With this pronouncement, along with similar euphemisms by the media, it is clear that the copyright community has reshaped the debate. All of a sudden, the downloading of a song to sample an artist’s wares, behavior most Americans between 13 and 25 engage in regularly, has been likened to a criminal act.
Consider the clever public relations campaign of the content community. They’ve changed the simple language that describes the acts at issue. It used to be called “taping”, “reproducing” or “downloading”, and advocates on both sides would call it “unauthorized reproduction” or “unauthorized taping”. Then somehow this use of technology shifted to the more pejorative and sinister “copying”. The word “copying” sounds bad. It got you in big trouble in high school on a test. “Copying” is a sister to “plagiarism” which is especially bad.
But in the past few months, Hollywood and the music industry have shifted to different words. They now only talk about downloading as “piracy”. They call it “stealing” and always use analogies to shoplifting products out of a store. The Justice Department has adopted this approach. “Stealing is stealing is stealing,” said Malcolm in Aspen.
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The music and film industries claim that there is no such thing as fair use "rights" in an attempt to disparage the term. They say that fair use is only an affirmative defense to copyright infringement and therefore not a right. But various recognized "rights" only may be asserted as affirmative defenses in a lawsuit. For example, in a slander suit, one may assert the First Amendment right but only as an affirmative defense; this does not diminish the fact that the right exists.
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The comparison to real property fails for several other reasons. Real property is subject to ownership taxes. Real property lasts forever and can be owned forever. A copyright can be owned only for a limited period of time. Indeed, the United States Constitution declares this. More, copyright law must bow to the First Amendment that expressly allows people to use a copyrighted product without the permission of the copyright owner.
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If we had previously heeded the concerns of the creative community, we would have no radio, no TV, no VCR, no computer, no e-mail and no Internet. Yet each of these technologies has enhanced the revenue stream for copyright owners. [Gary Shapiro, The Campaign to have copyright interests trump technology and consumer rights, via Copyfight]
I'm particularly interested in the way that language is being used in this debate. The most powerful linguistic device has been grouping copyright, patents, trademarks, trade secrets within the umbrella term of "intellectual property." This term is so well established and that there is virtually no chance of rolling it back. But its usage serves to strengthen the position of the content business vis-a-vis information consumers (i.e. society as a whole). It amplifies the similarities and obscures the differences which copyright has with real property - such that it is a limited right granted only by statute.
The term "intellectual property" also makes possible the current linguistic device which the content business is attempting. This is framing the debate in these terms: do we or do we not allow the wholesale copying/ piracy/ theft/ stealing of property? This serves to divert attention from other questions, such as: is not the content business just asking consumers and society as a whole to subsidize (at great cost) their inefficient business models?
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