According to the BBC a court in Sweden has jailed four men behind The Pirate Bay (TPB), the world’s most high-profile file-sharing website, in a landmark case.

It’s amusing to note that the BBC shows no bias whatsoever in the inferences it would like readers to draw from the fact that “The Pirate Bay’s first server is now a museum exhibit in Stockholm”. Implicitly, The Pirate Bay has ended and has already been consigned to the history books.

However, let’s just have another look at the BBC’s more serious claim that this is a ‘landmark case’.

I wonder if this case has any precedents?

In other words, given that what we fail to learn from history is that we are doomed to repeat it, let’s see if there’s anything in our history that can inform us as to our future.

I’ve got an idea. What would such a case look like if the news story was remixed to make it appear as if it related to issues that would have been familiar around 80 years ago?

A court in New York has jailed four men behind The Bootlegger Bay (TBB), the nations’s most high-profile speakeasy promotions agency, in a landmark case.

Frederik Neij, Gottfrid Svartholm Warg, Carl Lundstrom and Peter Sunde were found guilty of breaking sumptuary law (per the 18th amendment) and were sentenced to a year in jail.

They were also ordered to pay $4,500 in fines.

Temperance Societies welcomed the verdict but the men are to appeal and Sunde said they would refuse to pay the fine.

Speaking to The New York Times, the chairman of coalition body the Anti-Saloon League (ASL) Wayne Wheeler said the verdict sent out a clear message.

“These guys weren’t making a principled stand, they were out to line their own pockets. There was nothing meritorious about their behaviour, it was reprehensible.”

“The Bootlegger Bay did immense harm and the fine doesn’t even get close to due penitence, but we never claimed it did.”

“There has been a perception that imbibing alcohol is OK and that the temperance movement should just have to accept it. This verdict will change that,” he said.

The four men denied the charges throughout the trial, saying that because they did not actually manufacture or distribute any intoxicating liquour, they were not doing anything wrong.

Speaking on WRUC, the assistant judge explained how the court reached its findings.

“The court first tried whether there was any question of consumption of alcohol by persons upon the premises and that has been proved, that the offence was committed.”

“The court then moved on to look at those who acted as a team to operate the Bootlegger Bay speakeasy promotions agency, and the court found that they knew that intoxicating beverage would be distributed but continued to operate the service,” he said.

William H. Stayton, leader of the Association Against the Prohibition Amendment – which is trying to reform laws around alcohol and drinking premises – told the NYT that the verdict was “a gross injustice”.

“This wasn’t a criminal trial, it was a political trial. It is just gross beyond description that you can jail four people for directing thirsty citizens to the places they want to go.”

“There is a lot of anger in New York City right now. Drinking is an institution here and while I can’t encourage people to break the Volstead Act, I’m not following it and I don’t agree with it.”

“Today’s events make the consumption of alcoholic beverages a hot political issue and we’re going to take this to Congress.”

Here’s the history we’re doomed to repeat:

In 1921, 95,933 illicit distilleries, stills, still works and fermentors were seized. in 1925, the total jumped to 172,537 and up to 282,122 in 1930. In connection with these seizures, 34,175 persons were arrested in 1921; by 1925, the number had risen to 62,747 and to a high in 1928 of 75,307 (Internal Revenue, Service, 1921, 1966, 1970: 95, 6, 73). Concurrently, convictions for liquor offenses in federal courts rose from 35,000 in 1923 to 61,383 in 1932.

The law could not quell the continuing demand for alcoholic products. Thus, where legal enterprises could no longer supply the demand, an illicit traffic developed, from the point of manufacture to consumption. The institution of the speakeasy replaced the institution of the saloon. Estimates of the number of speakeasies throughout the United States ranged from 200,000 to 500,000 (Lee, 1963: 68).

Here’s the outcome, and our future:

It is difficult to assess the relative numbers of the wet and dry partisans during the last few years of national prohibition. In terms of strength, however, the wets surely had the edge which less than two decades before had belonged to the drys. The new wet strength showed up at the National Convention of the Democratic party held in Chicago in 1932, where Mayor Cermak of that city filled the galleries with his supporters. And, though Franklin D. Roosevelt had wooed the dry vote for some time, he now came forward on a platform which favored the outright repeal of the 18th Amendment. Accepting his nomination, he stated:

I congratulate this convention for having had the courage, fearlessly to write into its declaration of principles what an overwhelming majority here assembled really thinks about the 18th Amendment. This convention wants repeal. Your candidate wants repeal. And I am confident that the United States of America wants repeal (Dobyns, 1940: 160).

While dry leaders looked on with disgust, Roosevelt was elected president and Congress turned a somersault. The repeal amendment was introduced February 14, 1933, by Sen. Blaine of Wisconsin and approved two days later by the Senate 63 to 23. The House followed four days later, voting 289 to 121 to send the amendment on to the States (Lee, 1963: 231).

And the allegorical analogue of The Pirate Party? The Association Against the Prohibition Amendment (AAPA):

The job of total repeal was accomplished with the help of the determined AAPA during the succeeding year. Their lawyers assisted the states in preparing bills for conventions and release of various forms of political propaganda, thereby enacting a serious satire on the 1919 campaign launched by the Anti-Saloon League. Notwithstanding their high and enduring constitutional principles, on December 31, 1933, with repeal a reality, the AAPA ceased to exist and sent its files to the Library of Congress. “Having attained its objective . . . the Association resisted the temptation to linger on as a ‘sentinel of American liberty’ ‘’, the New York Times observed in the organization’s obituary (Dobyns, 1940: 132).

A ‘sentinel of American liberty’ eh? Would you find such an organisation in the US today? The land of the free?

The Free Software Foundation is close, but it doesn’t campaign for the abolition of copyright (yet).

At least we can take heart that abolition is not far away, that day when the people’s natural right to cultural liberty has been restored, to freely share and build upon published works.

The question is, at what moment in the American Prohibition Era did the allegorical Bootlegger Bay case occur? I suspect it would have occurred around 1925 when by that time in New York City alone there were anywhere from 30,000 to 100,000 speakeasy clubs. Given repeal occurred 8 years later, that puts the date for the abolition of copyright somewhere around 2017.

Not long now…

Pirate

n.

1. a. One who robs at sea or plunders the land from the sea without commission from a sovereign nation.
   b. A ship used for this purpose.
2. One who preys on others; a plunderer.
3. One who makes use of or reproduces the work of another without authorization.
4. One that operates an unlicensed, illegal television or radio station.
5. (chiefly 21st century Internet) One who asserts and defends natural rights.
   A pirate asserts and defends the natural right to liberty typically through file-sharing (qv 3. unauthorised reproduction) contrary to publishing corporations’ amassed privilege of copyright.
   A pirate asserts and defends the natural right to privacy typically through technical measures and by campaigning against its invasion by state or corporations (whether to detect copyright infringement or to profile individuals to better target advertising to them).

Modern Usage

Over the last year Phorm has been the subject of a smear campaign orchestrated by a small but dedicated band of online “privacy pirates” who appear very determined to harm our company. (from StopPhoulPlay by Phorm, Inc.)

So, now you know what a latterday pirate is, and how Phorm has used the epithet privacy pirate consistent with its contemporary definition.

According to the OED one of the first uses of the term ‘pirate’ to describe unauthorised reproduction of a published work was penned by Daniel Defoe:

1703 D. Defoe True-born Englishman in True Collect. I. Expan. Pref. sig. B3v, Its being Printed again and again by Pyrates.

It’s almost as if by such selective quotation the OED prefers people to interpret Defoe’s sentiments as “Help! The bastards are pirating my poem! Call the navy!” But, then how could the OED possibly be biased in support of copyright and against piracy?

In 1701 Daniel Defoe published The True-Born Englishman, and then in 1703 in a later edition included an explanatory preface:

As to Answers, Banters, True-English Billinsgate, I expect them till no body will buy, and then the Shop will be shut. Had I wrote it for the Gain of the Press, I should have been concern’d at its being Printed again and again, by Pyrates, as they call them, and Paragraph-Men: But would they but do it Justice, and print it True, according to the Copy, they are welcome to sell it for a Penny, if they please.

So, rather than making a furious complaint, Defoe appears to be saying “If my motive in writing this was to sell it to a printer in exchange for their ‘protected’ royalty, I would have been upset at any unauthorised reproduction. Instead, people are welcome to sell it for a penny a copy¹, as long as those copies are fair.”

It sounds like Defoe had a good grasp of a more principled approach to publication. Perhaps we might even deduce that Defoe was the first author to welcome pirates as good for publicity and promotion?

He goes on to recognise that commerce is the objective of pirates, and supposes that if no-one buys then no-one will write. But he then sardonically suggests that this would mean that none of his detractors would publish their response, given no money in it – insinuating his detractors put money before principle.

Defoe therefore effectively recognises that for some purposes some people will write irrespective of reward (and that for others they will not).

So, with the Statute of Anne in 1709, we have roughly three centuries of piracy and copyright behind us. Hopefully, that’s the way it will remain.

_______________________________

¹ This seems serendipitously resonant with my pet project 1p2U (in development) to enable people to pay bloggers a penny for each article they publish (which can then be philanthropically pirated without shame or fear of prosecution).

The worm is turning from a cultural sloth into a cultural insurrectionist. There is a rebellion afoot, where artists and their fans are now reasserting their natural rights and deciding to do business with each other directly. It is a movement to escape the shackles of the publishing corporations’ unethical privilege of copyright, to escape from the indentured penury of publishers’ deceptive contracts.

This is the end of copyright, and the disintermediation of those who would use it to extort and abuse the people.

This is the beginning of the digital renaissance, a new enlightenment that rediscovers the natural relationship that should exist between artists and those who appreciate them. One that existed until it was corrupted by the cultural constraint of copyright in the 18th century, and is now all but suffocated by the pervasive and insipid pulp produced by the multinational publishing cartels.

And to mark this beginning a new website has arisen, a2F2a.com, a site prompted by the historic rapprochement between Billy Bragg (FAC) and Jon Newton (P2PNet), to discuss, deliberate and document this more natural way in which artists can relate to their fans, and those fans can relate to their artists. A kind of relationship that is prosperous without being exploitative, and one that not only embraces the radically different economics of the digital age, but also necessarily restores the people’s cultural liberty.

However, just as people should no longer be dismissed as couch potato consumers to be fed the lowest common denominator, we must also recognise that we are all artists and all fans. We may well sometimes be fans of more artists than we have fans of our own, but fundamentally we are more than simply an either/or ‘artist or fan’, we are all individuals. The term ‘artist’ or ‘fan’ denotes a role or relationship, not a political status nor a social caste.

• As creative individuals, we are all artists and many of us would welcome a financial incentive to produce our art.
• As individuals appreciative of creativity, we are all fans and would be pleased to offer our favourite artists a financial incentive to produce their art.

We have to get back to such fundamentals before we can recognise that the traditional recording and publishing industry we see falling into decay and corruption before us had been built upon expedient foundations of 18th century permafrost – the treacherous foundations of unethical privileges that have now melted into a stagnant swamp that impedes all cultural progress.

The structures we build from this day forth to facilitate a more natural and ethically sound relationship must be built back on the same bedrock that mankind’s cultural heritage has been based on since the stone age and as relatively recently as the 14-16th century European renaissance.

We need to get back to an ethical incentive: money for art, liberty for people.

The copyright supporter (individual or corporation) belligerently claims infringement is theft, a violation of a natural or legal entity’s ‘human right’ to prohibit others singing the songs, retelling the stories, or printing more copies of the photos to which they currently hold the copyright. One should bear in mind that copyright holders that sue infringers are predominantly immortal corporations, not the human authors of the ‘protected’ works.

Why is there this desperation to describe the infringement of copyright as ‘theft’, especially when nothing resembling theft actually occurs?

To really understand what’s going on you do have to drop down to the rights of the matter, and understand the difference between a (natural) right and a right annulled (privilege). Rights are imbued in human beings by nature and recognised by law. Privileges are granted by the state (Queen Anne, James Madison, etc.) and created by law that annuls the recognition of a right, e.g. people are no longer recognised to have a right to make copies of their possessions, of a certain type, for a certain period.

One either violates a right, or one infringes a privilege (disobeying the annulling of a right).

Theft is the violation of an individual’s right to privacy (their right to exclude others from the objects they possess/spaces they inhabit), by invading it & removing a possession. Moreover, invading someone’s privacy to make a copy of their diary and remove/communicate it without, is an equivalent violation.

So, a burglar copying an author’s private manuscript could indeed be said to be stealing the author’s intellectual property – an act of IP theft (a violation of the author’s exclusive right to their writings). However, this form of rights violation is categorically distinct from the act of making a copy of an eBook for a friend, or uploading an MP3 rip of a CD to a file-sharing site.

By nature, once an author, Shakespeare say, has sold or given you a manuscript or copy thereof, you are at liberty to do whatever you want with your own possession, e.g. destroy it, perform it, translate it, or make and sell as many further copies as you fancy (as you might copy a basket or vase). There is no rights violation in doing so.

In 1709 Queen Anne annulled this natural right of individuals to make & sell copies of their possessions (relating to literary/graphic/printed works). The privilege of ‘copyright’ was thus created (annulling the people’s right to copy, for some arbitrary period, e.g. 14 years from publication).

To disobey this privilege of copyright is an infringement. It violates no right of the individual. On the contrary, it is a liberty and right that the individual is born with, but prohibited by law.

So, applying ‘steal’ or ‘theft’ to copyright infringement is to attempt to elevate the assertion of a natural liberty contrary to privilege into a crime. Similarly, when people claim copyright is a right (as if a natural or human right, as opposed to a legislatively granted quasi-right) this is to pretend a right is being violated, rather than a privilege being infringed.

By derogating from a person’s liberty to utilise their own property in certain ways (in private or in public), it is actually copyright that constitutes theft, not its infringement.

This is why natural rights aren’t taught in school – they undermine the state’s interest in derogating from the people’s rights, and interest in preventing popular challenge to pretexts that privileges so created are in the people’s interest.

If everyone knew that copyright represented a loss of cultural liberty in the people, to provide a monopoly to enrich immortal publishing corporations (and control public communications in the state’s interest), then it is more likely that people would today be discussing copyright’s abolition and the restoration of our cultural liberty than what punishments would best deter infringers/thieves/pirates (see TechDirt).