piracy." While the studios strategically play up their purported financial woes when it is useful to do so, global theat­rical revenues in fact rose 20 percent in 2006, which suggests that despite all the hype piracy is having little impact on the industry's bottom line.? A re­rent study by the criminologist Majid Yar supports this conclusion, arguing that the piracy "epidemics" decried by industry moguls are often a product of PH. campaigns by the studios combined with legislative changes that declare llIore and more everyday audiovisual activity illegal,8

I shall have more to say later about the extent to which piracy threatens ()r bolsters the existing power structures within the entertainment industry. Ilowever, to fully appreciate the implications of piracy, we must first examine I he legal framework against which it is defined.

A BRIEF INTRODUCTION TO COPYRIGHT

Copyright law is conventionally understood as a common-sense way of protecting the rights of cultural producers, rewarding them for their efforts IIl1d filstering future innovation. The extent to which copyright in its present lilJ'1l! does these things is open to some debate; however, what I would like to IHlJ!:J!:est here is that, as well as being a legal framework, copyright is also a historically and culturally specific ideology, one founded upon modernist no­IIOIIS of innovation and deeply embedded in capitalist thought and practice. 1"01' (his reason, it is important not to take its normative claims as gospel.

The history of copyright is a long and convoluted one and has been the ~1I",il'd of numerous scholarly works from across the disciplines.9 Inter­I'~t ill~ly, one of the earliest forms of copyright was a de facto form of state 1l'lIsorship-in sixteenth-century England, a group of publishers known as tilt' Stationers Guild were granted the right to publish commercially on the I Illlll iI iOIl that they steer clear of anything critical of the Crown. Other prec­l'dl'lIls rail be found in ancient Greece, Italy, and The Netherlands. However, 1l11 ..~1 scholars trace the origins of modern copyright to early eighteenth­I 1'IIIIIl'y Ellgland-and specifically to the passing of the Act of Queen Anne III I', 10, The Act of Anne provided authors and publishers with the first c,,,III/'('c'a"'e period of monopoly control over their intellectual labor (for a 1"'l'Iod 01' ',I, years, extendable once only), after which a work would enter 11110 what would Ill'conw \mown as the publil: domain. This was considered to III' II lilir t rade-ofl' bcl W('l'n the colllpclinJ!: delllands of individual authors and 11\'11 ~ol'il'ty, which was pn'sunll'd to IWlll'lit frolll a li'l'ely accessible archive 1I1.1I111l1'1I11Il'/ullIl'lioli

19

'1'hc' ~Iohali/,atioll ol'mpYl'i~hl law has IWl'lIl1l1dc'l'way silln' I Ill' Iiltl' lIilll'­tel'lIth Cl'lItllry. III IIi/W, till' B('l'IH' ConVl'lItioli fill' till' I'l'Otel'tion of Liter­ary and Artistic Works was siJ!:lll'd hy a nlllllhl'r of Ellropean nations and would go on to becollle the key telllplate fllr globetl copyright regillles of the twentieth century. III An AnJ!:lo-A merican aJ!:reement was also signed in 1891,

harmonizing some of the discrepant traditions in both nations. This process was consolidated and extended with the 1948 Brussels Convention (which granted copyright protection to cinema) and the 1994 Agreement on Trade­Related Aspects of Intellectual Property Rights (TRIPS), which formed part of the final Uruguay round of the General Agreement on Tariffs and Trade (GATT). The GATT's successor, the World Trade Organization (WTO), has been a prime disseminator of the "new world order in knowledge" ever since, supporting policies that tend to favor established players in the agri­business, information technology, entertainment, and other IP-based indus­tries.!! Those few recalcitrant states that have attempted to water down their copyright protections-a group that has included, at various times, Hong Kong, China, and Brazil-have generally either been bought off with trade incentives or disciplined with restrictions and embargoes.!2

Three key points can be extracted from this potted history of copyright. First, copyright regimes-particularly in their current "hard" incarnation­function to convert knowledge into capital. Copyright is thus inextricably linked to the development of free-market capitalism and what is sometimes dubbed information capitalism. Furthermore, we should be aware that copyright's reach extends beyond the realms of the economic and the legal and into the cultural: It designates forms of cultural production as either legitimate or illegitimate based upon a set of values that privilege "prog­ress" and "innovation." In contrast, the public domain is always defined negatively-as that which is "left over after all other rights have been defined and distributed."!S

Second, copyright terms have been steadily increasing, meaning that knowl­edge and cultural production are kept out of the public domain for longer and longer periods. Copyright terms now extend up to 70 years after the death of the creator in many territories. Term extensions have been a key feature ofre­cent U.S. trade deals, such as the 2004 U.S.-Australia Free Trade Agreement, which required that Australia fall into line with the restrictive IP framework outlined in the U.S. 1998 "Sonny Bono" Copyright Term Extension Act. (As one would expect, this Act was the result of intensive lobbying on the part of American software and media corporations. Disney led the charge, motivated by the fact that its copyright on the infinitely profitable Mickey Mouse was set to expire. For this reason the Extension Act is commonly referred to as the "Mickey Mouse Protection Act.") Similar agreements have recently been signed with many other nations. The U.S.-Korea FTA is expected to have a particularly harsh effect on the Korean film industry, which has been booming

II\'C'I' till' last d('cade, as it '"l1/Hlatt's till' parlilll disnllllltlilig of OIH' of till' Iwy driVl'rs of the indllstry's SIl(T('SS: II donll'st IC sl'I'een qllota. Finally, wherever II' illdllstries have political dOllt, constallt P"('ssun' Illr further extensions ('xists. For example, an alliance of British record companies, with the help of IIgilig rod{ stars such as The Who's Hoger Daltrey, mounted a high-profile 1'llIlIpaign in 2007 to lobby for legal changes in the European Union (EU) wi Ih the aim of instituting a new music copyright term of 90 years.!4 This proposal was eventually rejected by the British government-however, it is olily a matter of time before it is put back on the agenda.

Third, it is important to note that art and business are not always diamet­I'ically opposed in IP debates. The history of copyright is full of examples of cultural producers who, understandably, have been more interested in their lI)mllleS than in the future of the public domain. Wordsworth, Twain, and I)id\ens were all champions of copyright, as are the band Metallica and the director George Lucas contemporarilyY Even Spike Lee, a radical filmmaker IIn:laimed for his unflinching analyses of contemporary racial politics, has hC'('1I a vociferous defender of his own IP rights. 16 We should also note that mpyright law has on many occasions been used as a legal tool to protect I he rights of individual artists against corporate interests. For example, the "'llllral rights" (droit d'auteur) provision of European copyright law (to which thc' United States has long objected) was the basis for John Huston's court \'ictory over MGM in relation to the colorization of the 1950 film The Asphalt .llInK/e. 17

This complication duly noted, the implications of current copyright regimes lill' many types of cultural production are quite alarming. One frequently cited example concerns an independent filmmaker whose documentary on opera stagehands unintentionally included four seconds of The Simpsons. (During one take, the program had been playing on a TV set in the back­ground.) Despite obtaining the personal blessing of Simpsons creator Matt (,roening, the filmmaker was threatened with a lawsuit by the copyright holder, Fox, which demanded a whopping $10,000 clearance fee. The film­Illaker's legal advice suggested that even though the sequence would prob­ably be covered by "Fair Use" provisions in U.S. copyright law, which allow I he use of copyrighted material in certain circumstances, the potential court hattie would most likely be decided by the size of each side's legal team-and ~iven the resources of Fox's parent News Corporation, the filmmaker had little chance ofsuccess. 18

As this episode suggests, copyright has strayed a long way from its origi­lIal purpose, and Fair Use provisions cannot always be relied upon to protect I he rights of cultural producers. So where does this leave piracy? Violations (.1' an ethical/legal system can only be considered inappropriate if we believe ill the principles and the efficacy of that system to begin with. Thus, if we accept that copyright is a flawed system built around a specific political and

20 Movie.

I'COIIOlllic worldvil'w, dOl's Ihis 1I0( occasioll a l'I'lIpprlliNlllof' pirllll' I'l'produc­tioll:) Giwll thl' hi~h viNihility of' CUIT('lIt Ilt'halt's al'OI1I1I1 fil('-sharill~ ami ui~ital 11' law, is it lIot tillle to cOllIplicatl' the COllllllOIl-S('lIS(' assulllptions that int()J'Jll our llnuerstalluin~of copyri~ht allu, in so uoin~, to open up a series of vantage points on its opposite number-pi racy-which do not nec­essarily involve its reflex condemnation?

With this aim in mind, what follows is a series of critical readings of pi­racy from six different perspectives.

RETHINKING PIRACY: SIX CONCEPTUAL MODELS

Piracy as Theft

Let us begin with the most common understanding of piracy. As I have outlined so far, IP regimes understand creativity to be a form of capital. Copyright is the regulatory mechanism that oversees this property system, ensuring that markets remain healthy and that levels of protection for IP rights-holders are on a par with those extended to other property owners, such as land owners or car owners. From this perspective, it is suggested, copyright is something that should be not only defended but also legisla­tively boosted and pedagogically entrenched. Piracy, on the other hand, is imagined as a parasitic act of social and economic deviance.

Writers such as Pat Choate and Paul Paradise are representative of this conventional reading of piracy, which is in line with mainstream political and legal thought throughout the West. 19 In the arena of film, this approach to piracy is best exemplified by the aforementioned Motion Picture Association of America. The MPAA's antipiracy activities have been the envy of other sectors of the IP industries because they resulted, at least until the emer­gence of peer-to-peer (P2P) technologies, in the virtual eradication of large­scale commercial movie piracy in the United States, Australia, Canada, and most of Western Europe. No one has been more vocal in their denunciations of piracy, nor more florid in their rhetoric, than the MPAA's former presi­dent Jack Valenti. A former aide to Lyndon Johnson, this powerful lobbyist ran the MPAA from 1966 until 2004. He contributed significantly to several landmark legal offensives, including the failed 1984 Sony Corp vs. Universal City Studios ("the Betamax case"), which sought to stamp out the booming home video industry, and the much-maligned Digital Millennium Copyright Act in 1998.

Now deceased, Valenti was a legendary orator in his day. During Con­gressional hearings for the Betamax case, he famously quipped that "the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." He regularly referred to piracy as "a pandemic" that robs IP industries of what is rightfully theirs, and he was

~1

IIINOII"lllof'lIlallill~(lj'('quI'lItly IIIINUhNllllllllllt'd) l'OIIIlI'clioIlS hl'tWI'('1I piracy opl'ratiolls alld t('ITorist ~I'OUPS illd\l(lill~ 1II'zhollah, IlallJas, the \HA, AI Vlll'da, alld LashIHI-('-Toiha.'JCI

'I'hl' MPAA's war 011 piracy has sOIl~ht tOl'llIhl'd an ethics of copyright III I hI' ~Iohctl milldset. In the past, M PAA ad campaigns have attempted to 1'111111(1'1' the widely held belief that piracy only harms the stock options of "'lIdiolllO~lllsby presenting the auuience with stories from Hollywood tech­IlIl'illllS and tradespeople regarding the threat posed to their livelihoods h,V illq,!;al copying. MPAA competitions such as the "Xcellent Xtreme Chal­It'ngl''' offer OVDs and Hollywood studio trips to children who submit anti­pll'IH'y essays. The organization's Web site even promotes a cheerful "Copyright 1\111101" ~allle (www.copyrightkids.org) where children can familiarize them­Ill'l\'l'S with the virtues of IP by registering their own poems, paintings, and t1rllwill~s t()I' protection.21

Ilowever, much of the MPAA's rhetoric unravels upon closer inspection. Stlliislics from the MPAA on piracy losses tend to defy the most basic te­111'1101 of'economics because they are often based on calculations that presume 111111 jtll' each movie accessed illegally a legitimate version of the same film ~OI'S ullsold. This logic is fundamentally flawed, for it ignores the influence lit pricin~ levels and distribution in media consumption. For example, legal VIIS/VeO hire in Korea has traditionally been very cheap and accessible Ihllllils to an extensive network of local family-run stores.22 As a result, pi­IIII',V levels have been very low for much of the last few decades. In China, hlI\\'l'V1'1', where cinema admission and legal movie purchasing is much more I'Xlll'lIsive in comparison to average wage levels, piracy is rampant. 2S

I'urthermore, reports of industry "losses" are usually based on gross 1'111111'1' than net figures and are necessarily suspect given that piracy's subter­1IIIII'all and disreputable nature means attempts to quantify it are speculative III Ill's!." I And even if such figures were reliable, the purported piracy boom of 11'1'1'111 years has as much to do with increasing amounts of everyday activity Ill'III/!,' criminalized as with verifiable increases in illegal activities. As Majid "III' argues, piracy statistics tend to function as self-fulfilling prophecies:

1:IIJigh figures put pressure on legislators to criminalize, and on enforce­1III'nt agencies to police more rigorously; the tightening of copyright laws /'l'IIduces more "copyright theft" as previously legal or tolerated uses are prohibited, and the more intensive policing of "piracy" results in more sei­wres; these in turn produce new estimates suggesting that the 'epidemic' ('( llitinues to grow unabated; which then legitimates industry calls for even lIIore vigorous action.25

I,i1\!' the music industry's campaigns against illegal downloading, the film Illdustry's war on piracy is in many senses a public relations exercise aimed

MOYi••

lit n'illlill'l'illg a d('li'n'lltialn'llItiollship to copYl'ight at th(' I('wl oj' (,wl'yday COllsumptioll alld showillg til(' "vulll('rahl(''' sid(' of a profitahl(' alld quasi­oligopolistic illdustry. Ilow('v('r, this rhetoric is somewhat disillgenuous, fi)r piracy is still above all a filrm of tiltll ('onsumption, and this consumption can often be made profitable for the studios in other ways. As Toby Miller has argued, piracy breeds a "Hollywood habit," familiarizing global audiences with American product and softening up markets for future exploitation.26 It also adds value to prenegotiated product placement deals, increasing revenue streams via the back door. Finally, it is worth recalling that digital piracy is actually Hollywood's own digital Frankenstein: Not only is it a side-effect of technology developed by the major studios, but it is also made possible in many cases by DVD preview discs secretly copied by u.s. technicians during postproduction-and even, in one memorable case, by an Academy of Mo­tion Picture Arts and Sciences member.27

Let us move now to another perspective on piracy, one that sees copying as a potential business model rather than a form of deviant behavior.

Piracy as Free Enterprise

While several of the alternative approaches to piracy that I outline here involve a critique of capitalism, one does not. This perspective--what we might call the extreme laissez-faire model-reads piracy as the purest form of free enterprise. Unimpeded by restrictive legislation and monopolistic market structures, piracy from this vantage point can be appreciated as a flourishing of commercial activity catering directly to market needs.

For example, certain economists have argued that greater economic ef­ficiency can be achieved in a liberalized regulatory environment where the reduced returns to copyright holders would be offset by the productivity gains arising from lower prices and wider availability of cultural goods.28

A recent editorial in The Economist (July 2, 2005)-which is hardly a bastion of anticapitalist sentiment--even suggested that copyright terms should be stripped back to 14-28 years in order to boost innovation. In other words, a persuasive argument can be made on economic grounds alone that strong copyright is undesirable. Indeed, if we push this argument to its logical limit, it becomes possible to read piracy as the quintessential form of free enter­prise. This view suggests that the two competing objectives that copyright seeks to balance--collective progress and individual profit-are in fact collaps­ible into a brave new world of unbounded capital and information exchange.

Contemporary China provides an excellent example of these contradictions. The nation's thriving pirate economy is often represented as the Mr. Hyde to global capitalism's Dr. Jekyll, but it is more than this. In many ways, piracy is a side-effect of the boom in "legitimate" enterprise that has followed China's accession to the WTO, as it is based upon factors such as increased consumer

TIl••IX ....,."IIIY

lItlivity, lilt· ris(' oj'digital t('ChIlOlo!J;.Y, 1l('W It'v('ls oj'('(l/IlIIl('ITial autollomy ti)r ('Idllt's(' husillesses, alld th(' h'chllOlo!J;IZlItloll Ot'lllliSS production practices. In 11Il'!, Warller Bros' Chill('s(' op('rlltioll chos(' as its first hOllle video liccnsee a wc,II-I(llowll piracy outfit (th(' Xianlw t:ompally), which makes a mockery of 11H' MI'AA's moralistic IP rhetoric. 2 My poillt here is that piracy is still a lu­!1

11'111 iw filrm of business, that wealth is still created and exchanged-it's just flillt th(' distribution of this wealth takes a ditlerent form.

'I'h(' recent history of DVD technology offers another example. Consum­I'I',~ shopping fc)r new DVD players are often faced with an interesting choice. ( )111' call huy an expensive brandname unit loaded with all the irritating anti­lopyillg mechanisms that make life difficult (region coding, Macrovision, lOpy protection, and so on). Or, for half the price, one can choose a generic 111'111111 that will allow you to play what you want, where you want, when you WIIIII -fill', in many cases, the manufacturers of these units are not part of \'1'1'1 ically integrated audiovisual empires and have little to gain from the I'll t I'll time and expense that is required to install copy-prevention technol­nv.,v ill their players.3o

11('n' we have two competing models of capitalism: on the one hand, an oli­."opolistic, vertically integrated, top-heavy capitalism that perpetuates itself flll'!lIlg11 collusion with the state via technical standards, trade deals, copy­1'1v."1 I'cgimes, and so on; and, on the other, a less formal, often extra-legal \'III'il'ly of enterprise that operates between the cracks in existing economic _II'III'lurcs and frequently outstrips its legally sanctioned counterpart in ef­IItll'llt·y, speed, and flexibility. This second model resembles what film theo­1I~t.~ ('huck Kleinhans and Darrel Davis refer to as "cockroach capitalism."31 TillS is an apt metaphor: cockroaches, like pirates, tend to live in cracks and 01111'1' dark spaces; they move fast and multiply quickly; they feast on what­1'\'1'1' scraps are available; and they are extremely difficult to squash.

( )wr the years Sony has evolved from cockroach status to pest-killer. Dur­1I1~, IIH' afi)rementioned Betamax case, the Japanese electronics giant was still 11I1'v.I,ly a hardware manufacturer and was thus on the receiving end of the ~11'1\ 1\'s anti-home video offensive. It was portrayed by the studios as a rogue 1llIIIPOIllY trying to erode copyright protection and destabilize the industry. 1'\\0 d('cades later, Sony is now in the opposite position. Its recent attempt to _lIol'!' lip IP protection in the face of cockroach competition involved conceal­11lf', spyware and data-collection utilities in the copy-protection software on ~IIII,V BMG CDs-a sneaky strategy that became a public relations disaster.32

TIH' laissez-faire approach to piracy is gaining traction as the P2P revo­lilt \011 l()rces the culture industries to develop business models based around 11'\1'1111(' sources other than box office admission and record sales. It has prec­l'dl'lIls in other informal economies. One example is the adult industry-a l4 !I'V wne that remains one of the more profitable sectors of the entertainment 11I11I'11I,t even though piracy levels may run at up to 85 percent.33 However,

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rlltl)('r thllll 1H'1l101lIlill~ thl' loss 01' tlH'ir 1'IistollH'rs astutl' porll dislrihutors accept piracy as a ~iVl'1l alld huild this illto tl)('ir husilll'sS lIIodl'ls. As the CEO of adult distrihutor Nectar Elltl'rtailllllellt has COllllllentetl, "If somc­one's stealing my stun; I sec it as great PH and ~reat marketing,"'%

Whereas Valenti sought to damn piracy through t1iscursive connections to porn and the criminal underworld, the laissez-faire brigade might no­tice something more productive in this connection. Such is the logic of the shadow economies. However, this fact reminds us that piracy is always more than an ethical issue--it is at the same time economic, social, and, as we shall now see, political.

Piracy as Free Speech

Arguably the most effective critiques of current copyright regimes have been coming from a group of vocal, tech-savvy American liberals. Often affiliated with the open-source movement and such bastions of "techno­libertarianism" as Wired magazine and the Electronic Frontier Foundation, writers including Lawrence Lessig, Siva Vaidhyanathan, Michael Strange­love, and 1. D. Lasica have published popular critiques of copyright culture over the last few years, helping to give the issue a degree of public visibility.55 They argue that copyright's intended balance between free speech and the free market is increasingly favoring the latter over the former: Consumer rights are being compromised, and the future of innovation is under threat. Furthermore, these writers-and many others-feel that the piracy issue is inextricably linked to the right offree speech.

The sympathies of Lessig and his contemporaries tend to lie with con­sumers and "creatives," They are concerned, on the one hand, with the harsh penalties that P2P downloading attracts, with our inability to legally trans­fer data between different pieces of hardware, with the bugs and spyware that jam up our computers, with the monopolistic practices of Microsoft, and with other user-related issues. At the same time, they seek a way through the copyright minefield for directors, writers, musicians, DJs, animators, and, above all, software developers, via legal recognition of appropriative cut 'n paste techniques as legitimate forms of expression.

In his book Copyrights and Copywrongs, Vaidhyanathan analyzes the history of copyright as it has applied to literature, film, music, and software, arguing that the current hard-lockdown phase of IP regulation is stifling creativity. He proposes a system of "thin protection" as the best way to ensure the fair compensation of creatives while still fostering a culture of innovation and freedom of information. Strangelove takes a more anarchic approach in his study The Empire ifMind, lamenting the Internet's devolution from a space of culture-jamming and activism into a commercialized sphere ruled by IP autocrats. For Strangelove, piracy is a progressive act designed to take back

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whllt shollid ri~httilily hl'lollg to liS 1111 thl' lilH'ratill~ potl'ntial of' di~italte'l'hllology.

Ilowever, it is Lessi~, a fiJl'IIII'r Youn~ Hepuhlican turned Stanf()rd law profi'ssor anu free-speech activist, who is the 1II0st prominent figure in this ~rollp. Lessig is the man hehinu Creative Commons, an easy-to-use alter­IIl1t iVl' to copyright that has been attracting considerable attention within 1'I'('lItive industries circles.Sf; Creative Commons operates on a "some rights I'l's('rveu" principle. Artists who license a work under the Creative Commons ~'ystl'lII may still benefit financially from copyright protection, but they also V;iVl' permission for the work to be used creatively by others (as samples, as ~olll"('e code, and so on) or for nonprofit purposes.

J,essig's influential books The Future ofIdeas and Free Culture have become hihles for the online libertarian movement. The latter is grounded in the IIlfill'lllation-wants-to-be-free rhetoric ofcyberpunk. It argues that important fiJl'llls of cultural production are under threat from the "copyright warriors" whose restrictive IP laws are in fact harming free enterprise. In Lessig's words,

Overregulation stifles creativity. It smothers innovation. It gives dino­saurs a veto over the future. It wastes the extraordinary opportunity for a democratic creativity that digital technology enables.S7

The sentiment expressed here is libertarian in that, like the laissez-faire (' x tr('mists referred to earlier, Lessig sees state regulation as a threat. His argument valorizes innovation for its own sake; it is a reformist position that S('('l\s a softening of certain aspects of the existing IP regime rather than Ihe wholesale overthrow of the political and economic systems of which it is II component. Lessig is very clear about this, insisting at one point that his "'lIessage is absolutely not antimarket,"S8

Although Lessig notes that piracy has been a constitutive feature of the l'Olltent industries since the invention of mass communication technologies, hI' shies away from celebrating piracy per se. In fact, he declares on many oc­('asions his opposition to "theft," drawing a line in the sand between acceptable pi racy (cut 'n paste cultural production, culture jamming, remix culture) and stealing. But as Kativa Philip correctly notes, there is something a little U.S.! Euro-centric about this argument, given that many of the "bad" pirates Lessig has in mind are "foreign" in origin, or at least are constructed as such. This is a point to which we will return shortly. But in the meantime, let us consider a lillirth reading of piracy, this time from the vantage point of cultural theory.

Piracy as Authorship

While the readings of piracy offered so far have revolved around material issues of access and economy, it is possible to approach the phenomenon from

27

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" I

26 MoYie.

othl'l' pel'spl,ctivl'S as Wl'll. 1'0stlllOdl'l'lI tll('ol'y, lill' IlIstlllll'I', has critiqul~d11' law hy attaellilt~ a COIICl'pt at tIll' Vl'l'y Il('al't of thl' disl'ouI'SI': t1utlwrship. Jacques Derrida, Michel Foucault, alld Holalld Bal'thes, allloll~ others, have all oflcred trenchant critiques of such concq>ts as ori~illality, illnovation, and expression, revealing the ways in which these common-sense notions are in fact saddled with all kinds of historical and ideological baggage.~H By pushing some of these ideas to their logical limit, it may even be possible to appreciate piracy as a form of cultural production in its own right.

However, before examining the postmodern critique of copyright let us consider how the legal frameworks around IP define originality. Copyright law makes a distinction between an idea and its expression. While ideas cannot be copyrighted, their expressions, in the form of films, books, poems, songs, and so forth, can be. This distinction presents several problems. First, the line between an idea and an expression is often a rather arbitrary one.40 Sec­ond, it has also been argued that the definition of authorship that is codified in copyright law is tipped in favor of those types of cultural production that are commodifiable (and thus marketable and saleable) and that are "fixed" in certain types of recognized sign systems, such as written language or musi­cal notation. Many other forms of cultural production are excluded from copyright's scope-for example, oral texts and traditions, physical forms of dance and theatre, and community-based knowledge and information.41 So, in effect, the kind of authorship privileged by copyright and IP discourse frequently functions as a

gate that tends disproportionately to favor the developed countries' con­tribution to world science and culture. Curare, batik, myths, and the dance "lambada" flow out of developing countries, unprotected by IP rights, while Prozac, Levis, Grisham and the movie Lambada! flow in.42

As a result, copyright tends to privilege those forms of cultural production in which Western cultural industries specialize. This is no accident; on the contrary, it accurately reflects the historical, social, and cultural specificities that have shaped the Euro-American legal traditions upon which copyright is founded.

Copyright also tends to erect boundaries between "legitimate" and "il­legitimate" cultural activity. What passes for originality or appropriation, as opposed to theft or forgery, is in most cases determined by IP law rather than any universal standards ofcreative conduct. Some interesting examples of these tensions can be found in postmodern art of the 1980s. The American artist and provocateur JeffKoons was famously sued for producing a sculpture (StringcifPuppies, 1988) based on a kitsch postcard image. His contemporary Sherrie Levine rephotographed the Depression-era images of Walker Evans and exhibited them under her own name, while the video artist Douglas

Th. IIlx ..... ., Plflev

C'"Ie1lll SI'I'I'I'llI'd a slowed-dow II Vl'I'SIOII 01' I Itt eIIl'oell'S I'.~vdw (I DUO) alld lillll'd 11 '.N Ilou/' I'.~vdw (I !J!):I). All thi'S\' wodls WI'I'I' at tl'lllptill~ to lIlalw illt­1'1Il'1l1l1t poillts ahout what collstitull's all "ol'i~illal" art wol'11 alld to hi~hli~htllw hlind spots of copYl'i~ht law, which ofll-I's Illalty artists little more in the WIt,Y 01' protectioll than the easy puhlicity of a ready-made scandal.

A lillltous attack on conventional notions ofauthorship was mounted in the htll' IIltHls hy the French semiotician and cultural theorist Roland Barthes, W"O~I' I'allonical essay "The death of the author" is one of the key texts of 111I• IIIIOdl'I'1I theory. Arguing, among other things, that "it is language which "1'1,ltlls, lIot the author," Barthes seeks to cut the text loose from the anchors 11I'II"icll'd hy what we understand as authorship. Instead, Barthes sees creativ­Uy IIl1t as the unique expression of an artist's subjectivity but as the selection illlell'lIllthillation of fragments of already-existing discourse:

WI' IlItow now that a text is not a line of words releasing a single "theologi­1111" nll'aning (the "message" of the Author-God) but a multi-dimensional .""I'C' in which a variety of writings, none of them original, blend and clash. '1'1", (c'x t is a tissue of quotations drawn from the innumerable centres of lulllll'l', ..

IT]lle writer can only imitate a gesture that is always anterior, never 1I1'lgilla!. I lis only power is to mix writings, to counter the ones with the lit 1",l's, ill such a way as never to rest on anyone of them.4S

Tlli,s Illodel of authorship has significant implications for the categories of 1I1'1v,tnali ty, innovation, and authenticity upon which copyright law is founded. II, liS Ill(' saying goes, there is nothing new under the sun, and the role of the IIl'lls' III' writer is simply to rearrange existing discourse in new combina­IhltlS, tlll'lI what makes a pirate any different from an artist? Only the fact fliitl till' pirate rests too longon one particular site, resisting copyright's call to 11111\'1' 1I11111g in a timely fashion.

Nil\\!, this argument may work at a theoretical level, but how useful is it WIIl'11 applied to today's mediascape? Well, recall the famous Apple slogan "tip, IlIix, burn," which explicitly situates creativity at the point of repro­Ihlt t11111, Or consider the form of originality valued in DJ culture and how lhl. elitli'l's from the modernist model of the self-contained, unified art work. 1'111111 111'1'1' we are only a small step away from the interpretation of piracy as ill 11'lit iVl' act in its own right.

I'lll.s argument is especially pertinent to film, a profoundly collaborative tlll'dllllll which is subject to an array of value-adding processes in its voyage 1111111 sludio to consumer-processes that have traditionally swallowed up II", 1"III's share of a film's revenues (distributors retain upwards of 80% of hllllll' "ideo takings, for exampler-and that at the level of narrative and style 1l1'll'lI'lItly involve slight variations on a handful of well-worn themes anyway.

MOVie.

Tallillg all tllis illto an'olillt, call WI' I'l'ally claim that it is thc l'Opyright holder who is the SOIl' "author" of a fihni'

Piracy as Resistance

While film industry lobbyists decry piracy, postmodernists read it as an intrinsic component of authorship, and the IT community sees it as either a necessary evil or a potential business model, others have read piracy as a form of subversion. Numerous studies by progressive cultural critics and Marxist political economists have drawn our attention to issues of owner­ship, power, and resistance within the media industries. Rather than being the creative expressions of their copyright holders, films are understood dif­ferently within this tradition-as "commodities whose value is derived from the labour that makes them."45 Seen from this perspective, copyright is a legal institution that converts information and labor into capital for the benefit of a small coterie of multinational corporations. Thus, piracy-as a rejection of this economic order-has a certain political value.

Some of this may sound similar to the libertarian readings discussed ear­lier. Key differences exist, however. Unlike Lessig, many political economists are decidedly "antimarket." They consider the media to be a system of con­trol and exploitation that operates in the service of capitalism. Furthermore, they insist on the importance of class, whether in reference to the IP-rich capitalist barons or the workers whose surplus value they extract.

For example, Ronald Bettig's authoritative 1996 study Copyrighting Cul­ture argues that copyright represents a strategy of property regulation and market colonization. He provides a detailed history of copyright law, high­lighting the "essential connection between the rise of capitalism, the ex­tension of commodity relations into literary and artistic domains, and the emergence of the printing press."46 He notes how the U.S. government, in close consultation with industry bodies like the MPAA, has institutionalized copyright culture globally through such means as trade sanctions against recalcitrant nations, FTAs with built-in IP boosters, multilateral initiatives such as GATT and the WTO, and increased infringement penalties and en­forcement efforts.47 For Bettig, pirate circuits are spheres of commercial ac­tivity that have yet to be "recolonized" by transnational audiovisual empires. Bettig thus implicitly positions piracy as a practice that, in its obstruction of capitalist domination, represents a form of resistance.

A similar argument is posed by Toby Miller and others who, in their in­fluential book Global Hollywood, opened up a new area of class analysis within media studies by exploring the political economy of film labor, Their inter­pretation considers not only the creative talent but also the "be1ow-the-line" workers who paint the sets and drive the delivery vans. They argue that intellectual property laws are one of the key enablers of the major studios'

%9The Ilx PIO.. Of Plnev

1''IploitatiVl' pral'licl's: "11"s trallslill'llIlItioll of IllIowh'dgl' illto property tl'a­Illtllllllllly prioritizes oWlll'rship OVl'r UNI', ITl'lItms OVl'r audiences and pro­.1111'1 iOIl over reception,"'" Global JJII/~V7(l1iIid lists numerous examples of IlI'lIvy-lwnded II' "cnfi)rccnwnt," such as Disney's lawsuit against a Florida _rlto;)1 over thc copyrighted cartoon charactcrs paintcd on its buildings. 'I'lle'y arguc convincingly that thc MPAA's war on piracy is about markets 1'1I111e'1' than morals: In their eyes, IP law is a "strategic weapon" used to "llIhl'icate international exhibition and open up new areas of information 1II1I1Iagl'ment."Hl Here, as in the work of Bettig, piracy is implicitly valorized IIII' its challenge to Hollywood's hegemonic "new international division of

rlllilirallabor." TIll' Ilong Kong-based film theorist Laikwan Pang puts forward an ex-

tll'lIll' version of this argument in her recent book Cultural Control and Glo­/J1I11~lIlion in Asia. In what often amounts to a romanticization of piracy, Pang "ltl'llipts to theorize pirate media "as a critical interrogation of today's in­h'l'lIational cultural politics."50 She argues that Hollywood pilfers content (_I,Yit's, stars, and so on) from Asian cinemas while hypocritically waging ,hl'lol'ical war against the East on the grounds of copyright infringement, 1"01' "allg, the only difference between the two forms of piracy is the techni­1111 Issue of legality, which is itself defined according to legal structures that

111\'111' IIollywood. Ilowever, Pang's totalizing rhetoric-and the propiracy argument in

1(1'1I1'l'al-can tend to obscure more than it reveals, There is little point 1''IlIllillg all pirates as subversive agents, just as there is little to be gained 1t'1I111 hlindly damning Hollywood and all it represents. We should not only Ill' I hinking of piracy in terms of theft and resistance, of right and wrong; WI' also need to start thinking about what it can do for communities across tile' glohe by assessing its social, cultural, and economic effects as well as its

1I1l11'ai implications. WI' need to think in terms of access.

Piracy as Access

Hl'cent work from postcolonial, legal, and development studies has offered II 1lIllIpelling, new interpretation of piracy, one that is concerned less with its l'llill's than with its potential. This approach is interested in the transforma­IIII' aspects of piracy-in piracy's capacity to disseminate culture, knowl­.'dgl', and capital. It interrogates the relationship between technology and dl'II'lopment, asking not "whose property?" but "whose future?"

I':arlier on, I referred to the familiar cast of characters that populate the d,'hall's around piracy: the teenage file-sharer, the struggling cultural pro­dul't'I', the corporate bigwig, the pirate-terrorist syndicates, and so on. Miss­ill!', from this picture are those forms of everyday piracy that take place in

31

,

i

Movl••

thl' dl'vl'loping world, For instann', IIHIII,Y l'olllllilinitil's an'n't illdlldl'd ill the killd of Marxist 01' 1illl'I'tal'ianl'ritiqlll's olitlilll'd pl'l'viously Ill'("IIIS1' tht,y may not belong to a worl<ing class pl'l' Sl', 1I11ICh less the cl'e(ltive class to whom Lessig addresses his arguments, Political economy's binary division between owners and workers has less to otiCI' those who exist beyond the boundaries of the latter category and who may indeed have something to gain from the technological modernity of pirate media.

In a compelling essay, the feminist/postcolonial theorist Kativa Philip un­packs some of these issues. Drawing on the work of Michel Foucault, Philip invites us to reconsider the familiar narrative of "technological authorship" from the perspective of "sites in the global south which are perceived, in the liberal democratic discourse of development stages, to be mired in the 'not yet.'''

What does it mean that, at the very historical moment that technological authorship seems to become widely accessible, the law marks off certain authorial spaces as transgressive? What difference does it make that a par­ticular kind of ripping off happens on the margins of the industrialized world, among the "less developed" members of the WTO, at the apparent edges of the reach of western liberal democratic law, where the lines be­tween authentic original and corrupted copy are being blurred by street vendors and high-tech entrepreneurs?51

Philip thus suggests that the libertarian reading of piracy exemplified by Lessig uses the type of commercial piracy practiced in Asia as a kind of black sheep against which the free-software movement can define itself In other words, she argues that the war on piracy is also about the struggle for authority and power on the global stage. In this geopolitical arm wrestle, "copying" has a double meaning: On the one hand, Asia is encouraged to imitate the West by replicating its political and economic systems and by promoting responsible digital citizenship; but on the other hand, alterna­tive forms of "copying" (pirate reproduction) are strictly forbidden. Such an argument pushes debates around piracy into a whole new territory. By con­necting everyday piracy to development and global politics, Philip makes a compelling case for taking piracy seriously as a route to social, economic, and political change.

One of the inspirations of Philip's critique is Lawrence Liang, a legal scholar based at Bangalore's Alternative Law Forum (www.altlawforum. org) whose work has also been influential in this debate. In the essay "Porous Legalities and Avenues of Participation," Liang develops this argument by emphasizing the fact that legality itself is a relative concept. He notes that millions of Indians live in a state of illegality every day of their lives, forced by socioeconomic circumstances to bribe officials for essential services or to

The 81. "0" of Plraev

_It'1I1 dl'Ctl'icity Ill'l'ause no "ot'lil'illl" soun'l'S l'xis!. I\l'col'dillg to Liang. the "P0I'OIlS legalities" that characterize Iiti.' in nllll'h of the developing world III1IY Ill' till' only routes through which contact with the modernity that the WI:NI talH's tell' granted may be realiZl'd. Piracy is theretelre not solely about 11Iol'lIlity, freedom, or even resistance; it's also about "ways through which I".ople' ordinarily left: out of the imagination of modernity, technology and IIIl' global economy [find] ways of inserting themselves into these net­WllrI, S."f,'2

1\ third and final writer who has been able to give some experiential detail III till'sl' arguments is the Indian new media theorist Ravi Sundaram. In the llb~lIl'bingessay "Recycling Modernity: Pirate Electronic Cultures in India," I'lllndaram defines "recycled pirate modernity" as an urbanized, everyday, '1IIIIIt'gal sphere characterized by speedy, small-scale practices of circulation ("lit 111'1' than production). This is a culture of cassette-based music trade, DIY IIIIlIpliter networks, cheap mobile phone repairs, and pirate VHS/VCD mov­h'~; a "world of informal technological knowledge existing in most parts of Illdia, where those excluded from the upper-caste, English-speaking bastions III lilt, cyber-elite learn their tools."53 Sundaram's "recycled modernity" is a _I.t 1)1' practices that conform neither to the boosterist hype of economists (India as a brave new world of service-sector innovation) nor to Marxist Inllde,ls of economic imperialism (India as a source of cheap labor and an 1III.1"I'( of exploitation). It is founded upon a variety of piracy that is not by .I"'inition oppositional or countercultural and has little in common with the Ililld III' cut 'n paste postmodernity fetishized by Western academics. Instead, Mlindaram presents recycled modernity as "a strategy of both survival and Innovation on terms entirely outside the current debates on the structure lind imagination of the net and techno-culture in general."54

These three theorists alert us to the fact that there is a great deal at stake In dl'bates around piracy, more than just the revenues of Hollywood studios lind the leisure options of metropolitan elites. They help us to see that con­_111111'1' rights issues, important though they are, tend to pale in comparison to piracy's potential as a productive force. As a form of information distribution, pll'i1l'y has made a plethora of new social practices possible: grass-roots orga­nl/at ion through pirated spreadsheet software, photocopied technical manu­Ills, bootleg copies of banned novels, online activism facilitated by cheap IBM I'I' 11Ilock-offs, new forms of youth culture based around illegally procured 1'1 )s and tapes, and so on. In other words, piracy is a distributive technology-it "Ilables ideas, knowledge, and cultural production to circulate in and through ~Ill'il'ly-andshould be recognized as such.

Film is particularly important in this regard. As the most prestigious III (hI' culture industries (if no longer the most profitable), cinema is still 1111 l'lltlrmously influential educative technology. It teaches us how to think IIl1d It'el; it offers pleasures of immeasurable power and value. This is why

thl' issu(' of filrn distrihution is liS importllnt liS an'l'SS to sof'twllJ"(' Or hoo!{s. Pirlltl' circuits disseminllte all llinds of media, li'on) Ilollywood bloddlusters to more localized I(lrms of cultural production. 1\ prime t~xample of this can be found in Nigeria's enormously successful video-film industry. Sometimes dubbed "Nollywood," this networl{ of producers and distributors pumps out hundreds of films a year, none of which get shown in cinemas (most cinemas in Nigeria have shut down or been turned into churches). Instead, films are shot quickly on video or on digital and distributed cheaply on VHS and ven Operating completely outside conventional channels of film production, dis­tribution, and exhibition, Nollywood has become the country's most vibrant form of popular culture, not to mention a booming economic force in its own right. It has its own star system and a rising international profile. But the keys to its success have been low production overheads and efficient distri­bution networks that, as the anthropologist Brian Larkin has documented, evolvedfrom pre-existingpirate circuits radiating out from the city of Kano, cir­cuits that had previously moved bootleg Indian and American movies around the country and into neighboring nations.55

This is a powerful example of the productivity of piracy-of how illegal film distribution cannot only redistribute existing content according to mar­ket demand but also open up a space for whole new industries, new econo­mies, new forms of cultural production, and new possibilities of change and survival.56

CONCLUSION

Bearing in mind the maxim that those who engage in crystal-ball gazing end up eating crushed glass, I would like to conclude by offering some tenta­tive speculations as to the immediate future of the war on piracy. It seems likely that the protections offered to rights-holders by global IP law are un­likely to be diluted in any meaningful way in the short term, notwithstand­ing the odd reprieve for early-adopting Western consumers. IP debates will, however, become increasingly visible in public discourse and will continue to function as a crossover issue for development NGOs (nongovernment organizations), antiglobalization activists, technolibertarians and consumer groups. As broadband penetration and technological literacy levels rise, digi­tal piracy will flourish despite the obstacles that studio-funded digital rights management (DRM) technology will place in its way. In the wake ofiTunes, digital technology will present the entertainment industries with new dis­tributive models, but it is likely that these will tend to favor the established players or to replace old corporate giants with new ones. In other words, the distribution bottleneck will continue to be the primary obstacle for both con­sumers and producers, even as our cultural industries become increasingly complex and interconnected.

Th. Six IfitWIfPlfUV

In highlighting piracy's produrtiw pOIt'lltilll, It,t nl(' J"('ilt'ratl' that I am not 1IIC1Iinting a moral ddl'ns(' of pil'llt'Y p('r S(', Pirllcy do('s indeed hurt (some) IllrnlllalH'rs alld artists, but giwII th(' ('xtrt'mt'!y low rates of return otlt~redto illtlt'pendent artists by most ('xisting Inarltet structures, which privilege distrihutors over producers, it is worth taking all other alternatives seriously. I II ot hl'r words, we should be open to the possibility that pirate distribution ol't('11 functions as an enabling energy rather than-or as well as-a form of ,'('ollomic parasitism.

Thl' open-source movement is helping to show that profit and ethical in­IClI'lnation management are not necessarily incompatible, but this alone is un­hltt'!y to lead to progressive forms of copyright law. Instead, what is required 11\'('1' the medium to long term is a deeper interrogation of the very foundations "pOll which our proprietary models onp are constructed. This is by nature an IIllt'rdisciplinary project, one in which academics, filmmakers, programmers, c'I'ononlists, lawyers, artists, consumers, and community groups may all find II voice. After all, there is more at stake here than entertainment. Skirmishes 11\'('1' DVD ripping and music downloading are linked in important ways to IIt·hatt's over affordable AIDS drugs, agribusiness patents, the "evergreening" III' pharmaceuticals, and the future uses of the human genetic code.

1\101 the most visible tip of this IP iceberg, the piracy debate may well inf1u­c'lll,(, outcomes in these related fields. For this reason, media scholars have hilt h the opportunity and the obligation to become more involved with issues Iii' distribution and to contribute in some small way to the debates taking Illan' around one of the most pressing issues of our time.

NOTES

Many thanks to Kyle Weise, Polona Petek, Audrey Yue, Sean Cubitt, and Sun IlIlIg fi)r generous feedback and assistance.

I, I)arrel William Davis, "Compact Generation: VCD Markets in Asia," Ristorz'­I It/Journal ofFilm, Radio and Television 23, no. 2 (2003): 165-76. Davis credits film 1IIt'orist Chuck Kleinhans with usage of this term.

'2, Philip Mattera, Off the Books: The Rise if the Underground Economy (London:

I'ltllo Press, 1985). :1. "Anti-piracy," Motion Picture Association of America, http://www.mpaa.org/

IlIl'acy.asp. '" "MPAA Asia/Pacific Piracy Fact Sheet," Motion Picture Association, http://

IIl1wmpaa.org/AsiaPacificPiracyFactSheet.pdf; LEK Consulting, "The Cost of Movie I'lracy" (Singapore: Motion Picture Association, 2005),

:" Magz Osborne, "Pirates Find More Ways to Plunder," Variery, June 30,2003,21.

Ii, Kerry Seagrave, Piracy in the MotionPieture Industry (Jefferson, NC: MacFarland 'Ilitl Co., 2003); see also Jane M. Gaines, "Early Cinema's Heyday of Copying: The 1'00 Many Copies of L'arroseur arrose (The Waterer Watered)," Cultural Studies 20,

110, :,1-3 (2006): 227-44.

Movie.

7, "( ilobal 'I'1ll'atl'iclll 1(('\'('1111(' 1(('IHllllul.~ ill 'Oli," 'I'hl' / /fJ/~v'll'(l/Jd 1I1'/'fJI'II'I; .JlIly '2[), '2007, II, p,

H, Majid Yal', "'1'111' (;Iobal 'Epid('mic' of Movi(' 'Pil'acy': Cl'illl('-WaVt' or Social COllstructionil" Mniia, Cullum and SOl'il!l;Y '27,110, [) ('20()[)): (j()7-1Hi.

9. See, fill' example, Honald V Bettig-, CopyriKhlinp; Culturl!: thl! Political El'onomy qfln­tellectual Property (Boulder: Westview Press, l1!9li); Laikwan Pang, Cultural Control and Globalization in Asia: Copyright, Piracy, and Cinema (London: Houtledge, 2006); John Frow, "Public Domain and the New World Order in Knowledge," Social Semiotics 10,

no. 2 (2000): 173-85; Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (New York: Penguin, 2004), and The Future ifIdeas: the Fate ifthe Commons in a Connected World (New York: Random House, 2001); Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise ifIntellectual Property , and How it Threatens Creativity (New York: New York University Press, 2001/2003).

10. Interestingly, the United States was not a party to the Berne Convention until 1989. Berne's moral rights (droit d'auteur) provisions were not recognized by the United States-though some legal protections for creators can be found in other areas of U.S. law-and were phased out in the final version of the GATT. This fact is as a reminder that America's championing of unified global copyright regimes has been rather selective in nature. 11. Frow, "Public Domain," 12. See Bettig, Copyrighting Culture; Shujen Wang and Jonathan Zhu, "Mapping Film Piracy in China," Theory, Culture and Society 20, no, 4 (2003): 97-125. 13. Frow, "Public Domain," 182. 14. See Katie Allen, "Musicians' Copyright Pleas Fall on Deaf Ears," The Guardian, July 24, 2007, http://business.guardian.co.uk/story/0,,2133762,00.html. 15. Vaidhyanathan, Copyrights and Copywrongs. Lucas, on record as a strong defender ofIP regimes, is nonetheless considerably more lenient than his contemporaries when it comes to Star Wars fan activity, and his championing of digital technology has had some positive implications for alternative models of film production and distribution. 16. "When Mr. Lee's film Malcolm X came out in 1992, he took some of his friends, 'muscle,' he calls them, to 125th Street with baseball bats to clean the bootleg cop­ies otfthe street." Linda Lee, "Bootleg Videos: Piracy with a Camcorder," New York Times, July 7, 1997, D1. 17. Toby Miller et aI, Global Hollywood 2 (London: British Film Institute, 2005). 18. Lessig, Free Culture.

19. Pat Choate, Hot Property: The Stealing if Ideas in an Age ifGlobalization (New York: Knopf, 2005); Paul Paradise, Trademark Counterftiting, Product Piracy, and the Billion Dollar Threat to the US Economy (Westport, Conn.: Quorum Books, 1999). 20. Miller et aI., Global Hollywood 2; Nitin Govil, "War in the Age of Pirate Repro­duction," Sarai Reader 4 (2004): 378-83, http://www.sarai.net/publications/readers I . 21. 'Tipping Hollywood the Black Spot," The Economist, August 20, 2003; Govil. 22. The VCD (Video Compact Disc) format has an interesting history, though most people outside Asia and certain parts of Africa and Latin America are oblivious to its existence. Essentially, the VCD is a CD-rom containing a single MPG file that can be played on standalone VCD players, often around the size of a Discman, as well as on most DVD players and computers. They can store 74 minutes of audiovisual content,

Th. ISlx PIG. or PiNey

~1I1t Ii 1I11'III1,~ Ihlll lwo 01' lhl'l'(' S('plll'lIlc' V( 'I)s 1II'('I'I'qllil'l'd Ii 'I' 1I11),~II('allll'l'IiIIlIS, alld,,'h" 'lIltho 1111.1 vid('o of sli/l:hlly low(',' qllillily Ihall II VIIS cassl'lil', VCJ)s hav(' 110 "'1"111_, (Opy pl'otl'I'tioll, 01' 1'I'/l:iOll ('()dinK IlIvI'1I1('d ill thl' ('ady 11HlOs by Philips alld ""II.V, who ,~oOIl aballdoll('d lhl' till'mal, V( 'I) Il'chllolo/l:y W('lIt on to bl'coml' especially t*'ltl,11I1' ill Asia (I'XCI'pt Japan) dllrillg- the mid- W110s, See l'idly 1111, "The VCD Expe­rll'llll'," III .·/Silill Ml!dili Studil!s: Politil's qj',""u!!ju,tivitil!s, cds. John Erni and Siew Keng "'"111 (Mllld('II, Mass.: Blackwell, 200iJ), iJiJ-7'2; Davis, "Compact Generation," 173. III "AMIII J'ij.\'hls Piracy with Gov't, Corporate Help," Variety, November 13, IWOO, 88. .. III

Wllil/I: 1111.1 Zhll, "Mapping Film Piracy in China," ""I'. "Till' (;Iobal 'Epidemic' of Movie 'Piracy,' " 690.

IW TlIl"Y Milll'r, "lIollywood 2010," address to the Centre for Screen Business, Aus­II'MIlIlIl J'ilrll, 'I'devision and Hadio School, May 2006, available at http://csb.aftrs. ""11 11111

17 «'Ill'llliru' (~aridi, who once played a cop on NYPD Blue, was investigated by the ~IH III 'JOIII, fill' copyright infringement. An Academy member (and thus an Academy '\"'111 .1M .1".1/1:('), he had reportedly been selling his Oscar screener DVDs to a pirate op­tl11I01I1I S('(' I)aIHlY Birchall, "Thieves Like Us," Sight and Sound, October, 2000, 32-36. _111111111 hlll,s bl'tween "official" film industries and the pirate underworld also exist in I1tlll'l Itllllliril's: In Hong Kong it is widely known that producers sell finished copies HIIIII'"l1wn films to piracy outfits in order to recoup tax-free profits. "The Triads and t'''' IIl1l1g 1\1I11g- Film Industry," BBC World Service, April 2006, 22 minutes, http:// l4' '" \\' 1,111'.1'1',111, I worldservicelprogrammes/ramlglobalperspective/part4.ram. Ifll 11l'lli/l:' ('opyrightingCulture, 103-6.

I" S.'" Slillj!'n Wang, Framing Piracy: Globalization and Film Distribution in Greater

I '~'"" (I ,II II halll, Mass.: Howman and Littlefield, 2003), 87; Douglas Clark, "IP Rights 1"lIh'III'"1 will Improve in China-Eventually," The China Business Review, May­hml', ',!IIlIO, '2'2-29, 1111 «'hl'lIp Chinese VCD and DVD hardware is not entirely outside the established"II. 1111 ~ of lransnational audiovisual industry capital as chip and component patent IItljn~"'~ hav!' to be leased from the likes of Time Warner, Hitachi, Sony, and Philips. Willi 1'" ",,"ninK Piracy, 51-53.

ft I I )IIV IS, "(~ompact Generation." Ihl 1\/111,,1' l't aI, Global Hollywood 2,246; "How Sony Became an Ugly Sister," The

"/Il"II'rt~ IhoI' 18, 2005, 6, Business section. II" 1'llIs lig-lire is an estimate by Australia's Adult Industry Copyright Organisation 1.II1111t'd SI'I' http://www.aico.org.au/access-and thus is likely to be somewhat ex­"1'111."1111,'.1; however, the fact that the porn market is subject to higher levels of piracy Ihllil 1I11wr sectors of the entertainment industry is commonly accepted. ill I )lIl1a Ilarris, "Porn Pirates Go Unpunished," Variety, January 24, 2005,8. il~ I,,',.,ig-, Free Culture; Vaidhyanathan, Copyrights and Copywrongs; Michael ~111I1If',t'loVI', The Empire if Mind: Digital Piracy and the Anti-Capitalist Movement ( III, 111110: lIniversity of Toronto Press, 2005); 1. D. Lasica, Darknet: Hollywood's War

"~'"II\llhl' J)lgital Generation (Hoboken, NJ: J Wiley and Sons, 2005). ill ~;"", 1(11" example, Tony Flew, "Creative Commons and the Creative Industries," \lflIt" ,111.1 Arts Law Review 10, no. 4 (2005), http://www.law.unimelb.edu.au/cmcl/ II 101 It •""tl'nts 104.html; Brian Fitzgerald, "Creative Choices: Changes to the Cre­

36 Movie.

uliV!' ('OIlIlIlOI\S," IHl'lhll 11l11'nllllirJl/lil .·lllslmhll lllmr/'omllllg ('1111111'1' 1I11t! J'ohlY II'~

(~()()[,): 1','1'-1'1).

:'17. Lessi~, /irff ('1I1I1II'f, UHJ .

.'11'. Ibid., '2'27 .

.'39. This field of literary theory has been the subject of enormous debate acrOll8several decades, and it is impossible to do any kind of justice to the argument here, IHowever, the following texts are good places to begin: Roland Barthes, "The Death,1of the Author," in Image-Music-Text, trans. Stephen Heath (London: Fontana, 1977), I142-49; Michel Foucault, "What is an Author?" in Language, Counter-Memory, practic~:'1Selected Essays and Interviews, ed. Donald F Bouchard, trans. Donald F. Bouchard and,Sherry Simon (Ithaca: Cornell University Press, 1977), 113-.'38; Jacques Derrida, "Lim­ited inc abc," in Postmodernism: Critical Concepts, ed. Victor E. Taylor and Charles E.Winquist (Evanston: Northwestern University Press, 1977/1998), 416-503.

40. Pang, Cultural Control and Globalization in Asia. 41. For an interesting discussion of the relationship between Western IP law and Maori cultural production, see Barry Barclay, Mana Tuturu: Maori Treasures and Intel- i

lectual Property Rights (Auckland: Auckland University Press, 2006). 42. James Boyle, cited in Miller et aI., Global Hollywood 2, 2'24. 43. Barthes, "The Death of the Author," 143, 146.\ 44. For details on home video royalty structures, see Edward Jay Epstein, The Big'l Picture: The New Logic ifMoney and Power in Hollywood (New York: Random House"l 2005); Janet Wasko, How Hollywood Works (London: Sage, 200.'3). For further informa-:j tion on the cultural dimensions of film distribution, see Ramon Lobato, "Subcinema:, Theorising Marginal Film Distribution," Limina: A Journal ifCultural and Historical1 Studies 13, http://www.limina.arts.uwa.edu.au/_data/pagel59120/Lobato.pdf. 45. Miller et aI., Global Hollywood 2,5 (emphasis added). 46. Bettig, Copyrighting Culture, 9.

47. This argument is especially pertinent at the present moment given the U.S. government's ongoing attempts to combat piracy in China and to bring the PRC into, the global IP fold. 48. Miller et aI., Global Hollywood 2, 226. 49. Ibid., 216. 50. Pang, Cultural Control and Globalization in Asia, 82.

51. Kativa Philip, "What is a Technological Author? The Pirate Function and Intel­lectual Property," Postcolonial Studies 8, no. 2 (2005): 207. 52. Lawrence Liang, "Porous Legalities and Avenues of Participation," Sarai Reader 5 (2005): 12, http://www.sarai.net/publications/readers/. 53. Ravi Sundaram, "Recycling Modernity: Pirate Electronic Cultures in India," Sarai Reader 1 (2001),9.'3, http://www.sarai.net/publications/readers/. 54. Ibid., 96. 55. Brian Larkin, "Degraded Images, Distorted Sounds: Nigerian Video and the In­frastructure of Piracy," Public Culture 16, no. 2 (2004): 289-314. 56. Ibid; Sean Cubitt, "Distribution and Media Flows," Cultural Politics 1, no. 2 (2005): 193-214.