I know I’m a week late with the news, but NinjaVideo and eight other movie-streaming websites were taken down by the Department of Justice, the National Intellectual Property Rights Coordination Center, and the Department of Immigration and Customs Enforcement. My first big question is: who benefits from the raids?
The raids which enabled these take-downs remind me of those carried out in 2007 against modders. Those residential raids were disturbing because:
- They appeared to involve seizure of property that was not, and could not have been, involved in the commission of the crimes alleged,
- The raiding ICE officers were reported to be following the dictates of private citizens representing the “Entertainment Software Association”, and
- The raids seemed to represent the expenditure of massive amounts of public money on windmill tilting for the benefit of private corporations.
Now, video-streaming sites and modders are not the same. They are on different scales, have different profit models, and serve different audiences. Distinguishing between different forms of infringement benefits those of us who would like to change copyright law.
In the first paragraph of its press release about the raids, ICE says:
“At a sound stage at Walt Disney Studios in Southern California, U.S. Immigration and Customs Enforcement (ICE) Director John Morton announced to movie industry representatives how the agency is “turning the table on thieves” by combating movie piracy. “Working with industry, we will systematically target websites that offer counterfeit or pirated products. We will seize websites, prosecute the owners and forfeit proceeds.”
This property-talk-filled statement–which also groups counterfeiters with movie-streamers and conflates theft with unauthorized use of intellectual property–is appropriate for an audience of large and litigious copyright holders. However, it has little benefit for smaller copyright holders or future artists.
The regulation which guide the creations of the mind to the public domain are much more fluid and complex than such simple property-talk can encompass. Notices like those found on the nine sites which ICE and Homeland Security shut down are factually inaccurate if my understanding of the law is correct (above):
“It is unlawful to reproduce or distribute copyrighted material, such as movies, music, software or films, without authorization.”
By proclaiming unauthorized use to be illegal in all times and all places, they pave over the legally protected vital role that fair use holds in our society. It is always lawful to reproduce or distribute any form of intellectual property without authorization if that reproduction or distribution is a fair use of that material.
Though the argument that NinjaVideo was enabling fair use exclusively would be a rough row to hoe, it is worth examining how well a purely-property-based vision of the creations of the mind serves us as consumers and as artistic producers.
I argue, it rarely serves us as well as it serves organizations that own stables of copyrights, and middens of lawyers.
“The law will never make men free, it is men that have to make the law free.”–Henry David Thoreau