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Media piracy and the rise of the libertine consumer

By Trajce Cvetkovski - posted Thursday, 23 May 2013

On 8 May, 9 News (Brisbane) aired a story entitled: "DOWNLOADING FINES: if you thought that in DOWNLOADING your favourite movies and TV shows that you'd never be caught – THINK AGAIN!" (not my emphasis).

Predictably (to me at least), several social networkers (as consumers of popular media) immediately responded in a united but contemptuous and farcical manner on Channel 9's FaceBook page. Social networker John Forsyth anarchically declared, "Thank you channel nine for this post! It has given me the inspiration to go on a downloading spree", whilst Asmar Ahmadzada mischievously quipped, "Catch me if you can" (as he if were in his own movie of the same title).

These anecdotal nuggets support well-established doctrinally and empirically grounded evidence that the concurrent and combined deterrent value placed on legal, educational and technological anti-piracy measures currently present in the copyright governance framework appears to be low. Indeed, recent piratical developments suggest the copyright governance framework that has been established to protect popular media industries (essentially the dominant corporate status quo) has been compromised. In the 21st Century, an emerging legal reality has revealed significant cultural and technological challenges. In other words, digitalization of popular media has raised questions about the capacity for neo-pluralistic metagovernors to continue controlling copyright in its current form.


Corporate citizens who own the bulk of popular media rights consistently deploy anti-piracy measures, but consumers cannot resist illegal consumption. This is indeed unusual, and cannot be a positive reflection on liberal democracies in the West. Why are millions of presumably ordinary citizens so wilfully defiant in terms of respecting corporate citizens' intellectual property rights in film, music and gaming by downloading, uploading, ripping and burning?

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 line 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 illegal consumption is not simply about copyright infringement and piracy per se. It seems to be just as much concerned with popular culture, freedom of expression, liberalism, and the human right to participate in activities with minimal state and (in this case) corporate interference. Universally, millions of consumers tend to be united in a convergence of illegal and legal consumption patterns. That is, a US teenager might be inspired to purchase an album of a new Australian band on i-Tunes after she has downloaded an illegal copy of the band's single, or watched an unauthorised video clip of the band on YouTube which in turn has been uploaded by a UK fan. The boundaries between the legal and illegal consumer have technically blurred in this basic example for the music fan. And chances are she would not care about the legal position (an observation made by the Court in the Kazaa litigation).

Consumers armed with enabling technologies draws attention to the fact that it is difficult to meaningfully add a bottom-line dollar value to popular media in this virtual world. Price was controlled quite easily last century because the means of production was controlled by the elite. But the true worth of popular culture (the soul of popular media) is based on feelings, and can never be measured. One only has to reflect on the near-free 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 patterns (and pricing) and behaviours that extend beyond popular media as a tangible product. Emerging technology 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 owners may mean nothing in the 21st Century. Once on the information super freeway, one sees that there are some are good drivers, some 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 campaign 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 partly 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. Individuals in a liberal society are behaving in a self-determinative manner which includes self-reliance. Technological change has facilitated the development of classic negative libertarians (liberal individuals). In the absence of overt organizational 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 owners.

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About the Author

Dr Trajce Cvetkovski teaches law, policy and governance at the University of Queensland. He also practises as a Barrister. He is the author of Copyright and Popular Media (2013, Palgrave Macmillan)

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