Module 9: Activism

Learning objective

Case Study #1: The Swedish Pirate Party

Challenged Law

On July 1, 2005, Swedish Parliament, the Riksdag, amended its copyright law to comply with a 2004 European Union directive requiring all member nations to ban downloads of copyrighted material absent the rights-holder’s consent. Before the end of the year, a Swedish court had already doled out the country’s first conviction and fine for an illegal download.

Local Factors

This new law was particularly vulnerable to Swedish counter-mobilization. Neither U.S. business interests nor the supranational body they pressured into tightening copyright law accounted for Sweden’s culture or legal norms. European copyright law therefore lacked local legitimacy, and Swedes were encouraged to organize against it by the following local factors:

• (1) the Swedish government was an early adopter of public high speed broadband, so downloading was particularly easy.
• (2) Swedes were culturally predisposed to understand the property right as a dispensable tool for public good rather than a natural right of the holder
• (3) a grassroots think tank named Piratebyran (or “Piracy Bureau”) had been publicly contesting copyright protection in Sweden since 2003.

Founding the Pirate Party

On New Years Day of 2006, just months after the first file-sharing prosecution, an IT entrepreneur named Rickard Falkvinge formed Piratpartiet, the Swedish Pirate Party.

Neither Falkvinge nor his co-founders had any formal political experience when they made the decision to start the party. They did know that the party needed 2,000 signatures to formally register with the Swedish Election Authority, Valmyndigheten, so they hosted a website for citizens to publicly declare their membership and then reached out in person to collect physical signatures.

Once formally registered, the party recruited candidates for the Riksdag elections in September, drafted a party platform, fundraised, and built local organizations in both urban and rural areas throughout Sweden.

Drafting the Pirate Party's Platform

The Pirate Party articulated its copyright policy goals as part of a larger effort to expand freedom of access to culture and protect fundamental rights.

The party issues its platform in numbered versions. Since Feburary 2006, the platform has featured three core principles: fundamental copyright reform, abolition of patents, and government respect for personal privacy.

Under the subheading "Free Our Culture," the Pirate Party declares three detailed policy aims: to reduce copyright protection for any work to five years after its publication, to exempt all derivative works from copyright protection, and to narrowly limit specific exceptions for this general rule to those granted by explicit statutory enactment.

The current edition, titled "Pirate Party Declaration of Principles 3.2," describes an ongoing movement to clear legal obstacles from the path of "the emerging information society."

Version 3.2 also announces the party's open stance toward partnering with any political alliance to achieve its strategic objectives: "Our goal is to use a tie breaker position in parliament as leverage."

The Pirate Bay

Despite the mobilization, the Motion Picture Association of America and its local affiliate the APB persisted undeterred.

American rights-holders had spent considerable resources shutting down U.S. file sharing services like Napster, Grokster, and Morpheus, as well as Bittorrent tracker search engines (which enable one computer to download a copyrighted work more efficiently by connecting it to multiple other computers, each tasked with transferring a small piece of the original file) like Suprnova, Elite Torrents, TorrentSpy, and eDonkey.

As the largest and most infamous Bittorent tracker search engine, the Pirate Bay was the last standing symbol of unified, international copyright defiance, and it was headquartered in Sweden. The Pirate Bay was designed by Gottfrig Svartholm, a former member of the Piratebyran think tank.

Shutting down the Pirate Bay was rather uncomplicated, as the July 1, 2005 EU Directive was already on the books, and the Riksdag’s implementing legislation was as well. If Sweden refused to enforce its intellectual property laws against The Pirate Bay, the U.S. was empowered to lodge a World Trade Organization dispute resolution proceeding and bring punitive trade sanctions until Sweden complied.

The prospect of U.S. sanctions for Sweden, being a small country dependent on international trade, were sufficient to secure the government's compliance. Furthermore, prospects were heightened to strong probabilities when the U.S. Motion Picture Association of America contacted and directly pressured the Swedish Ministry of Justice to act.

On May 31, 2006, Sweden's government capitulated and granted domestic police a search warrant to raid the Pirate Bay's local facilities and seize its file servers.

September 2006 Riksdag Elections

The clampdown provoked domestic street protests and international media attention. The Pirate Party’s membership shot up by the thousands, especially after the Pirate Bay resurfaced in the Netherlands using a DNS containing the following inflammatory language: "hey.mpaa.and.apb.bite.my.shiny.metal.ass." To be clear, the Pirate Party has no formal connection to the Pirate Bay or to the Pirate Bureau think tank, but the public perceived the three as substantially linked.

The underage, non-voting population made up the largest part of the swell in membership. Swedish schools regularly hold mock elections, and the Pirate Party took approximately 40 percent of the 2006 student vote. In response, the Pirate Party decided to invest its resources and political capital in the actual votes these members would eventually represent. The party organized “Young Pirates” student groups.

The voting age population in 2006 was less inclined to support the Pirate Party than its underage membership base, especially not at the cost of foregoing the chance to vote for one of the ruling parties. Compounding that disinclination was a July 2006 article in Sweden's daily paper revealing that The Pirate Bay was profiting substantially through advertising revenue. This seemed out of step with the public service ethos The Pirate Bay's leaders had championed to justify risking the country's reputation on their venture. Again, although the Pirate Party has no formal connection to the Pirate Bay, the public perceived them as interconnected.

When the ballots were cast, Piratpartiet earned less than one percent of the vote and therefore failed to qualify for a seat in the Riksdag in 2006.

June 2009 European Parliament Elections

The Swedish Pirate Party was more successful securing seats in the supranational body where U.S. businesses had originally worked to change European copyright law in 2004. It gained 2 of 736 seats in the June 2009 elections for European Parliament.

Turnout for the 2009 European Parliament elections was relatively paltry. The Pirate Party surged as support for its competitors lagged. Piratpartiet earned more than seven percent of the Swedish vote, most of which it picked up from Sweden's Left Party.

The Party's two elected Members of European Parliament (MEPs) are anti-software patent activist and former technology executive Christian Engstrom and 22 year old, former student Amelia Andersdotter.

Present Day

The Pirate Party now has 49,000 members.

If the party gains Riksdag representation after this year's elections on September 19th, its non-partisan stance gives it the flexibility either to bring the Red-Green voting bloc to power or alternatively to increase the narrow majority currently enjoyed by the existing ruling bloc.

Still, even before the polls close in 2010, we know that the Pirate Party has expanded its influence since 2006. All of Sweden's major left wing parties now voice public support for liberalizing copyright penalties for private individuals who download for non-commercial personal use.

Case Study #2: "Click Wrap" Licenses and the Uniform Commercial Code

Model Laws

For organizations who wish to maintain their individuality and not subject their institutional posture to the whims of electoral constituencies, another effective channel for mobilization is to influence the development of model laws. By inviting legal experts to convene with stakeholders and drafting an idealized version of the law, interest groups can give concrete specificity to their positions and also encourage domestic and international legal communities to offer policy alternatives and critiques.

Mechanics of the UCC

In the United States, contract law is largely governed at the state level. To promote national uniformity of contract law, a prominent organization of legal scholars and practitioners named the American Law Institute (ALI) works with the National Conference of Commissioners on Uniform State Laws (NCCUSL) to publish the Uniform Commercial Code (UCC), a comprehensive, nonbinding model set of contract laws which it upholds as the ideal version of state law. State legislatures customarily enact these models with few alterations. In 1994, the ALI began work with the NCCUSL to craft an addendum to the existing UCC for “click wrap” licenses.

Mechanics of "Click Wrap" Licenses

Since the 1980’s, mass distribution software companies had been encasing their products in plastic wrappers called “shrink wrap” and including with each product a document listing contract terms between the software producer and the purchaser. Sometimes, software companies claimed that any customer who tore open the shrink wrap in order to open a purchased software product had, in doing so, agreed implicitly to the listed contract terms on the document enclosed in the packaging. Software companies referred to this practice as “shrink wrap” licensing. More commonly, they claimed that any customer who continued to use the product after having had an opportunity to read the listed contract terms on the document enclosed in the same packing had agreed implicitly to the terms of the document. When continued use of the product consisted of loading the software onto the customer’s hard-drive, the practice became known as “click wrap” licensing. As the practice expanded, academic critics and consumer groups increasingly challenged the enforceability of these licenses, because software consumers did not have a chance to read the terms until they had purchased their software products and brought them home.

The ALI Provides An Entryway

The ALI and the NCCUSL assigned the task of authoring a new “click wrap” addendum, under proposed UCC Article 2(B), to the Drafting Committee on Revision of U.C.C. Article 2. The drafting committee published an initial set of draft model laws in which it suggested that click wrap licenses were valid contracts and should therefore be enforceable. Members of the American Law Institute realized that this was a controversial position. The ALI invited potential critics of the drafts to a number of committee meetings to consider potential objections, and also solicited memos and letters.

Criticism from Copyright Scholars

This opportunity provided a pathway for legal scholars well versed in the intricacies and consequences of legal doctrine. Legal scholars like Cem Kaner, Pamela Samuelson, and David Nimmer used the pathway to represent the consumers of software and other copyrighted works in Drafting Committee meetings and via entries for an academic conferences with an adjoining law review journal symposia. They articulated two primary criticisms: first, the inevitable difficulties and inconsistencies which courts would face in enforcing these laws, and second, the likely economic consequences which this legal shift would exact on the software market and related markets.

Legal Argument

Although the software companies framed the legal shift contained in the initial draft as an isolated change to contract law, Pamela Samuelson expanded that frame by pointing to the conflicts between state contract law and national copyright law which would bedevil the state and federal court system if the proposed Article 2B was implemented across the country at the state level.

The United States Constitution limits the federal government to “enumerated powers,” but also grants federal law supremacy over contradictory state law. When the federal government decides to regulate a specific industry or segment of interstate commerce, the practices it makes illegal are not the only elements of federal law which trump state law. Additionally, the practices it necessarily decides are not illegal become federal rights. For instance, by not barring resale of books, the courts have found that Congress intended book publishers to lose the right to control their works after they first sell them. Thus, book consumers have a federal right to resell their copyrighted works, and any state contract law which permits book sellers to sell their books under licenses which restrict that federal right are invalid.

Yet, if Article 2B were to validate shrink wrap or click wrap licenses contracting away consumers' rights which federal copyright policy granted, state contract law and federal copyright law would conflict. The potential contradiction between federal and state law in this situation might create a patchwork of legal opinions on the matter, which would actually be counterproductive to the goal of unifying contract law to facilitate interstate commerce. Furthermore, as copyright scholar David Nimmer pointed out, if mass market click wrap licenses were validated by proposed Article 2B, all software vendors could deprive consumers of choice and competition by using the same "take-it-or-leave-it" click wrap licenses across the industry. Nimmer suggested that this would amount to "'private legislation' that serves to alter en masse the public's rights granted under the Copyright Act."

Economic Argument

Cem Kamer explained in public meetings and with published formal letters how the proposed legal changes would shift the relationship between software companies and their customers. “Whether or not you agree with me, it’s important that you understand that the ground rules are about to change,” he wrote in a March 1996 magazine article.

Kamer customarily explained the software companies’ valid concerns. If contract law was not altered to limit their liability for the consequences of faulty products, the software companies would have to raise the prices of their products to continue to profit and sustain their industry. That liability derived from the legal ban on sellers disclaiming rudimentary warranties about their products, the high burden for sellers to disclaim additional “implied” warranties (e.g., by selling goods, the seller implicitly promises that the goods are suitable to fulfill the ordinary purposes for which such goods are customarily used, and can be sued for breach of contract if the goods are not suitable), and the expansive costs of “consequential damages,” which subject the seller of faulty software to all of the software consumers’ costs, for instance the costs of retrieving lost computer data. The software companies were using “click wrap” licenses to change these default terms into contract provisions which place more of the financial burden on software consumers to fix the problems caused by faulty software. Consumers would have to take more of their own precautions to ensure that the software they purchased and used did not create costly problems.

After articulating his opponents’ position, Kamer's argument then deconstructed those concerns and transitioned into a systematic critique of the proposed legal changes to explain how they would cause problems for the mass-market consumer. The proposed Article 2B would shift contract law to permit the software companies to disclaim and thus eliminate both express and implied warranties with “click wrap” licenses. Imagine the software consumer takes her purchased product home. She opens the package and begins to install the software. The installation process ceases and presents the user with a “License Agreement” stating that express and implied warranties and consequential damages are all disclaimed if she continues to install. If she refuses, she has no cost-neutral option. She must spend the time and transportation or shipping costs to return the product, select a new product, and compensate for the time lost in that process. Or she can agree to the license and thus bare the risk that the software she bought is defective. This increased leverage for software sellers, Kamer argued, would not merely incentivize them to convert their savings into lower costs for their software consumers. Rather, it would motivate the sellers to spend less money testing their products for major problems and fixing those problems before releasing their products onto the open market.

On its own, such a shift would have drastic consequences. But copyright scholar David Nimmer, among others, explained how the trajectory for future developments across copyright industries (i.e., not just software) would likely shift if state legislatures enacted the version of Article 2B which the ALI Drafting Committee was considering. By 2010, Nimmer predicted that American consumers would only have the option to buy poetry, art, novels, and feature films from online retail content stores which used an authorization "click wrap" license screen to disclaim all potential warranties.

McManis Amendment

In May of 1997, Professor Charles McManis offered an "eleventh hour" motion at a Drafting Committee meeting to amend the initial drafts of the proposed Article 2B. It was adopted by a "razor-thin" majority.

UC Berkeley UCC 2B Conference and the California Law Review Symposia

The University of California at Berkeley's Center for Law and Technology hosted a conference in April 1998 to explore the legal implications of proposed Article 2B, specifically how state contract law would intersect with federal copyright law. The conference was cosponsored by the ALI and brought together practitioners and law professors with differing views about that intersection. The conference's keynote speaker was Raymond T. Nimmer, the Reporter to the ALI's Article 2B Drafting Committee. His interpretation of the proposed Article 2B was that rendered it "neutral."

Cast Study #3: Copyright Law and Folklore

Source of Conflict

There are many cross cutting cleavages between national and international legal norms premised largely on the American image of the purpose and function of intellectual property and those indigenous and minority communities across the globe whose concerns for market value are trumped by a profound concern for the commoditization and corruption of traditional knowledge and expressions. Still, even this statement minimizes the diversity of interests and values which have mobilized to shift international and national copyright law into line with local conceptions and legal systems of international property.

Lessons

Contributors

This module was created by Dmitriy Tishyevich. It was then edited by a team including Sebastian Diaz, William Fisher, Urs Gasser, Adam Holland, Kimberley Isbell, Colin Maclay, Andrew Moshirnia, and Chris Peterson.

Home

Introduction

Course Materials:

• Module 1: Copyright and the Public Domain
• Module 2: The International Framework
• Module 3: The Scope of Copyright Law
• Module 4: Rights, Exceptions, and Limitations
• Module 5: Managing Rights
• Module 6: Creative Approaches and Alternatives
• Module 7: Enforcement
• Module 8: Traditional Knowledge
• Module 9: Activism
• Glossary

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