You may recall a theft last year. Digital ninjas ghosted their way into the private files of a number of celebrities; mostly, but not entirely female actors.
The women’s data, some of it in the form of nude photographs was copied and released into the wild. And then something strange happened. Not straight away. It took a day. The initial mass media and online reaction to the ‘scandal’ was as predictable as ever. It was reported as a scandal. As a humiliation. As something for which those women should be ashamed. But within a day or so, everything changed.
The internet, and then the old media turned. The leaks, the breeches, the hacking were not a scandal. They were a crime. Specifically, theft. The women’s data had been stolen and the perpetrators of this theft were criminals. In a few hours some fundamental change was wrought upon the world, or at least upon the way we see the world. Upon the consensus view. The pictures weren’t hacked or copied or torrented. They were stolen.
As unpleasant and squalid as the whole affair was, there may have been one positive take away. For the first time since the emergence of digital media, a rough concurrence was reached that the unauthorised copying and distribution of somebody else’s data was a crime. It was theft. And yet, it wasn’t. Not in a strict sense. Laws were undoubtedly broken, but they weren’t necessarily statutes criminalising theft. There are as many different definitions of theft as there are legal systems and jurisdictions, but few of them apply neatly to the copying and distribution of digital media. In this way, the digital jihadi who rage against being described as thieves are correct. They are not thieves, they are something else. Unauthorised downloading is not stealing; at worst it’s copyright violation, which sounds much less serious. Deftly framed it can even come off as admirable and kinda Robin Hoody. “Ha! Take that, Murdoch!”
In the popular imagination, of course, ‘stealing’ or ‘theft’ sounds much worse than infringing upon copyright. Why? Because it sounds like, and is, the sort of thing which could happen to you. Most people, at some time, will have the unpleasant experience of being robbed or burgled.
Even when an item is not particularly valuable, its theft can imbue it with a perceived value because of the loss of control and the sense of violation involved. The hive mind of Twitter and Facebook seemed to sense the violation of Jennifer Lawrence and it reacted more with revulsion than curiosity. That reaction wasn’t universal, however it was strong enough to offer some hope that a cultural consensus on the iniquity of digital theft might be possible. But as soon as we use the word theft, we are undone.
Lets consider the atoms vs bits conundrum that lies at the heart of this conceptual failure. First, we’re gonna need some chicken. Not just any old chicken. We needs us a bucket of the Colonel’s finest. Let us imagine that you are lucky enough to have one. If I eat your Kentucky Fried Chicken, you have no chicken. I have robbed you of its value. But what if I torrent KFC’s data about their eleven secret herbs and spices? By converting the possession of that data from The Colonel to myself, I have done the old gent a grave disservice. I have indeed shot a dirty great hole in his business model which rests in part on protecting information about the eleven secret herbs and spices. But that’s not exactly what happens when you take the intellectual property contained within a Game of Thrones file held on Pirate Bay, is it?
Everyone accepts that you cannot walk into a brick and mortar store, pick up a DVD of Thrones and walk out, without paying. Likewise you cannot wander into and out of the Colonel’s house of chicken and hope to eat without paying. This is a long established and accepted truth that rests very comfortably in a world where value is fixed in particular arrangements of atoms, be they delicious chicken atoms or shiny DVD atoms. For many it falls apart when you try to fix value in a particular arrangements of bits, of ones and zeroes. Why? Is it the intangible nature of ones and zeroes? The way we cannot hold them like a greasy drumstick?
Or is it somehow related to their virtually infinite… er, copyness. I did, for instance, once try to replicate something like the Colonel’s recipe for southern fried chicken. It was unexpectedly difficult and tedious and expensive and in the end I gave up and made toasted sandwiches. The Colonel’s chicken had demonstrated its obvious value to me in a most brutal and humiliating fashion. My inability to replicate it forced me to value the work of those minimum wage slaves hovering over the deep fry vats in a way that I had not done previously.
The argument that copying a song, or a movie or a whole television series hurts nobody because nothing is lost, ignores the value created by a Peter Dinklage as he hovers over the actors’ equivalent of that hot, smelly deep fryer. Like the KFC worker, Dinklage is not doing it for free. He might well be doing it for love, but he is doing it for money. That money is sometimes raised directly from the viewer, via a DVD sale, but it is still mostly raised from distributors such as Foxtel, who buy the right to show his work within a restricted channel so that they can sell advertising and their own cable subscriptions off the back of demand for popular shows.
Extract printed with permission from Copyfight, edited by Phillippa McGuinness (NewSouth, $29.99) available in all good bookshops. Copyfight was supported by the Copyright Agency’s Cultural Fund.