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Radio was also born of piracy Whe n a radio stat ion plays a record on rhe air, thar consrirutcs a "publ ic perform ance" of rhe compos er's work . As I described above, the law gives rhe composer (or copyright holder) an exclusive right ro pub lic performance s ofhis work. Th e radio station chus owes rhe compo ser mon ey for rhar performan ce. Bur when rhe radio stat ion plays a record, iri s nor o nly performin g a copy of the composer'swork. Th e radio station is also pcrformi ng a copy of the recordingnrrist's work. lr's on e rhing ro have "Happ y Birrhday" sung o n the radio by the local childr en's cho ir; ir's quir e another ro have ir sung by the Rolling Stones . The recordi ng anise is addin g ro the value of the comp osition performed on the rad io sta tio n. And if rhe law were perfectly consistent, rhe radio station wou ld have ro pay rhe recordin g anisr for his wo rk, jusr as it pays the compo ser of rhe mu sic for his work. But ir do esn'r. Und er rhe law governin g radio perfo rm ances, rhe radio station does not have ro pay rhe recording anisr. Th e radio station need o nly pay the compose r. T he radio station rhus gets a bit of so merhing for norhin g. Ir gets ro perform the recordin g arr isr's work for free, even if ir must pay the com poser somet hin g for the privi lege of playing the sa ng. Thi s difference can be huge. Imagine you compo se a piece of mu sic. Imagine iris your firsr. You own rhe exclusive right ro author izc publ ic performan ces of rhat music.S oi f Mado nna wanrs ro sing your so ng in public, shc has ro get you r permission. Imagine she do cs sing you r song, and imagine shc likcs it a lot. She rhcn d ccidcs ro makc a rcco rd ing of your so ng, and i1 becomcs a wp hi 1. Und cr our law. cvcry 1im, a radio srarion plays your song, you gcr som, mon ey. Bur Madonna gers nor hin g, save the
indire ct effect o n the sale of her CDs. T he public performance of her recording is nota "prorecr ed " right. The radio srarion thus gers ro pirate the value of Madonna 's work without paying her anyrhing. No doubt , one might argue rhar, o n balan ce, rhe recordin g anisrs benefir. On average, the promot ion rhey ger is won h mor e than the performance rights th ey give
really has any less mon ey than thcy m herwise would have had . Thi s is ofren true (though I have friends who have purcha sed man y rhousand s of pirared DVD s who certa inly have cnough mon ey ro pay for t he conre nr rhey have raken) , and it does mirigarc to somc d egrcc the harm caused by sucl1 taking . Exrrcmisrs in rhis debare love ro say, "You wouldrĂš go
up. Maybe. But even if so, the law o rdi narily gives the creator thc right to make chis choice . By making the choice for him or her, the law gives the radio station the righr ro rake somerhing for norhin g.
inro Barnes & Nob le and rakc a book off of the shdf wit hout paying; why shou ld ir be any differenr with onl ine music?" T he d iffcrencc is, of course, rhar whcn you rakc a book from Barnes & Nobl e, ir has on e lcss book ro sell. By conrrast, whcn you rakc an M P3 from a compu ter nerwork, rhere is nor one less CD rhat can be sold. T he phy sics of piracy of rhe intan gible are cliffcrenr from the
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Piracy is all over T here is piracy o f cop yrighred mat erial. Lors y forms. Th e of ir. Th is piracy come s in m:111 most significanr is commerc ial piracy, the unaurhori zed raking of other people's conte 11twithin a commercial conrexr. Dcspire the man y jusrificarions rhar are offered in its defense, rhis raking is wrong. No on e shou ld con done ir, and th e law should srop ir. 1... 1
Ali across rhe world, rherc are businesses rhar do norhin g but rakc others people's copyr ighred conr enr, copy it, and sdl ir- all wirho u r rhe permissio n of a copy right ow ner. T he reco rdin g indu srry esrimares thar ir !oses about $4 .6 billion every year ro physical piracy (rhat wo rks out ro one in rl1rcc C Ds sole! worldwide). Th e MPAA (5) esrimares rhar ir loscs $3 billion annua lly worldwidc ro piracy. Thi s is piracy plain and simpl e. J .. . J
Alrernativdy, we could rry ro excuse rhis piracy by nor ing rhar in any case, ir docs no harm ro the indu st ry. Th e C hin ese who ger acc:csslO Amcric:an C Ds ar 50 c:cnrs a rnpy arc nor peop le who would have bou ght tho s, Amer ican CDs at $ 15 a copy. So no one
physics o f piracy o f rhe tan gible. [ ...] Bur as wcll as copyshop piracy, the re is anothcr kind of" raking" thar is mo re direcrly rclared ro the lnrern er. Tha r raking, roo, seems wro ng ro many, and ir is wrong much of the rime. Bcforc wc paint thi s raking "piracy," howevcr, we should unck rsrand irs natur e a bit more. Fo r rhe harm of rhis raking is sign ificanrly more ambiguo us rhan our righr copying, and rhe law sho uld accouru for that amb iguit y, as ir has so ofren clone in rhe pasr. J ... J
Even if some piracy is plainly wro ng, not ail "piracy" is. Or ar lcasr, not ail "pira cy" is wrong if rhar rcrrn is und ersroo d in rhc way it is increasingly used roday. Man y kind s of "piracy" are usefu l and produ crive, ro produ ce eirher ncw conrenr or ncw ways of doing business. Neirher our traditi on nor any tradi tion has evcr banncd ail "pira cy" in rhar scnsc o f rhc rcrm. 1... 1
Th is doesn'r mean rhar rhcre arc no qucsr io ns raiscd by the latest piracy concc rn , pccr -ro-