Module 9: Activism

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Key.png Learning objective

Explore the methods by which similarly situated groups mobilized to persuade intellectual property gatekeepers to allow or protect their desired intellectual property outcomes.


Casestudy.pngCase 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 handed down the country’s first conviction and fine for an illegal download.

Local Factors

Swedes were well poised to organize against the tightening copyright law because of 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

The Motion Picture Association of America and its local affiliate, the APB, reacted to the mobilization by bringing suit against the country's largest facilitator of illegal downloads: the Pirate Bay.

In the months and years leading up to the suit, American rights-holders 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 manifestation of unchecked illegal downloading, 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 facilitated by existing EU Directives, 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. 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. This is the most important and sought after plank of the Pirate Party's platform.

Casestudy.pngCase Study #2: "Click Wrap" Licenses and the Uniform Commercial Code

Model Laws

For organizations who wish to maintain autonomy over their message and political power, for instance by keeping them away from 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 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. The UCC is not published on behalf of any one set of political interests or legal perspectives. The aura of objectivity, which the ALI-NCCUSL sustain by opening their drafting process to legal practitioners and scholars of all political stripes, backgrounds, and sources of experties, is what encourages 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 2B, 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 to explain their positions to a set of de facto legal gatekeepers. 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 law review articles for an academic conferences with an adjoining 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 federal 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 which state law cannot take away. 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 would likely create complicated legal disputes: disputes which would 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 Kaner 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.

Kaner 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, Kaner'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 and 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. Alternatively, 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. 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. The McManis Amendment addressed the legal preemption issue head on, by prohibiting any mass market software license from contracting between a software producer and a consumer in any way that alters the rights contained in federal Copyright legislation. It was adopted by a "razor-thin" majority.

The McManis Amendment provoked a backlash of criticism from software companies who wanted to use mass market licenses to contract around federal copyright law. This dispute about contract and copyright law was largely hashed out in an academic conference at the University of California at Berkeley.

UC Berkeley UCC 2B Conference/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.

A number of useful policy recommendations were discussed and debated, and the conference ultimately had a major impact on the development and ultimate demise of Article 2B. The main thrust of the conference held that "click wrap" licenses did not give consumers the opportunity to meaningfully assent to or reject the terms of non-negotiable mass licenses which they wouldn't see until after they purchased the product and opened its packaging. Though the keynote speaker was Raymond Nimmer, the Reporter to the Drafting Committee, who articulated opposition to the McManis Amendment because he believed Article 2B was already "neutral" in its effects on federal copyright law, the other major thrust was that state contract law and federal copyright law would come into serious conflict and produce an unproductive patchwork of inconsistent laws across the country.

Effects of the Conference/Symposia

By the time a series of academic papers by the conference attendees were published in 1999 in a California Law Review symposium volume dedicated to Article 2B, the ALI and the NCCUSL were sufficiently persuaded that Article 2B's interference with federal copyright law was a fatal flaw.

The NCCUSL issued a declaration that any final version of Article 2B should contain a provision which allows courts to invalidate mass market software licenses that were "unconscionable," and the ALI had deferred approval of the Article pending further consideration of its relationship to federal copyright law. Sensing the shift in momentum, the leading industry groups in movies, music, newspapers, magazines, and television expressed their own dissatisfaction with Article 2B because of its potential to influence the state contract laws that affected their industries.

Finally, in April 1999, ALI-NCCUSL announced that the two groups would not issue Article 2B in a press release.

The NNCUSL later published its own recommendations to validate click-wrap licenses under a model law with a separate title: The Uniform Computer Information Transactions Act. Only two of fifty state legislatures adopted the measure.

Casestudy.png Cast Study #3: Copyright Law and Folklore

International Organizing

Political mobilization is not merely a domestic endeavor. In fact, when domestic minorities represent themselves as autonomous on the international stage, it frustrates the authority of the state to act as a unitary entity. Thus, when the state-based system disenfranchises indigenous minorities at the national level, for instance when representatives in treaty negotiations are determined by a winner-takes-all framework, the best platform for political mobilization is often located at the international level.

Indigenous Communities and International Trade-based Copyright Law

The international copyright regime which bounds signatory nations to a specific conception of intellectual property permits little room for alternative value systems. In sharp contrast to American IP norms, many indigenous groups look to intellectual property as a means of protecting the dilution of their cultures rather than treating it as a regulatory system for commoditizing ideas and expressions to sell them in the global marketplace. In order to build up organizational capacity, indigenous groups across the globe have organized through the United Nations to protect their local traditions not merely from theft but also from sale.

Because a number of indigenous groups view cultural knowledge and ancient expressions in myths and artwork to be collectively owned and safeguard, they envision intellectual property as a matter of sovereignty and self-determination. These groups have organized and articulated goals at the international level to gradually escalate their capacity, resources, and even their demands on national governments. Their major grievances are absence of sufficient remuneration for global commercial use of indigenous expressions, widespread disregard for indigenous communal rights, misrepresentation of sacred indigenous cultural elements, and unauthorized publication of sensitive information and privately maintained folklore.

The Mataatua Declaration

One of the most notable was the Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, forged after a conference in June of 1993. The conference was hosted by the nine tribes of Mataatua in New Zealand, and over 150 delegates from fourteen countries attended.

The Declaration exclaimed that indigenous groups were the exclusive owners and primary beneficiaries of indigenous knowledge, and that all forms of misappropriation, whether discriminatory depiction or commercial exploitation, "must cease."

Suggesting Political Tactics

The Declaration provided suggestions for the indigenous groups of the world, which was an essential element of mobilization for a globally dispersed political base. In a section labeled "Recommendations," indeigeneous groups were instructed define their own intellectual property practices and develop a code for external users to observe which included sanctions for misuse.

Demands on States

The Declaration also demanded that individual state governments recognize indigenous groups' rights as the keepers of their cultural expressions and incorporate notions of multi-generational, cooperative, collective ownership over culturally significant items.

WIPO’s 1998-1999 Fact Finding Missions

The United Nation's World Intellectual Property Organization reacted to the call for respecting indigenous folklore and local customary institutions protecting it by designing nine fact-finding missions covering twenty eight countries to determine the expectations and IP needs of indigenous groups demanding IP reform.

Indigenous representatives informed WIPO officials about the their challenges protecting their own local customary regimes about intellectual property, coping with the documentation of indigenous cultures, and the ongoing misappropriation of indigenous expressions by American entertainment industries.

Collecting Reactions to Existing IP Regimes

WIPO organized and published respondents' reactions to the detailed policy elements of a variety of national regimes into a report. Some respondents favored national public royalty systems for the appropriation of indigenous cultures, and others disapproved. Some favored government documentation of indigenous folklore, and others felt that facilitation misappropriation by providing an easy access catalog for individuals seeking new cultural symbols to commoditize.

Collecting Policy Ideas

WIPO also collected local perspectives on how best to react and organize around intellectual property reform. Some suggested that local customary norms would have to shift towards existing IP law to protect those norms under the existing system. Others called for education/awareness programs, protections which allowed indigenous communities to restrict public access to their folklore, collective drafting of model laws, public funds for legal aid, clarifying legal rights for indigenous groups, and organizing regional approaches to protecting indigenous folklore,

Effects of Mobilization

Indigenous political mobilization experienced two successes in shifting global intellectual property norms to protect indigenous folklore.

Model Law for the Protection of Traditional Knowledge and Expressions of Culture

In the Pacific region, indigenous mobilization helped spur the Model Law for the Protection of Traditional Knowledge and Expressions of Culture Act of 2002. The model law was designed after conferral sessions between representatives from New Zealand, American Camoa, the Cook Islands, and Fiji Islands, Micronesia, French Polynesia, Guam, Palau, Tonga, Vanuatu, Papua New Guinea, Wallis and Futuna, New Caladonia, France, and Australia. It recommends that states recognize indigenous communities as communal owners of non-transferable, perpetual rights to their traditional folklore, and that states use criminal sanctions to enforce those rights against misappropriation. It also recommends requiring informed consent for any use or reproduction of indigenous folklore, and allocating the burden of seeking out the communities who own any given element of folklore on the individual or entity who wishes to use it.

Guatemala's 2003 Sui Generis Regime

A "sui generis" legal system creates special legal rights that do not apply universally. In 2003, Guatemala designed and implemented a special set of intellectual property rights for indigenous folklore that are protected with both civil and criminal penalties. Guatemala's "Cultural Heritage Protection Law" also enables the attorney general to protect any registered indigenous cultural good, such as oral or musical traditions, and provides perpetual intellectual property protection for any registered item.

The Guatemalan system is reciprocal. It recognizes the registered folklore of any other country recognizing its registry. As of 2010, no other country has signed onto the Guatemalan system.


Lesson.png Background Sources

Sweden's Pirate Party

Wikipedia: Pirate Party (Sweden)

Miaoran Li, "The Pirate Party and the Pirate Bay: How the Pirate Bay Influences Sweden and International Copyright Relations," 21 Pace International Law Review 281, 2009.

Jonas Anderson, "For the Good of the Net: The Pirate Bay As a Strategic Sovereign," Cultural Machine, Volume 10: 2009.

Henry Chu, "Sweden's Pirate Party Battles Web Laws," Los Angeles Times, 27.12.09.

"Swedish Pirate Party gains votes in European elections," The Independent, 08.06.09.

Marie Demker, A New Era of Party Politics in a Globalised World. The Concept of Virtue Parties, University Of Gothenburg: The Quality of Government Institute, September 2008.

Quinn Norton, "A Nation Divided Over Piracy," Wired, 17.08.06.

Quinn Norton, "Secrets of the Pirate Bay," Wired, 16.08.06.

Quinn Norton, "Pirate Bay Bloodied But Unbowed," Wired, 06.06.06.

Ann Harrison, "The Pirate Bay: Here To Stay?," Wired, 13.03.06.

"Sweden Convicts First File-Sharer," BBC News 25.11.05.

"Click Wrap" Licenses and the Uniform Commercial Code

Garry L. Founds, "Shrinkwrap and Clickwrap Agreements: 2B or Not 2B?", 52 Federal Communications Law Journal 99, 1999.

Pamela Samuelson and Kurt Opsahl,"Licensing Information in the Global Information Market: Freedom of Contract Meets Public Policy," 21 European Intellectual Property Review 386, 1999.

Pamela Samuelson, "Symposium: Intellectual Property and Contract Law for the Information Age: Foreword," 87 California Law Review 1, 1999.

Nimmer D, Brown E & Frischling G, "Symposium: The Metamorphosis of Contract into Expand," 87 California Law Review 17, 1999.

Charles McManis, Privatization or Shrink-Wrapping of American Copyright Law, 87 California Law Review 173, 1999.

Pamela Samuelson, "Legally Speaking: Does Information Really Want to be Licensed?," 41 Communications of the ACM 9, September 1998.

UCC 2B Conference Website, 25.04.08.

Subcommitteee On Software Contracting Of the Uniform Commercial Code Committee, Briefing Paper: Proposed UCC Article 2B, American Bar Association, 24.07.97.

Pamela Samuelson, "Legally Speaking: The Never-Ending Struggle for Balance," 40 Communications of the ACM 5, May 1997.

Cem Kaner, Uniform Commercial Code Article 2B A New Law of Software Quality, 3 Software Quality Assurance 10, March 1996.

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.


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