source: non-gtk/freeculture/chapter4.xml

<?xml version="1.0" standalone="no"?>
<!DOCTYPE article PUBLIC "-//OASIS//DTD DocBook XML V4.2//EN" "http://www.oasis-open.org/docbook/xml/4.2/docbookx.dtd" [
]>

<article>
<sect1 id="pirates">
<title>ГЛАВА ЧЕТИРИ „Пирати“</title>

<para><emphasis role="strong">Ако <quote>пиратсване</quote>
означава</emphasis> да използваш творческата собственост на други без
тяхното позволение — ако е вярно, че <quote>правото е на страната на
това с цена</quote>, то историята на индустрията на съдържанието е
история на пиратското движение. Всеки важен дял от <quote>големите
медии</quote> днес — филми, звукозапис, радио и кабелната телевизия —
всичко това е бивало пораждано от някакъв вид пиратство според горната
дефиниция. Една и съща формула се повтаря досега — последните пирати
се присъеиняват към елитния клуб на избраните, но това няма да се
повтори отново.</para>

<sect2 id="film">

<title>Фимлите</title>

<para>Филмовата индустрия на Холивуд е съградена от пирати-бегълци.
<footnote><para>
<!-- f1 -->
Благодарен съм на
<personname><firstname>Питър</firstname>
<surname>Димауро</surname></personname>, че ме насочи към тази
необикновена история. Виж също — <author><firstname>Сива</firstname>
<surname>Вайдхянатан</surname></author>, <quote>Авторски правини и
кривини</quote>, 87-93, в която са описани
<quote>приключенията</quote> на
<personname><surname>Едисон</surname></personname> с авторските права
и патентите.</para></footnote>

Част от причините творците и режисьорите да мигрират от източното
крайбрежие към Калифорния в началото на двадесети век е да избягат от
контрола, които патентите са гарантирали на изобретателя на правенето
на филми — <personname><firstname>Томас</firstname>
<surname>Едисон</surname> </personname>. Контролът е бил осъществяван
от монополен <quote>тръст</quote> — Компанията за филмови патенти
(<acronym>КФП</acronym>) и са се основавали на творческата собственост
на <personname><firstname>Томас</firstname> <surname>Едисон</surname>
</personname> — патентите. Едисон основава КФП, за да упражнява
правата гарантирани му от творческата му собственост, а КФП здравата е
упражнявала контрола, който е изисквала. Ето как един коментатор
описва част от историята: 

<blockquote><para>Беше поставен краен срок за всички компании да
влязат в унисон с лиценза — януари 1909г. С идването на февруари,
нелицензираните организации, които се оказват извън закона, но се
обявиха за независими организации започнха протести срещу тръста и
продължиха своя бизнес без да се поддават на монолопа на Едисон. През
лятото на 1909г. движението на независимите беше набрало сила и
продуцентите и собствениците на коносалони използваха незаконна
апаратура и внасяха филмови материали, за да създадат свой, nelegalen
пазар. "С течение на огромното разширяване на броя на евтините кина,
Патентната компания отговори на движението на независимите като
създаде дъщерна компания за грубите задачи, която е известна като
General Film Company (Обща филмова компания), която да блокира
навлизането на нелицензираните независими организации. Чрез методи на
принуждаване, които станаха легендарни, General Film конфискува
нелицензирана техника, спираше доставките на филми, към киносалоните,
които показват нелицензирани филми и ефективно монополизира
разпространението чрез придобиването на всички борси за филми в САЩ с
изключение на притежаваната от Уилиям Фокс, който не зачита тръста
дори и след като тръста прекратява лиценза му."
<footnote><para>
<!-- f2 -->
J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion
Picture Producers (Cobblestone Entertainment, 2000) and expanded texts
posted at "The Edison Movie Monopoly: The Motion Picture Patents
Company vs. the Independent Outlaws," available at 
<ulink url="http://free-culture.cc/notes/">link #11</ulink>. For a 
                discussion
of the economic motive behind both these limits and the limits
imposed by Victor on phonographs, see Randal C. Picker, "From Edison
to the Broadcast Flag: Mechanisms of Consent and Refusal and the 
                Propertization
of Copyright" (September 2002), University of Chicago Law
School, James M. Olin Program in Law and Economics, Working Paper
No. 159.
</para></footnote>

</para></blockquote>
<para>
Напстърите на онези дни - "независимите" са били компании като Фокс. И
също както днес - на независимите им интензивно се е
пречело. "Снимачният процес е бил прекъсван от кражби на съоръжение,
често се случвали и "инциденти" при които има загуба на негативи,
апаратура, сгради и понякога на крайници и човешки живот." 

<footnote><para>
<!-- f3 -->
Marc Wanamaker, "The First Studios," The Silents Majority, archived at

<ulink url="http://free-culture.cc/notes/">link #12</ulink>.
</para></footnote>

Всичко
това кара независимите организации да напуснат източното
крайбрежие. Калифорния се оказва достатъчно отдалечена от обсега на
Едисон, за да могат производителите на филми да пиратсват неговите
изобретения, без да се боят от закона. Лидерите на холивидското коно,
и най вече Фокс, са правили именно това. Естествено - Калифорняи се
разраства бързо и реалното прилагане на федералния закон най-накрая се
разпростира на запад. Но понеже патентите дават на патентопритежателя
наистина "ограничен" монопол (едва 16 години по това време) докато се
появят достатъчно федерални шерифи се появят, патентите са
зитекли. Една нова индустрия се ражда, и това отчасти се дължи на
кражбата на творческата собственост на Едисон.
</para>
</para>
</sect2>

<sect2 id="recordedmusic">
<title>Recorded Music</title>
<para>
The record industry was born of another kind of piracy, though to see
how requires a bit of detail about the way the law regulates music.
</para>
<para>
At the time that Edison and Henri Fourneaux invented machines
for reproducing music (Edison the phonograph, Fourneaux the player
piano), the law gave composers the exclusive right to control copies of
their music and the exclusive right to control public performances of
their music. In other words, in 1900, if I wanted a copy of Phil Russel's
1899 hit "Happy Mose," the law said I would have to pay for the right
to get a copy of the musical score, and I would also have to pay for the
right to perform it publicly.
</para>
<para>
But what if I wanted to record "Happy Mose," using Edison's
phonograph or Fourneaux's player piano? Here the law stumbled. It was
clear enough that I would have to buy any copy of the musical score that
I performed in making this recording. And it was clear enough that I
would have to pay for any public performance of the work I was 
                recording.
But it wasn't totally clear that I would have to pay for a "public 
                performance"
if I recorded the song in my own house (even today, you don't
owe the Beatles anything if you sing their songs in the shower), or if I
recorded the song from memory (copies in your brain are not--yet--
regulated by copyright law). So if I simply sang the song into a 
                recording
device in the privacy of my own home, it wasn't clear that I owed the
composer anything. And more importantly, it wasn't clear whether I
owed the composer anything if I then made copies of those recordings.
Because of this gap in the law, then, I could effectively pirate someone
else's song without paying its composer anything.
</para>
<para>
The composers (and publishers) were none too happy about
<!-- PAGE BREAK 69 -->
this capacity to pirate. As South Dakota senator Alfred Kittredge
put it,
</para>
<blockquote>
<para>
Imagine the injustice of the thing. A composer writes a song or an
opera. A publisher buys at great expense the rights to the same and
copyrights it. Along come the phonographic companies and 
                companies
who cut music rolls and deliberately steal the work of the brain
of the composer and publisher without any regard for [their] rights.<footnote><para>
<!-- f4 -->
To Amend and Consolidate the Acts Respecting Copyright: Hearings on
S. 6330 and H.R. 19853 Before the ( Joint) Committees on Patents, 59th
Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge, of
South Dakota, chairman), reprinted in Legislative History of the
Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South 
                Hackensack,
N.J.: Rothman Reprints, 1976).
</para></footnote>
</para>
</blockquote>
<para>
The innovators who developed the technology to record other
people's works were "sponging upon the toil, the work, the talent, and
genius of American composers,"<footnote><para>
<!-- f5 -->
To Amend and Consolidate the Acts Respecting Copyright, 223 
                (statement
of Nathan Burkan, attorney for the Music Publishers Association).
</para></footnote>
and the "music publishing industry"
was thereby "at the complete mercy of this one pirate."<footnote><para>
<!-- f6 -->
To Amend and Consolidate the Acts Respecting Copyright, 226 
                (statement
of Nathan Burkan, attorney for the Music Publishers Association).
</para></footnote>
As John Philip
Sousa put it, in as direct a way as possible, "When they make money
out of my pieces, I want a share of it."<footnote><para>
<!-- f7 -->
To Amend and Consolidate the Acts Respecting Copyright, 23 
                (statement
of John Philip Sousa, composer).
</para></footnote>
</para>
<para>
These arguments have familiar echoes in the wars of our day. So,
too, do the arguments on the other side. The innovators who 
                developed
the player piano argued that "it is perfectly demonstrable that the
introduction of automatic music players has not deprived any 
                composer
of anything he had before their introduction." Rather, the 
                machines
increased the sales of sheet music.<footnote><para>
<!-- f8 -->
To Amend and Consolidate the Acts Respecting Copyright, 283­84
(statement of Albert Walker, representative of the Auto-Music 
                Perforating
Company of New York).
</para></footnote> In any case, the innovators
argued, the job of Congress was "to consider first the interest of [the
public], whom they represent, and whose servants they are." "All talk
about `theft,'" the general counsel of the American Graphophone
Company wrote, "is the merest claptrap, for there exists no property in
ideas musical, literary or artistic, except as defined by statute."<footnote><para>
<!-- f9 -->
To Amend and Consolidate the Acts Respecting Copyright, 376 
                (prepared
memorandum of Philip Mauro, general patent counsel of the 
                American
Graphophone Company Association).
</para></footnote>
</para>
<para>
The law soon resolved this battle in favor of the composer and
the recording artist. Congress amended the law to make sure that
composers would be paid for the "mechanical reproductions" of their
music. But rather than simply granting the composer complete 
                control
over the right to make mechanical reproductions, Congress gave
recording artists a right to record the music, at a price set by Congress,
once the composer allowed it to be recorded once. This is the part of

<!-- PAGE BREAK 70 -->
copyright law that makes cover songs possible. Once a composer 
                authorizes
a recording of his song, others are free to record the same
song, so long as they pay the original composer a fee set by the law.
</para>
<para>
American law ordinarily calls this a "compulsory license," but I will
refer to it as a "statutory license." A statutory license is a license whose
key terms are set by law. After Congress's amendment of the Copyright
Act in 1909, record companies were free to distribute copies of 
                recordings
so long as they paid the composer (or copyright holder) the fee set
by the statute.
</para>
<para>
This is an exception within the law of copyright. When John Grisham
writes a novel, a publisher is free to publish that novel only if Grisham
gives the publisher permission. Grisham, in turn, is free to charge 
                whatever
he wants for that permission. The price to publish Grisham is
thus set by Grisham, and copyright law ordinarily says you have no
permission to use Grisham's work except with permission of Grisham.
</para>
<para>
But the law governing recordings gives recording artists less. And
thus, in effect, the law subsidizes the recording industry through a kind
of piracy--by giving recording artists a weaker right than it otherwise
gives creative authors. The Beatles have less control over their creative
work than Grisham does. And the beneficiaries of this less control are
the recording industry and the public. The recording industry gets
something of value for less than it otherwise would pay; the public gets
access to a much wider range of musical creativity. Indeed, Congress
was quite explicit about its reasons for granting this right. Its fear was
the monopoly power of rights holders, and that that power would 
                stifle
follow-on creativity.<footnote><para>
<!-- f10 -->
Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and
H.R. 11794 Before the ( Joint) Committee on Patents, 60th Cong., 1st
sess., 217 (1908) (statement of Senator Reed Smoot, chairman), reprinted
in Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and
Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976).
</para></footnote>
</para>
<para>
While the recording industry has been quite coy about this recently,
historically it has been quite a supporter of the statutory license for
records. As a 1967 report from the House Committee on the Judiciary
relates,
</para>
<blockquote>
<para>
the record producers argued vigorously that the compulsory
<!-- PAGE BREAK 71 -->
license system must be retained. They asserted that the record
        industry
is a half-billion-dollar business of great economic 
                importance
in the United States and throughout the world; records
today are the principal means of disseminating music, and this
creates special problems, since performers need unhampered 
                access
to musical material on nondiscriminatory terms. Historically,
the record producers pointed out, there were no recording rights
before 1909 and the 1909 statute adopted the compulsory license
as a deliberate anti-monopoly condition on the grant of these
rights. They argue that the result has been an outpouring of
recorded music, with the public being given lower prices, 
                improved
quality, and a greater choice.<footnote><para>
<!-- f11 -->
Copyright Law Revision: Report to Accompany H.R. 2512, House 
                Committee
on the Judiciary, 90th Cong., 1st sess., House Document no. 83,
(8 March 1967). I am grateful to Glenn Brown for drawing my attention
to this report.
</para></footnote>
</para>
</blockquote>
<para>
By limiting the rights musicians have, by partially pirating their 
                creative
work, the record producers, and the public, benefit.
</para>
</sect2>
<sect2 id="radio">
<title>Radio</title>
<para>
Radio was also born of piracy.
</para>
<para>
When a radio station plays a record on the air, that constitutes a
"public performance" of the composer's work.<footnote><para>
<!-- f12 -->
See 17 United States Code, sections 106 and 110. At the beginning, record
companies printed "Not Licensed for Radio Broadcast" and other 
                messages
purporting to restrict the ability to play a record on a radio station.
Judge Learned Hand rejected the argument that a warning attached to a
record might restrict the rights of the radio station. See RCA 
                Manufacturing
Co. v. Whiteman, 114 F. 2d 86 (2nd Cir. 1940). See also Randal C.
Picker, "From Edison to the Broadcast Flag: Mechanisms of Consent and
Refusal and the Propertization of Copyright," University of Chicago Law
Review 70 (2003): 281.
</para></footnote>
As I described above,
the law gives the composer (or copyright holder) an exclusive right to
public performances of his work. The radio station thus owes the 
                composer
money for that performance.
</para>
<para>
But when the radio station plays a record, it is not only performing
a copy of the composer's work. The radio station is also performing a
copy of the recording artist's work. It's one thing to have "Happy 
                Birthday"
sung on the radio by the local children's choir; it's quite another to
have it sung by the Rolling Stones or Lyle Lovett. The recording artist
is adding to the value of the composition performed on the radio 
                station.
And if the law were perfectly consistent, the radio station would
have to pay the recording artist for his work, just as it pays the 
                composer
of the music for his work.

<!-- PAGE BREAK 72 -->
</para>
<para>
But it doesn't. Under the law governing radio performances, the 
                radio
station does not have to pay the recording artist. The radio station
need only pay the composer. The radio station thus gets a bit of 
                something
for nothing. It gets to perform the recording artist's work for
free, even if it must pay the composer something for the privilege of
playing the song.
</para>
<para>
This difference can be huge. Imagine you compose a piece of 
                music.
Imagine it is your first. You own the exclusive right to authorize
public performances of that music. So if Madonna wants to sing your
song in public, she has to get your permission.
</para>
<para>
Imagine she does sing your song, and imagine she likes it a lot. She
then decides to make a recording of your song, and it becomes a top
hit. Under our law, every time a radio station plays your song, you get
some money. But Madonna gets nothing, save the indirect effect on
the sale of her CDs. The public performance of her recording is not a
"protected" right. The radio station thus gets to pirate the value of
Madonna's work without paying her anything.
</para>
<para>
No doubt, one might argue that, on balance, the recording artists
benefit. On average, the promotion they get is worth more than the
performance rights they give up. Maybe. But even if so, the law 
                ordinarily
gives the creator the right to make this choice. By making the
choice for him or her, the law gives the radio station the right to take
something for nothing.
</para>
</sect2>
<sect2 id="cabletv">
<title>Cable TV</title>
<para>

Cable TV was also born of a kind of piracy.
</para>
<para>
When cable entrepreneurs first started wiring communities with
cable television in 1948, most refused to pay broadcasters for the 
                content
that they echoed to their customers. Even when the cable 
                companies
started selling access to television broadcasts, they refused to pay
<!-- PAGE BREAK 73 -->
for what they sold. Cable companies were thus Napsterizing
        broadcasters'
content, but more egregiously than anything Napster ever did--
Napster never charged for the content it enabled others to give away.
</para>
<para>
Broadcasters and copyright owners were quick to attack this theft.
Rosel Hyde, chairman of the FCC, viewed the practice as a kind of
"unfair and potentially destructive competition."<footnote><para>
<!-- f13 -->
Copyright Law Revision--CATV: Hearing on S. 1006 Before the 
                Subcommittee
on Patents, Trademarks, and Copyrights of the Senate 
                Committee
on the Judiciary, 89th Cong., 2nd sess., 78 (1966) (statement of
Rosel H. Hyde, chairman of the Federal Communications Commission).
</para></footnote>
There may have
been a "public interest" in spreading the reach of cable TV, but as 
                Douglas
Anello, general counsel to the National Association of 
                Broadcasters,
asked Senator Quentin Burdick during testimony, "Does public
interest dictate that you use somebody else's property?"<footnote><para>
<!-- f14 -->
Copyright Law Revision--CATV, 116 (statement of Douglas A. Anello,
general counsel of the National Association of Broadcasters).
</para></footnote>
As another broadcaster put it,
</para>
<blockquote>
<para>
The extraordinary thing about the CATV business is that it is the
only business I know of where the product that is being sold is not
paid for.<footnote><para>
<!-- f15 -->
Copyright Law Revision--CATV, 126 (statement of Ernest W. Jennes,
general counsel of the Association of Maximum Service Telecasters, Inc.).
</para></footnote>
</para>
</blockquote>
<para>
Again, the demand of the copyright holders seemed reasonable
enough:
</para>
<blockquote>
<para>
All we are asking for is a very simple thing, that people who now
take our property for nothing pay for it. We are trying to stop
piracy and I don't think there is any lesser word to describe it. I
think there are harsher words which would fit it.<footnote><para>
<!-- f16 -->
Copyright Law Revision--CATV, 169 (joint statement of Arthur B.
Krim, president of United Artists Corp., and John Sinn, president of
United Artists Television, Inc.).
</para></footnote>
</para>
</blockquote>
<para>
These were "free-ride[rs]," Screen Actor's Guild president 
                Charlton
Heston said, who were "depriving actors of compensation."<footnote><para>
<!-- f17 -->
Copyright Law Revision--CATV, 209 (statement of Charlton Heston,
president of the Screen Actors Guild).
</para></footnote>
</para>
<para>
But again, there was another side to the debate. As Assistant 
                Attorney
General Edwin Zimmerman put it,
</para>
<blockquote>
<para>
Our point here is that unlike the problem of whether you have
any copyright protection at all, the problem here is whether 
                copyright
holders who are already compensated, who already have a
monopoly, should be permitted to extend that monopoly. . . . The

<!-- PAGE BREAK 74 -->
question here is how much compensation they should have and
how far back they should carry their right to compensation.<footnote><para>
<!-- f18 -->
Copyright Law Revision--CATV, 216 (statement of Edwin M. 
                Zimmerman,
acting assistant attorney general).
</para></footnote>
</para>
</blockquote>
<para>
Copyright owners took the cable companies to court. Twice the
Supreme Court held that the cable companies owed the copyright
owners nothing.
</para>
<para>
It took Congress almost thirty years before it resolved the question
of whether cable companies had to pay for the content they "pirated."
In the end, Congress resolved this question in the same way that it 
                resolved
the question about record players and player pianos. Yes, cable
companies would have to pay for the content that they broadcast; but
the price they would have to pay was not set by the copyright owner.
The price was set by law, so that the broadcasters couldn't exercise veto
power over the emerging technologies of cable. Cable companies thus
built their empire in part upon a "piracy" of the value created by 
                broadcasters'
content.
</para>
<para>
These separate stories sing a common theme. If "piracy"
means using value from someone else's creative property without 
                permission
from that creator--as it is increasingly described today<footnote><para>
<!-- f19 -->
See, for example, National Music Publisher's Association, The Engine of Free
Expression: Copyright on the Internet--The Myth of Free Information, 
                available
at 
<ulink url="http://free-culture.cc/notes/">link #13</ulink>. "The threat of piracy--the use of someone else's creative
work without permission or compensation--has grown with the Internet."
</para></footnote>
--
then  every  industry affected by copyright today is the product and
beneficiary of a certain kind of piracy. Film, records, radio, cable
TV. . . . The list is long and could well be expanded. Every generation
welcomes the pirates from the last. Every generation--until now.
</para>
<!-- PAGE BREAK 75 -->
</sect2>
</sect1>

</article>