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ON LBNE oprnion

Australia's e-journal of social and political debate

Media piracy and the rise of the tihertine consumer

By Trajce Cvetkovski
Posted Thursday,23 May 2013

On 8 May, 9 News (Brisbane) aired a story entitled: "DGWI.ILOADING FINES: if you thought that in DOWNLOADING your favourite movies and TV sirows that you'ci never be caught - THhIK AGAil! i" (mol my ernphasis).

Predictably (to me at least), several social networkers (as consumers of popular media) immediately responded in a united but contemptuous and farcical filanner on Channel 9's FaceBook page. Social networiier John Forsyth anarchicaily deciareC, "Thank you channel nine for this post! It has given me the inspiration to gc on a downloading spree", whilst Asmar Al'xnadzada mischievously quipped, "Catch me if you can" (as he if were in his owl'r movie of the same title).
These anecdotal nuggets support well-established doctrinally anri empirically grounded evidence that the concurrent and cornbined deterrent value placed on legal, educational and technological anti-piracy rneasures currently present in the copyright governance frarnework appears to be low. Indeed, recent piratical developments suggest the copyrigirt gol/eflrance frarnework that has been establistred to protect poputrar media

industries (essentialiy the dominant corporate status quo) has been compromised. In the 21st Century" an emerging legal reality has revealed signifieant culturai and technoiogical challenges. In other words, digitalization of popular media has raised questions about the capacity for neo-pluralistic rnetagorrernors continue controlling copyright in its current fonn.

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Corporate citizens who orln the bulk of popular media rights consistently deploy anti-piracy measures, but consumers cannot resist illegal consumption. This is indeed urulsual, and cannot be a positive rcflection on liberal democracies in the West. Why are millions of presumably ordinary ciiizens so wilfully defiant in tenns of respecting corporate citizens' intellectual properfy- rights in film, music arrd gaming by dorrunloading, uploading ripping and buming?

This observation is historically relevant because similar behaviour has been displayed in the decades (and centuries) prior to the convergence of digitalization this century. Each invention seems to spur even more recalcitrant conduct. As Twain lamented nearly 100 years ago, they are taking that which is "not theirs". The bottom iine is most consumers know the "unauthorized play for free" attitude is an illegal act (and thus capable of legal action). General deterrence it seems is quite low.
One explanation is that iliegai consumption is not sirnply about copyright infringernent and piraey per su-. ir seems to be.just as much concemed with popular culture, freedom of expression, liberalism, and the human riglrt to participate in activities with minimal state and (in this case) colporate interference. Universally, millions of consurners tend to be united in a convergence of illegal and legal cansumption pattems. That is. a US teenager might be inspired to purchase an alburn of a new Australian band on i-Tunes after she has dou,nloaded an illegal copy of the band's single, or r.vatclrcd an unauthorised video clip of the band on YouTube which in tum has been uploaded by a trrK fan. The boundaries between the legal and iliegai consumer have technically bluned in this basic exarnple for the music fan. And chances are she wouid not eare about the legal position (an observation made by ttrre Court in the Kazaa litigation). Consumers arrned with enabling technologies draws aitention to the fact that it is diffrcuit io rneaningfully add a bottom-line doliar value to popular media in this virtual world. Price was controlled quite easily last century because the rneans of production was controlled by the elite. But the true worth of popular culture (the soui of popular rnedia) is based on feelings, and can never be measured. One only has to reflect on the near-free

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streaming sites such as Spotify and Google's Music All Access service to realise the traditional owners are not calling the shots. Recent developments unequivocally demonstrate consumers are driving consumption pafferns (and pricing) and behaviours that extend beyond popular media as a tangible product. Emerging technologi has thus opened a direct portal to the soul of popular media mainly due to the gigantic resource that is the Internet.
In this brave new world of copyright regulation in a popular media universe where consumers are in the driver's seat, corporate copyright citizens are struggling to control the information highway. As witnessed in the iiNet case (2012), Telco industries with a different set of governance regulations (and often in direct conflict

with copyright regulators) have emerged as the 21st Century gladiators of emerging technologies. The successful lobbying which occurred in the last 300 years to insatiably extend copyright protection for
corporate copyright owrrers may mean nothing in the 21st Cenfury. Once on the infonnation super freeway, one sees that there are some are good drivers, sorne bad ones - but also many who just do not care what their drivers' ratings are on the information highway (if the social networking blogs, YouTube anti-piracy campaigr parodies and FaceBook comments are anything to go by). The positivist response to stemming the flow of illegal consumption has proved problematic as consumers are drawn to the urge to disseminate information in a convergent manner. This is partiy due to emerging technologies, but also due to liberal tendencies. This observation suggests education and counter-piracy technologies are not particularly effective.

A normative and discursive black letter response has also failed. This is interesting because powerful corporate citizens are armed to the teeth with litigators, yet individual law suits are not even worth statistically
validating.
Because of social media, disjointed and ad hoc fluid forms of consumption compete with traditional market models. trndividuals in a liberal society are behaving in a self-detenninative manner which includes self-reiiance. Technological change has facilitated tire development of classic negative libertarians (liberal individuals). Inthe absence of overt orgaruzationai influence and interference, some of these illegal acts demonstrate just how self-regulating people wish to be in the 21st Century

even if these acts are liberally

villainous to copyright owlers.

Dr Trajce Cvetkovski teaches law, policy and governance at the University of Queensland. He also practises as a Barrister. He is the author of es:p:nghl_g_$d"l1g-pgld{ MS"dia (2013, Palgrave Macmillan)
O The National Forum and contributots 1999-2013. All rights reserved.

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