Can There Be A Fair File Sharing Trial When The Language Is All Biased?

from the questions-questions-questions dept

In the past, we’ve discussed the various problems with the language choices by the entertainment industry in discussing file sharing. Terms like “intellectual property,” “piracy,” “theft” and even its descriptions of “losses” are all misleading and biased. This, in fact, is a key point in William Patry’s upcoming book — where he looks at how the language has been co-opted by the industry to pre-bias the casual observer (including journalists and politicians). Ben Jones is wondering if there can even be a “fair trial” for file sharers given this widespread use of biased language. It’s a decent question, and goes back to an earlier point we raised about why the jury verdicts in the recent file sharing trials were hardly a good barometer on the public’s understanding of copyright issues. When the industry has been so successful in choosing language that so clearly biases the casual observer (and is then able to exclude anyone who is actually knowledgeable about the subject from the jury), it shouldn’t be any surprise at all that rulings will tend towards those who have been able to define the terms.

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Comments on “Can There Be A Fair File Sharing Trial When The Language Is All Biased?”

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Anonymous Coward says:

How exactly do you propose to make it fair? Should we exclude anything that suggests that the material was obtained without permission?

Sorry, it’s like having a trial for murder and not being able to use words like “shooting”, “body”, “blood”, and “killed”.

The terms are defined not be “the industry”, the terms are part of the language. In French, they are “pirate informatique”, which is the same thing.

Anonymous Coward says:

Re: Re: Re:

informatique isn’t “information”, it is “computer”. Computer pirate.

We aren’t talking about locking up “information”, we are talking about a product, music, no different from a book, or a movie, or heck, lunch. You shouldn’t be allowed to dine and dash, so why should you be allowed to pirate music?

Your not thinking with your dipstick, jimmy!

Anonymous Coward says:

Re: Re: Re: Re:

We aren’t talking about locking up “information”, we are talking about a product, music, no different from a book, or a movie, or heck, lunch. You shouldn’t be allowed to dine and dash, so why should you be allowed to pirate music?

By copying, one is only hurting a musican’s hypotheical gains from his/her music by copying it and are not harming them in any way fininacinally. The free lunch hurts the resteraunt fininacinally and directly corresponds to actual losses.

brokeastunes says:

Re: Re: Re:3 Paid upfront?

Although I am pro file-sharing it’s amazing how much ignorance there is about how musicians are paid. I have my own modest home studio but I still have to hire session musicians, pay for artwork/graphics, mastering etc. I can recoup some of this by selling CDs at shows but the costs of manufacturing those have to be paid for, up front, by myself. Even if one is signed to a label, any money one gets is only a loan taken out of future sales which may or may not ever amount to anything.

diabolic (profile) says:

Re: Re: Re:4 Paid upfront?

When you “hire session musicians, pay for artwork/graphics, mastering etc.” then you are being your own record company and acting as a record company you pay up front. Whether money from a record company is a loan or not depends on your contract. In any event, the record company puts out money up front. The record company distributes/sells the goods, any ‘stealing’ hits the record company’s bottom line first. Fair enough if you have to choose between a contract/loan and doing it yourself – either way ‘sales may or may not ever amount to anything’. Either way file sharing helps you, the more people that hear your music the more people that will buy your music and see your shows.

MBraedley (profile) says:

Re: Re: Re: Re:

Wow, that’s a fail. First of all, informatique as a single word has no good literal translation (to data process is probably the most accurate). Computer translates as ordinature, not informatique, and most online translators returns pirate informatique as hacker. In any case, information pirate and computer pirate amount to the same thing this day and age (for most cases, there are a few caveats), because anyone who physically takes computer hardware would not be termed a computer pirate, but a computer thief because they have actually stolen something physical. When you “steal” or “pirate” a digital copy of a song, movie, TV show, famous painting, photograph, computer game, accounting software, etc., etc., you don’t deprive the original owner of the use of that song/movie/game. All you did was make a copy, nothing more.

Now, please tell me how you would duplicate exactly another persons lunch for free without breaking the second law of thermodynamics, requiring massive amounts of energy (which might as well not be free), or requiring the use of a Heisenberg Compensator. You can’t. You would still need to buy the ingredients, and invest the time necessary to make them into a meal. And even then, you don’t have an exact duplicate. Now compare that to an MP3: the only costs associated from an end users POV is the cost of storage (we’re talking on the order of less than pennies for a USB flash drive down to hundredths of a penny for a HDD) and the cost of moving those bits around (minuscule). Don’t compare information to physical goods, because they are not the same.

Anonymous Coward says:

Re: Re: Re:

Well, now, you are the smart one. So what would you call pirating music if it isn’t piracy? Copyright infringement? No, wait, infringement is a bad word too. Perhaps “disregarding the implications of copyright” or “creating a torrent of random bits”?

A dog is a dog, a pirate is a pirate. How hard is that to understand?

hegemon13 says:

Re: Re: Re: Re:

“So what would you call pirating music if it isn’t piracy? Copyright infringement? No, wait, infringement is a bad word too.”

Let’s apply the Few Good Men test. Can I imagine Tom Cruise, jumping around and screaming the word, with spittle flying in the witness’ face? “Pirate”? Yes. “Copyright infringer?” No. “Pirate” is definitely a loaded word that should not be allowed in the courtroom.

“A dog is a dog, a pirate is a pirate. How hard is that to understand?”

Not hard, but apparently you don’t. See, a dog is a domestic mammal, and it would not be appropriate for me to refer to a person in court by that name. Likewise, a pirate is a rogue sea captain who kidnaps other vessels, imprisons or kills its crew, and steals the scarce, physical resources that ship is carrying. It also would not be appropriate for me to use that name to refer to a person in court. Both words, when applied incorrectly, carry bias and stigma with them that is not appropriate for a courtroom. How hard is that to understand?

Anonymous Coward says:

Re: Re:

How exactly do you propose to make it fair?

Have you been called a pirate recently for doing something besides commandeering a ship?

Should we exclude anything that suggests that the material was obtained without permission?

not the point being argued.

Sorry, it’s like having a trial for murder and not being able to use words like “shooting”, “body”, “blood”, and “killed”.

I’m sorry, but comparing file sharing to murder is bad form, not to mention your comparing a civil trial with a criminal one, where there must be actual damages shown.
When there is a murder case there is blood on the walls, bullet holes etc, With file sharing there is a study, usually sponsored by the music industry, showing damages caused by end users, not criminal enterprises, sharing music.

The terms are defined not be “the industry”, the terms are part of the language. In French, they are “pirate informatique”, which is the same thing.

I can think of a lot of slang that is not used/acceptable in a court room…

AJ says:

It's all crazy.

So I take my Sony CD Burner, and my blank Sony CD-R Music disk, and make a copy of a CD I purchased released by Sony Records, and give it to my daughter. Suddenly I’m a pirate, and the AA’s are going to use the same term to describe me, as you would someone taking giant cargo ships and holding the crews hostage.

In my opinion, this type of ridiculous behavior is what has earned the industry the reputation it has, and is the core reason why they are so hated.

Vickie Pynchon (user link) says:


The terms given to the jury are not defined by the “industry” but by the “law.” One could make an argument that the law is wrong, or that the “industry,” having more money to spend on litigation and appeals — appeal being where the common law is made — or having more money to spend wooing legislators — who pass the laws the Courts must apply — are unduly influential, then that is an argument worth having.

Yosi says:

Calling BS on this one

Generally I tend to agree with Mike’s points, but this one is clear bullshit.
When person is accused for murder (or theft or infringement), the crime is called by its name. The common word for “copyright infringement” is “piracy”. So, the person is being accused for “piracy”. Nothing loaded here, but crime called by name.
Now, sorry to disappoint someone, but there’s such thing as “intellectual property”. What another term you have for production of research company?

Mike Masnick (profile) says:

Re: Calling BS on this one

When person is accused for murder (or theft or infringement), the crime is called by its name. The common word for “copyright infringement” is “piracy”. So, the person is being accused for “piracy”. Nothing loaded here, but crime called by name.

First, it’s a civil case, not a criminal one, and it’s “name” is “copyright infringement” not “piracy.” Piracy is absolutely a loaded term.

Now, sorry to disappoint someone, but there’s such thing as “intellectual property”. What another term you have for production of research company?


Yosi says:

Re: Re: Calling BS on this one

So, production of research company we will call “research” and production of software company “software”.

Now, when someone breaks in (physically, by lock picking for example) and steals CD with production of those companies, what does this person steal? CD which cost $2? Or research results which cost $2M? Will we call it “theft”, which is what it is, or “copyright infringement”, since it’s only “intellectual property” which is not “real”?

Anonymous Coward says:

Re: Re: Re: Calling BS on this one

They will have committed theft of the research results contained on a very physical CD. It wouldn’t be copyright infringement because no infringement actually occurs during the act of stealing the CD. Now, there could be other charges depending on what they then DO with the CD and the data, but you’d have to prove that as well.

Skeptical Cynic (profile) says:

Re: Re: Calling BS on this one


Don’t you love that you are now so important that the RIAA has assigned shills to first post and refute your comments!!

It the best thing ever!! I have been reading Techdirt for at least 5+ years and you have influenced my opinion on Copyright and Properties rights. And I would like to say that although I do not always agree with your comments, I do agree with them at least twice as often as I don’t.

Keep the fire to the Dumb Masses about what they are giving up by letting the RIAA stay around.

Mike C. (profile) says:

Re: Re: Re:2 Calling BS on this one

The problem is that your analogy is all wrong. The way I read this is more like:

– being on trial for shoplifting a pencil and the prosecutor saying you’re accused of “Grand Larceny”
– being on trial for aggravated assault and having a term like murderer used with the jury.

Juries do not tend to be well versed in the details of copyright law. As such, they will draw meaning from the words used during the trial.

If the plaintiffs were required to use terms like “copied without permission” and “gave copies to other people without authorization” instead of “pirated” and “stole”, I think things would take a different course. Personally, I would love to see a defendants lawyer object to the terms as slander and see what happens.

Mike is NOT blowing smoke – he’s just posing a valid question and inviting a discussion. Seems to have worked.

Chronno S. Trigger (profile) says:

Re: Calling BS on this one

The common word is “piracy” but it is not the legal word. A common phrase for “murder” is “capped his ass” but you don’t see that on a legal document do you. You also don’t see “piracy” on a filed legal document you see “copyright infringement”.

The word “pirate” instantly congers up people who most would consider evil, blood thirsty assholes. This is not something a person who copied 12 songs and is facing $1.9mill wants to have associated with themselves.

Imagine if we used more apt words. Instead of “Piracy” we use “copyright infringement”. Instead of “intellectual property” we used “copyright”. Instead of “Theft” we used “copy”. Instead of “losses” we used “hypothetical gains”. All much more appropriate words but they make it look like something a hell of a lot less, exactly what it is.

Michael Long (profile) says:

Re: Re: Calling BS on this one

Using more “apt” words is simply an attempt to bias the discussion the other way. Using terminology like infringement and “sharing” seeks to minimize the consequences of the actions.

“Murder, your Honor? No. My client simply embraced the deceased by the neck, whereupon the deceased decided to stop breathing. Pure coincidence.”

Anonymous Coward says:

Re: Re: Re:2 Calling BS on this one

infringing sounds more like something you did by accident. “I was driving down the road, I swerved to miss a rock and I infringed slightly on the other lane”.

Correct term, copyright infringment. Violation of copyright. Piracy. All acceptable and correct terms. You might not like them, but they are the truth, as much as you hate this simple truth.

Anonymous Coward says:

Re: Re: Re:3 Calling BS on this one

You know, ‘nigger’ was an accepted term decades ago, too, but that doesn’t make it a proper or legal term. The proper legal term is ‘copyright infringement,’ and you will not see it listed as ‘piracy’ in a legal document. This is the proper term. It is the acceptable and correct term. You might not like it, but that is the simple, legal truth.

Trails says:

Re: Calling BS on this one

You’re sorta hitting on mike’s point without realising it. So is Ms. Pynchon above.

The industry has been able to define the language used by legislators (although as mike pointed out, generally not in the legislation, yet, thankfully), the press, etc…

Claiming that because these are common terms there can be no bias is both incorrect and essentially claiming the result of what mike is talking about as proof that it isn’t happening.

If you think language can’t create a bias or help form opinions, read 1984.

Anonymous Coward says:

Re: Re:

How many P2P’ers do you talk to? They call themselves pirates… HELL they make sites called “the PIRATE bay”. They enjoy the name because it’s rebellious and ironically funny. They aren’t making places called “The Sharing and Caring Bay”

The word pirate or theft should not be used in court at all, but I don’t think at the words will ever leave common day use since both sides use them.

Dark Helmet (profile) says:

Re: Re: Re:

“How many P2P’ers do you talk to?”

…a lot.

“They call themselves pirates…”

Wow, that comment makes too things very clear. First, that you’re of limited ability to extrapolate an idea or comment beyond its immediate use, and secondly, you’re very, VERY white.

Using you’re logic, it would be my utmost pleasure to see you’re RIAA take a bunch of Bloods and Crips into the courtroom and begin speaking to the jury about how these “Nigga Pirates” are a threat to the industry. When people got incredibly offended, your lily-white RIAA lawyer could respond, “But they call THEMSELVES ‘nigga’ and ‘pirate’, so it’s cool!”

“Ladies and gentlemen of the jury, if you would please direct your attention to the nigga pirates at the defendents table, where we often see nigga pirates, you’ll note their indifferent attitudes.”

“No, folks, we all know that you can’t trust a nigga pirate. They’re dirty and they often live as a draw on industry and society. They kill jobs, these nigga pirates. And, as we all know, nigga pirates are responsible for a lot of theft.”

“Now, if we could just put these nigga pirates on a boat and ship them back where they came from we would. But instead, I suggest we create a series of laws limiting nigga pirates abilities to operate in the open. Let’s call them, oh I don’t know….Jim Sparrow laws. Now we all know nigga pirates must be stopped. After all, the worst thing that could happen for America would be for there to be a nigga pirate in the White House.”

God you industry people are so interested in shooting yourselves in the foot…

BobinBaltimore (profile) says:

Who creates the language here?

Mike your comment “When the industry has been so successful in choosing language…” is off-the-mark. Have all these terms come from the “industry” by which I assume you mean recording industry groups? No. The pirate term has been applied (or misapplied, depending on how you look at it) for decades and across industries. “Illegal file sharing” is descriptive and factually correct, in many cases at least. “Copyright infringers” again, annoying but legally correct in many of the cases brought. And these terms are used and misused in day-to-day conversation by regular people, as well as by the media. I don’t see the linguistic conspiracy here.

Look, emotionality aside, these cases hinge on whether existing law has been broken. So the language used to describe the parties in the case is going to have – very predictably, I’d note – a pro or con slant. I suppose we could call them “alleged pirates” or “not-yet-convicted alleged illegal file sharers” but that gets to be PC silly. It would result in some meaningless phrase akin to “motor vehicle operator who orally consumed a liquid” instead of “alleged drunk driver.”

Anyway you slice it, these cases involve the alleged repurposing, copying or transmitting of content without permission of the content owner. I agree they are overwrought and crush the (very, very, very few in absolute numbers and percentages) folks they touch. But, under many current laws in many locations, this conduct is illegal and will be couched as such by the industry, the media reporting the case, and regular people talking about it. If you want to eliminate what you call linguistic “bias” – which is really just calling it what it is under current law – then change the law. Until then, like it or not, these cases don’t always show just “computer users happily making use of infinite goods” but “illegal file sharers actively attempting to cover their tracks because they are breaking laws that are increasingly hard not to know about.”

Hate to sound unsympathetic, especially to the crushing judgments that have come down on a couple of these cases. I do believe the laws need to change and have lent my one little voice to that effort. But if you don’t want to do the time (and don’t want to be on the negative end of this “biased” language) then simply don’t do the alleged crime…for now.

BobinBaltimore (profile) says:

Re: Who creates the language here?

And before I get yelled at, I know this isn’t a “crime” we’re talking about, per se. I was just cribbing off of the old saying. And yes, I agree, I probably owe the original creator of that line 1.267 cents for using it without permission in a non-parody context. Ugh. This is why the laws DO so badly need to be changed.

Craylach says:

Word usage

From for Pirate:

“Meaning “one who takes another’s work without permission” first recorded 1701″

and from

“From early on, the words pirate and piracy were extended to other types of pillaging. As part of an extended rant against derivative poets in his 1603 pamphlet The Wonderfull Yeare, Thomas Dekker calls upon the Muses to “banish these Word-pirates, (you sacred mistresses of learning) into the gulfe of Barbarisme.” The metaphor of intellectual piracy took hold in early modern English, with plagiarizers and unauthorized copiers of manuscripts compared to robbers on the high seas. Illegally reproduced books came to be known as “pirate editions” by the eighteenth century, long before online file-sharing made the piracy of copyrighted material child’s play.”

So unless the use of ‘the entertainment insustry’ in the article is intended to extend to 17th and 18th century poets and pamphleteers, it would seem that the argument that there’s been a pirating of the word pirate is off.

Benjie says:

Skipping commericals

Ma’b we need to explain to the people who think Pirating = Stealing that changing the channel during a commercial is the same thing

See, T.V. isn’t free unless it’s a commercial-less channel. You “pay” for what you watch by viewing commercials. By changing the channel, you are no longer “paying” for what you’re watching and are “stealing”.

This is actually such a strong argument, that the powers-at-be are trying to make it so future T.V.s will NOT let you change the channel once a commercial kicks in.

Also, listening to music at work, even via earbuds/headphones is illegal, even from the radio. You and your employer can be sued for this. If you play the radio/etc in such a way that others can hear, it is not only Copyright infringement, but also a public performance and you can be sued for thousands of dollars per person who overhears your radio listening. Actually, even if you’re playing the radio in your car, anyone other than your immediate family that hears your radio will count as public performance(eg. the car next to you when your windows are rolled down at the stop lights), so don’t plan on listening to the radio in your car on a road trip with your friends.

Not to mention that if you purchase a ring tone for your cell phone that ANYTIME someone other than you hears said ring tone, you are doing a public performance of said ring tone which is NOT covered by your download costs; so this is also illegal.

LostSailor (profile) says:

Perfectly Good Words

Terms like “intellectual property,” “piracy,”…are all misleading and biased.

Terms like intellectual property and piracy have been in use in the context of copyright since the mid 19th century. You may not like them or agree with them, but they are in no way misleading or biased.

And if you think they are, how is calling illegal copying of protected content “sharing” any less biased?

Thomas-Rasset and Tenenbaum had fair trials (Thomas had two) and the juries came to quite reasonable verdicts: both defendants broke the law. (The question of damages is another issue.) It had nothing to do with the language used to describe their illegal actions.

1DandyTroll says:

Re: Perfectly Good Words

‘And if you think they are, how is calling illegal copying of protected content “sharing” any less biased?’

Huh, let see, sharing is (ooops caring :p ), an action despite beeing legal or not. ‘Illegal copying of protected content’, is a (legislative) definition of an action, formerly known to have been legal. 😉

And for the verdicts, which can never be defined as reasonable unless the highest court and the majority of the mass’ equally say so, but yes neither judge nor jury could probably not have reach another conclusion, so the verdict is sound, but that’s not really what upset people, what upset people is the punishment, not that there is a punishment, only the proportionality of the punishment relative to, what is now a, serious crime.

What’s really curious though, is why they met out harsh punishment when sentenced more for the, now, possible bad behavior of possibly sharing with millions, rather than the actual crime, or civil infringement, of the supposed loss of rights of virtual goods. (In US this is all understandable, what with US haven sunk so low when it comes to civil liberties, and, of course, proportionality. It’s really odd in EU, or countries like Canada, Australia, and New Zeeland.)

(Ok, so it’s very common in Britain, but hey who’s counting?)

Charlie Potatoes (profile) says:

co-opting the language

The Right Wing Evangelical Christian Republicans (see how nice I’m being) have smeared the Democrats, (who seem too dazed to realize they’re getting their heads handed to them on a platter) for years, and have made the words Liberal Democrat a catch phrase which many people now tend to accept as truth. They have made Family Values synonymous with their party, which is the funniest thing I’ve heard in politics since Lyndon’s classic remark about Gerald Ford and chewing gum.
I noticed that in the first Gulf War the enemy shot nasty vile missiles called SCUDS at us, but we only retaliated with our All American missiles, called PATRIOTS… It has to do with framing, and with petitio principii. It is propaganda. Intelligent people see through it, but since it continues, I must assume that Bubba does not.

Gordon says:

It's in the language of the laws themselves.

All of you that have made the comment about the origins of the term “Pirate” – and all who have spoken about it being the “common” terms used are COMPLETELY missing the point here.

Way to get ppl NOT talking about the real subject here.

The REAL problem here is the fact that these terms are being allowed in court rooms. They are not the LEGAL terms. The terms used in the written language of the laws. If it’s a case in a court of LAW, about allegedly breaking a LAW, then the correct terms should be used. You know…..the ones used in the language of the LAW.

My two cents.

BobinBaltimore (profile) says:

Re: It's in the language of the laws themselves.

@Gordon, I agree with you IF that is happening. Of course, good (or even just decent) attorneys will scream bloody murder at those terms being thrown around in court.

In this article, however, the question is explicitly about what happens OUTSIDE the courtroom. As the author says “we step away from the antics inside the courtroom to look at the overall effect that media perceptions and propaganda might have on a case.”

Grady says:

And it's up! It's going, going, going..........and it was shanked.

It’s not about the legal use in the courtroom. That is covered, as many have said, by objections and such from the big-shot lawyers.

It’s about the use of biased language OUTSIDE the courtroom. Like the adjectives used to describe Democrats and Republicans. The difference? “Pirates” can’t counter. It’s too late. “Everyone knows” that “pirates” “hurt the artists.” Anyone with half a brain cell knows the artist aren’t hurt by them. The artists get their kicks from performances and other merchandise. CD/song/etc sales mostly go the labels. Like movie ticket sales go to the studios.

These days, you tell people you downloaded the latest dvd, or CD, it’s almost automatically assumed you “pirated” it. You could have got it from Amazon, Netflix, or iTunes. It’s like everyone assumes all lawyers are cheats. It’s just that common now.

You take it into account, add the elimination of anyone “informed” about the “case” from the jury, and you have a jury full of people who see all “file-sharing” and “copyright infringement” as a “pirate” harming the artists.

Just my two cents. (All I have left after buying that new CD)

Fred McTaker (profile) says:

Biased the jury before they are even selected

All these arguments about how these weasel words get used in court miss the bigger point: the jury is biased by the media portrayal before they ever enter the courtroom. Sure, lawyers are allowed to call each other out for using weasel words in the courtroom, but as soon as the jury hears “piracy, correction: copyright infringement”, to two words get falsely linked in the minds of the jurors, no matter how much the judge instructs the jury to forget the first weasel word was ever spoken. It is getting to the point where to have a jury of peers, you need some way to get a jury of your peer-to-peers.

When you say “violation of Copyright Act section X”, grandma and grandpa juror wont have any idea what you’re talking about. They might just ask you for computer advice later if you’re lucky, and they don’t think you have a plank to shove them off.

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