This guest post was written by Stuart Langley, an intellectual property attorney. Thanks to Stuart for this fantastic post! If you are a legal professional (e.g. an attorney, judge, or law professor) or a comic book professional (e.g. an author, editor, or illustrator) and you have an idea for a post that would be a good fit for Law and the Multiverse, feel free to contact us!
Cory Doctorow’s novel Pirate Cinema is a 2012 young adult speculative fiction novel set in near-future England that follows roughly a year in the life of a band of footloose youths living in, around, and outside traditional London society. The story is told from the perspective of 16-year old filmmaker Trent McCauley (a.k.a. Cecil B. deVille) who’s obsession is creating mashups using images from the net. Guided by his vagabond friends Jem, Dodger and a young woman named “26”, Trent matures from filmmaker to copyright activist.
If you haven’t read Pirate Cinema, as always with Doctorow’s books you can download it for free, or you can do as I did and buy a copy.
Cory Doctorow is well-known for both his fiction and his informed, thoughtful copyright activism. Pirate Cinema takes clear positions on copyright issues, but what is exceptionally fun about Pirate Cinema is the energy Doctorow puts forth to set out the whole cornucopia of property issues so we may consider law and theory. Rather than steadfastly advocating a position, Pirate Cinema advocates advocacy itself; advocacy informed by human needs, respectful of human institutions created to meet those needs, and appreciative that these systems are changeable to satisfy our needs. I will focus not on copyright issues per se, but the much more interesting context Pirate Cinema creates for understanding copyrights in the scheme of property law. Pirate Cinema asks us to wonder about whether the way we treat intellectual property follows how we treat other kinds of property.
But first, Trent’s adventure begins when his family’s internet access is disconnected because of his downloading activity. Is internet access a public utility subject to a higher “obligation to serve” standard, or merely a contractual service that can be denied for violation of any agreed upon term of service?
I. Is Internet Access a Public Utility?
Trent’s home has received a series of notices telling them their IP address has been associated with illegal downloading. These notices go unheeded because Trent has intercepted them. The third notice is accompanied by an appealable, but immediate one-year suspension of the family’s internet access. The appeal process is portrayed as too burdensome and slow to pursue.
The McCauley’s internet access has been disconnected consistently with what appears to be an implementation of the United Kingdom Digital Economy Act 2010. Implementation of this act has been slow, but is expected to lead to notices and service disruption as early as 2014. The implementing code of this act obligates ISPs to respond to copyright infringement reports by notice to subscribers, maintain a list of subscribers that have received notices which can be disclosed to copyright owners under court order, and degrade or deny service to repeat offenders. The technical measures imposed by the law will be appealable; on paper the appeal processes appear designed to protect subscribers, however, the regulations on the appeal process have not yet been published. This foundational scenario in Pirate Cinema is plausible.
But whether it is acceptable to cut off internet access as punishment for violating how that service is used is another question. Because of the disconnection Trent’s father cannot find work, his mother cannot find medical care, and his sister’s schooling suffers. Is internet access is a public utility that should be more difficult to disconnect than summary and unilateral administrative action? As explained in Jim Rossi’s article Universal Service in Competitive Retail Electric Power Markets: Whither the Duty to Serve? 21 Energy L.J. 27 (2000), common law principles express a public utility having a higher obligation to provide service—to provide extraordinary levels of service, especially to small residential customers. These obligations include the duty to extend service, provide continuing reliable service, provide advanced notice of disconnection and to continue service even though a customer cannot make full payment. Public utilities can have terms of service and can terminate service for violations, commonly payment and safety related transgressions. One U.S. city proposed to cut off utility service for failure to pay speeding tickets, although using utility service as a tool to enforce other regulations seems very unusual and inconsistent with the common law “duty to serve”. The question posed by Pirate Cinema is timely as governments try to regulate internet access, they do so by treating it as a public utility. This will be a double edged sword in that one treated as a utility, society should, perhaps, have a higher duty to provide internet access and similarly higher barriers before disconnecting service, including greater due process and evidentiary protections for subscribers.
II. Property Rights in Pirate Cinema
Trent learns quickly how to live without money. He needs food, he needs shelter, he needs comforts of water and electricity and, significantly, he needs to create films. Without money the satisfaction of these needs brings Trent face-to-face with all types of property theory and practice.
The origin of property rights–the question of how something moves out of “the commons” to become the exclusive property of an individual is found in variations of “first possession theory” and the more thorough Natural Rights theory advocated by John Locke. According to these theories property rights arise from the human ability to take something from nature, or the commons, and improve it and put it to use. This act of taking from the commons gives the taker ownership in the thing taken.
Laws and social institutions have evolved to manage property rights, how they are granted and retained, and what privileges are granted to those that possess them. These institutions and laws are the creation of man as well, and in spite of the strength of our belief that they are immutable, these institutions change over time to meet the needs of society. Pirate Cinema asserts that property rights are enforced by political entities and powerful corporations and asks us to think about whether our existing institutions and laws are adequate with the reminder that we can change them to better meet society’s needs. Paramount of those societal needs is the efficient and effective distribution of resources in our quest to satisfy human needs such as the need to eat, the need for shelter, and the more abstract needs to be comfortable, to share knowledge, and to be creative.
A. Tangible Property: Discarded Goods
Pirate Cinema’s society is characterized by great poverty and apparent abundance of resources being wasted. At Waitrose, an upmarket grocer in London, Trent has a sinking feeling they might be about to shoplift. Shoplifting is a crime and Trent is no thief. Instead, his guide Jem teaches him to gather discarded food from the skips (dumpsters) behind the grocery which provide such abundance that they share this bounty with the less fortunate. Similarly, they acquire all manner of computer and audiovisual equipment, all discarded. This contrast—the repulsion of stealing against the acceptance of taking discarded goods—lets us think about when tangible property rights make sense and when they do not. But is this a difference recognized in law?
Trent is right, people found guilty of shoplifting in the UK are charged with theft under the Theft Act 1968 and repeat offenders risk jail time. However, can he take those same goods from a skip when discarded? In the UK, no. Dumpster diving in England and Wales may qualify as theft within the Theft Act 1968 as well. However, there is little enforcement in practice. In England, unless aggravated, theft from a skip will only be a civil wrong. This non-uniform enforcement suggest that society, like Trent, views these acts differently, with a higher regard for personal property in some circumstances (e.g., when it is inside a store, while the owner is exercising dominion, and when taking property would cause loss to the property owner) than in other circumstances (e.g., once the owner has abandoned the property and would no longer suffer loss by the property being taken).
B. Real Property: Adverse Possession
Later, Trent and Jem take up residence in an abandoned pub they name Zeroday and claim it as their own under adverse possession laws. Can they hope to own the pub where they take up residence? Their actions to improve the property and put it to better use appeal to the natural law theory of property. Acquiring real property by “adverse possession” is the process by which a person who is not the legal owner of real property can become its owner after having occupied it for a specified period of time. The Land Registration Act 2002 provides a legal scheme by which a person wishing to claim adverse possession of registered land would need to continuously occupy the land for ten years, or for a period of twelve years if the land is unregistered. Pirate Cinema accurately describes the adverse possession law, although the youth’s rigid interpretation of notice provisions and continuous occupation are likely overstated. Just as importantly, when the pub’s new owner appears, destroying the adverse possession claim, Trent readily yields to the new owner, apparently acknowledging both the new owner’s claim in law and the natural rights principle that although he could claim property from the commons, he could not claim property owned by another. Once again, the contrast presented suggests our laws and culture give high regard to real property rights in some circumstances and less regard in other circumstances such as when the property is abandoned and can be put to better use.
C. Abstraction of Electricity
In a third property-like scenario, the pub’s power is originally restored by Dodger, Jem’s friend who bypasses the meter. Not long after, the authorities forcibly remove the residents of Zeroday for “abstraction electricity”. Electricity is not property in the UK and cannot therefore be stolen. See the Crown Prosecution Service citing Low v. Blease Crim L.R. 513 (1975). However, under section 13 of the Theft Act 1968, electricity used without due authority, or dishonestly wasted or diverted is charged with the offense of abstracting electricity. Trent and the inhabitants of Zeroday unwillingly recognize this authority, vacating Zeroday as punishment for this crime. Later, when they wish to re-habit the pub, the youths avoid this problem by installing a pay as you go service. Consistent with the “duty to serve” notion, so long as the youths pay for their service the utility did not deny them service even though they do not own the property. The contrast presented here is not in conflicting views of the law, but in that Trent does reluctantly but willingly commit the crime, and then agrees with the terms of service and his obligation to pay for services. Trent acknowledges his needs alone do not justify theft, or abstraction, of what is rightfully “owned” by another.
So now our table is set; we have before us examples of when property rights systems work, and when they don’t. We have examples of when it is right to acknowledge the rights of an owner and when we should question the scope of the powers conferred by those property rights. Is internet access more like electricity we should be hesitant to withhold, or is it more like tangible or real property where theft laws are rigorously enforced? Are downloaded clips more like real and tangible property in which we consistently recognize broad rights of owners, or discards from the skips where society implicitly or explicitly accepts that in spite of laws to the contrary, we restrain our enforcement of owner rights in favor of more effective ways of meeting human needs?
Pirate Cinema does not answer these questions for us. It urges us to appreciate our own responsibility in defining property rights and systems of crime and punishment that meet human needs, including and most dearly the human need to create. More than anything, the tale urges us to decide, and to learn about the law and regulation being created to regulate society, and take an active part in how those laws are made.