Ah, the Kingdom of Sweden. I have always heard how wonderful it is to spend the summer in Sweden, but apparently things have changed. It is now the “fantastically cool freculture country of Sweden” according to Professor Lessig, with what the professor describes as the “very interesting” “Piracy Party”.
This is as much a tale of Professor Lessig as it is the Pirate Party.Â If you cut through the Nutty Professorâ€™s thinking, writing and blogging about his obsessed opposition to copyright laws, at least one core idea is constant throughout:Â Itâ€™s not only morally acceptable to steal, there is a moral mandate to steal.Â However, since Professor Lessig appears to enjoy his status as a law professor in his madrasah at the Googleâ€¦sorryâ€¦Stanford Law School, he doesnâ€™t quite come out and say that.Â
Law professors areâ€”at least on some levelâ€”not supposed to advocate theft.Â And of course if one is not only a law professor but also a member of the bar, one has taken an oath to uphold the Constitution of the United States.Â (By the way, if anyone knows where Professor Lessig is admitted to practice law, please tell me because Iâ€™ve never seen him list a bar umber on any of the pleadings heâ€™s filed and I canâ€™t find him listed in the lawyer directories of the California, District of Columbia or New York bar associations.)
In the last seven years, we have witnessed massive copyright infringement on a mind-numbing scaleâ€”wholesale theft of our intellectual property.Â Although it is an argument that deserves discussion beyond a column, it is my view that Professor Lessig–and his fellow travelers at the Berkman Center at the Harvard Law School among othersâ€”have provided the distorted moral underpinning that has given this movement fire.Â It is no accident that key employees at Google, Facebook and elsewhere have affiliations with the Berkman Center and its intellectual Cinderella, Terry Fisher.
If you believe Lessig, you will believe that not only is it acceptable to steal, you must steal in order to be a fully realized person.Â This takes feel-good politics to an entirely new level, a level of political alchemy that Willie Stark and the Kingfish only dreamed of being able to grift.
Revolution in France!
In December of last year in France, a coalition of the Green, Socialist and Communist parties narrowly passed a bill that would have established global licensing in France for p2ps if end users of ISPs paid something like $8.50 a month.Â This bill was passed in the National Assembly, the lower house of the French legislature, during the Christmas recess.Â The parliamentary rules of the National Assembly permit such voting and give each member of parliament who shows up twoâ€”not oneâ€”votes.Â Approximately 10% of the National Assembly was present, enough for a quorum and a vote.Â The bill â€œpassedâ€?, although the parliamentary rules required that the bill be voted on again by the entire body when it reconvened after Christmas.Â The bill was, of course, defeated and a more reasonable bill took its place that preserved copyright.
This vote, of course, did not happen in a vacuumâ€”it was the culmination of over a year of arguing, posturing and negotiation by representatives of all concerned.Â The French â€œconsumerâ€? groups were heavily influenced by Professor Lessigâ€™s writings as well as the writings of Professor Terry Fisher.Â And what did Professor Lessig have to say about his revolution in France? The Nutty Professor blogged: â€œFrance about to legalize filesharing on an [Terry Fisher/Electronic Frontier Foundation]-like model?Â So heavy handed lobbying in France has backfired. Upon a payment of $8.50 a month, file sharing music would be legal.â€?Â (I guess that means the professor acknowledges that absent the law and the payment filesharing would be…illegal?)
The â€œmodelâ€? that Lessig refers to would be a government mandate to have ISPs charge a small fee to end users who engaged in uploading and downloading.Â Copyright owners would be forced to license to end users (and everyone else in the chain), and the license wouldâ€”perhaps overtly but at least ostensiblyâ€”force copyright owners to grant a global license in their works.Â (Such a government action under U.S. law would very likely violate the â€œtakingsâ€? clause of the U.S. Constitution that prohibits the government taking private property without just compensation.)
I have the same unanswered critique of this statute that I had of the Terry Fisher model as regurgitated by the Electronic Frontier Foundation, both of which bear a striking resemblance to what I refer to pejoratively as the old Napster â€œCarl Saganâ€? settlement proposal (that would earn â€œbillions and billionsâ€? for the music industry).Â This is a â€œmake it up on volumeâ€? kind of Skippy Dot Com business model that should have ended up on the ash heap of history.Â Watch, theyâ€™ll start talking about â€œeyeballsâ€? next.
Â Â Â Â Â Â Â Â 1. First Big Duh: The word â€œpublisherâ€? never appears in these proposals, partly because those who are doing the foisting have no idea how our business works and canâ€™t seem to grok that there are two coequal copyrights in each sound recording.Â This is probably the same reason thereâ€™s an â€œAudioâ€? creative commons license that does not distinguish between song and recording.Â And oh, by the wayâ€”the world â€œsongwriterâ€? never appears in these proposals, either.
Â Â Â Â Â Â Â Â Â 2.Â Second Big Duh:Â If you have ISPs collect a pool of money on a per subscriber basis instead of a per use basis, how will you know how to divide up the money?Â Remember, this isnâ€™t some backwater blank tape levy, this is rapidly becoming the primary way the entire industry sustains itselfâ€”digital distribution.Â Everyone gets the same cut?Â From each according to their ability, etc., etc.?Â I think not.Â Artists who are outselling everyone else will not agree to be treated the same as someone who is contemplating their navel.Â Sorry, professors, we are not your kind.
Â Â Â Â Â Â Â Â Â 3.Â Third Big Duh:Â How in the world are you going to get a straight count?Â Will we rely on ISPs to tell us?Â Will we have audit rights against ISPs?Â And what if they lie, how will we know?Â ISPs have heavily litigated giving up any information relating to their end users.
I could go on.Â When ever I read the ramblings of the professoriate on this subject, I used to think they couldnâ€™t possibly be that stupid, there must be something here Iâ€™m missing.
Butâ€”Professor Lessigâ€™s sentiments notwithstanding, the French legislation crumbled when the adults returned to session.Â Nice try, professor.Â What was accomplished?Â Not much, except more recruits to the Lessig cause.
The Children of the Lessig God and the Viking Pirate Kings
It is important to understand the events in Sweden in the context of the Lessig-ists efforts in France.Â These are not isolated incidents.Â And there will be more, make no mistake.
Most people who are not sci-fi aficionados have never heard of the film Children of the Damned.Â It doesnâ€™t much matter what the film was about, but it concerned a diaspora of children from outer space imbued with weird powers who were driven by an unseen hand.Â You knew you were in trouble if that innocent looking kid suddenly developed a severe case of glowing eyes, the unifying characteristic of the children of the damned.
Yep.Â Sorry, folks, but thatâ€™s the metaphor that comes to mind when I travel the world and run into the acolytes of the Stanford madrasah.Â I saw them in France, and we find them again in the supercool freculture country of Sweden.Â The connection:Â It all kind of sounds like regurgitated Napster-Lessig-Fisher-EFF pabulum, sometimes directly quoted.
The latest bump on the road of copyright is a group of thirtysomething Swedes who share the Professor’s lust for negative attention. Their spiritual commander is, of course, Professor Lawrence Lessig of the Stanford Law School a/k/a the Nutty Professor a/k/a Captain Larry â€œthe Grantwriterâ€?, commander of his mystery ship, the Google, a fine frigate berthing in Belvedere.
Wired provides this slice of life:
“[Rickard Falkvinge, the leader of the Pirate Party] is interrupted by a passing teenager. She’s a young punk, with green dreads and a jacket covered in an indistinguishable combination of angry quips and band names — in short, exactly the type who once would have spent her disposable income on music.”
Note that last bully sneer from Wired. Charming, eh?
The pirate press continues: “She takes out a piece of notebook paper and asks Falkvinge for an autograph.”
That little tableau says it all; it really tells the entire story of the Grantwriter and his followers. Steal from rock stars and you will become one. And Wired–like all star driven mainstream media–always needs a geek to make into a star, particularly if that geek is hurting the creative community (see “Shawn Hogan, Hero”).
In the infamous error-ridden passage from Free Culture in which Captain Lessig laughably tries to pass off The Simpsons as an “orphan work”, we get a snapshot of what motivates the G-manâ€™s mind:
“Jon Else is a filmmaker….He is also a teacher, and as a teacher myself, I envy the loyalty and admiration that his students feel for him. (I met, by accident, two of his students at a dinner party. He was their god.)”
A “god”?Â Sorry, professor, a little too much information. Feeling just a tad inadequate arewe? Parents of students at the Stanford madrasah, take note. But I digress.
Before the recent elections, it appeared that the Children of the Lessigâ€”Swedish Branch had some political traction. This is curious given Sweden’s pro-labor political parties and strong trade unions compared to the blatantly anti-labor stand of the Pirate Party.Â (I guess artists arenâ€™t workers in Sweden.)Â However, this strange congruence should actually come as no surprise if you understand the political philosophy underpinning Captain Lessigâ€™s front groups Creative Commons, Free Culture and the supergroup, Friends of the Commons. When a Lessig-ist refers to “commons” what they are describing is property that the Friends of the Commons believes belongs to all the people. Now where have we heard that before?
For purposes of the creative community, the â€œcommonsâ€? means copyrights that fall (or are pushed) into the public domain. Friends of the Commons also has ties to the environmental movement, but it is environmentalism with a decidedly anti-private property bent.
It should not be surprising, then, that the Children of the Lessig should arise in countries with large numbers of supporters of the Green Party, which is arguably far more radical and powerful outside the United States than Americans are used to seeing at home. Sweden’s Green Party has 17 seats in the Swedish unicameral Parliament. (Note that other Lessig political successes have occurred in Brazil and France, countries with parliamentary socialist or Green parties.)
According to Wired, Falkvinge says “[The Pirate Party] have a lot in common with the environmental movement. Where environmentalists see destruction of natural resources, the pirates see culture at risk. (We) saw a lot of hidden costs to society in the way companies maximize their copyright.”
Ah, I see. When you spot hidden costs to society in business structures, stealing the goods makes it efficient. Wow. That’s heavy, dude. Genius.Â
In the case of the Pirate Party, this â€œmarket interventionâ€? is implemented through the Pirate Bay, the groupâ€™s somewhat ephemeral Bit Torrent websiteâ€”featuring one of Larry the Gâ€™s stump speech diatribes against the creative community.Â (Available at this link, you’ll find it to the right of the handy “meet girls from your area” advertising bar and below the “attract women by smell” banner ad. Yes, that’s really what it said. Who knew?Â Just add ring dings.)
The Pirate Party would have you believe that they came about in reaction to a crackdown on the Pirate Bay by copyright owners, which resulted in Swedish authorities stretching the Swedish search and seizure laws a bit to go after the Pirate Bay.Â This became what Wired refers to as a â€œscandalâ€? of Swedish officials kow towing to American copyright interests.Â You could call it a scandal, or you could call it leadershipâ€”letâ€™s see, legitimate interests that can land my country on the international trading blacklist because of massive theft by scary ska8r boys who attract women by smell, orâ€¦a raid.Â Hmm, now thereâ€™s a moral dilemma.
Peter describes the last few days [of hiding] as exhausting, but expresses confidence that The Pirate Bay will outlast efforts to shut it down. Eventually, he’d even like to bring it back home to Sweden. ‘We have people willing to help out with the work, so it’s no problem if they start chasing us around. The internet is bigger than the MPAA.'”
This is the essential arrogance of not only the Pirate Party, but the Lessig movement as a whole. They take advantage of the freedoms of society to work against the foundations of
society. Sound familiar?
And if that is not true, if I have unfairly characterized Professor Lessig as a supporter of thievery of the most common sort, then let him come forward and publicly condemn stealing of intellectual property, prove me wrong and I will happily apologize. I have never once heard or read, or heard of, him doing anything even close.
Everyone A Pirate King, Yet No One Wears A Crown
For further justification in condemning Sweden as a bad trading partner of at least the United States and the European Union, the Pirate Party has endorsed what Wired described as “a low-cost, encrypted anonymizing service offered by a Swedish communications company called Relakks. For 5 euros a month, a portion of which goes to the party, anyone can share files or communicate from a Relakks IP address in Sweden, potentially complicating efforts to track downloaders. Ah yes, the great Kingfish himself would be proud.
By the way: You will find “anonymizing” in your Wired Magazine lexicon right next to “law-hardening” (another word coined by the Lessig press). In this context is the intentional act of covering Internet traces to make it difficult for law enforcement to track criminal acts. This once was known as driving the getaway car. “Anonymizing” is what Lessig defends as “privacy” concerns, and the Electronic Frontier Foundation defends as “privacy advocates”. Spare me the moral indignation, please. I suppose Al Capone had a privacy interest in his tax returns, too. I think it goes without saying that this ISP is clearly inducing piracy and is seeking to drive legitimate online services out of Sweden, not to mention offline services. And if the Pirate Party manages to get itself elected to the Swedish Parliament, don’t think it stops there. That’s just the beginning. Note that there is already a “Pirate Party US”, and if you doubt that there is a Lessig connection, read the first 100 words of the manifesto on their home page and you will see a regurgitation of the Lessig anti-copyright (and specifically anti-Disney) rhetoric that would make a godlike professor proud (or a wanna-be godlike professor I guess).
Wired reporter Quinn Norton apparently was acquainted with the founders of the Pirate Bureau (or more aptly translated as the Ministry of Piracy,) whom Norton identified as one Rasmus Fleischer and one Marcus Kaarto, founders of what Wired describes (without justification) as “an ad hoc pro-piracy think tank.” Isn’t that special? Another sneer from the pro-pirate press. And Al Capone was just a businessman.
According to Wired, Mr. Kaarto describes the Ministry of Piracy as being “‘like a gas,’
Kaarto says, laughing. ‘You can’t get a hold on us.'” It may be true that the Ministry of Piracy have mastered the art of deception and don’t plan on doing much traveling, but where have we heard that sentiment before?
Oh, better far to live and die
Under the brave black flag I fly,
Than play a sanctimonious part,
With a pirate head and a pirate heart.
Away to the cheating world go you,
Where pirates all are well-to-do;
But I’ll be true to the song I sing,
And live and die a Pirate King.
From The Pirates of Penzance, by Gilbert & Sullivan
Straight to Davy Jonesâ€™ Locker
After all this reportage, the Pirate Party failed to get sufficient traction to be much of a threat to the creative community. Iâ€™m not one to predict elections, but I have to say I am not surprised to see the Grantwriterâ€™s crew sent to Davy Jonesâ€™ locker.Â Swedenâ€™s Pirate Party has laid an egg by anyoneâ€™s estimation.Â According to the shipâ€™s newspaper on the good ship Google, a/k/a Wired
â€œThe Pirate Party not only failed to score the 4 percent required for a seat in Sweden’s Parliament, but appears to have missed the 1 percent that would have afforded the party state assistance with printing ballots and funding staff in the next election.â€?
It would be interesting, of course, to hear from a few voters as to why they did or didnâ€™t vote for the Pirate Party candidatesâ€”that kind of research is called â€œjournalismâ€? in some circles, but is apparently not of interest to the supercool freculture shipâ€™s paper on the good ship Google which, to my knowledge, has never done more than print puff pieces on the leaders of the Pirate Party and the latter day Fagins who run the Ministry of Piracy or what the shipâ€™s paper calls the â€œSwedish pro-piracy advocacy groupâ€?.Â Ah, yes, and the Mafia is an Italian-American pro-criminal advocacy group, I guess.
As much as I would like to dance on their graves, I have to note that the Googleâ€™s newspaper finds that â€œ[f]inal numbers [arenâ€™t in], but the Pirate Party appears to be pulling .62 percent of the vote, or about 33,000 votes.â€?Â Even though the Pirate Party went down in flames, 33,000 people is still a pretty large group.Â It would be a good idea to know what motivates these people.Â You have to ask yourself why 33,000 people would vote for Captain Larryâ€™s crew.Â Friends in politics say you could probably get 33,000 people to elect a deceased George Washington as a nonexistent dog catcher, so it doesnâ€™t mean anything.Â I wonder.
What robust political analysis do we get from Wired?Â In the larger electionâ€”that would be
the election that actually mattersâ€”the ruling Social Democrat party was narrowly defeated.Â â€œMany in the piracy movement won’t be sad to see the backside of the Social Democrats, who expanded enforcement against copyright violators, resulting in this year’s raid against the Pirate Bay torrent site and a scandal over American copyright holders’ influence with the government.Â â€˜I think that copyright-related policy has played some part in the election, contributing to a general dislike of the Social Democratic government,â€™ says Fleischer. But how the next government will act on these issues is anyone’s guess.â€?
Ah, I see.Â Let me get this straight.Â Copyright policy played a part in ousting the former government, but itâ€™s unclear how the next governmentâ€”that would be the government that did not once capitalize on this great unrest in the people identified by Wired to turn this massive discontent to its political advantageâ€”will act on these issues.Â So the people turned out the Social Ds over copyright without knowing what the next governmentâ€™s policy would be?Â And didnâ€™t elect Captain Larryâ€™s Pirates, either?
Oh, come on.Â Get real just once.
The most fallacious part of the entire Pirate Party episode is the idea that the Pirate Party actually stood for anything, even the 5 year copyright term that was supposedly part of their platform.Â This was a copyright platform that carefully excluded enforcement against the Pirate Bay that appears to be the sustenance for the Pirate Party and their candidates.Â Oh, and theyâ€™d abolish patents, too, for good measure.
This Captain Larry jive is all fine and good, but letâ€™s be clear about one thing fellas:Â You start tinkering with intellectual property laws that go beyond the borders of Sweden, and Sweden will be cut off from the legitimate world.Â Not just the U.S., either.Â Polish up your Chinese, Korean and Cuban and see how much you like dealing with them, kiddies.Â You have no idea.
I still ask myself what is prompting all this bile in our direction from Professor Lessig.Â What did we in the music industry do to offend him so deeply?Â His bitterness is almost touching.
The Swedish election does mean one thing for sureâ€”Captain Larry has 33,000 potential grantwriters in Sweden.Â And thatâ€™s a scary, scary thought.
SWANN: Captain Norrington… I appreciate your fervor, but I am concerned about the effect
this subject will have on my daughter.
NORRINGTON: My apologies, Governor.
ELIZABETH: Actually, I find it all fascinating.
SWANN: And that’s what concerns me.
From Pirates of the Caribbean: The Curse of the Black Pearl
by Ted Elliot and Terry Rossio
Copyright 2003, The Walt Disney Company
Chris Castle is a music attorney in Los Angeles where he represents artists (including KOAR fav 10 Years), producers, music industry executives, songwriters, independent publishers and record companies, and technology companies.Â Chris is a contributing editor to Entertainment Law & Finance and writes the Music-Tech-Policy blog (http://music-tech-policy.blogspot.com/).Â He is on the board of directors of the Austin Music Foundation and moderates the digital panel at SXSW.Â Before law school, he was the drummer for Jesse Winchester, Long John Baldry and Yvonne Elliman