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We Are All Pirates

The legal question facing Congress was how to protect the small designer from the potential losses from the copying of their designs. But what was so amazing to me was that everybody involved — the largest companies, the smallest designers, Congress itself — were all in agreement that the ability for people to be able to copy each other to a reasonable degree has to be preserved. You never hear anything remotely like that in the movie or music industries, or in any other industry that involves intellectual property.

S+B: What makes the culture of piracy so effective?
MASON: When you think about the effectiveness of piracy, you also have to consider the impact of remix culture and the open source movement. All three are based on sharing and, ultimately, they’re more powerful than most intellectual property laws because they operate in the public domain, which is indefinable and mutable. The public domain may be defined legally, but where it begins and ends must be viewed culturally. For example, most remixes fall on the wrong side of copyright laws because they involve pirated samples, film clips, music clips, designs, and trademarks that are mashed up and reused. And the average person in the U.S., even if he or she doesn’t illegally download music or movies, violates copyright laws so many times a day, according to John Tehranian, a law professor at the University of Utah, that if he or she were sued for just one day’s worth of violations, the damages would amount to about $12.45 million. It involves everything from forwarding an e-mail with another e-mail or a photo attached to taking a photograph with a TV on in the background. All these activities are technically illegal.

But humans are copying machines. We learn by imitating one another. That’s how we learn to speak. That’s how we learn social norms. That’s how culture happens. Everything we do is an invitation to copy. And now, thanks to digitization and the Internet, we can express that in ways that we couldn’t before. The Internet is the ultimate copying machine, and it’s affecting many business models. There are times when piracy is a great idea and there are times when it’s not; that’s why I call it a dilemma. The point is, though, it is not a dead end. It’s in the interest of all who deal with the buying and selling and sharing of ideas to confront piracy and its implications now — that is, to reevaluate their business models so they include ways to capitalize on a freer flow of ideas and on more sharing of information and content.

Author Profiles:

Edward Baker ([email protected]), former editor of CIO Insight magazine, is a contributing editor to strategy+business.
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  1. From Major to Minor,” the Economist, January 10, 2008: On the trials and tribulations of the music industry.
  2. Kal Raustiala and Christopher Sprigman, “The Piracy Paradox: Innovation and Intellectual Property in Fashion Design (PDF),” Virginia Law Review, vol. 92, no. 8, December 2006: Another legal take on the issues surrounding the legality and value of copying — this one concerning the fashion industry.
  3. John Tehranian, “Et Tu, Fair Use? The Triumph of Natural-Law Copyright(PDF),” University of California Davis Law Review, vol. 38, no. 2, February 2005: An in-depth analysis of the long history, legal merit, and social value of the concept of “fair use.”
  4. The Pirate’s Dilemma Web site: Information about Matt Mason and his book, including a useful Weblog on issues pertaining to intellectual property, copyright, and piracy.
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