PennTags Feed for /tag/piracy

Copyright And Culture (Voluntary Collective Licensing - Innovation or Extortion?) Annotated Bibliography : Neil Desai

The End of Control, Chapter 4: The Flat Rate for Digital Music

This is from Gerd Leonhard's 2009 book The End of Control. Leonhard is a media futurist and writer. He discusses how the record industry has attempted to control their product but ultimately failed. The music industry must admit to what is happening and let go of there old economy business models and belief that content is king. They must accept it fast as the longer the wait the more they have to lose. Advances in technology such as memory sticks, iPhones, wireless hard drives / music players have made file sharing easier and easier and its popularity will grow exponentially. Record companies must embrace the end of distribution control and stop harassing their customers with lawsuits and threats. They must move to a service based model.

Leonhard proposes blanket licensing as the best solution. Existing public performance blanket licenses given by collectives are easy to get and make economic sense. The system is straightforward and benefits performers and artists but a new method will be needed for the internet. A blanket scenario would work best and he likens music to commodities such as water or electricity in that everyone should be a legal user. However, it is important to recognize in any discussion that music can be consumed unlimitedly, thus in determining the appropriate fee, TV is provided as an example. Flat rates could be connected to service or other methods.

The article's most interesting topic is its emphasis placed on control. Music companies still hope to maintain control of their product which does not make sense considering how uncontrollable it is. The movement of data has become so commonplace that controlling it seems almost ridiculous. Record companies have no other choice; they should strongly consider the prospects of blanket licenses. Flat rate licensing would work better as it would get money to creators who are not being served properly by the groups trying to represent them. I think this is probably the reason voluntary collective licensing has still not hit the mainstream. Middlemen like record companies realize their role will be diminished in a world where artists can provide their product directly to their fans.

Higher Education Opportunity Act

The Higher Education Opportunity Act written in August 2008 contained a few mentions of file sharing on campuses. The act addressed three main areas. First, students must be warned about illegal downloading and illegitimate P2P file sharing. They must be notified about potential repercussions such as civil and criminal liabilities. Next, institutions must certify that they have developed plans to combat the unauthorized distribution of copyrighted materials including technology based deterrents. Third, they must, to the extent possible, provide alternatives to illegal downloading. The timing for this is 1 year after the Act was signed.

The Act is quite specific in its requirements. Universities must both combat and provide solutions to the peer-to-peer file sharing dilemma that has run rampant on college campuses since the creation of Napster over a decade ago. Numerous attempts of other services have been tested, but all have failed the ultimate goal of compensating creators and giving students the music they want. Ruckus was the most recent failure. With the Act in place, universities must address the issue in the near future giving Choruss a unique opportunity as it is backed by both labels and file-sharing proponents. The controlled nature of campuses and use of a central ISP makes them a very attractive place to test the subscription model and this will be important to watch develop for the future of collective licensing.

The Music Industry's Extortion Scheme

The editorial by Reihan Salam discusses the benefits and issues with voluntary collective licensing. Four music companies (Universal, Warner, Sony BMG, EMI) control 90% of all record sales in the U.S and have blamed piracy for the 40% decline in music sales over the past decade. Some opinions in the article describe voluntary collective licensing as a "music tax" or even an extortion scheme. Issues such as the masses paying for the actions of a few and the recording industry gaining too much are reflected. Salam believes the system is actually beneficial as it rewards smaller artists and will help creativity. If artists are not compensated and royalty streams dry up, they will in fact stop recording. I do not necessarily subscribe to this as plenty of musicians do so out of passion not profit.

The part of the article that is most interesting is related to Apple, which record companies believe has a virtual monopoly on music downloading and must be kept in check. Voluntary collective licensing helps record companies ease their reliance on the software. Apple's counter attack to voluntary collective licensing is also discussed which poses an interesting proposition. A one-time fee on an Ipod purchase would give purchasers access to all music available on the iTunes website. The reason this hasn't yet happened is price and that it further entrenches Apple in its power against record companies.

Additional concerns are raised about how VCL would hurt independent labels; the other 10% of record sales and with the Apple plan its effects on other music software programs. It also discusses what actually may work best and sides with William Fischer’s book Promises to Keep and its strategy of an actually government music tax. Such a strategy would benefit artists and consumers but may cut out the powerful RIAA, which is well liked by the current administration.

The Apple tax idea is interesting and one that sticks in my mind, but again grants power to Apple who the record companies are too dependent on already. If an agreement was reached, I think it would be revolutionary but still limit consumers full access to the world’s music catalog as iTunes only holds a small percentage of all music available.

Isle of Man Plans Unlimited Music Downloads

This is a New York Times article written by Eric Pfanner in January 2009. It discusses a proposal by the Isle Of Man to test voluntary collective licensing. For $1.38 a month, the eighty thousand residents, who all have broadband access, would be able to download unlimited amounts of music. A fee would be collected by the ISP. The music industry estimates that currently 95% of tracks distributed online are pirated and this is a potential solution offered by the Isle.

The article discusses European perspectives on the issue and they do appear to be farther along than the U.S. A similar proposal made it Parliament in France, but it was eventually rejected after a fierce battle by copyright holders. Currently European countries seem more interested in the idea of holding ISPs responsible for illegal downloading on their networks. They have also proposed ideas including a 3 strikes your out rule and the banning of individuals from broadband access. While these idea are taking shape in the U.S., it seems unreasonable to hold ISPs responsible for reporting their customers actions. It also could create competitive advantages for those ISPs who refuse to participate and also distrust in them in general. Similar to phone tapping under the Patriot Act, it impedes on individuals freedom without the concerns of national security. It seems to be another example of the record companies alienating their own customers and building ill will and holding onto their past control ideals vs. adjusting to the future and the fact that file sharing is here to stay.

Choruss LLC, Jim Griffins keynote speech

This transcript is from Jim Griffins keynote speech about Choruss at the Digital Music Forum East in March 2009. Jim Griffins heads Choruss, LLC is a non-profit organization created and supported by major music labels. Choruss aim is to provide voluntary collective licensing to universities. It amazingly is backed by both the RIAA and EFF, who usually are on opposite sides of the music file-sharing issue. Choruss would act as a collective pool and then distribute royalties to artists based on various metrics.

Mr. Griffins discusses the need for a new business model in the music industry as technology has completely changed the game. He states, "It’s a fact of life: If your business model depends on controlling or getting paid for copies of zeros and ones, you may need to look at a new business model." He explains how collective licensing has existed in various industries in various forms and now is no different. Mr. Griffins then specifically addresses a Billboard editorial written by Chris Carter on the issues facing voluntary collective licensing. He provides mitigating arguments to the issues including lack of data to allocate funds, legal implications of collective licensing, opt-in / opt-out, label favoritism, and implementation challenges. He further discusses that this is not an academic pursuit but rather an actual attempt at monetizing and regulating piracy. He stresses that the creation of the system will also expand the market and uses the Copyright Clearance Center as an example of past success. Choruss has the goal to test various systems and eventually make paying for music fast and simple because doing so will release the floodwaters for money to flow.

Mr. Griffin is basically heading up the idea of voluntary collective licensing and is the initiatives public face and voice. This transcript gives a cohesive response to critics of voluntary collective licensing. By addressing the concerns of Mr. Castle, he has provided counter-arguments necessary to push the discussion on this revolutionary concept. His answers are based in reality and admit the concerns faced but are optimistic and derived out of reason.

EDITORIAL: 'COLLECTIVE' CONFUSION

Chris Castle is a California attorney who represents clients on music technology and public policy. He wrote this editorial in January 2009 and takes a much needed look at the problems with voluntary collective licensing and ISP taxes. He explores what would happen in a world where suddenly downloading music is free. The main issue he brings up is without any legitimate proven tracking sources, ISPs would basically be providing good guesses on how the fees garnished should be distributed. Other concerns he raises are about file quality, illegitimate lawsuits and the lack of feasibility of the plan in actual implementation. He further comments that the record industry would be exchanging one form of uncertainty for another.

The editorial further accuses proponents of voluntary collective licensing of ignoring the positive results in the billion dollar industry of quality digital content such as Hulu and Itunes which are experiencing successful growth. The author questions how collective funds would be distributed with no good data and the addition of another middle-man pulling money out of artists pockets. Questions are also raised about any promises to not sue ISPs, especially by those who opt-out of collective licensing. ISPs will also face issues related to other content illegally downloaded on their sites like images, movies, etc. and international trade agreements that may be tested.

While voluntary collective licensing on a topical level sounds great, Mr. Carter raises some very legitimate points and the issues that could be present in actual practice. ISPs will have to take on additional duties and are vulnerable to attack for participating as a middle-man whether it be voluntarily or involuntarily. Consumers may also be at risk in a world where authorized and unauthorized works are at their fingertips with no clear ability to distinguish between the two. If this is the case, lawsuits may continue unabated.

Promises to Keep: Technology, Law, and the Future of Entertainment

This is Chapter 6: An Alternative Compensation System from William Fisher III's 2004 book Promises to Keep. Mr. Fisher is the Hale and Dorr Professor of IP Law at Harvard and Director of the Berkman Center for Internet and Society. This is a very comprehensive discussion of the creation of a governmentally administered reward system for music and movie file sharing. Its basic premise is musicians or filmmakers would register their work with the copyright office and be given a unique identifier that would be used to track downloads of their work. The government would enact taxes which would be used to create a central fund. Using techniques created by television rating agencies, performing rights organizations, etc. the government would determine what frequency the work was used. The artist would then receive their royalty payment. The benefits would be consumers would pay less for more entertainment and artist would receive their fair share. Distribution companies would largely become obsolete over the long run. Society at large would benefit with less litigation and transaction costs.

The chapter goes on in detail to explain the various components of the plan. It also performs a deep analysis into revenue sources to determine the financial impact of the system. In the end, Mr. Fisher determines a tax of approximately $27 per year per household would make the system work. Concerns with this do exist such as consumers potentially supporting music they are morally or ethically opposed to. Another funding source could be taxes on the goods and services that are used to gain access to the media. Items such as ISPs, mp3 players, etc. are all explored and in the end an approximately tax of 12% is calculated as being appropriate. This is very deep and thoughtful analysis on what the actual numbers are that is helpful in pushing the discussion of voluntary collective licensing forward.

The chapter raises very important issues about voluntary collective licensing including derivative works, artists gaming the system, the inadequacy of the current copyright office, and how to create an appropriate sampling system. This is deep dive is essential to my research project as it peels back the surface to explore further ideas that will have to be confronted as the method moves forward. While a required government tax may face strong opposition, the idea of taxing devices is logical. My other concern with this strategy is the involvement of the government as the EFF plan to have non-profit collectives seems more in-line with letting the market do its work in maintaining innovation and efficiency.

Songwriters Association of Canada Licensing Proposal

This is The Songwriters Association of Canada’s proposal for monetizing file sharing of Canadian music. It lays out a voluntary collective licensing scheme similar to that proposed by the Electronic Frontier Foundation. The plan highlights its unobtrusive nature which will basically let consumers continue to download music as they wish but remove the legal risks and legitimize their actions. Consumers would have unlimited access to the world's music collection both preserving and fostering its growth. The association believes the voluntary collective licensing method will usher in a "Golden Age of creativity."

The background of the proposal provides some interesting statistics on music downloading. The estimate 98% of all music is shared and only 2% is actually purchased obviously indicating that sharing is the preferred method of the public at large to access music. The proposal also argues that legalizing file sharing would increase the amount of high quality virus-free music available as only 6mm of the 100mm recordings created are available on legal sites. Legitimizing file sharing will hence increase society's access to all music promoting the arts. It will also answer the most important dilemma: compensation for creators.

The proposal is an amendment to the current copyright act instituting collective licensing and the payment by consumers of a monthly fee on internet and wireless accounts. This would basically be a government tax but with an opt-out option. Consumers could sign documentation stating they will not share files and face penalty for breaking their agreement. Creators could also opt-out. The proposal would not only benefit consumers, but also ISPs and the music industry. ISPs would receive an administrative fee and record companies would finally receive compensation for file-sharing. The collective would be responsible for tracking music file sharing and distribution of royalties and could be outsourced to firms currently doing similar work.

Overall, the system seems very reasonable and a solution to the secular downward trend facing the record industry. The proposal is broad in its strokes, but it is the details of voluntary collective licensing that make it difficult which are not addressed. Issues such as how royalty streams are fairly distributed, misuse for non-music materials, cheating by artists, impact on record companies and current providers of legal file sharing are not fully tackled. Still the proposal takes the next steps necessary to move the method forward.

A Better Way Forward: Voluntary Collective Licensing of Music File Sharing | Electronic Frontier Foundation

This is Fred von Lohmann of the Electronic Frontier Foundation's whitepaper on voluntary collective licensing. The EFF has been a proponent of the idea since 2004 and put its seal of approval on current attempts to give life to the idea such as Choruss. The idea has gained traction with both Warner Music and Universal expressing interest. There has been a plethora of comments by writers, bloggers, panel discussions regarding the subject.

The paper presents voluntary collective licensing as a method to combat digital music piracy and create a legitimate revenue source for the flailing music industry. It lays out the precedent, the idea, the logic and the advantages. Voluntary collective licensing could be a way to monetize file sharing and hence provide the creators with compensation for their work, but at the same time provide consumers with what they have wanted all along, complete and uninhibited access to music. Since the creation of Napster, peer-to-peer file sharing has resulted in a secular decline of the music industry. Even through numerous evolutions and legal battles, file sharing has continued illegally and impacted recording artists. Consumers have been sued and accused by record companies of piracy, all of which has resulted in ill will towards record companies and little revenue generation for artists. Lohmann lays out the reasons voluntary collective licensing is needed including artists deserving to be compensated for their work, file-sharing has become the normal mode of music distribution, fans are in fact the best distributors, decision makers and preserves of music and finally the importance of letting the market drive innovation more than the government.

Voluntary collective licensing is compared to the system currently used by radio stations and insights are provided on how the concept will alleviate piracy in the music industry. The idea is to form "collecting societies" similar to ASCAP, BMI, and SESAC which provide music fans with unlimited downloading in exchange for a reasonable monthly fee. The fees would be collected through a variety of sources including at the ISP, university networks or subscriptions (similar to Rhapsody). All money would move to a central organization who would distribute compensation to artists based on popularity of their music, the technology for which already exists. The whitepaper further answers the most obvious questions including antitrust, division of money, and the impact on unwilling artists.

Higher Education Opportunity Act

The Higher Education Opportunity Act made it mandatory for universities to provide alternatives to illegal peer-to-peer networks.

Recontextualizing Copyright: Piracy, Hollywood, the State, and Globalization

Wang, Shujen. “Recontextualizing Copyright: Piracy, Hollywood, the State, and Globalization.” Cinema Journal 43 (2003): 25-43.

Shujen Wang is a professor of media and film studies at Emerson College. In this article she discusses transnational copyright governance among other topics. Her analysis looks at the qualities of both copyright owners and users. In general she says that the state continues to play a prominent role in intellectual property (IP) and information technology (IT) policy making. In addition the consumer has an active role in their infringing use of copyrighted material. This is a general description of her task. More nuanced is how she employed three prominent experts in the field of sociology namely, Scott Lash, John Urry and Manuel Castells. Their views may coincide with Karnow’s about the structure of culture as it is today. The virtual reality or information structure is highly abstract and variable. Wang goes on to expand on this point and the need to examine these topics under the description of her task as mentioned prior. So these authors initially act as a backdrop for her task and sub sequentially remains a critical theme in her work.

Similarly, this article acts to compliment and expand on Karnow’s position. This is not only an information based culture; it is also that culture has become information.

EBSCOhost: Vendors, Designers Persist In Copyright Proposal Rift

Cultural Participation and Growth through Fansubbing

As new digital technologies proliferate, tension between consumers and corporations has increased due to the new challenges confronting entertainment industries. Historically, the anime industry has leveraged the activities of fans through strategic ignorance in order to grow the foreign market in the United States. I am interested particularly in exploring how these fan communities functioned as proselytization commons to develop this market -- that is, how their illegal activities actually created growth and benefits for the industry. These fan activities, however, have also created pressures and potential harms for the industry by demanding a departure from a traditional physical-media business model. Furthermore, since anime fandom is an especially participatory community, rights-holders will increasingly be faced by more unauthorized reproductions of their works and expectations from fans of the ability to engage with this content. I have chosen my sources in order to reflect the multi-faceted perspectives currently competing in the debate over how to balance the interests of creators and fans. In my paper I will examine anime fandom and its relationship with the anime industry as a paradigmatic case of a "hybrid economy," where balance is achieved through cooperation between both groups in order to maximize the benefits of fan engagement while minimizing the harms.

Annotated Bibliography on Film Piracy

My research paper will be focused on answering the following questions: How is film piracy, specifically online film piracy, affecting the film industry, and what measures are being taken to regulate it? Are these measures effective, faulty, or even misdirected? In my annotated bibliography, I hope to answer these questions in depth so that I can frame my research paper's thesis around my findings. I will be specifically looking at the MPAA's involvement in the domestic fight against copyright infringement of film, as well as certain past and present cases that directly involve incidents of film piracy. In addition, I will briefly cover international film piracy. My tentative thesis that aims to answer the above questions is: Film piracy significantly affects the film industry, and legislative strategies to thwart it have proven to be ineffectual.

Framing issues of Piracy and Copyright: The Motion Picture Association of America's Testimonies at Congressional Hearings

Mary Erickson’s article gives an in depth examination of the MPAA’s involvement in Congressional committee hearings pertaining to piracy and copyright issues since 1976. In her paper, Erickson concentrates on witness testimonies of varying MPAA reps at copyright and piracy related hearings. Her main goal throughout the paper is to look at how and why the “interest groups” influence the policy decisions with their witness testimonies (Erickson 1). Her findings suggest that witness testimonies often have little or no affect on Congressional policy decisions, unless it is a celebrity witness. Erickson’s paper encompasses a number of informative statistics concerning the MPAA, and specifically outlines the MPAA’s “four-pronged approach to combating piracy” (Erickson 8). nsight is also given as to what compromises the legislative committee and its hearings, including the MPAA’s participation in Senate and House hearings. Erickson's article gives a different perspective on how the MPAA handles anti-piracy legislation, instead of simply what they cover during a hearing. It is important to see how the MPAA either effectively or ineffectively goes about trying to thwart piracy in the film industry.

MPAA v. The People

This legal complaint was filed on November 16, 2004 by the Motion Picture Association of America (MPAA) against "the people," or the unknown offenders of piracy in the U.S. It is important to clarify that it was the MPAA who filed the complaint on behalf of the studios it represents. The Document is outlined by three different sections: 1) Jurisdiction and Venue, 2) Parties, and 3) Count I: Infringement of Copyrights. The document references itself as, "a civil action seeking damages and injunctive relief for copyright infringement under the copyright laws of the United States." The complaint also states that the MPAA is targeting the Defendant (the people) for specific film piracy actions such as distributing and offering to distribute copyright works via the internet. A particularly informative portion of the "Parties" section of the formal complaint consists of a description of how the Plaintiffs (the studios) are affected by the Defendant. Described in this section is the fact that piracy allows people to freely and illegally obtain unauthorized copyrighted works. The Defendant then has the ability to distribute the illegal copy in near perfect condition regarding both sound and picture quality. The Plaintiff's main argument here is that just one copy of a film can cause an explosion of illegal distribution worldwide by limitless people. Included under the Infringement of Copyrights is an equally as informative explanation of willful process of the Defendant's piracy acts, and how the court should go about punishing those said acts. This formal complaint document shows how Hollywood is reacting to the piracy movement, and what measures they are taking to fight against it.

Piracy in the Motion Picture Industry

Kerry Segrave's book Film Piracy in the Motion Picture Industry dedicates its entirety to my topic. Segrave's research though, extends significantly farther back into the history of film than I will be including in my analysis. She provides a wide berth of information about past and present domestic film issues as well as specific international ones. Chapters 6, "Domestic Piracy, 1975-2001," and 7, "Foreign Piracy, 1975 to 2001," are laden with the utmost pertinent material for my research. In these two chapters, Segrave goes into exquisite detail, not only providing an enormity of statistics, but also documenting vast amounts of specific legal action taken to prevent film piracy over sixteen years. Segrave's in depth method of relaying information allows me to get more than just a surface level understanding of Hollywood's constant struggle concerning film piracy. Her attention to detail regarding legislative measures and the strategic moves made by Hollywood to suppress piracy will add substantial support to my own analysis.

Recontextualizing Copyright: Piracy, Hollywood, the state, and Globilization

Shujen Wang's article, "Recontextualizing Copyright: Piracy, Hollywood, the state, and Globilization" provides a careful analysis of the copyright and piracy issues in the Hollwyood film industry while framing it in relation to the global impact. Wang does this by endeavoring to answer four major issues surrounding the issue of piracy and copyright in film. This article gives a much less centralized argument about my topic's issue, as it touches more on a general overview, though still focusing on the essentials. It allows me to step back and look at my research in a more broad sense. One crucial aspect that Wang brings up is the existence and role of the Motion Picture Export Association of America (MPEAA), which my other sources have left out. Throughout the article, Wang provides a more grounded view of issues concerning how and why the copyright issues have infiltrated our society so egregiously. He adds a certain complexity to the arguments surrounding film piracy that is difficult to find on other research regarding my topic. In addition, his conclusion touches on some of the more open ended questions of film piracy that I hope to answer in my research paper.

Bush Signs Anti-Piracy Bill

This article is a report on the controversial Anti-piracy bill. On October 13, 2008, President George W. Bush signed the bill into law. This particular bill greatly stiffens penalties for movie and music piracy on a federal level. The law itself creates a new position or "intellectual property czar," who will directly report to the President concerning ways in which copyright law can be better protected both domestically and internationally. Previously, the Justice Department had contended that the new position would greatly undermine its authority. The law also makes criminal laws against piracy more tough. There is significant worry though that this new law risks the punishment of innocent people. It is interesting to note that the MPAA strongly backed this bill. The passing of this bill shows how ineffective some of the past legislation has been on curbing film piracy. If past laws and case ruling had made enough of an impact, then this new, and aggressive, law would not have been needed. Even though such groups as the MPAA have been making fervent efforts to curb film piracy, it is simply not enough.

Recording Industry Association of America (RIAA) Parts 1 and 2

The RIAA submitted this letter in response to public requests for comment on the ACTA. The RIAA provides a detailed prescription of what it needs in order to ensure that its intellectual property rights are not infringed anywhere in the world. This includes recommendations for the definition of “piracy,” and which infringement cases should be prosecuted. It also sets out specific requirements for law enforcement and monitoring officials to follow. The RIAA expresses its strong supports for the dialogue the ACTA has provoked and expresses its wish that all of its arguments be taken into account when formulating its final version.
The RIAA provides by far the clearest and most non-negotiable opinion. It explicitly states that all acts of piracy, commercial or non-commercial, should be prosecuted and the strictest laws should be applied. It seems that the RIAA has already created its own legal framework that advances the industry’s ambitions and protects its interests efficiently. The Association is merely looking for a conduit of its legal system and does not intend to negotiate with any party. It also disregards the motives of user worldwide to seek and use illegal materials online. The RIAA does directly address the links between piracy and organized crime, which shows that it recognizes some of the ramifications of copyright infringement that affect areas completely exterior to music. While the Association’s stance should not be ignored, its positions should be considered alongside economic and empirical evidence (like the one provided by the IIPA). Additionally, the confidence and severity of the RIAA’s opinion should caution all countries that the U.S. organization is a powerful player and can include the international arena in its jurisdiction if its demands are completely met by any multinational agreement.

Editorial: An Open Letter to the Industry - Anime News Network

Justin Sevakis presents an overview of the anime industry's current decline in sales, which he attributes both to digital fansubbing and corporate reluctance to adopt new technologies. Unlike many other authors who have written about fansubbing, Sevakis recognizes a qualitative break between the VHS distribution networks and current digital fansubs with decentralized distribution. The internet has dramatically lowered the barriers to obtaining fansubs, which are now easily available at the click of a button on a multitude of streaming sites. While fansubs might have previously been a non-rivalrous work that served a promotional function for the licensed products, digital fansubs have effectively usurped the licensed market by offering a product of the same quality for free and faster than legal avenues. The fansubbing groups, however, are simply responding to fan demands for timely releases, which the industry has failed to meet. In order to prevent further losses and rebuild the industry, companies must adopt a digital model that provides American audiences with “a legal, inexpensive way to watch new anime in English.”

Rather than idealizing the cultural benefits of fansubbing, Sevakis presents a practical understanding of how fans and the industry operate in the digital market. People watch fansubs because there is a market vacuum that the anime industry has ignored for several years. Rather than providing a legal avenue to meet this market demand, anime companies have responded like many other entertainment industries by believing they can guilt their fans into sticking with a failing business model. Furthermore, the industry has confounded the size of the fan community with the anime consumer market, which in fact represent audiences with varying levels of engagement and interest; not all fans share the same buying practices as collectors, and indeed many are simply interested in just viewing a series once and not owning it on DVD. These considerations complicate the perspective of fansubbing as an activity that promotes economic and cultural growth because they demonstrate the real harm to the anime industry being caused by illegal reproduction in fan communities.

LIBRI, vol. 57, number 3, September 2007; Downloading Communism: File Sharing as Samizdat in Ukraine; MARIA HAIGH

This article takes a much more anthropological perspective and focuses on the user side of illegal music download sites in Ukraine. Haigh discusses the differences in the music and movie market in Ukraine compared to that of the West. She also talks about the financial limitations of Ukrainians and the limited use of the Internet I that country. She draws parallels between modern norms of illegal fire sharing the heritage of the Soviet Union and its copyright regime.
This article supplies a crucial perspective for my argument – the motivations of populations to download illegally from the Internet and infringe copyright. The financial situation of Ukrainians is particularly important because it is clear that they cannot afford legal copies of the pirated material. The ACTA and other multinational authorities should be cognizant and offer alternatives to illegal sites in order to give incentives for the users to switch to legitimate materials. This also means that the legal sources should be affordable for the native population. The article also touches on the perception and attitude of Ukrainians toward the western legal copyright framework. This links back to the sentiments of the natives evoked by their life within the Soviet Union. Ukraine is a proud nation and in its history it has been constantly conquered and re-conquered by foreign powers, which imposed their own rule on the population. Ukrainians feel that when the WTO and the US are allegedly trying to protect their intellectual property rights, in effect they are acting just like the USSR and attempting to coerce Ukraine to follow western models even when they are not suited for the needs of the country. This attitude is echoed throughout most other eastern European former Soviet satellites and republics.

RIAA drop case against AllofMp3; May 27, 2008; Information Overlord

This blog entry contains much of the same information as the other article on Russia and its music download website www.allofmp3.com. It discusses how the website was symbolically closed and the RIAA dropped it suit against the site for that reason. This allowed the United States and Russia to sign bilateral accords since technically Russia had achieved one of the requirements for strengthening its ties with the West. At the same time, a couple other similar illegal music download online stores continued to operate and were completely their existence was completely ignored by the RIAA and the bilateral negotiations.
The blog entry does contain one piece of crucial information – the author comments on how he enjoyed his customer experience using allofmp3.com. This raises an issue that is important in my argument: the view of those who use illegal sites to download music. The blog author’s opinion hints to the fact there is no legal website of the same scope and quality as allofmp3.com. Therefore, we can’t expect eastern Europeans to abstain from illegal downloading if the illegal choice is more accessible than the legal one. Also, if the international community insists on infringing countries to crack down on illegal websites and materials, the multinational group should also offer an alternative to infringing sites. Perhaps, the RIAA could have negotiated a deal where it insured that allofmp3.com does pay the necessary licensing fees and becomes legitimate in the eyes of the western countries. It is absurd that the RIAA expects Russians to stop downloading music illegally if these listeners have no legal way to obtain music online.

Anti-Counterfeiting Trade Agreement | Public Knowledge

The statement of this interest group discusses the concerns the Anti-Counterfeit Trade Agreement (ACTA) raises. These include the lack of transparency of its content, the limited information given to the public, the fact that this is an executive agreement and the implications this will have in practice in the Unites States political context. Public Knowledge is also uneasy with the terminology used in the ACTA – the use of “piracy” and “counterfeit” without concrete definitions of what these words would encompass.
The opinion of Public Knowledge adds an important perspective to my argument because it criticizes the format and the ramifications of ACTA implementation on a domestic level. The interest group raises the fact that the ACTA is an executive agreement and as such does not require the “signatories to be accountable to the public” since it circumvents Congress. If one links this information to the claim that the ACTA is supported predominantly by copyright industries then it leads me to believe that the sole purpose of this accord is to give the companies such as the RIAA and MPAA greater powers to prosecute copyright infringement internationally at their own discretion. Eliminating accountability also signifies that the United States Trade Representative (USTR) does not want to directly involve the U.S. in multinational infringement disputes but only seeks to facilitate the domestic copyright industry to defend its rights in the international arena. The limitation of the Public Knowledge opinion is that it doesn’t consider the newest Fact Sheet that was released by the USTR in August 2008. Even though the fact sheet does not give a substantial amount of concrete information, it does formally address some of Public Knowledge’s questions.

Serbia's anti-piracy efforts may be music to EU's ears; October 23, 2008; Agence France Presse

This article talks about Serbia’a surprising progress in combating piracy. The Serbian authorities have seized “280,000 illegal copies of music, films, games and software” from the domestic market. The article points out that this raid was most likely because Serbia wants to join the E.U and combating piracy is one of the criteria for closer relations between the European Union and Serbia.
This source is closely tied to the article on Russia’s music download website. The Serbian case, however, has a more optimistic outcome. While the raid will certainly not stop piracy, it is an important step forward that shows the population that the Serbian authorities are serious about strengthening their relations with the E.U. and are therefore willing to carry out seizures of illegal materials. The article also explicitly brings up the ties between piracy and organized crime. Knowing the political and social climate of Eastern Europe, I can confidently claim that the same connection exists in Russia and is evident in the symbolic closure of allofmp3.com. When the exact terms of the ACTA are negotiated, it is important to take into consideration the domestic implications of combating intellectual property infringement. Enforcement of copyright laws can be dangerous since it interferes with powerful underground crime networks whose bosses maintain close connections to corrupt officials within Eastern European police authorities. Finally, the limitation of this article is that it does not investigate the reaction of the population and whether the seizure was successful in the long term, i.e. did the vendors stop selling illegal materials for good or did they continue after a few days.

Russian music download site shuts down and reappears at a different address; Alex Nichlson; Associated Press Financial Wire; July 3, 2007

This article discusses the closing of www.allofmp3.com - a major Russian music download website, which was considered a significant copyright infringer by western countries. Users could buy songs from the website and the owners claimed that they paid royalties and license fees for the songs and therefore the owners argue that the site was legitimate in accordance with the law of the Russia Federation. Western music companies, however, assert that they do not receive any of these fees. This issue is important for a political reason: the presidents of Russia and the U.S. were meeting at the same time and the article speculates that Russia was trying to improve its relations with the West.
This source is important for my research because it shows the link between piracy and international politics. Perhaps a way of dealing with countries where piracy is rampant is to tie their success enforcing intellectual property rights to the amicability of their relations with the West. The outcome of this scheme will depend on the country’s size and particular international standing and needs. As this article shows, the closing of www.allofmp3.com was merely a symbolic gesture since a nearly identical site opened up soon after but at a different address. It is also evident that there are domestic inconsistencies when it comes to applying copyright and license laws. For example, even though allofmp3 claims to have paid the necessary licensing fees, the Russian Multimedia and Internet Society says that it has not received these payments for months. This hints that piracy is not just a copyright and intellectual property issue, but that it has links to more lucrative domestic crime operations. Because of the vague wording of the ACTA, it is not clear how this agreement will affect similar situations.

ELECTRONIC FRONTIER FOUNDATION SUBMISSION TO OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE ON
The EFF submitted this letter in response to the request for public comments regarding the ACTA. The letter focuses on the legitimacy of the ACTA itself. The EFF argues that the lack of transparency surrounding the creation and negotiations of the ACTA is highly suspicious. It questions who the true supporters of the ACTA are (authors vs. companies) and the genuine motives of the agreement. The EFF then analyses the available information regarding the ACTA and makes recommendations. Thee recommendations include respecting each country’s own legal regime and not imposing secondary liability, making sure that any prosecutions for breaking the rules of the ACTA go through judicial review, and creating a precise and narrow definition for “commercial-use.”
This document also gives a unique perspective for my research paper, because it questions the general purpose of the ACTA as well as the process through which it is being negotiated. It is the only document so far that discusses the implications for Fair Use in this new multinational agreement. The letter also talks predominantly about the rights of users and argues that the United State should take extreme care to ensure that civil rights will be preserved. The EFF discusses another interesting aspect: prosecution of individuals who committed piracy for personal uses compared to those who truly operated significant commercial networks and gained profit from infringement. In order for the ACTA to be an effective agreement, it should set realistic rules and standards that are enforceable, instead of labeling every type of copyright infringement as prosecutable. This means that the ACTA should concern only large-scale profit-seeking infringers since they have committed greater harm then someone who has downloaded a song to his/her personal computer. For example, the ACTA should affect online music and movie torrents as well as street vendors – these are the people who use piracy for profit and not just for personal pleasure.

Digital Sampling and Copyright

JSTOR: Popular MusicVol. 7, No. 3 (Oct., 1988), pp. 337-338

This academic journal is published by Cambridge University Press and is a commentary on the first source listed above. Laing highlights the most important points of Frith’s work, offering his professional opinion in a disagreement, agreement, or clarification in the very least. A notable quality of this journal is the fact that is it printed in Great Britain; therefore it offers the insight of a foreigner analyzing American copyright law in contrast to that of the United Kingdom. This perspective draws attention to aspects of the law that may not been previously considered.

            The essay is short and concise, wasting no words in a full examination of Frith’s work. He calls into question Frith’s assertion that the copyright system is an “aspect of the competition between different music producers…and…different music users,” and claims that there is much more to it than that. He acknowledges the complexities in the system in that they do not clearly favor or target neither the creator, nor the performer, nor the consumer. Slightly outdated, this essay was written before any sampling lawsuits were completed in the courts (at least in Great Britain) however, this serves as a strength instead of a weakness, however, seeing as his calculated predictions can be measured against the results to gauge how scholars viewed the subject.

            This journal is not only an intellectual work in itself, but it is also an intelligent deciphering of some of Frith’s most significant assertions. This serves the reader well as some of his reading can be confusing and seem contradictory at parts. In reading Frith’s work, I will be sure to keep Laing’s journal on hand for color and clarification in order to most accurately comprehend the discussion and facts presented.

The Digital Songstream: Mastering ... - Google Book Search

This book is a guide – as its title might suggest – to all things digital when it comes to music. It serves as not so much an analysis on copyright in the music industry as a whole, but rather as a set of legal and technical guidelines so that one may participate in the consumption and production of such music without infringing on copyrights. In other words, it describes for the reader all of the ins-and-outs of the digital music industry so that one may know where in the law his practices may reside.

            Hill’s book has entire chapters devoted to the assessment of what is legal, what is not, and how to go about participating in said sanctioned musical practices. He identifies a list of acceptable file-sharing websites, and offers his own commentary on why others are forbidden, as well as why these are acceptable. The book begins with a basic introduction into the technologies and methods used in the digital realm and then goes deeper to list available services and to comment on the merits of various practices. His advice is clear and he condones no illegal activity, yet he makes clear why certain people might be motivated to circumvent copyright laws in terms of digital music. He further lists specific file types and programs that are used in these practices and he identifies useful software. He finishes the book with another broad chapter about the “Conscience of Digital Music” as a whole as well as his prediction of the future of the industry.

Hill’s technological knowledge is a key aspect of this book that has allowed me to delve deeply into the details of digital music production and sharing. He explains these issues in simple terms, while still conveying the complexity of their implications. In writing this final paper, the technological terms and details from this book will provide much-needed expertise in a field that I am not necessarily well-versed in. In my analysis of the acceptability of digital sampling, I must first know how the practice works and what techniques are involved; this book offers me this knowledge, which is key to reaching a conclusion in my final paper on what sampling is acceptable within copyright law.

Capturing Sound: How Technology Has ... - Google Book Search

Katz also examines the realm of digital sampling, but he does so with a keen detective’s eye, looking at the practice from the outside-in. He uses three case studies to show the main uses and techniques employed with digital sampling. First of which is a “song” created by Paul Lansky with recordings of human voices speaking random words entitled “Notjustmoreidlechatter.” The complicated issue of speech and music is addressed through this first instance of sampling and Katz identifies the specifications and implications of either one. Secondly, he compares two pop songs, Camille Yarbrough’s “Take Yo’ Praise” and Fatboy Slim’s “Praise You,” which uses bits of the former in its creation of the latter. Finally, he breaks down the numerous sampled bits in Public Enemy’s “Fight the Power.” Public Enemy’s strong political message coupled with the nature of his samplings creates one of the most powerful sample-ridden songs of contemporary music.

Katz only does so after first clarifying with the reader what exactly sampling is. This definition has been found in the majority of the sources, but none went on to detail the legal issues as well as Katz. He also goes on to explore the question of originality and immorality in terms of remixing and sampling. Nevertheless, his case studies have proven most useful in determining the full extensions of digital sampling in music and his insight into its effect on music today. He also lightly touches on the various effects parodies have upon the original work, if any, and acknowledges the complexities within the industry when it comes to approval for such works. This book could possibly be the best source found thus far, seeing as it is not overly specific in its subject matter, yet it explores enough topics in a reasonable level of detail to be reliable.

Bootlegging: Romanticism and ... - Google Book Search

Lee Marshall, co-editor of the very first source, "Music and Copyright – Second Edition," authors this work of similar form but on a slightly different subject. The strictness of copyright law in terms of music is once again revisited but is no longer commented on as either fostering or inhibiting creativity in the industry. Lee more explicitly lays out the fundamentals of copyright law, especially when it applies to bootlegging and piracy, and he broadens the discussion outside of the United States to international copyright law.

            Prior to his outline of the bootlegging/piracy portion of the industry, Marshall itemizes the four main copyright issues in music. The first two he identifies as the copyright of the original work itself: song and lyrics. Beyond that, he clarifies the issue of copyright of the recording and who often owns the rights to a song produced in a studio. Lastly, he outlines the details of copyright it terms of the performance and the differing stipulations both in the United States and abroad. Marshall then asserts that the main concerns over performers’ rights stem from issues regarding bootlegging, and he goes on to explain the complicated laws concerning it.

            Bootlegging and piracy are two of the main portions of copyright law that are most closely related to, if not directly cited in, cases involving digital sampling. By referencing Marshall’s comprehensive look at copyright law as it pertains to bootlegging, I can not only ascertain for myself whether or not a particular usage is acceptable or not, but I can also refer to the various case studies employed by Marshall if unsure. In writing this final essay, Marshall’s detailed work on bootlegging and piracy in terms of copyright law has certainly been a valuable source to cite.

Nintendo no friend of homebrew market, sues DS cart makers

Nintendo’s attacks against anything capable of copying a video game are not just a historical curiosity. The company, along with the rest of the video game industry, continues to sue these copying devices to this day. The most recent lawsuit is against the R4, a Nintendo DS cartridge that fills many of the same purposes as the old Game Boy Advance flash cartridges. The device bypasses the protection on the system and uses a micro SD card to run pirated games, homebrewed games, or anything else capable of working on a Nintendo DS system (playing music, programming, etc.). Despite being fully aware that the device skirted the edge of legality, Japanese retailers continued to stock and sell the device to high demand (while explicitly not explaining what the device does). Of course, Nintendo was not happy about this state of affairs, and proceeded to sue the companies that make and distribute the device. 54 other software companies joined the lawsuit.

Under the precedent set by the Game Boy Advance flash cartridges these devices are probably illegal. It is easy to see why the video game industry wants them off of the market. However, the consumer base clearly loves these devices. The R4 apparently sold very well in Japan, and with the lawsuit the price of the device skyrocketed (see another article linked from this one). Consumers seem to believe that there exists plenty of legitimate uses for the R4, not just playing old, illegally obtained games. Consumers write homebrew applications that allow the DS (and also the PSP, although this is not the subject of the lawsuit) to do an incredible number of things. The author even notes that he has meet people who jumped into game design by learning on hacked DS’s and PSP’s.

Clearly, the consumer base enjoys using the R4. And while Nintendo might be perfectly within their rights to stop them, it could create massive ill will. Being told that all of the hard work you put into a homebrew application that you created without breaking copyright law is bound to make anyone angry. With a huge portion of the video game industry getting behind this lawsuit, it makes an easy target for the ire of the community. The video game industry, it seems, has not learned its lesson. Despite already angering many consumers with their attacks against any form of copying or emulation, it continues to press lawsuits. If this path continues, then the industry risks turning into the next RIAA.

Bill would force

Bill would force “top 25 piracy schools” to adopt anti-P2P technology

       Senator Reid promotes a bill that would support the RIAA by creating a ‘blacklist’ of schools with the highest number of illegal downloaders. The article discusses how the plan would prevent funding of the top 25 illegal downloading schools. These universities would then be forced to create and prove that they have created a technological way of stopping file-sharing. The article also gives a prominent flaw of the plan, quesioning how the RIAA and MPAA would collect and represent their data since there would be a huge difference between schools with 70,000 students than those with 2,000. Basically, they would be getting their money from the larger state schools, and therefore the taxpayers. The article also contains a quotation from the Digital Freedom Campaign which simply put, says that our universities have more important things to do than spy on their students. The article concludes with an update stating that the bill has been dropped for now.

   This article supports my thesis and confirms the idea that the RIAA is taking their fight too far. The information this article provides helps to prove that universities’ involvement should be minimal, if only because the other options are ridiculous. Putting schools on a ‘blacklist’ seems threatening and more similar to a way to make money from larger schools than it is to help artists. The sense of desperation portrayed in this article on the side of the RIAA aids my argument for less force on the universities since the RIAA's plan to involve universities is overflowing with flaws.

Lik-Sang Founder Speaks Out on Nintendo Court Case

Lik-Sang was an Internet mail order business based in Hong Kong. Note the word “was”; the company was forced out of business in 2006 by multiple lawsuits from Sony regarding the early selling of PSP's in the UK. However, in the early 2000’s Lik-Sang was embroiled in a legal battle with Nintendo over the selling of Game Boy Advance copy devices (similar to the GB Flash Advance Linker). These devices allowed a consumer to either copy a ROM from a PC onto a blank cartridge, or copy a legitimate game cartridge to a PC. The court ruled in Nintendo’s favor that the devices were illegal, making the analogy of going after drug traffickers instead of drug addicts to curb drug use.

But this article is primarily a statement from Alex Kampl, one of Lik-Sang’s founders, after the decision was handed down. First of all, he notes the errors in the official Nintendo press release (which can be found via link from this article), including the fact that he had filed an appeal to the case, and that it was a summary judgment, not a full trial. In addition, he notes that the Hong Kong judge in the case was not an IP specialist (apparently there is not IP specialist in the Hong Kong judicial system any longer) and seemed to misunderstand some basic concepts about video game emulation. Kampl goes on to claim that since there is not copy protection on the Game Boy Advance, this particular section of law does not apply. Kampl also describes his disappointment that Nintendo is going after hardware used extensively by hobbyists, even by certain video game companies (apparently companies purchase flash cartridges from Lik-Sang for development purposes). Kampl claims that what he is doing is perfectly legal, and that presumption of innocence seems to no longer apply to cases of video game copying (“Nintendo doesn’t need to prove you are a pirate anymore, it is assumed you all are if you have the technical means to copy”).

Kampl’s claim that the Game Boy Advance does not have copy protection is more or less false; the system does have a form of copy protection (as explained in the Customs and Border Patrol ruling on the GB Flash Advance Linker). In addition, the analogy to drug trafficking has some logic to it, since it would be impossible for Nintendo to find and prosecute all video game pirates. But Kampl’s statement that the whole case should be embarrassing for Nintendo certainly seems to have merit. The purchase by video game developers of hundreds of flash cartridges clearly shows that they have some legitimate use in game development (and could be used by consumers to produce homebrew games), and as such is does seem that Nintendo is assuming that anyone who uses this device must be guilty. In addition, these types of cases clearly build up ill will towards Nintendo within the video game community, something that the company wants to avoid. Overall, while the decision may have been correct, Nintendo’s decision to pursue this case may have been a mistake.

SSRN-Of Otaku and Fansubs: A Critical Look at Anime Online in Light of Current Issues in Copyright Law by Jordan Hatcher

Jordan Hatcher describes the fansubbing community as sitting at an interesting boundary between creative production and file-trading. He notes that fansubbers are guided by a cultural goal and attitudes that exist within the community itself, comparable more to the FOSS movement rather than typical pirates. After recognizing these nuances between fansubbers and pirates, Hatcher asks, “Do our laws stifle creativity and sharing to the point where it harms society?” While there are certainly cultural benefits created by the fansubbing community, there also exists the potential to replace market need for official licensed translations, thus causing an economic harm to the artists and creators of these works. He argues that a fair use defense based on these benefits, such as market enhancement or interest-building, are undercut by the reality of fansubbers' actual practices of providing a substitute product. While Hatcher concludes that it is still too early to come to any conclusion about the benefits of fansubs, he believes that the relationship between fansubbing communities and the anime industry will “reveal a great deal about copyright in a connected digital world.”

Hatcher challenges the model of fansubbing as an activity that creates growth and benefits for the anime industry by undercutting the traditional market enhancement argument that fans usually propose. Copyright should not be frivolously violated because protection of creative products is a culturally beneficial instrument that provides creators with incentives to produce new works. Therefore, in order to produce a culturally beneficial arrangement that incorporates the benefits of fansubbing communities while minimizing the harms to creators, both groups must respect the value each respectively generates and come to an agreement that meets their common goal of promoting anime. Such an agreement is possible because, unlike typical pirates, fansubbing communities operate around a code of conduct and thus have demonstrated a level of compliance with industry requests not seen in other areas of the piracy debate.

SSRN-Celebrating Two Decades of Unlawful Progress: Fan Distribution, Proselytization Commons, and the Explosive Growth of Japanese Animation by Sean Leonard

Sean Leonard extensively documents the history of anime in the United States from 1976-1993 in order to demonstrate how fan communities acted as proselytziation commons that shaped the formation and initial operation of the anime market. Leonard defines a proselytization commons as a free exchange of media in order to advance a directed cause, namely the promotion of anime to a wider audience. While these fan activities infringed on the copyright of Japanese companies, the companies nevertheless responded with either strategic ignorance – that is, they sought benefits that result from unauthorized use – or plainly dismissive ignorance. Leonard’s legal analysis classifies the fansubbers’ activities as producing a desirable outcome, but not being sanctioned by law. Since current copyright law prohibits these culturally beneficial activities, Leonard proposes a revision that excuses unauthorized reproduction of foreign works until they are actually licensed and distributed in the domestic U.S. market. He grounds this revision on the early American tradition surrounding copyright law based on an originalist interpretation of “limited Times” and “promote progress” in the Constitution.

Leonard’s analysis of the history of fansubbing presents one of the strongest rebuttals to the argument made by many media industries that the progress of culture requires “perfect control over copyright from fixation to expiration.” Grass-roots distribution of anime through fan networks not only promoted cultural growth by acting as a proselytization commons, but also created a multi-million dollar market for these products as well. Therefore, the example of fansubs demonstrates how culturally beneficial activities that in fact meet the goal of “promot[ing] progress” are nevertheless unjustly restricted by rigid copyright laws. The fact that current copyright laws are in fact having the opposite of their intended effect should prompt citizens and lawmakers to consider exemptions, such as expanding Fair Use, that legalizes these activities.

Piracy and Privacy

Though not so recent, this article highlights the importance of the Electronic Frontier Foundation and it’s preliminary role in defending privacy against lawmakers. The article reports that the International Federation of the Phonographic Industry, a music-industry based group, attempted to block filtration devices that were used to transfer copyrighted material illegally. The EFF claimed that this move was an “ineffective measure that will do little to practically address the concerns of major rights holders while imposing serious costs on the individual rights of European citizens.” Recording industry groups further asked filtering technology makers, such as Audible Magic, to block users’ access to specific peer-to-peer file-sharing services.

This article targets yet another example of the entertainment industry (and the ACTA by extension) pretending to tailor the Internet to what it wants as opposed to operating with the way the Internet actually works. Developments like this also demonstrate that defenses, such as the EFF, actually do exist and strongly advocate the privacy of Internet users. This relates specifically to my thesis in that it shows the early steps toward the formation of a defense against global control of file sharing.

Swedish Authorities Sink Pirate Bay

This article posted by the Motion Picture Association of America announced that Swedish authorities shut down Pirate Bay, one of the world's largest and best known facilitators of online piracy. ThePirateBay.com is a pirate “tracker” that allows people to access pirated movies and music, making 157,000 illegal files available to the general public. Some titles include blockbuster hits such as the Da Vinci Code, Mission Impossible: III, and a number of other tities. The shutting down of Pirate Bay, according to the MPAA, represents an appreciation for the respect of intellectual property abroad. Sweden, in particular, reformed its copyright law in July of 2005 to tackle digital piracy. Because of piracy, the major motion picture studios lost approximately 6.1 billion dollars in revenue in 2005. Of this amount, roughly 2.3 billion was lost to internet piracy alone. To combat these losses, The Motion Picture Association of America (MPAA) plans to launch a multilateral attack on internet piracy, including educating the public about the fines they might incur for contributing to it. Additionally, this multi-level attack plans to incorporate harsher punishment for those failing to adhere to MPAA standards about film copying and distribution. The article sites the Razorback2 file-swapping server, which was shut down by Belgian and Swiss authorities, ending sharing between roughly 1.3 million users. This effort, in combination with the shutting down of Pirate Bay, appears to be the MPAA’s largest motivation for shutting down other file sharing networks across the globe.

In relation to my thesis, this serves as a great example for the ACTA’s justification in limiting the passage of material from peer-to-peer.    Additionally, this particular case highlights the influences of file sharing on the motion picture industry, which in combination with the music industry, is considered to be the largest source of revenue for pirates abroad. Though succinct, this article emphasizes the importance of ACTA’s cause and provides another example of the other industries being influenced by piracy.

Department of Foreign Affairs and Trade Discussion Paper

This article provides a comprehensive overview of the tenets regarding the proposed Anti-Counterfeiting Trade Agreement (ACTA). The proposal is drafted by Japan, the EC, the US and Switzerland as of now for a plurilateral anti-counterfeiting agreement. The report delves further into the issue of piracy by identifying factors studied by the OECD. The OECD report highlights that negative impacts on individual property right’s holders include decreased sales volumes, prices and royalties complemented by limited research and development. In the context of file sharing, this could potentially damage the image of product sales and bigger companies due to the lack of proper revenue being brought in. This trade discussion paper is also provides information about Australian participation in the ACTA negotiations. Areas further discussed within the legal framework include criminal enforcement and border measures. These just serve as a few of the potentially stringent new plans to be carried out should the ACTA be passed.

This article seems to be similar to the ACTA information sheet, but provides a more comprehensive look at the future of file sharing and problems associated with it. However, the claims tend to blanket all issues of piracy and copyright infringement and thus leave out a lot of information regarding file sharing. In reference to my thesis, this seems to provide early evidentiary support for the ACTA’s prototype and the legalities that would come along with its passing.

Addressing International Product Piracy

The purpose of this note is to address foreign countries that harbor counterfeiters that by association indirectly support the act of piracy. This piece of literature further argues that the primary effect of piracy on foreign economies would seem to be a substitution of sales and profits away from American subsidiaries to locally owned companies. With this movement of sales, this substitution contributes to a reduction in producers’ surplus and allows for a short run gain in profit for foreign economies. As such, this reduction in the inflow of foreign investment will strengthen the perception of those foreign countries being susceptible to piracy, labelling them as less appealing markets. The second part of the article further distinguishes the differences between government protection and market protection. The macroeconomic effects of piracy that are discussed also relay the idea that domestic consumers benefit from lower "priced" imports that are acceptible substitutes for the "original" goods. With this idea in mind, the author argues that the U.S. has a strong influence on global productivity because of its economy’s incredible efficiency. Firmly holding this notion, the author believes that greater flexibility in distribution techniques can mitigate piracy problems. Though this article does not address peer-to-peer file sharing directly, it seems obvious that this issue would be heavily implicated in piracy and copyright infringement.

The future of file sharing seems bleak considering that the U.S. has decided to form alliances with other nations in order to rally support against broad-range piracy. This article in particular addresses the act more and strongly defines what constitutes an act of piracy and the damaging effects on various economies. I found this to be of use since it defined the umbrella term of piracy and how file sharing could be grouped within this category, since shared material appears to be the "lower" priced import. The notes following the read provide more legislative material to justify the claims of the author. Either way, this piece provides information about preliminary control over piracy issues and future implications that may result from actions taken by larger corporations and organizations.

The Problem with the Anti-Counterfeiting Trade Agreement (and what to do about it)

This research project provides a considerably strong and opinionated argument against the passing of the ACTA. Theorist Aaron Shaw argues that the ACTA will create harsh legal standards that infringe on the principles of a democratic government and civil liberties. Shaw further states that the USTR is just one of many organizations that is taking part in the formation of this agreement, a fact unknown to most file sharing users. The author further writes that service providers will be protected from the actions of their subscribers, throwing their own internet users under the train tracks of the law. If signed, this agreement would put money back in the hands of a few wealthy states and corporations while simultaneously crushing the rest of the world . This rejection of multilateralism will laud the usage of the DRM and other technology-blocking devices that prevent existing file sharing/transfer of information. Many large, multinational companies such as Microsoft and Time-Warner both agree that their software and liabilities would be better protected after the passing of this, but Shaw argues that they are overlooking the patents being passed on user-generated software, such as Myspace. This highlights many other points about the importance of user-generated interfaces such as Apple’s App store and the restrictions that would be placed on future products made by users.

This article provides a good third party view on the ACTA and the preliminary steps taken against its passing. Shaw’s outlook, though highly biased towards the liberalization of the media and its associated property rights, does provide a few good points about the potential consequences should this be approved. Though the passing of this bill could serve to help larger companies, the stress placed on consumers could serve as a double-edged sword for the larger service providers. The thesis within which my argument is framed specifically focuses on the transfer of information, so Shaw’s argument on the ethics of file sharing and the blockage of information seems to benefit my stance most. I highly recommend this source as a good introduction to the opposition against the ACTA. Shaw also provides a clear argument against the passing of this and the future consequences that may result in both a theoretical and economical context.

Information Sheet: Anti-Counterfeiting Trade Agreement

The proliferation of piracy and counterfeiting appears to pose a threat to the development of the economy. It is believed that these infringements deprive legitimate businesses of proper income, while simultaneously limiting innovation and creativity. To combat these changes, the Anti-Counterfeiting Trade Agreement serves to establish among nations a way to combat global infringements of copyrighted works. Individual property rights’ protection via the ACTA will increase international cooperation, strengthen the framework of practices that contribute to effective enforcement of IPRs, and strengthen relevant IPR enforcement measures themselves. The provisions of the act stress international cooperation via improving technical assistance. This includes building relationships with organizations such as Comcast and other internet service providers to develop better restrictions on file sharing. These restrictive forces, when applied, will provide an easier way to control the transfer of illicit information via peer-to-peer sharing.

The ACTA's passing controls the future of file sharing and the implications involved in the advancement of these proposed restrictions. By taking this movement global, the ACTA will be able to infiltrate all forms of control and severely handicap the transfer of information. This block in file sharing appears to be the world's way of fixing our failing economy. Though this intends to strengthen the cause for the protection of individual property rights, this agreement severely stunts the growth of information and creativity from peer-to-peer. Joining other organizations in order to crack down on file sharing will enhance the opposition to find alternate paths to acquiring this information, a situation this agreement further fails to address. Though succinct, this article appears to highlight central arguments and provides constant updates on legislative procedures taken against the EFF.

THE ECONOMIC IMPACT OF COUNTERFEITING AND PIRACY Executive Summary

The Organization for Economic Co-Operation and Development, made up of thirty democracies, focuses on issues facing the economy, the society, and the environment due to globalization. Their executive summary aims to identify the economic impact of counterfeiting and piracy. In 2005, they found that pirated and counterfeited products amount to $200 billion, ecxluding trade conducted through the Internet. To put this number into context, the report states that the amount is larger than the GDPs of 150 economies. They found that piracy operations are in large led by organized crime such as gangs and terrorist groups. Only groups with financial stability and vast distribution networks would be capable of controlling such a market. Even though certain target groups have been identified, it is still difficult to catch and combat these pirates.While piracy exists in all economics, it is most pronounced in developing countries. The report calls upon governments to strengthen law enforcement and regulation to diminish these networks.

While some counterfeit goods could potentially be harmful to ones health, such as counterfeit pharmaceutical drugs, other pirated goods such as movies serve to decrease economic growth and discourage creativity. Due to the Internet, new distributions outlets are available for pirated material. As the report emphasizes, the Internet provides an infinite market for products that can be sold through full anonymity. Not only does piracy effect copyright industries, it is also shown to effect areas of trade, the evironment, and employment as well.

The report finishes by suggesting methods to improve information on counterfeiting and piracy to better target such groups. By developing more information on the national and global level that is systematically collected, comparable, and comprehensive, there can be a uniform system for combating these illegal activties.

In my paper, I intend on identifying the challenges the movie industry faces. The data collected by the OECD provides significant insight into the nature of the groups disseminating pirated goods. In addition, their numerical figures will help me quantify the impact of their activities, economically and socially.

Shujen Wang - Recontextualizing Copyright: Piracy, Hollywood, the State, and Globalization - Cinema Journal 43:1

Shujen Wang, the author of this aritcle, analyzes the complexity of protecting property in a technologically advancing society. By recognizing the film industry's universal impact, she aims to situate ideas of piracy and copyright in "the larger contexts of power, technology, and the networking logic of globalization. The reader is provided with a history of important legislation that has led the industry to its current situation, noting the DMCA as important national legislation and TRIPS as a global one. Acknowledging that the copyright industries continue to be a leading force in the U.S. economy, she summarizes reports from the International Intellectual Property Alliance, which break down where copyright markets receive revenue and what percentages are lost to piracy. The article highlights the importance of overseas markets and how the MPAA has adjusted to accommodate these markets.

Another section emphasizes that technology and piracy are inextricably linked to power and control. Each country has devised its own standards for copyright protection, but in a world based on global information economy, nations must work together to protect property. While it is up to each country to enforce copyright laws, members of the World Trade Organization must accommodate broader terms of agreement. The WTO agreement states that that "all state laws of its member countries must conform to the TRIPS agreement by 2006." Such agreements are deemed necessary because of the digital advancements that have complicated anti-piracy efforts. The next section of the article provides a background of film piracy dating back to the 1970s. Back then, finding pirates was simpler when such copies were tangible, but in this digitally advanced realm, "information is stored digitally, content is liberated form the medium and all that flows to the recipient is the information." Furthermore, the speed at which information is transferred increases while the cost to reproduce it decreases--ultimately giving pirates an advantage. She argues that copyright protection is the only way to preserve our global information economy.

Contextualizing copyright and piracy in a global context reveals the immense significance digital technologies have in global trade. This article outlines the history of the film industry and the ways in which it has had to alter to sustain economically.

ScienceDirect - Technology in Society : Neutralizing the piracy of motion pictures: reengineering the industry's supply chain

This article analyzes the preventative measures the movie industry must take in order to protect their copyrights and stifle piracy. It is made clear that various factors, particularly the invent of broadband Internet, peer-to-peer networks, and improvements in video compression technologies have made such efforts extremely difficult. Thus the industry must exercise legal and technical means to battle competing markets. The entertainment industry is aiming to hold the information industry accountable for all copyright violations. Furthermore, they are urging the information industry to also institute anti-piracy technologies in all software and hardware. By elaborating on the previous legal battles that complicate the debate on whether to hold the user or manufacturer accountable for piracy, the authors device a better solution that assigning blame. The article suggests that the movie industry should adapt their supply chain to provide cheaper, quality, convenient products than any illegal form could offer.

This new model would force the industry to reconstruct how they distribute, exhibit, and produce films. The second section delineates the current framework of the industry tracing back to the 1970s. The weaknesses are exposed and the industry's long-term "techo-phobia" is identified as a major culprit. The next section brings attention to the legal battles of the MPAA and the RIAA to protect copyrights and further discusses the benefits and setbacks of the DMCA. Two organizations have been assembled to try and deal with these problems; one is the Digital Media Device Association and the other is Project Hudson, which is made up of technology giants such as Samsung, Toshiba, and Nokia. Various solutions are proposed, such as digital watermarking and smart-card technology, but all have flaws. Because neither legal nor technological solutions effectively can eliminate piracy, the most sensible answer is economically based. In terms of distribution, the article suggests creating e-Blockbusters near ISPs, which would enable consumers to rent movies in a cheap and accessible manner. For exhibition, theaters must adapt by adjusting the "window scheme, offering differentiated digital viewing experiences, and developing fast-access storage to reduce portable media." Production will take on a purely digital form, reducing the need for human interaction almost completely.

There are plenty of viable options available to improve and sustain the movie industry; it is just a matter or time and technology. The aforementioned solutions can improve the industry and successfully eliminate piracy if executed effectively. The article articulates my very thesis and attempts to provide an answer as to how the movie industry can change to this digitally advancing world.

Customs and Border Patrol Ruling: HQ 471202

This is a ruling by US Customs and Border Protection in 2001 on whether or not the GB Flash Advance Linker violated the DMCA (if it did, then CBP would not allow the device the pass through customs). The GB Flash Advance Linker serves two basic purposes. The first is basically a blank Game Boy Advance cartridge on which the consumer can load data. This cartridge can then be played in a normal Game Boy Advance. While homebrew or public domain games could be loaded onto these cartridges, most often illegally downloaded ROMs were placed on them. The second, and more important, is to make a copy of a Game Boy Advance cartridge and store it on a PC. Nintendo, naturally, wanted CBP to stop this product from entering the United States. CBP noted that the DMCA prevents the importing of devices that are primarily for circumventing protection, have limited use outside of circumventing protection, and are marketed with the explicit knowledge of their circumvention capabilities. The floppy disk that comes with the device (and installs the necessary software) is simply used to provide the Nintendo boot up code, clearly signifying the intent to bypass protection. Then, the device illegally copies the cartridge data to flash, and then to a PC. Therefore, CBP decided that the GB Flash Advance Linker violates the DMCA.

The ruling makes perfect sense. Clearly the Game Boy Advance cartridge has a form of copy protection on it (although a weird one, as described in the ruling), and this device was created and sold with the intention of bypassing that protection. Obviously this violates the DMCA. The problem here is that this ruling effectively leaves no legal way to create a backup of a legitimately owned video game. If any attempt to back up the video game data breaks the DMCA, then how can backups be created? If I want a backup of my video game, to be used in the event of damage to the original, how would I go about getting it? Petition Nintendo? The other major problem with this ruling is that there do seem to be a few legitimate uses of this device, most notably concerning homebrew games. If a consumer creates his or her own video game for the Game Boy Advance, then how could they move it to a cartridge playable on the actual system? In essence, once one has created his or her own game, it is unplayable on the system that they designed it for. Unfortunately, there seems to be no way around this problem. Nintendo, in going after this device, clearly indicates that it wants complete control over how its games are used and copied. Basically, Nintendo does not want consumers to have the ability to make backup copies (which are allowed by law) or create homebrew games.

Hollywood and the internet | Coming soon | The Economist

The Internet is forcing the movie industry to adapt its current business model in order to keep up with the online trend. With the growing popularity of online movie download sites, Hollywood will have to figure out a way to compete. This article featured in The Economist argues that if the film industry embraces the Internet they will profit considerably more than if they were to fight it. One of the most advanced Internet distribution sites is ZML.com, which offers over a thousand films for download to various devices at low costs and good quality. Unfortunately for Hollywood, this website is a pirate site. Piracy and the increased accessibility pirates have to online material discourages the film industry from making titles accessible on the web. While film industry has always been slow to accept new technologies, failure to do so with the Internet could result in damaging effects. The article points out that studios such as Paramount and Disney were opposed to the DVD at its inception, primarily because they would rather keep their stringent business model than adapt to a new one. Still, some studios are embracing the Internet and its potential to spur new revenue.

While some studios have helped to create legal online rental services, they have reaped little success. The author suggests that download-to-buy options would be more profitable and could show the movie industry the capabilities of the Internet. In addition, the current sites are not particularly enticing for users because the movies offered are second-rate--with very few blockbusters or major hits available. The article goes on to explain the reasons for Hollywood's reluctance to go online. Most notably, the DVD industry is so popular that they fear risking such a large source of revenue. In reality, the industry could profit by increasing the amount of titles available through an infinite online database rather than through limited shelf space in DVD rental stores. Regardless, there exists technological obstacles that are difficult to combat. For example, download times can reach up to an hour and most people would rather watch movies on their televisions than on their computers. Lastly, the "lack of common standards" prevents a uniform system for online distributors. Despite these challenges, the article points out the potential remedies and the various ways the industry is currently taking steps towards overcoming these difficulties.

Although wary of what the Internet may bring, the industry recognizes its potential to reach the masses. Studios spend a significant percentage on online marketing because it is so successful and provides beneficial feedback. By targeting substantial groups interested in specific subjects, the industry can use this response to shape their films. The most promising invention described is the flash-memory enabled kiosk, which "overcomes many of the weaknesses of the present model and the current deficencies of the Internet," says Mr. Lieberfarb, who is on the board of MOD Systems.This article directly aids my paper through its summarization of the multitude of adaptations and inventions that film industry has had to make in such a digital world. It is apparent that the movie industry must adapt if it does not want to falter in this digitally advancing society.

Bootleg Videos: Piracy With a Camcorder - New York Times

This New York Times article from 1997 shows how far piracy has come today. It emphasizes the difficulties the movie industry has to face now compared to eleven years ago. In the last year or so, the two blockbusters that hit the streets before their openings were the "Hulk" and "American Gangster." Although the Internet has made proliferation of these movies capable, bootlegs have existed for quite sometime. Back in 1997 "Men in Black," "Batman and Robin, and "Hercules" were leaked earlier than its intended opening and were available for purchase on the streets of New York for five dollars. The article isolates New York as the major hub for pirated motion pictures. Back then, the estimate of how much the industry loses from domestic revenues is about $250 million (compared to $6.1 billion in 2005).

The author suggest that bootlegs are acquired by people sneaking camcorders into advanced screenings. The films are often of bad quality, but consumers want what is new before anyone else. To clean up piracy, the government and individuals targeted the streets of New York. In 1992 when Spike Lee's film "Malcom X" came out, he and some friends went to 125th Street with baseball bats to scare vendors of bootleg films. The MPAA geared its efforts towards attacking duplication labs in New York; the raids led to the seizure of over 10, 000 bootleg videos. Besides selling copies on the street corners, bootleggers set up booths, akin to tourist attractions, that stock the most recent films for purchase.

This article is a great comparison of how piracy has developed with technology. Pirates are now almost invisible due to the Internet, the quality of the films pirated is of superior quality, and dissemination is almost impossible to contain. The losses incurred by the industry back then have significantly increased and the pirates are more organized. A brief discussion of the drastic changes that have occured in the last decade will help contextualize the efforts the MPAA has had to undergo.

Of Pirates and Puffy Shirts

This essay by Professor Randall C Picker is his comment to the essay “The Piracy Paradox: Innovation and Intellectual Property in Fashion Design”. It is from the point of view of someone who didn’t know too much about fashion until he read Kal Raustinala and Chris Sprigman’s The Piracy Paradox: Innovation and Intellectual property in Fashion Design. Picker talks mainly about two points- the role of the Fashion Originators’ Guild of America and its demise and then he questions whether a piracy paradox even exists. On March 23, 1976 Time magazine carried a story called ‘Dress War’ which was a discussion of the legal issues happening between the Boston department store Filene and the then newly created Fashion Originators’ Guild of America. Picker states that this guild was set up to protect fashion and deal with ‘style piracy’. Picker says that the Time magazine article describes all the dirty tricks that people would use in the fashion industry. He then uses an excerpt from the piece to show this. The excerpt says that by the early Depression years style piracy was a huge thing, if an item came out in stores in the morning and was priced at $60, by the evening it would have been copied and would be in other stores priced at $25 and later in the week, at even lower prices. Picker explains that the way the Guild dealt with all this was by organizing a registration system and by boycotting stores that sold copies. He then uses the Time magazine story again to analyze whether the Guild’s efforts of protection actually did lead to more creativity and newer fashions. He says that Raustinala and Sprigman in their paper were dubious as to whether the Guild actually wanted more property rights but in his opinion what the Guild was doing was definitely wanted by high- end designers.

Picker’s next main point is about Fashion Durability. he talks of an article from the New York Times in 1947 which says that Maurice Retner, the former head of the Guild wanted legislation in America to be modeled on French legislation. Leon Bendel Schulmen of Henri Bendel on the other hand didn’t really care and was happy living without property rights. he said that by the time anyone could copy his designs, the design itself would be on its way out. Picker argues that famous designs get copied and sold to the masses. People who want ti be dressed in the best and are very fashion conscious would not want to be associated with the masses and what they wear. High-end fashion designers see this and produce something new for this elite market to wear, there by starting a cycle that keeps the fashion market alive. He argues that creating a fashion copyright would only ensure high-end designers the ability to raise their prices and differentiate themselves. The Piracy Paradox paper really questions whether creativity can be sustained without protection. Picker in this essay asks whether the price is worth it.

This source would be useful for my paper as it is an insight into a very interesting paper. I questions the validity of what the authors have written regarding a magazine article that I crucial in this field. I will use this source to help me analyze the issue of sustaining creativity without protection. I will further explore what the paper says about the Guild and how Picker’s interpretation is different to that in the paper he is commenting on.

Analysis of the Design Piracy Prohibiton Act

This source includes the Design Piracy Protection Act itself as well as a comprehensive analysis of it by the LawNexis community. They have very methodically split their argument into three parts: questioning of whether the legal community needs to step in and protect fashion designs, whether analyzing the bill and whether it is right or the issue and finally suggesting changes to the bill that would improve fashion design protection. This source is a very interesting analysis of the ongoing legal processes and it makes audiences look at the issue from a very unique point of view. It questions whether supporting this act would be indirectly supporting an industry that may be exploiting labor or has the ability of being a key player in the human rights movement. Another interesting question it raises is whether this new protection will lead to new standards of protection or simply discourage protection to ‘non traditional’ subject matter. The statement believes that the fashion industry is in a crucial place and has the ability to become a good influence in the spectrum against human trafficking. An interesting aspect of this statement is when they bring up the matter in relation with the US economy. The fashion industry can be associated with outsourcing jobs as they produce a lot of goods in countries that have cheap labor and then cheaply import them into the US. They question whether the fashion industry can show the economic impact.

Laura Tyson was the last Dean of the London Business School, and author of the Tyson report which is the Economic Analysis of the Proposed CACP Anti-Counterfeiting and Piracy Initiative, prepared for the Coalition Against Counterfeiting and Piracy (CACP). This source uses this report to discuss the act. To quote her, “If we are to persuade our trading partners to adopt best practices to stop the export of illicit product to market, we must show that we are implementing these practices ourselves. With the advancement of technologies and the internet, piracy and counterfeiting has been made very easy. During fashion shows, people take dozens of photos and designs, manufacture them cheaply and flood the market with them. Trademark laws make it impossible to copy the exact same design but it is legal to copy the pattern or print on an item of clothing. The Tyson report states that the fashion industry is a $350 billion dollar industry and counterfeiting causes $12 billion dollars in damages. This may be in the form of lower sales of original designs and lack of jobs. Another issue that Tyson brings up is that this Act gives privileges to an elitist group and the point of this Act should be to protect smaller designers too. They are the ones who are most affected- they can’t even establish themselves properly as they fall prey to piracy which weakens their original sales.

This source is very important for my paper for not only is it a neutral source but it also brings to light a different angle relating to the issue. The Tyson Report is crucial in understanding the economic effects of piracy and counterfeiting. A point that I will talk about in my paper is the link mentioned between human rights, outsourcing and the effects of giving protection to the fashion industry.

The Question of ROMs by Chuck Cochems

This article, by Chuck Cochems, is an interesting look into the mind of a video game consumer. This particular consumer is annoyed at video game companies (“corporate fat cats”) for their unending bashing of video game emulation. He feels that they are simply out to make as much profit as possible, and do not really care about what is right or legal. However, what starts as just a long rant against the industry morphs into the author’s attempt to find a legitimate, legal defense for video game ROMs. After discarding all of the traditional defenses, he turns to the Betamax case, and focuses on what he refers to as “the personal use defense.” Through his reading of the decision, the author comes to the conclusion that ROMs made for personal use could not be infringing. He also applies this personal use logic to the DMCA, claiming that since a personal use could not possibly be commercial, the DMCA does not apply to copies made by consumers (he also notes catch-22 inherent in the DMCA, that nobody can legally provide the equipment to make a legal backup copy of a video game). So, there does exist a legal means for a consumer to make backup ROMs of a video game.

While the author makes some valid points, a lot of his logic seems to fall flat. The Betamax case cannot be applied to space-shifting quite as easily as Cochems might think, even if it only applies to personal use. And not every personal use is non-infringing; it is clearly possible to infringe on someone’s copyright without selling or trading the infringement. Also, he simply waves the DMCA away with a wand and the magical words “personal use.” This is an unlikely scenario at best, and downright wrong at worst. However, the true power of this article is to demonstrate how important this issue is for a significant segment of consumers. It is clear while reading this article that Cochems cares passionately about video game emulation, if only on an ethical level. He is “sick and tired” of the attempts by the video game industry to stamp out emulation, and he is looking for any legitimate argument to ensure the legality of video game ROMs. The video game industry wants to avoid creating a consumer base that predominantly resembles Cochems. Otherwise, they could find themselves in the same position as the RIAA.

China Vows Harsher Punishment on Piracy

This article documents China's promise to step up its efforts to punish violators of intellectual property rights outline in the agreement on Trade Related Aspects of Intellectual Proprety Rights (TRIPs). China unveiled an outline of a new enforcement policy of IPR's, eaded by the deputy director of its National Copyright Administration's copyright management bureau, Xu Chao. Their response comes after multiple please by the U.S. for the Chinese to further crackdown on IPR infringement, despite Chinese claims of significant progress. China's law stipulates a maximum of seven years i prison for copyrigh violators. However, the Chinese still do not meet international IPR protection standards. The aforementioned outline promulgated the Chinese goal to increase its self directed IPR levels within 5 years. Furthermore, the Chinese plan to fully ramp up their efforts, similar to international levels, by 2020.

This article will help illustrate some of the causes of the rampant Chinese piracy of U.S. IPR. There exists both a punitive and a cultural defecit between the two countries. The lack of genuine enforcement of IPR domestically has enfuriated U.S. copyright officials and trade czars for decades. There seems to exist a chasm between the two countries as to the moral reprehensibility of copyright ifringement, illustrated by the Chinese complancency with their progress, that may help contextualize much of the discrepancy in policy goals between the two countries. This article will serve as background support and evidence to my larger goal of first proving the enforcement of international copyright law and then documenting the trade agreements put in place to accomplish this very task.

Tearing Fashion Apart at its Seams

In this paper, Lisa J Hedrick, argues against a copyright for fashion designs. Before laying down her stance, she spells out all the facts and then goes onto to articulate her own opinion. She uses a brilliant quote from the blockbuster movie The Devil Wears Prada, to begin her paper.

The fashion industry thrives on glitz, glamour, not to mention change. The shelf life of a product or a design in this lucrative industry is only a few months at the most, making the turnaround time very fast. Hedrick argues against copyright saying that the cost of litigation would be so high it would be irrational to protect something with such a short shelf life.

Hedrick begins her paper by explaining the current state of intellectual property law and its failure to protect fashion. The ambiguity of the definitions of the words ‘fashion design’, ‘design’ and ‘apparel’ in The Design Piracy Bills is a major concern and can be projected as being seen as a major reason why fashion won’t actually be copyrighted in a proper manner, if the bills are passed. The many restrictions that will indirectly be put in place by these bills might eventually cripple the industry. Designers will have to think twice before creating something and to ensure that their goods will be protected by these bills. Hedrick brings up an interesting issue of “conceptual separability” that already exists within current copyright law. It is the only concept under which fashion designs are provided with a minimal amount of protection. But even so, there are numerous tests that the designs have to pass, as Hedrick points out, for them to be protected. For instance a certain item of design or piece of clothing needs to pass the test of whether the button is original or not even the most minor alterations to an item of clothing.

Hedrick talks of the proposed Fashion design protection under the Bills and later compares current Fashion protection in different parts of the world. European fashion copyright protection with its concept of the Community design system, would be the closest thing that could be compared with what American fashion protection is aiming for. However the differences in the legal processes between the two demographics make it hard to compare the situation.

This paper is very essential as a source: not only does Hedrick argue the same point as I do, but she also goes to great lengths to fully explain the legal situation. Her meticulous and thorough method of approaching the issue fully inform the reader of the current scenario. She has also explained this well and even points to a direction where fashion copyright might work. Her sound argument makes for a crucial source.

Nintendo Legal Information (Copyrights, Emulators, ROMs, etc.)

This is Nintendo’s legal page and list of frequently asked questions (FAQ). Many things on this page are completely unsurprising. For instance, Nintendo defines terms such as copyright, patent, and trademark, along with explaining what ROMs and emulators are. Nintendo very clearly has a zero tolerance policy towards emulators and illegally distributed ROMs (it refers to emulators that play illegally copied software as “the greatest threat to date to the intellectual property rights of video game developers”) and refuses to legitimize any attempts at emulation. Nintendo also makes it clear that the exception of the law allowing backups does not allow a consumer to download a ROM of a particular video game (as the company notes, it is not a “second copy” law). This exception, it explains, only refers to an owner making a copy to ensure that, in the case of the destruction of the original, they have a usable alternative. However, later in the FAQ, Nintendo explains that game copying devices are illegal, since they allow for the illegal uploading of ROMs to the Internet.

Nintendo’s absolute refusal to legitimize any emulators, while completely expected, is unfortunate. Emulators are completely legal, and, considering how widespread they are, are here to stay. It would be nice if Nintendo accepted this fact, and tried to find some middle ground (the Virtual Console on the Wii system could be seen as a sort of middle ground). The classification of emulators as “the greatest threat” is a little excessive; emulation tends to focus on previous generations of video games, which bring in little revenue for the companies. And even if emulation was such a large threat, the fact that it is legal means that Nintendo needs to live with the existence of emulators.

Most interesting is Nintendo’s understanding of the backup copy exception. As Nintendo explains, you cannot simply download a ROM of a video game that you already own, since that copy is illegal. A legal backup, however, seems impossible to create, since Nintendo classifies all game copying devices as illegal. Without a legal means to copy a video game, Nintendo has essentially made it impossible for a consumer to create a backup copy of a video game that they own. Nintendo provides no solution to this dilemma, and in all likelihood does not want a solution to exist.

Testimony of Congressman William Delahunt

United States. Cong. House. Subcommittee on Courts, the Internet and Intellectual Property Committee on the Judiciary. Testimony of Congressman William Delahunt, Hearing on Design Law- Are special provisions needed to protect unique industries. [Introduced in the U.S. House of Representatives; 14 February 2008].

This is the actual testimony of Congressman William Delahunt arguing in favor of the Design Piracy Pohibition Act, which is a bill that has been pending for quite some time in Congress. If passed, this bill will give all unique pieces of clothing three years of protection. In his testimony, Delahunt states that fashion counterfeiting costs US businesses a minimum of 12 billion dollars every year. He also says that because the fashion industry is expanding in the United States, more and more teenagers are pursuing fashion careers. However, with the growing piracy problem, these aspiring individuals will not be able to make their mark in the fashion industry because soon counterfeit and piracy will take over the industry. Moreover, he quotes Newsweek contributor Dana Thomas who stated, "Most people think that buying an imitiation handbag or wallet is harmless, a victimless crime. But the counterfeiting rackets are run by crime syndicates that also deal in narcotics, weapons, child prostitution, human trafficking, and terrorism." Therefore, he argues that if Congress passes the Design Piracy Prohibition Act, not only will it be highly beneficial for the fashion industry, but it will also help discourage crim syndicates and other illegal activities.

Although this source is against my thesis, which is against copyright on fashion, it is a very invaluable primary source that will allow me to acknowledge the other side of the debate in my paper. In doing so, it will make my argument against copyright even stronger because I will then state reasons why approving such a bill will still be unfavorable in the end. Furthermore, Delahunt makes several excellent statements about the fashion industry and the troubled economy at present that I will be able to address in my paper.

Recontextualizing Copyright: Piracy, Hollywood, the State, and Globalization

This article draws on theories of globalization, technology, and the struggles between trade agreements and copyright objectives to place international piracy into a global context. The author, Shujen Wang, examines the the role of Hollywood in shaping trade agreements and piracy policy as well as the interconnectedness of unilateral and multilateral solutions. Specifically, Wang documents the General Agreement on Tarrifs and Trade (GATT) which led to the creation of the WTO, the growth of U.S. trade policy from the WTO's agreement on trade-related aspects of intellectual property rights (TRIPS), and the Digital Millenium Copyright Act (DMCA). While analyzing the importance and role international piracy and copyright law play within the framework of these multinational trade agreements, Wang illustrates the necessity for copyright protection via the importance of the copyright industry in the U.S. economy. Moreover, Wang tracks the way techological developments like VCR's and DVD's have changed the moral landscape of the pirating industry and Hollywood's lobbying efforts to push for protect copyrights internationally.

This article incorporates many of the essential themes of my topic, including techology's ability to alter and push the boundaries of domestic and international copyright statutes, international piracy's role in shaping trade agreements, and the U.S.' ability to use these trade agreements to open up markets and ensure strict copyright protection for its goods. Furthermore, the article cites the specific legislation, trade organizations, and trade agreements that have been instrumental in shaping the two-pronged U.S. approach to copyright protection. Specifically with the passage of the Permanent Normal Trade Relations act with China in 1999. Overall, this article provides valuable insight into constrcting a fraework that encapsulates the complexity of Chinese piracy and how it has affected our bargaining and trade agreements and policies.

THOMAS (Library of Congress) Bill H.R. 2033

U.S. Congress. House. Design Piracy Prohibition Act. 110th Cong., 1st sess., H.R. 2033. (25 April 2007).

This is one piece of legislation proposed to protect fashion designs from piracy. This Design Piracy Prohibition Act would basically give fashion designs protection for three years after the application for registration is submitted. Within this act, the terms fashion design, design, and apparel are defined so as to create a definition of what can actually be protected under this bill. The reason these are defined within this bill is the ambiguous nature of these words. Without a clear definition, there would be way too many interpretations of the clauses of the Design Piracy Prohibition Act. The bill also states the terms for submitting a design for copyright protection. Basically, any rights to protection are lost if the design is not submitted within three months after the design is made public. The bill also briefly lists the monetary penalties for any pirates if found guilty of copyright infringement.

This bill is an important source for any paper on fashion copyright since it provides an example of the types of legislation that would supply design protection. Even though this bill has not gone through, many of the Design Piracy Bills follow this basic structure for fashion copyright. Therefore, this source provides an example of how effective bills can be in providing protection. In addition, many sources reference this bill and its contents. So, it is useful to have the actual bill and its wording to look back upon and analyze as a primary source. The bill basically amends title 17 in the United States Code to provide for fashion design protection. By looking at how proponents of fashion copyright will protect fashion designs, I can decide, within my paper, whether these laws are beneficial or effective enough to even bother enacting. Thomas, the site where this bill is located, also provides a list of sponsors for this bill. There are only fourteen sponsors, which creates suspicion as to how effective or plausible this bill may actually be. Information like this surrounding pieces of legislation make bills useful sources.

SONY COMPUTER ENTERTAINMENT AMERICA v. BLEEM, F.3d (9th Cir. 2000) (LOISLAW)

Another landmark emulation case, although slightly different from the Connectix one. Bleem was another emulator for the Sony Playstation, and Sony sued it for the use of copyrighted images on their packaging. Basically, on its packaging Bleem compared what a video game looked like on a Playstation vs. what it looked like on the emulator. To do this, they used screen shots of Sony video games, which Sony contested. Bleem, of course, claimed fair use. The court decided in agreement with Bleem, noting that the use of copyrighted images fell under fair use because it was comparative advertising. Since Bleem is a direct competitor to the Playstation, it needs to be able to use copyrighted material in order to make a successful advertisement. Sony even claimed that Bleem was hurting the market for screen shots by using them in advertising, but the court shot that argument down as well, stating that Sony could still use the screen shots in advertising if they wanted to. Also, since a screen shot is an absurdly small portion of the total work, Bleem is not actually copying that much from Sony.

Similar to the Connectix case, the Bleem case drove home to the video game industry that contesting emulators themselves would lead nowhere. With emulators being fully allowed to advertise using copyrighted video games, there was no need to hide their real uses. Emulators and their creators are free to proudly display the abilities of their systems, without fear of any legal reprisal. This makes it much easier to distribute a particular emulator using advertising, and in turn makes emulators much more widespread. If this decision had gone the other way then the difficulty in advertising an emulator (remember, you wouldn’t be able to use any copyrighted shots in the advertising) would have been a huge obstacle to distribution. But, without any legal recourse to stop the distribution of emulators or make them harder to spread, the video game industry needs to focus on the people illegally distributing the actual games, not the programs that play the games.

SSRN-The Piracy Paradox: Innovation and Intellectual Property in Fashion Design by Kal Raustiala, Chris Sprigman

Raustiala, Kal and Sprigman, Chris "The Piracy Paradox: Innovation and Intellectual Property in Fashion Design." Virginia Law Review, Vol. 92, p. 1687, 2006; UCLA School of Law Research Paper No. 06-04. http://ssrn.com/abstract=878401

This detailed article is an in depth view of both sides of the fashion copyright debate. Rather than simply looking at and supporting only one viewpoint on this controversial issue, the authors address both angles to the fashion copyright controversy. They then proceed to prove why support of low IP protection is the better choice despite arguments made in support of fashion copyright laws. This article describes the fashion industry as unique since it continually produces original content while its main creative element remains outside of copyright protection. This appears to condradict the theory of IP rights which claims that copying, which is rampant in the fashion industry, smothers the incentive for innovation. The article then presents the reader with the two overarching arguments. The argument for increased copyright protection within the fashion industry is more of a moral rights claim. This side claims the lack of current fashion design protection is an injustice to the immense creativity put into the creation of apparel. The other side looks at the unique nature of the fashion industry. They claim copying drives the cycle that makes fashion such a thriving, innovative industry. The article then proceeds to delve into past attempts at copyright protection for fashion. One failed attempt was made by the Fashion Originators' Guild of America: they made a deal between designers and retailers to refuse the sale of any copied apparel and boycotted any member of the guild who violated this rule. Since clothing and apparel are considered utilitarian objects, copyright should not apply to fashion design. Patents and trade dress also are not effective methods of protecting copyright. Although trademark is used by designers, it can only be used to protect names and logos, not entire designs. Therefore, bills like HR 5055 are suggested by groups like the CFDA. One of the main concepts of this paper is how induced obsolescene and the positional nature of apparel drive the fashion cycle, which would be incredibly slow and ineffective without copying. In addition, Raustiala and Sprigman explain how free appropriation helps to anchor trends in the industry. So, they conclude that due to induced obsolescene and anchoring of trends, the fashion industry has remained stable despite rampant copying. Finally, the authors address the copyright system in the European Union and how even with protection laws, very few design infringment cases come to court. Additionally, due to the litigious culture of the United States, copyright protection in the US would simply flood the courts with unnecessary cases and reduce innovation due to fear of suit.

This article is of extreme importance to any research regarding the issue of fashion copyright. The article is unique among other scholarly works on this issue in that rather than just delving into one side of the debate, the authors address the arguments on both sides of this fashion copyright war. This is an extremely useful method and structure since it provides the reader with insight into both arguments. However, the article is then strengthened by analyses of both arguments and subsequent counterarguments against those supporting fashion copyright. Since my topic revolves around whether fashion copyright should be enacted or not, having both argments laid out within one coherent paper is extremely beneficial. The paper also looks at previous attempts at fashion copyright. This is important in building the history and basis of design protection in my paper and why these laws should not be enacted in the present day. This article is very important in building the foundation of my argument.

SONY COMPUTER ENTERTAINMENT v. CONNECTIX CORP., 203 F.3d 596 (9th Cir. 2000) (LOISLAW)

The definitive video game emulation case. In the late 1990's, Connectix created the Virtual Game Station, a commercial emulator designed to replicate the Sony Playstation on a PC. In doing so, they necessarily had to copy elements of the Sony BIOS (built-in operating system (the software that runs the Playstation)), but they claimed fair use. The court agreed, noting that law stated that disassembly could be considered fair use when it is the "only way to gain access to the ideas and functional elements embodied in a copyrighted computer program." Since Sony had provided little information about their BIOS to the public, Connectix could only gain access to it by taking it apart. The court also found VGS to be "moderately transformative"; it transfers the Playstation to a new platform, and thereby expresses the product in a different fashion. And since the VGS is transformative, it is not really a replacement for the Playstation. The court also ruled on the claim that Connectix tarnished Sony's Playstation name. Although the VGS does not play games as well as an actual Playstation, the court did not find that this would result in the VGS hurting Playstation's good name

This case follows sound logic, and clearly sets out the argument that emulation itself is perfectly legitimate. It clearly outlines exactly how Connectix copied Sony's BIOS, and explains why that path resulted in VGS being fair use (and in doing so, more or less created guidelines as to how to ensure the legality of an emulator). More importantly, this case made it clear to video game companies that contesting emulation itself would not succeed; if video game companies were intent on stopping piracy, they would have to go after the actual copies of the games, not the emulators. Since ROM files are much more prevalent than emulators, this decision in essence made it much more difficult to stop video game piracy, and forced companies to allow the creation of dozens of free emulators.

vNES Legal Page

First, some basic background. VNES (stands for Virtual NES) is an online NES emulator, written entirely in java. The site, based in the US, has a huge catalog of original NES games, which are completely free to play online (no downloading required). Now, obviously a whole bunch of legal questions come up here, most notably the claim that this is massive copyright infringement. The vNES legal page attempts to address these claims, and provide a justification for the legality of the site, through six main points.

One of the most notable arguments is the claim that the website constitutes fair use. It states that the website is noncommercial, only uses cartridges out of the market for 15 years, keeps copies of entire works, and that it holds works "vastly technologically inferior" to modern works (and then claims that these facts sufficiently satisfy the four factors). It also claims that, under Sony v. Universal, this emulation simply constitutes time-shifting, and therefore must be fair use. But by far the most interesting claim that they make is their classification of themselves as an archive (under 17 U.S.C. § 108). As an archive, the claim goes, they should be able to make their works available to the public. Also, they only provide games that they have physical copies of in their offices.

Now, their fair use claim in tenuous at best. The fact that they use entire works actually hurts their case as opposed to helping it, and just because the works are "vastly technologically inferior" to modern games does not mean that companies cannot still profit off of them (as remakes clearly demonstrate). Also, this isn't time-shifting so much as space-shifting, and the legality of space-shifting is not well tested in the courts. However, the archive claim is interesting, and could provide a valid loophole for emulation sites to provide video games to consumers. It relies on the games only being playable online though (no downloading (other than normal, incidental downloading) is involved). And the site has been contacted by the ESA (after which they removed all games for which they did not own physical cartridges), so presumably the industry is aware of it. This could provide an interesting middle ground for video game companies and consumers.

SSRN-The Fashion Lottery: Cooperative Innovation in Stochastic Markets by Jonathan Barnett, Gilles Grolleau, Sana El Harbi

Barnett, Jonathan, Grolleau, Gilles and Harbi, Sana El. "The Fashion Lottery: Cooperative Innovation in Stochastic Markets." USC CLEO Research Paper No. C08-17; USC Law Legal Studies Paper No. 08-21. http://ssrn.com/abstract=1241005

This article puts an economic spin or an economist's viewpoint on the fashion copyright debate. In other words, it applies economic principles to the fashion industry to show why an incomplete property regime, not complete copyright protection, is the most sensible situation for the fashion industry. To build this argument, the author first explains the concept of "fashion risk," the main economic problem in fashion. Due to demand uncertainty in the fashion industry, it is difficult to forsee if a new design will be successful. So, designers need a system of collective insurance to balance the losses from seasonal product failure and the risk of firm bankruptcy. This collective insurance comes from designers allowing limited imitation which maximizes earnings in the long run. Basically, how this economic idea works is that the designer that produces the "winning" design for that season earns a larger prize, keeping the incentive for innovation alive. However, the incomplete property regime also gives smaller profits to the "losing" designers as a kind of insurance against the "fashion risk." This method is termed the "winner take most" approach. The article then transitions into three different types of imitation: mark perfection, design perfection, and quality perfection. These are then related to three different methods of imitation: horizontal imitation, legitimate vertical imitation (knockoffs), and illegitimate vertical imitation (counterfeits). Basically, horizontal imitation is copying among high end designers while vertical imitation is copying of elite designs by lower end fashion designers in a trickle down effect. As stated previously, the fundamental economic problem for designers is demand uncertainty and the associated risk of bankruptcy. By allowing horizontal imitation and legitimate vertical imitation, this risk is greatly reduced. An obvious way to success for the majority of the market is to wait until the winning design is determined for the season by the consumers and then release imitation products as this eliminates risk and increases success. However, this would kill innovation. So, the best solution is incomplete protection-positive yet constrained imitation. The economics equations show that to maximize final wealth and minimize the variance of final wealth incomplete, not complete, property regimes are required. This can be explained by the idea that at one extreme the winner does not make enough and so incentive is low. At the other extreme, insurance is too low and risk is too high. Both of these cases lead to underinnovation. In short, some imitation supports design innovation while too much or too little undermines it. Therefore, only the very few elite firms can afford the complete copyright protection suggested by bills such as the Design Piracy Prohibition Act.

This article is a very unique way to approach this fashion copyright war. It is an invaluable asset to my argument against enacting fashion design protection laws. This article basically utilizes economical principles to build mathematical equations proving that incomplete copyright protection or rejection of recently proposed copyright laws is more beneficial to society than enacting complete protection for fashion designs. The organization of this paper with alternating pieces of mathematical equations and textual analysis creates an extremely convincing and almost indisputable argument due to the logical thought process this method of presentation creates. This article greatly enhances my argument in that it provides an alternative viewpoint, particularly an economist's angle, which still points towards the same conclusion: fashion copyright laws should not be enacted.

SSRN-Tearing Fashion Design Protection Apart at the Seams by Lisa Hedrick

Hedrick, Lisa J. "Tearing Fashion Design Protection Apart at the Seams." Washington and Lee Law Review, Vol. 65, No. 1, pp. 215-273, 2008. http://ssrn.com/abstract=1127190

This article presents both side of the copyright debate more in terms of the pieces of legislation proposed for fashion copyright. It goes through the pros and cons of either side of the fashion copyright argument and then argues against the enactment of these laws. Fashion design falls within the negative space of copyright protection. Therefore, designers cannot prevent knockoffs of their original designs. This paper acknowledges that these knockoffs are harmful as they hurt the designer's profits and reputation due to the low quality of imitation products. Piracy causes almost $12 billion of loss in the fashion year annually. The paper is set up this way and the author then skillfully uses all these facts that seem to support fashion copyright to show why copyright laws are ineffective in stopping any of these problems. First of all, terms such as fashion design, apparel, and design are extremely ambiguous but are used within the Design Piracy Bills. This is simply because fashion is hard to define and consequently very difficult to protect. The author also explains that fashion also cannot effectively use patents, trademark, trade dress, or copyright (due to its utilitarian function) for protection purposes. In addition to the vagueness of fashion lingo, the Design Piracy Bills would simply cause congestion of the courts with senseless cases due to the extreme subjectivity that would be involved in fashion court cases. Even if the bills went through, there are so many loopholes that pirates can find within these bills to basically render any protection useless. Finally, Hedrick looks at the fashion laws in the European Union and shows that even with laws hardly any cases come to court regarding piracy. However, she points out the cultural differences in that America is much more litigious and these laws could force designers to pay large amounts of money for lawyers to protect clothing that has a short shelf life. In addition, there is no guarantee that courts will even be able to punish pirates. It is also very possible that the laws enacted in the US would be much stronger than those in the European Union, which could lead to monopolies that would stifle creativity. Although Hedrick is opposed to these laws, she does make some suggestions on how to improve fashion copyright dealings if these laws go through. Overall though, her basic argument is that effective protection by Congress for fashion design is impossible. So, no protection is better than minimal protection. Any benefits that might arise from design protection would diminish rapidly with the cost and time of court decisions on piracy.

This source is obviously beneficial to my argument since it supports my thesis. However, the importance of this source is due to the rational and legal method used by the author to argue against fashion copyright. The author basically looks at the problems with the fashion industry at present and then shows the correlating proposed laws. However, she then analyses these legal proposals to show that they are extremely ineffective at solving the issues surrounding the fashion industry. If anything, these "solutions" might actually make things worse. The argument basically concludes that the fashion industry is inherently incapable of useful intellectual property protection. Therefore, time and energy should not be wasted on implementing laws that will most likely not benefit the industry.

SSRN-Of Pirates and Puffy Shirts: A Comment on the Piracy Paradox: Innovation and Intellectual Property in Fashion Design by Randal Picker

Picker, Randal C. "Of Pirates and Puffy Shirts: A Comment on the Piracy Paradox: Innovation and Intellectual Property in Fashion Design." Virginia Law Review, Forthcoming; University of Chicago Law & Economics, Olin Working Paper No. 328. http://ssrn.com/abstract=959727

This article takes the side of those individuals supporting the enactment of fashion copyright. This argument is made using past attempts at employing fashion copyright laws to protect designs and the results of these attempts. One major example used to support this claim of positive effects resulting from design protection is the Fashion Originators' Guild of America. This guild basically organized registration and monitoring for apparel with a threat of boycott of any retailer who sold knockoffs. The claim here is that this increased intellectual property protection resulted in greater innovation efforts. Although the Federal Trade Commission took down this organization, the article argues that the fact that it formed demonstrates that high end designers do want greater protection. This argument is made against other claims that the members of the industry do not even want increased protection. The argument then continues into the present time and the benefits these laws would endow on the fashion industry. With fashion design protection, high end designers can make credible promises to their consumers, which is impossible with the current amount of knockoffs in the market. With the ability to make credible commitments, high end designers could raise their prices and make more money off their original designs. Therefore, there is clearly a benefit to high end designers that accompanies increased protection. Also, the author argues that imitation in the industry is only one sided with the high end designers having to deal with the rapid imitation of their original designs. With copyright, these designers could promise their consumers that this rapid copying of the apparel they are buying would not occur. Basically, the author here argues that the rampant copying in the fashion industry is detrimental to the high end designers and their customers. Therefore, copyright protection is necessary to protect their rights and keep low end designers from exploiting the low protection regime of the fashion industry.

Although this source complicates my thesis by working against my claims that fashion copyright laws should not be enacted, sources like these are absolutely necessary to develop a strong paper. These claims will provide something for me to argue against and prove incorrect in my argument. Without addressing opposing opinions, the argument and paper would be weak. This article clearly utilizes an analysis of the high end or elite designers to support the claim for increased fashion design protection. However, it avoids looking at the effect of copyright laws on the rest of the fashion industry. However, it is still a useful source as it provides the perspective of a high end designer, the biggest victim of piracy or imitation.

Companies Agree on Plan For Digital Watermarks - New York Times

Narciso Rodriguez's Testimony

Subcommittee on Courts, the Internet, and Intellectual Property, Committe on the Judiciary, U.S. House of Representatives. Design Law: Are Special Provisions Needed to Protect Unique Industries-Testimony of Fashion Designer Narciso Rodriguez. 14 February 2008.

This source is a testimony by Narciso Rodriguez, a fashion designer and board member of the Council of Fashion Designers of America. This testimony is in favor of HR 2033, the Design Piracy Prohibition Act. He first presents some astounding figures such as the annual loss of at least $12 billion in the fashion industry due to piracy. He then takes the audience or reader through an almost emotional trip by explaining all the training, hard work, and money that goes into becoming a designer. With all the time and money invested within the fashion industry, pirates are just making a risky business riskier. He then constructs an argument for fashion copyright using a sad, personal anecdote. In other words, he plays on emotions and moral rights to make his point. He basically recounts a story about an original design he made that was copied and sold by pirates millions of times. Without protection for fashion design, US companies arise with piracy as their business model. These companies can afford to make large quantities at low prices, causing more sales for the pirating companies than for the original designer. Rodriguez then suggests the positive results of enacting copyright. Pirate companies would be forced to hire real designers, increasing the job market for designers and creating a great choice of original designs for consumers. He admits that in the past clothing was a functional object and therefore did not require protection. However, he believes that fashion has now become an art that is no longer just utilitarian. He then addresses the other side's concerns by claiming that only truly unique designs will be copyrighted, not all designs. He also states that the three year protection period will simply allow designers to reach the market before the pirates. After these three years and with a large public domain still in existence, previous designs can still be used for inspiration. He also addresses the concern that this will increase apparel prices by claiming that accessibly priced clothing will still exist, but the creation of these derivative lines will be through the original designer. Through explanation like these, Rodriguez attempts to passify the concerns on the scope of the legislation of copyright opponents.

This testimony by Narciso Rodriguez is very beneficial since it is a primary source coming from an elite fashion designer. It provides the viewpoint of someone within the fashion industry. Rodriguez begins his argument with a very emotional approach regarding his personal experiences and losses due to piracy. After getting the audience's sympathy, he provides some positive benefits of enacting copyright. He concludes his argument by addressing the concerns of the skeptics of fashion copyright. Rodriguez is a biased source since he obviously can benefit if the copyright laws are enacted. However, his testimony provides some real insight into the minds of fashion designers and the actual issues they face due to piracy. Therefore, this article provides a better sense of the real problems plauging the industry and if these laws can actually address these issues. So, although this testimony may not support my thesis, it provides better issues to address and counterargue than secondary sources would.

Otakon 2008 Fansubs and Industry Panel - Anime News Network

This panel discussion at Otakon 2008 brought together members both from U.S. anime licensing companies and fansubbing groups in order to discuss some problems affecting the industry, which are supposedly attributable to the prominence of fansubs on the internet. The industry representatives argued that the wide availability of anime fansubs on streaming sites such as YouTube have significantly impacted DVD sales and thereby led to reductions in series production. Actual market figures presented include a drop in DVD sales from $550 million in 2003 to an estimated $300 million in 2007, while an estimated 6 million fansubs are downloaded every week. Fansub members respond to these claims by arguing that (1) they serve an important promotional role for unlicensed anime series, (2) they preserve the integrity of shows which have been heavily edited or censored, and (3) the industry has not presented any alternatives that meet fan demand for timeliness. The panelists then discuss some approaches that companies could take in order to address these issues, such as streaming simulcasts of shows and digital downloads.

Just like every other media industry that has experienced declining sales, the anime industry has also attributed these losses to digital piracy and filesharing. However, the practice of fansubbing cannot be reduced simply to that of digital piracy since it developed prior to the advent of the internet and in fact served an important and acknowledged positive role in promoting and developing the anime market in the United States. Furthermore, the transparency and codes of conduct within fansubbing communities are often proposed as a basis that justifies their practices and separates them from pirates. Although the anime industry has undeniably been faced with a contraction in sales due in part to digital piracy, any legal response from these companies must be targeted towards the correct group of perpetrators, namely the pirates and not fansubbers. Furthermore, companies must leverage the influence of fansubbing groups within anime fandom by working with them to provide legal alternatives, such as fansite-based internet distribution, that balance respect for creators’ rights with the demands of fan communities.

Design protection for fashion designs and autoparts: A bad idea times two | Public Knowledge

Rangnath, Rashmi. "Design Protection for Fashion Design and Autoparts: A Bad Idea Times Two." Public Knowledge Blog. http://www.publicknowledge.org/node/1399. February 16, 2008.

This blog considers the design protection for fashion designs and autoparts in terms of markets and niches. In terms of fashion design, the author argues that knockoffs do not damage the market for original designs much at all. Obviously there is some effect on the original designer, but the author argues that this effect is negligible due to the different markets that original designs and knockoffs compete within. Customers who can afford to buy runway designs are going to buy these original designs regardless of how many imitation versions are circulating. This is because the people who are willing to pay so much for clothing want to be able to tell others they are wearing an original. For them, only the original can give them the status they desire. On the other hand, people who cannot afford these original designs do not care if their clothing gives them status. In actuality, these customers still would not purchase the original design if the knockoffs were not present in the industry. These consumers are fine with the lower quality imitation once the trend trickles down. For this reason, elite and original fashion designers have no need to lower their prices to compete with knockoffs and imitations. This is because these two versions are marketing and selling to two different groups of people. They are operating within two different markets. Finally, the blog ends with an attack on elite designers who claim pirates end up selling more imitation versions than the designers can even imagine to sell of their original. The author argues here that in the elite market, the designer can sell very few items at a incredibly high price while pirates may sell thousands of products, but at virtually nothing compared to the original's price. Therefore, the elite designers probably come out ahead in terms of profit. The author makes a correlating argument against autopart design protection, which does not apply to the topic of interest.

This blog was chosen as a source for my paper because it has a very unique approach in looking at fashion designs and their imitations. Rather than looking at the logistics of the fashion industry or as someone from within the fashion industry, this blog arrives at this issue from the viewpoint of a consumer. In other words, the blog looks at the various classes of consumers and their different markets in order to suggest that imitation is not really harming anyone to an extent where copyright laws need to be enacted. By looking at the fashion copyright debate from a consumer and market viewpoint, this blog provides incredible support for my thesis by showing that a lack of copyright laws in fashion actually helps the industry thrive in all consumer markets. With design protection, the market for low end customers may very well be knocked out since a majority of consumers do not shop around in both low and high end markets.

Fashion Copyright: Infringing Pirates or Inspired Pioneers?
The "little black dress" is a universally known fashion phenomena. However, almost no one can claim the rights to originally designing this fashion garment that lives in every woman's closet. The fashion industry is full of trends and apparel, like the "little black dress," where the origin is unknown due to the vast varieties and imitations of each original design. Due to this rampant copying present within the fashion industry, past and present, a group of individuals has started rallying support for fashion design protection against piracy. Although imitation of original designs by elite designers is widespread in the fashion industry, this very phenomena is what makes the fashion industry so incredibly successful and creates overall economic and long term industrial benefits for the majority of designers, retailers, manufacturers, and consumers. Therefore, fashion copyright laws should not be enacted since the results will be detrimental for a vast majority of the fashion industry. The fashion industry has been thriving for ages and nothing has changed to create need for new protection laws except for the greed of a select minority of elite designers and lawyers. Therefore, we can say the fashion industry is packed with inspired pioneers rather than infringing pirates.

White Papers | Digital Watermarking Alliance

The Evolution of Piracy and Its Effects on the Music Industry and Information Technology
For my topic I plan to explore how pirating has changed with the advancement of music technology and how the music industry has adapted to deal with this on-going problem. I want to demonstrate the arms race that has been occurring between new technologies and the illegal copying or stealing of music sources.

SSRN-Piracy and the Legitimate Demand for Recorded Music by Kai-Lung Hui, Ivan Png

     In this article Kai Lung Hui and Ivan P.L. Png argue that although the demand for cds decreased with piracy, the impact of piracy on cd sales was much smaller than the industry estimates. They believe that the music industry lost only about 6.6% of its revenue to piracy. According to the IFPI in 1999 the music industry estimated a loss of 4.1 billion dollars to pirating.

     In the beginning of the introduction Hui and Png give a few reasons as to why the publishers' losses to piracy may not be as large as what they claim. One reason is that if piracy were prevented users of pirated products may stop using the products instead of switching to the legitimate items. Another reason deals with the publishers' pricing strategy. Hui and Png also argue that piracy could actually boost the demand for legitimate items. Piracy steals from the demand of legitimate items because potential buyers switch to pirated products, but it also increases the demand for legitimate items because it intices more people to buy and increases their willingness to pay. Another issue that is looked at in this article is how prices are adjusted in response to the pirating of products.

     In the second section of the article, Hui and Png look at two models of information product piracy. The first model called end-user piracy deals with private copying. The second model known as re-seller piracy deals with pirating by third-party members. Through extensive statistical analysis of these two models, Hui and Png came up with two hypothesis to test the demands for legitimate and pirated items.

     This article is full of extensive data and research but it combats my topic that piracy has had a great effect on the music industry. This article argues that piracy has had much less of an effect on the music industry than what has been stated.



Global music industry : three perspectives / Arthur Bernstein, Naoki Sekine, Dick Weissman. (pgs 136-139, 227-237)

Bernstein, Arthur. . Global music industry : three perspectives / Arthur Bernstein, Naoki Sekine, Dick Weissman. 9780415975797 series New York : Routledge, c2007.
Call#: Van Pelt Library ML3790 .B39 2007



     Not only is music piracy a problem in the United States, but it has become a nuisance for the music industry in Europe as well. On pages 137 and 138, the authors give four reasons as to why piracy has emerged and expanded in Europe. The first reason is the fact that there is a direct correlation between the penetration of broadband internet services and illegal downloading and file sharing. The second reason is an increasing amount of organized crime. Setting up an illegal downloading facility is very low-risk as compared to other illegal activities such as drug smuggling. The third reason is the emergence of the European Union (EU) and the relaxation of border controls which made it quite easy to transport pirated CDs across Europe from countries in which the piracy rate was high. The last reason that the authors gave was the development of new music technologies that can hold a greater number of songs.



     As in the United States, many different strategies are being implemented around Europe to combat piracy. In 2006, a piece of legislation called The EU Enforcement Directive was put into place to help define activities that are considered infringement. It also provides civil measures such as injunctions and seizures. Legislation in Spain featured the creation of special intellectual enforcement units along with training programs for police and judges and campaigns to raise public awareness. Other countries continue to use existing laws but are attempting to enforce them more actively.



     Most of Asia has very high levels of piracy. China and Indonesia have the two highest levels of piracy in the world. One reason for these extremely high levels is the fact that most income is spent for living and pirated music is cheap and readily available for the individual whose funds for entertainment are limited. Another reason is the lack of action by governments against the piracy.



     Asian countries have implemented their own schemes for dealing with the piracy situation. China for example joined the World Trade Organization in 2001 and fully implemented its TRIPS program which sets laws for intellectual property copyright. China also increases raids and seizures and lowered their threshold for applying criminal penalties. The government of Taiwan amended their copyright law making piracy a public crime. Enforcement by law enforcement officers has increased against night market venders and has been quite successful. Many other Asian countries are using similar strategies.



     This source like a few of my other sources demonstrates a difference in the effects of piracy on diverse countries around the world. It helps to expand my topic of how piracy has evolved in different cultures.





Music piracy and crime theory / Sameer Hinduja. (Ch. 2, 7)

Hinduja, Sameer, 1978- . Music piracy and crime theory / Sameer Hinduja. 1593321244 (alk. paper) series New York : LFB Scholarly Pub. LLC, 2006.
Call#: Van Pelt Library HV6773 .H56 2006

    Toward the end of Chapter two, Hinduja defines what is considered copyright infringement. On pages 33 and 34 he quotes from the United States Copyright Office the rights of an owner of a copyright. These reasons include the right to reproduce the work in copies, to prepare works based upon the original work, to distribute copies, and to perform and display the work publicly. After this brief outline of copyright infringement, he goes into the copyright of sound recordings and digital music distribution.

    Sound recordings have copyrights on the musical work which includes the notes and lyrics and also on the actual recording which is everything that goes into the production of a song written to a medium such as a cd. Hinduja gives examples of music piracy involving MP3s. According to the Recording Industry Association of America (RIAA), the legal concepts are copyright infringement and vicarious liability. A person who makes MP3s available for distribution for example is violating copyright infringement. Vicarious liability occurs when a person who is able to control the actions of a copyright violator fails to do so. To further explain digital music piracy, Hinduja cites numerous examples of legislation and gives a brief explaination of each example.

    In chapter 7, Hinduja talks about how the music industry has struggled with the rise in popularity of the MP3. According to many supporters, the music industry was too late in their embracement of MP3 phenomenon and that they would have experienced a greater increase in revenue had they not spent time trying to combat the "digital music revolution."

    Hinduja also gives advice on different marketing strategies to increase revenue in the music industry. He gives examples of a few musicians and their strategies to market their music. One example he gives is David Bowie and his use of the internet to expand his popularity on a global scale. Bowie offered free downloads for songs off of upcoming albums and also live concerts to fans who visited his website. He also held contests such as opportunities for fans to write lyrics to have the chance to be included on one of his new albums.

     The book provides useful information on the subject of piracy and gives strategies that could be useful to the music industry in order to fight piracy.

JSTOR: Stanford Law ReviewVol. 5, No. 3 (Apr., 1953), pp. 433-458

     According to the article piracy of records began in the late 1930s and early 1940s when collectors of jazz music began to pirate records that they wanted but were not being reissued. Not much was done to stop these pirates because of the great expense and difficulty of legal action. Pirates were almost impossible to track down because of their frequent address and name changing. The introduction of long playing records aided in the expansion of pirating. These records were cheaper to produce and thus made for more profiting. In the early 1950s bootleg records were being distributed nationwide. One of the major pirating operations was Paradox industries which formed in New York under a man named Dante Bollettino. He marketed his records under the label "Jolly Roger." He basically took over the piracy market. He even had his own place of business in New York City.

    Record companies made many attempted to stop these pirates. In 1952 a case known as The Columbia Paradox case, the record production company Columbia and Louis Armstrong filed a lawsuit against the bootlegging company Paradox Industries and their president Dante Bollettino. Columbia was successful and the case led to the introduction and passing of the Bennett Bill which made record pirating a criminal offense.

     Many jazz addicts and critics said that pirating was not unethical. They said that pirates were just providing a desired work of art to a small audience because the major record companies are not willing to reissue the records. The record companies on the other hand said that some records were pirated even though they were easily obtainable which means that records were not just being pirated on the basis that they were not being reissued. They also said that the pirates were only trying to make easy money by taking works that others had payed full price for.

     This article gives information about early piracy in a form of media that may not have been thought of as being pirated. It helps to explain where piracy started in the music industry and how companies dealt with this piracy which is important to my topic of how piracy has evolved through different forms of music and what was done to combat the copyright infringement.

Commission Takes Action on Piracy LexisNexisB. Academic: Document

     In this article the European Economic Community council of ministers gives support for audio visual anti-piracy measures. In certain countries such as Germany, France, and the United Kingdom piracy is on the decline because of the strict penalties that have been adopted but piracy from outside countries continues to be a problem. One of these problems is the illegal copying of compact disks using technology known as DAT or Digital Audio Tape machines. Japanese manufacturers began to launch these machines all across Europe. According to the International Federation of Phonogram and Videogram producers (IFPI) a problem with expired copyright works in Denmark could cause pirating problems for other EEC countries.

     According to the article many countries began to propose legislation to combat the piracy. The Dutch for instance introduced a levy on the sale of blank video and audio tapes. The Cultural Commisioner gave proposals for anti-piracy penalties. Other proposals included ways to find and get rid of pirate material, a framework of cooperation between the copyright holders and authorities, and a computerised register of audio visual work. In the UK the illicit sale of cassette tapes has declined due to a rapid decrease in prices. Other countries have implemented prison sentences for up to two years.

     The major problem with the music industry is the use of DAT machines because of their ability to make perfect copies of compact disks in a short amount of time. The music industry wants all imported machines to have an anti-copying device, but the commission does not necessarily agree with the proposal. The commission does not want to put something into place that will ban legitimate copying.

     In Denmark a record company known as All Round Trading are exporting unauthorized cds because of the expired copyright problem mentioned earlier in the article. Certain disks in Denmark were only covered under copyright for 25 years and are now unprotected, but in other countries the disks are still under copyright law. The record company argues that since the disks are on sale in one EEC country they can freely be exported to other EEC states under the Treaty of Rome which allows for the free movement of goods. The Commission believes that the action is clearly illegal whereas the IFPI believes that the case may need to go to court in order to be clarified.

     This article makes reference to early music piracy and strategies that were implemented in different countries to help combat the problem.

Exploring Influential factors of music piracy across countries: Wiley InterScience :: Article :: HTML Full Text

The premise of this article is a study done by the authors which explored seven variables that influence music piracy rates across different countries. The seven variables they looked at were economic development, income inequality, individualism v. collectivism, level of education, intellectual property protection, music CD price, and music market size.

     The economic development factor is one of the most common influential factors for piracy. Researchers hypothesize that the higher a countries economic development, the lower its rate of music piracy. Individuals who are rich have no need to obtain pirated copies of music. They also found that patent protection has a very strong correlation to high economic development. Therefore more developed countries seem to have stronger patent laws.

     With the income inequality factor the authors hypothesized that the rate of music piracy would be greater in countries with higher levels of income inequality. Developing countries usually have a much smaller middle class than developed countries. In an income inequality setting, the higher income groups are more likely to have access to technical devices which can be used to pirate music.

     The authors found that the rate of piracy was greater in some countries that had a higher per capita income than others. They therefore concluded that piracy cannot be explained by only economic variables. They looked at countries that are more individualistic such as the United States and compared them to other countries such as China who have more of a collectivist culture and found that collectivistic countries have significantly higher rates of piracy. Collectivistic societies put a greater emphasis on sharing within a group which could explain the higher rates.

     Another predictor of piracy that the authors used was education level. They explained that people who are more highly educated are more developed both ethically and morally and therefore are more likely to view piracy as an unethical behavior.

     The fifth predictor was intellectual property protection. There is no uniform standard of protection for intellectual property therefore some countries have stricter laws to protect from intellectual copyright infringement. The countries with the stricter laws have lower rates of music piracy.

     The next predictor mentioned was the price of music CDs. In some countries CDs are relatively expensive and therefore not as available to the general public. Because of this people are more likely to buy pirated CDs which are cheap and easier to obtain.

     The last predictor that the authors explain is the size of the music market in the country. They suggest that people in countries with a large music market might see music as a social value and therefore want to enforce copyright laws in order to protect from piracy.

     This article helped me to gain an understanding as to why music piracy rates are higher in some countries but not in others. It shows a perspective of piracy not seen in more westernized cultures such as the United States.

Columbia Pictures v. Gary Fung (Plaintiffs' supplemental memorandum of Points and Authorities in Support of Summary Judgement on Liability)

This is essentially the plaintiffs' (Columbia Pictures' et. al.) memorandum of Points and Authorities in Support of Summary Judgement on Liability. Essentially it captures the main arguments of the plaintiffs in Columbia Pictures v. Gary Fung (IsoHunt), a recent development in the bittorrent context. Essentially the plaintiffs claim that the whole purpose of the "Fung websites" is to facilitate and provide users with the ability to search for ".torrent" files which link to trackers hosted on various computers and servers that contain actual content files like movies, etc. Also, plaintiffs maintain that "torrent" files in themselves have no purpose but to link to actual content files. The plaintiffs say that there had been done an "unrebutted" statistical study which showed that "95%" of all the torrents on the "other fung sites", which work hand-in-hand with the main IsoHunt site, are links to copyrighted material. Also important, is the plaintiffs counter to the defendant's (Gary Fung) claim that the Grokster case doesn't apply because unlike in the Groster case IsoHunt does not distribute any product. The plaintiffs' argument is that this claim is invalid because the Grokster case had nothing to do with it being a product as opposed to a service, but rather the fact that the Grokster "induced and promoted" active infringement which thus made Grokster liable for contributory infringement.

This document is crucial to my research paper. It is the only recent legal document, and at the same time a primary source, directly related to my research thesis of whether government can/should shut down sites like www.IsoHunt.com. I plan to use virtually all of the arguments presented by the plaintiffs in my research paper. By weighing these arguments with various other sources (copyright law, DMCA, Grokster case, Fung's Affidavit) I'll be able to reach some kind of a conclusion in regards to my thesis.

Make Way for Copyright Chaos - New York Times

EFF: DVD-CCA v. Bunner

DVD CCA v. McLaughlin - Plaintiff Opposition to Pavlovich Quash Motion

DVD Piracy in China - A Closer Look at Black Market Trade bo?=