File sharing didn’t used to be an issue for the publishing industry. In fact, just over a decade ago when the music industry was freaking out about Napster, the publishing industry barely noticed. After all, when print is your medium copiers present a much bigger danger than new technologies allowing the mass sharing of electronic files. However, with the rising popularity of eBooks in a wide array of formats, and a sudden multiplicity of devices on which to read them (seriously, my friend has a Kindle app on his iPhone), electronic piracy is becoming a growing concern to authors. However, there is more to this argument than profit margins or falling industry standards. The response to electronic piracy is a potential turning point in how we understand personal property.
Once upon a time when a person, say… John… when John bought a book, or a cd, it belonged to him, and it was his personal property. If John wanted to share his book with a friend, he could. If he wanted to give his book to that friend, he could. If he wanted to use his book a fire kindling (horrible as that may sound to some), he could. The same was true with music (either cassette tapes or compact discs), and movies. However, with the advent of video and audio recording devices came the sale of home tape decks and video cassette recorders, which led to a series of civil suits by the music and movie industries including the benchmark 1984 Sony vs Universal Studios in which the Supreme Court ruled that Sony was not violating copyright by selling betamax players which would allow people to record television shows at home. In 1992 the Audio Home Recording Act (AHRA) was passed which both created the first official exceptions to copyright infringement, and created the first government mandated royalties. This law also finalized the ruling the it was not an infringement of copyright for individuals to make copies of audio/visual media for noncommercial uses. In other words, as long as John is not selling the copies he makes, he can copy whatever media he wants. This ruling came along with an increased effort by the industries to protect their products by creating tapes and cds that were harder to copy. Lastly the Digital Millennium Copyright Act (DMCA) of 1998 created protections for internet providers whose services could potentially be used by customers to transmit pirated material. These all lay the groundwork for the protection of John’s belief that when he buys a book, cd, or movie, it belongs to him and he can do with it what he wants.
However, over the last decade the music and movie industries have shown a growing concern about online piracy, and the publishing industry has begun to become concerned, although they are still reeling from the introduction of eBooks in general, and are way behind the times. In 2011 the Protect IP Act (PIPA) was presented before congress. This law, if it had been passed, would have given the government and major industries broad discretion in limiting US access to a wide variety of websites in an effort to stop online piracy. Later the same year the Stop Online Piracy Act (SOPA), a law which would not only bypass many of the protections offered by the DMCA, but also open the door for government censorship of the Internet (similar to PIPA), was presented before congress. Thankfully this act didn’t pass either, but this is not the end of the war against internet piracy. However, what is currently termed as internet piracy is often just the exercise of personal property rights with legally purchased media. While there are no studies (or at least no easily accessible studies) on how many file share users offer pirated material, it is unlikely that the majority of them do so. While no one can deny that at least some material on various file sharing websites has been obtained through piracy, it is impossible to say how much, and some sites, such as rapidshare.com and cyberlocker.com have been ordered to begin filtering out material that they suspect has been pirated.
The difference between file sharing and home video recording is really only one of scale. Before VCRs John had to give up his movie so that his friend could watch it. However, with the introduction of home-video recording John could now share his movies with friends without giving them up. However, to do this he needed multiple vcrs and technology to overcome whatever protections were built into the cassette and, of course, he could not make a profit. John could share his movies, music, or (with a copier) books with his close friends without giving them up. With the introduction of file sharing technology John can suddenly share his movies, music, and books with five million people, instead of fifteen. This change presents an obvious threat to the industries, but the action involved is no different. John is still only sharing what belongs to him. The industries are essentially arguing that a song, movie, or book actually and only belongs to the publisher or studio that produced it, and anyone else who purchases it is only renting it. This, of course, raises the question of how much John is willing to pay for the right to rent a book. John may not be willing to pay $15 to rent a cd, even if that rental is indefinite. Imagine, for instance, if we applied this same reasoning to houses: only the contractor who builds a house can ever own it, and everyone else who lives there must rent it from him. Or if we applied this reasoning to food: making it impossible to buy eggs, and any eggs that one buys and eats must be replaced at a later date. Of course these illustrations are somewhat ridiculous, the latter especially. A house is not the same as a song or a book. However, the principle of personal property is not so different.
This also raises the question of whether the nation is willing to pursue legislation that changes our understanding of personal property in order to protect an industry’s (or three industries in this case) business model. Imagine if the same reasoning were applied to Gutenburg’s printing press. The printing press eventually put scribes out of business. If the scribal ‘industry’ had unified and demanded that European governments banned the printing press and inflicted legal punishments on anyone who used it, well… things would be very different. The same comparison could be made with audio recording devices (beginning with gramophones), which effectively put the last nail in the coffin of the itinerant bard, or the telephone, which effectively ended the telegraph industry. Advances in technology force industries to adjust, and those industries that can’t manage to adjust die. This has always been the case, and though the current entertainment industries are trying to stop this change, they are not likely to be successful.
Ultimately the question comes down to this: are we willing to give up, or at least alter, our notion of personal property? File Sharing is a controversy that is all about personal property, and if we are not willing to give up our notion of personal property, then we need to stop trying to end file sharing. Obviously some measures to prevent true piracy must be taken, and some sites have begun taking these steps (although so far only when forced). It is also not entirely unwise for some reasonable limits to be set on file sharing. While it is ridiculous for the industry to expect, much less receive, thousands of dollars in compensation for a few downloaded songs, it is equally as ridiculous for a user to expect to download hundreds of thousands of songs for free with no consequence. However, the nation should not give up its understanding of personal property for the sake of a business model. It has to change eventually, now is as good a time as any.