Jenna Wortham, technology writer for The New York Times, offers this article in which she questions the illegality of IP theft online. Titled, The Unrepentant Bootlegger, Wortham begins with a description of what some may consider an unjustifiably heavy-handed raid by DHS officers in the arrest of Hana Beshara, a co-founder of the illegal media site NinjaVideo, shut down in 2009. One can argue that non-violent criminals should be arrested in a less dramatic way (though I wonder how that sentiment might apply to insider-trading felons), but that isn’t the point of Wortham’s article. No, her thesis asks wether or not Beshara’s actions ought to be illegal in the first place; and I’d like to jump to her quote about SOPA near the end of the article because so much of her inquiry poses naive questions based on false premises like the following:
After the seizure of NinjaVideo and the other sites, the M.P.A.A. pushed federal legislation to continue to crack down on illegal downloading. But the bill, SOPA, was so loosely worded that it could have required all websites to be responsible for monitoring their services for potential violations — an expensive and nearly impossible challenge — prompting sites like Wikipedia, Tumblr and Craigslist to rally online sentiment against the legislation. Outrage about the bill came to a head in 2012, and lawmakers backed off.
This narrative about SOPA has been repeated so many times that even a writer for the NY Times can get away with presenting it as fact. But it just ain’t so. There was nothing about the wording of the SOPA/PIPA bills that could be used to hold US-based websites any more responsible for infringement than they already were in 2011, or than they still are at this moment. In fact, language in the bills explicitly stated that they do not trump precedent, domestic law. The bills were specifically designed to starve foreign-based sites, dedicated to piracy, of their revenue streams strictly because the site owners themselves operate beyond the reach of U.S. law enforcement. Wortham’s own emotional introduction to her article, describing the flack-jacketed arrest of Hana Beshara ought to indicate to anyone how utterly unnecessary it would be to have introduced SOPA/PIPA as domestic-focused laws. Clearly, what Beshara and her NinjaVideo colleagues were doing is already enforceably illegal in the U.S., hence the guys busting into her condo and the 16 months she spent in prison.
The notion that SOPA could have shut down Facebook, et al was the result of well-orchestrated, and well-funded fear-mongering; and I stand by the assertion that (issues of piracy aside) the anti-SOPA campaign was the most successful corporate-serving bamboozlement of the electorate in my lifetime. The campaign was holistically corrupt in that the very tools being employed to manipulate the political process simultaneously created the illusion that people believed themselves empowered through information to take action. Never have I seen so many intelligent friends motivated to reaction based on such illogical, let alone unsubstantiated, claims. Did it not occur to any of my progressive, educated colleagues at the time that in all likelihood no member of congress, no matter what we may think of his/her other politics, would sign the “shut down Facebook and Twitter” bill? Yet, here we are, almost four years later, and NY Times writers are behaving as though the Internet industry talking points are historical facts. And that brings us to the crux of Wortham’s article, summed up in this quote:
Ms. Beshara, however, still can’t accept that what she was doing deserved the heavy hammer of the law. She served 16 months in prison for conspiracy and criminal copyright infringement, but she still talks about NinjaVideo as something grand.
Something grand indeed. It is astonishing that even when independent artists recite their stories of working for years on a project only to have it hijacked by a pirate site, they’re accused of whining; but when profiteering site founders are busted, they’re treated like martyrs to the cause of culture and smarter business practices. This narrative that we should credit the NinjaVideos and Megauploads of the world for giving us iTunes and Netflix is another false premise; and it is always perplexing to read declarations about the public “wanting 24/7 on-demand everything for free or really cheap” as though those making such statements believe they’re revealing some profound ethnographic discovery. Really? People would like instant gratification and would prefer to pay next to nothing for it. That is a shocker. If only there were a Pulitzer Prize for the Numbingly Obvious.
The problem is that when writers like Wortham, under the imprimatur of venerable publications, repeat this self-evident observation about consumers and then pose the rhetorical question about the illegality of piracy, they fail to recognize through the fog of their own presumed humanism that they’re in fact promoting an anti-fair-trade market. This is because it simply isn’t possible to produce all major motion pictures and television in a manner that makes all of these works instantaneously available in every market worldwide and for prices that compete with the unlicensed option of free. To make such a demand on motion picture producers, both great and small, implies that the stake-holding subcontractors whose skills, labors, and constituent products used to produce these films must have their interests (i.e. means of living) subverted to the exigencies of black-market economics.
Going forward, I expect we will see more and more film projects organized at the contractual stage of development to facilitate early release on legal, web-based platforms — we’re already seeing this occur in some cases — but the conclusion Wortham implies is that the attitudes about piracy are so socially ingrained at this point that we ought to simply accept them and perhaps even praise them as enlightened. This isn’t surprising of course. Normalizing negative behaviors or trends does have a tendency to screw up perceptions about the consequences of those behaviors. Articles like Wortham’s remind me of a moment back in college when I bumped into a fellow film major — he wasn’t the sharpest tool in the shed — one afternoon and he told me he was bummed because his friend had been expelled. I asked why, and he said that the friend had “set his dorm room door on fire.”
“Um, Dude, that’s arson,” was all I could think to say.
“Yeah,” he replies, “but there’s so much other shit he did that the school never caught him for.”
This was sound reasoning in his mind. His friend’s miscreant, even dangerous, behaviors had become so normalized that it seemed entirely unreasonable for the college to take disciplinary action. And that’s the thing about the many thousands of words at this point that have been dedicated to re-contextualizing media piracy. Call it what you want, but, at a certain point, all we can conclude is, “Dude, that’s larceny.”
© 2014, David Newhoff. All rights reserved.