Another Look At The 'Does File Sharing Equal Stealing?' Question
from the more-than-just-a-semantic-argument dept
Jon Healy, whose writing for the LA Times I admire quite a bit, has written up a very balanced discussion concerning whether or not file sharing equals theft. He links to some of my writings on the subject, as well as pointing to the views of two Nobel Prize winning economists, F.A. Hayek and Milton Friedman, who both point out that copyright is not property, and treating it as such causes problems. He then presents the entertainment industry’s view, which (of course) is that copyright is no different than traditional property. Then he brings in legal scholar Mark Lemley (of whose work I’m also a fan) who tries to bridge the gap by noting that copyright isn’t property, but that infringing it “is wrong, and should be punished.” However, Lemley also points out that most people recognize copyright isn’t traditional property, and the entertainment industry’s insistence that they’re the same works against the industry, as most people recognize immediately that this argument is false, taking away credibility.
Healy comes out on the balanced side himself, suggesting that infringement is close enough to theft. He does so by comparing it to “theft of service” for cable companies, and noting that “you’re still acquiring something of value without paying for it, and you’re doing it without the seller’s permission.” This is a commonly used argument, and seems reasonable at a first pass, but I’d like to address why it’s incorrect. Just because you acquire something of value for free (and without the original seller’s permission) it doesn’t automatically make it “theft.” Let’s run through some examples:
- I go to the pizza shop and they offer me a free soda with two slices. The soda has value, but I just got it for free, and did so without Coca-Cola granting permission. I don’t think anyone would claim this is stealing or even wrong or immoral.
- My friend lets me borrow a book, which I read. The book has value. I got it for free, without the permission of the book author or publisher.
- I get on a train and pick up the newspaper that a passenger left behind. The newspaper has value. I got it for free, without the newspaper company granting permission. I don’t think anyone would claim that’s stealing.
- I go to the beach. The people sitting next to me are playing music on their stereo, that I can hear. The music has value, but I just got it for free, without the permission of the record label.
- I go see “Shakespeare in the Park.” I get to see something of great value for free, without permission of William Shakespeare.
- Verizon sees that Sprint is going to announce an “all you can eat plan” and decides to introduce its own similar plan. Verizon got that idea for a bundle from Sprint for “free” and certainly without Sprint’s permission. Yet, we call that competition, not stealing.
You can come up with your own examples. Now I’m sure people will start picking apart each of these examples. They’ll say things like in the pizza/soda example, the pizza shop has implicit permission to resell the soda at any price they deem reasonable, since they paid for it in the first place. But, if that’s the case, then we have another problem for those who claim that copyright is real property — because the same thing isn’t true with copyrighted material. Those who insist that copyright is the same as real property break their own rule by also insisting that they retain perpetual rights to the good, even after it’s been sold. If copyright were like real property, after the creator sold it, the buyer could do whatever they want with it, including giving it out for free. Yet, it clearly is not like that. Coca-Cola sold soda to the pizza shop and the pizza shop can do whatever they want with it, including giving it out for free. So, if the entertainment industry wants to keep insisting that copyright is just like real property, and therefore infringement is theft, then they should also agree to let anyone who has bought their works do whatever they want with them, including give them away for free.
In fact, each “but, this is different because” explanation for the examples above can easily be turned around to prove the point that copyright is different than real property — because it applies the same rules differently and deals with fundamentally different types of goods or services. What it really comes down to, yet again, is that this is a business model problem. For years, an industry that relied on artificial scarcity is discovering that it’s hard to keep that artificial barrier in place. It can’t pretend something is scarce when it’s really infinite — and trying to limit it will only backfire in the long run. What you need to do, instead, is figure out new business models that embrace the infinite nature of the goods, and focus on selling additional scarce goods, preferably additional scarce goods that are made even more valuable by freeing up the infinite good.
Filed Under: copyright, file sharing, property, theft
Comments on “Another Look At The 'Does File Sharing Equal Stealing?' Question”
Look at it this way
The distinction about how copyright holders want to protect their content just like physical property (by forcing an artificial scarcity) yet they demand extra protection that physical property doesn’t support (i.e. not being able to resell, or double-dipping) is an interesting point.
Copyright holders need to recognize that intellectual property is a different beast than physical property. And as such it must be treated differently. You don’t get to pick and choose the parts that you like of different systems (claim it is stealing like physical property, yet expect the rights to the goods to persist past the point of sale). It must be one or the other, and by trying to take the best of both worlds, copyright holders are clearly showing their distaste for the rights of the consumer.
Re: Look at it this way
Too many copyright holders forget that the purpose of copyright law is to protect them from plagiarism. Musicians, movie makers, writers, et. al. have the legal recourse to deal with someone who is building their reputation as an artist (content producer) on someone else’s art.
IOW, I can’t take a bunch of songs written by someone else, claim to have written them, and then sell my services as a song writer based on the merits of songs I didn’t write.
THAT is what copyright law is intended to protect against.
Re: Re: Look at it this way
Too many copyright holders forget that the purpose of copyright law is to protect them from plagiarism.
Actually, that’s not true at all. Copyright has nothing to do with plagiarism. It was intended solely as incentive for creation.
THAT is what copyright law is intended to protect against.
No. That’s simply false.
Re: Re: Re: Look at it this way
Actually we’re both wrong. While it was intended to protect from plagiarism by granting the creator the right to be credited, it’s intent did admittedly have a wider scope.
Perception
Part of the problem is the way that perception of copyright has been changed over the years by businesses to mean what ever they want it to mean.
The rise of ‘rights of the individual’ also conflicts with the original purpose of copyright as an incentive for innovation, as people see it as an intrinsic right of ownership for what they’ve created for all time (ie, the musicans lobbying groups in the UK right now).
It is stealing
The above examples have a predetermined shelf life. For example the pizza will either spoil or get ate; then you have to buy more. The point is that the above mentioned companies will get paid for one more use of their product. All the people that want free file sharing; where do you think we would be at technology wise today if the companies were not allowed to copyright their products and make money? They in turn invest in more R&D and come up with the technology that we are using to blog today.
Re: It is stealing
IP doesn’t have a shelf life — unless you count the expiration of patents or copyrights. Artificial scarcity, mentioned in the post, is what those two forms of protection are all about.
Michael, if your position was air-tight, where would non-monetized innovation come from?
Two words: open source.
Clearly, the model to bring innovation to market is more complex than comparing TV shows or software to pizza.
Re: Re: It is stealing
Tom, Please tell me some revolutionary non-monetized innovation in this century. The free content argument amounts to Marxists/Communist thinking. You take away the ability of people to reap the just due rewards of their work, then they either quit doing it or do it a very low level. That is why every communist economy has failed.
Re: Re: Re: It is stealing
But what Tom points to, I gether, is Open Source Software, all those neat applications like Firefox and Apache and, hell, the whole Linux operating system(s) which were put together by people in their spare time, without pay or other compensation. People often do things because they can and because they care to without monetary incentives. Are you being PAID to comment here on Techdirt?
Yes, being able to make money on things does, sometimes, help move things along. It can also hinder progress, though, when buggy-whip makers feel challenged by new technologies. Even in the absence of monetary incentives, though, some progress will happen. And a savvy businessman will find a way to make money, regardless of the environment and materials he has to work with.
Re: Re: Re:2 It is stealing
To Some Guy’s point: two thing; firt these companies are not doing anything new or revolutionary. Operating systems and internet browsers have been around for a long time and more importantly the technology that made them possible was made a long time ago. Second I am not being paid to comment on Techdirt, but this is not my job. It also does not occupy much of my time. Designing software and writing music is a more than a fulltime job. While I agree that the laws need to be updated to deal with the new technology, it is still stealing. Yes I recorded music on a cassette tape, but it was never a very good sounding copy, even with the best cassette tape and recorder you could buy; it was not commercial quality. That is why the industry never complained about that, because you could not get a very good copy. I agree with Chris that it is sad that people want to justify their own actions because they do not like the consequences. We all know that some things are inherently wrong. We may not know the precise law that covers it or be able to quote it; but we still know it is wrong. Chris is right it is a sad comentary on society that they think it is ok to steal. Remember the wise justice who said I cannot define pornography, but I know it when I see it. Most honest people know stealing when they see it. Just because everybody is doing it or wants to do it does not make it right.
Re: Re: Re:3 It is stealing
First: Firefox had tabbed browsing years before IE. A lot of what is fascinatingly ‘new’ in Vista’s Aero was around in Linux quite a while ago, too. If you’d like to argue that isn’t innovation, we have a fatal obstacle to communication. The Car has been around for a relatively long time, but would you argue that a 2008 Ford has no innovation over the Modle-T?
You reiterate my point: you do things which are not your job. You choose to add content, your comments here, with no monetary incentive. Presumably, you feel passionate about this, and that leads to action. I argue similar passions will lead to similar actions which will produce software, music, stories, movies, and so on. The argument that innovation and content end in the face of removing copyright fails.
“it was not commercial quality. That is why the industry never complained about that, because you could not get a very good copy”
You argue that the reason the *AAs are upset is that now the technology threatens their business model. If filesharing is wrong, then mixtapes were wrong; or else, their is something else behind these allegations other than the rights they claim they have. I submit that it is the latter.
You quote your judge and call him wise; I quote him and call him a buffoon. Such judgment calls may be acceptable in private life between individuals, or in philosophical discussions, but they ought have no place in law. If you can’t define it, you ought not legislate it, lest enforcement become arbitrary and meaningless.
Finally, I submit that while everyone recognizes and admits that stealing is wrong, the same can not be said about copyright infringment. Some people plainly argue that this infringmrnt in itself is not wrong, rather it is decided to be wrong by the whim of self-interested parties.
Re: Re: Re:3 It is stealing
“Yes I recorded music on a cassette tape, but it was never a very good sounding copy, even with the best cassette tape and recorder you could buy; it was not commercial quality. That is why the industry never complained about that, because you could not get a very good copy”
If that is so then you still have the same argument for downloading mp3s they are not studio quality listening side to side I can tell the quality differences between 190k and 320k and an original cd.
Re: Re: Re: It is stealing
The reason every “communist” system has failed is because they were typically monarchies or oligarchies claimed as “communist” in nature and that actually studying up on the subject, the communist theory of human social/economic development does not support the concept of a massive government or wide public controls. Quite the contrary actually, go do some research before opening your mouth.
Re: Re: Re:2 It is stealing
Alimas, are you a communist? If you really want to talk about what Karl Marx’s objective was; it was totally equality and the breakdown of the class structure. In other words he wanted to cure the human condition. The problem with communism is that it steals from the productive and gives to the non productive. While I admire the goal that Marx had, he should have realized that you cannot cure the human condition. There are always going to be winners and losers; hard working and lazy; smart and dumb; popular and nerds. That is life. And stealing is stealing no matter what loophole you try find.
Re: Re: Re:3 It is stealing
“The problem with communism is that it steals from the productive and gives to the non productive. … And stealing is stealing no matter what loophole you try find.”
This is, of course, wholly-different from graduated income taxes supporting welfare social programs.
Re: Re: Re:4 It is stealing
Anonymous Coward, I think you are right on; even if you may disagree with me. There does not seem to be a lot of difference in the two.
This is, of course, wholly-different from graduated income taxes supporting welfare social programs
Re: Re: Re:5 It is stealing
So, wait, now I’m confused. ld you say we’re a democracy or a communism?
Re: Re: Re: It is stealing
The free content argument amounts to Marxists/Communist thinking.
Michael, I’m curious how you can say that getting rid of a centralized, planned subsidy (copyright/patents) and replacing it with a free market where price is set by the marketplace is more communist than what we have now. Perhaps you can explain?
You take away the ability of people to reap the just due rewards of their work, then they either quit doing it or do it a very low level.
There’s a huge fallacy in this statement. You seem to incorrectly believe that the ONLY way to “reap the just due rewards of their work” is through copyright. That’s easily proven false. There are many methods by which someone can make money without copyright — and history has shown that to be the case. History has also shown that you claim that people only work at a “very low level” without copyright is simply false. In fact, there is some evidence that the opposite is true. The case of Guisseppe Verdi is a good one. He lived in times both with copyright and without. When there was no copyright, he produced a lot more work, knowing he had to keep producing to get paid. Once copyright was in place, he slowed down, knowing he could rest on his laurels and get paid for his older works.
That would seem to show the opposite of what you claim. There are plenty of other examples along those lines as well, but if you are going to make claims so easily disprovable, it’s hard to take what you say seriously.
Re: It is stealing
The above examples have a predetermined shelf life
Can you point out where in the law “shelf-life” has anything to do with theft?
where do you think we would be at technology wise today if the companies were not allowed to copyright their products and make money?
As has been pointed out, repeatedly, there are tons of examples of companies making plenty of money by not relying on copyright or patents. Historically, too, countries that removed patent laws tended to speed up their industrialization. This suggests your theory that without these things there’s no way to make money is false.
They in turn invest in more R&D and come up with the technology that we are using to blog today.
Can you tell me what patent helped create blogs?
Re: Re: It is stealing
Mike you miss the larger point. First the industrial revolution was a very long time ago. Second I do know what specific patent enables to me to blog today, and I doubt there is just one that is resposible. While I think most people hate Microsoft, I think they have done for the world economy in the last 20 years than anyone. They take the money they make and inevest in R&D as well as put money in their own bank accounts and their workers bank accounts. What if they had quit with Windows 95? Of even DOS? If some companies want to give their products away that is their choice, but that does not make it everyones choice. People hate the big drug companies, but it is the 10 ten thousand Viagra commericals that we have to endure that help to pay for cancer and alzheimer medication and research.
Re: Re: Re: It is stealing
Mike you miss the larger point.
Which would be?
First the industrial revolution was a very long time ago
What does that have to do with anything? Do you believe the fundamental laws of economics have changes since then? Do you believe that the fundamental motivations of the marketplace have changed since then? If the lack of IP sped up innovation then, why would that not apply now?
Second I do know what specific patent enables to me to blog today, and I doubt there is just one that is resposible.
You were the one who suggested that it was patents that made it possible to blog. I’m asking for proof.
While I think most people hate Microsoft, I think they have done for the world economy in the last 20 years than anyone.
I agree that Microsoft has done the world economy tremendous good. I’m not sure what that has to do with the point.
They take the money they make and inevest in R&D as well as put money in their own bank accounts and their workers bank accounts.
Yes. But you could say the same thing for lots of companies. You could say it for the mercantilists of old Europe who believed that monopolies were best for the economy.
What if they had quit with Windows 95? Of even DOS?
But why would they have done that? Especially if they could make more money by continuing to innovate?
If some companies want to give their products away that is their choice, but that does not make it everyones choice.
Nor have I said it was everyone’s choice to make. I am merely pointing out that theft and infringement are different — and that if you understand how economics works, you can do better by *choosing* to give away products. I am not saying it’s ok to take anyone else’s product.
People hate the big drug companies, but it is the 10 ten thousand Viagra commericals that we have to endure that help to pay for cancer and alzheimer medication and research.
This is simply false, but it’s a good myth. Read some Merrill Goozner’s research to get an idea of why this is a lie told by the pharma companies.
Re: Re: Re: It is stealing
Microsoft did not invent DOS some one else did then then the new processors came out DOS would not run on it and a guy reprogrammed DOS to work making QDOS this was purchased by and then renamed MS-DOS
Re: Copyrighting != make money
Copyrighting does not mean you make money. You can make money from content that does not have copyright, such as fashion, the food recipes and ambiance at a restaurant, creative commons licensed books and music, or any other commercial execution of an idea.
Copyrighting content and then making money from is is an opportunity and a business model both together and apart.
Just becuase the content industry copyrights content and makes money from it does not mean they get to enforce their business model by law. Of course, if they have money to make this law, then we have a fight on our hands: corporations vs. consumers.
People are willing to pay for content, others are not. The ones that are not will get it for free, and these are simply lost business opportunities, not criminals. Just because a consumer can get something for free does not mean that all of them will go for the free alternative. You, as a content producer selling content, need to compete with free to win these customers, or just give up, save money on lawyers, and be happier that you as a content creator no longer need to worry about this. Copyright law will prosecute pirates when it is feasible (plagiarism, aka hijacking attribution, and pirating knock-off physical goods that are of lower quality that violate trademark).
Ideas are worthless unless you can execute on them (make something or make something happen), and they cannot be owned.
All content is automatically has copyright (like this comment) unless the author gives up specific rights under license such as Creative Commons, and it does not mean I make money from it. You are reading my opinion for free? Why? Because they are so ubiquitous, everybody has them. It cost me only 10 min of my time, and becuase I want you to read it.
Absurdly weak examples.
Before I take my turn picking apart your absurd examples, let me first state that one little thing you leave out of your post, though an important thing, is 17 USC Section 106, or Section 106 of the Copyright Act. You should read it.
Now, to your examples, as illuminated by Section 106:
1. The soda, the book, and the paper. According to the Copyright Act, copyright exhausts in any single copy. Therefore, one who owns a copy of a copyrighted work may do must about anything with that copy…including give it away, sell it, or abandon it. What one may not do is give away a copy of the work while retaining the original.
2. The music at the beach. Very technically, those people are violating the performance right of the copyright holder. So your example fails because there is a violation…just one that nobody is going to complain about.
3. Shakespeare. In the public domain. If you see another type of performance that is not in the public domain, a performance license should have been paid.
4. Ideas are protectable, if at all, in patent. If there is insufficient novelty, then Verizon may copy all it wants. On the other hand, if there were sufficient novelty and Sprint protected the idea, Verizon would find itself in a lawsuit.
People who do not understand intellectual property law should just stop embarrassing themselves by posting nonsense like what you have posted. Seriously. Please stop.
Re: Absurdly weak examples.
You know… back when patent law made sense you couldn’t patent ideas. Because… that is not what a patent is for. At all.
http://www.uspto.gov/web/offices/pac/doc/general/index.html#patent
“Interpretations of the statute by the courts have defined the limits of the field of subject matter that can be patented, thus it has been held that the laws of nature, physical phenomena, and abstract ideas are not patentable subject matter. “
/end
Re: Absurdly weak examples.
see, here’s the problem with everything you say here, #2 sums it up.
Nobody is going to complain = nobody can complain (of course there are rare exceptions) . Take this further down the road = unenforceable, take that further down the road = not valid. Guess what that says about copyright if its determined not valid? Think the terms might be inappropriate?
Re: Absurdly weak examples.
Though your examples are excellent ones – I assume you have some legal education – I believe that you are actually ignorant to the fundamental tenets of discussion and free thought. How would you have fared had your professors treated you the same way you treat the author? ‘Stop embarrassing yourself,’ indeed.
Intellectual property and copyright law – and most legislation – is not naturally apparent nor easily understood simply by reading the code. Were it so, we’d have no need for lawyers. However the ‘discussion’ by those who ‘do not understand’ is vital to the evolution of said code. Do not scoff at those who are attempting understand these nebulous concepts. Socrates frowns on you, sir.
While your examples seem to be inline with section 106, you must concede that the law is not perfect. That is why we are able to change it. The core of the article is the attempt to illustrate the irony entertainment industry’s claims based on real property law – a good starting point – while expanding that illustration to include the infinite nature and simple reproduction of intellectual property. Your comment and argument show that you did not understand the purpose of the article.
Re: Re: Absurdly weak examples.
While the law may not be perfect, it is what it is. To suggest that section 106 rights don’t exist because one doesn’t like them is silly. If the discussion is to be one of changing existing law, then lets start there. This particular post, and many like it before (and presumably many more like it later) start from a position of ignorance (willful or otherwise) regarding the rights of others in their intellectual property.
These posts are almost always very juvenile and oriented around how the writer wants the world to exist to make the writer’s life happier. Very me-oriented and quite selfish.
Re: Re: Re: Absurdly weak examples.
“Very me-oriented and quite selfish.”
Which is very unlike the *AAs, who are thoughtful, caring, and only want the best for all involved.
The fact stands that what the law does say and what the law ought to say may very well be quite different. Mike often refers to the original intent of Copyright and Patent — to encourage the production of new content and innovation — and then proceeds to point out how the current codes violate that intent; thus, what is law says is not what it OUGHT to say. Thus, it must change. Pointing out what the law DOES say when the discussion is about what it SHOULD say is… tangential at best.
Re: Re: Re: Absurdly weak examples.
“This particular post, and many like it before (and presumably many more like it later) start from a position of ignorance (willful or otherwise) regarding the rights of others in their intellectual property.”
You are continuing to ignore the point. You are stating that infringement is the same thing as theft with no reasoning or evidence. You posted examples of possible infringement as if that somehow proved your point. It doesn’t.
Where is your rational for equivalency of intellectual property and physical property? You are assuming that since I don’t think they’re the same that somehow that means I believe IP doesn’t exist. Wrong again.
If you don’t understand what’s being discussed, then maybe you shouldn’t post.
“‘Idea’ is simply a holder term”
You’re mucking up terminology in a discussion concerning intellectual property?
Re: Absurdly weak examples.
“Ideas are protectable, if at all, in patent.”
You can’t patent an idea. You can patent an implementation or expression of that idea. So you assertion that ideas are “protectable” is false.
Your picking apart of the examples and showing infringement possibilities simply shows that you either ignored or misread the rest of the article. Where is your evidence that equates infringement with theft? You haven’t provided any.
“People who do not understand intellectual property law should just stop embarrassing themselves by posting nonsense like what you have posted. Seriously. Please stop.”
This is simply laughable. You haven’t actually countered any of Mike’s points, and completely ignored the premise of the article. Maybe you should stop embarrassing yourself.
Re: Re: Absurdly weak examples.
>>
>>You can’t patent an idea. You can patent an implementation
>>or expression of that idea. So you assertion that ideas are
>>”protectable” is false.
>>
The example cited is a business method (ie, not a tangible product). “Idea” is simply a holder term. If you like, substitute “business methods” where ever I put idea.
Re: Absurdly weak examples.
Cygnus, thanks for missing the point. Jon brought up a 3 prong test for “theft.” The point of my post was to prove those 3 prongs not accurate.
Those 3 prongs: (1) you got it for free (2) it had value (3) you didn’t have permission of the original owner.
So, yes, there were additional factors in each example, but that wasn’t the point.
Before I take my turn picking apart your absurd examples,
Heh. It appears you made it to the examples, but missed the following paragraphs. Yes, you can pick apart each example, in the same way you can pick apart the claim that copyright is property. But each time you pick apart the example, you show how property and copyright are different. So thank you for proving my point.
let me first state that one little thing you leave out of your post, though an important thing, is 17 USC Section 106, or Section 106 of the Copyright Act. You should read it.
I’ve read it. Plenty of times.
1. The soda, the book, and the paper. According to the Copyright Act, copyright exhausts in any single copy. Therefore, one who owns a copy of a copyrighted work may do must about anything with that copy…including give it away, sell it, or abandon it. What one may not do is give away a copy of the work while retaining the original.
However, it does still prove that the 3 prongs of Jon’s argument are incorrect, and also shows a difference between copyright and property. So, it does prove my point, aided by you. Thanks.
2. The music at the beach. Very technically, those people are violating the performance right of the copyright holder. So your example fails because there is a violation…just one that nobody is going to complain about.
Again, proves my point on the difference between copyright and property, and while it is a violation of performance rights — people do not consider that theft. Thanks.
3. Shakespeare. In the public domain. If you see another type of performance that is not in the public domain, a performance license should have been paid.
Again, shows the 3 prongs are not sufficient, and shows the difference between copyright and real property.
4. Ideas are protectable, if at all, in patent. If there is insufficient novelty, then Verizon may copy all it wants. On the other hand, if there were sufficient novelty and Sprint protected the idea, Verizon would find itself in a lawsuit.
Once again, shows the 3 prongs are not sufficient as a rule for “theft” and also shows the difference (novelty is necessary) between IP and real property.
Again, you have proven my point. Thanks.
People who do not understand intellectual property law should just stop embarrassing themselves by posting nonsense like what you have posted. Seriously. Please stop.
People who do not understand how to read what is actually being talked about and assume I’m saying something I’m not are free to say whatever they want — but I will point out where they are wrong. As you are.
The examples don’t fit. There are too many reasons why. Maybe it all comes down to the basic fallacy that there is some magical thing called “property”: there isn’t — only property rights.
Still, one basic error that runs through the examples can be summarized very concisely: the difference between selling what you have and, well, reproducing it.
The pizza, the book, the newspaper are physical things. You bought them. You have them. You can lend them or give them or resell them or whatever else you like. (Cyrus: that’s why this isn’t about “extra” protection.)
As for playing music for the public at the beach, being part of the audience for actors’ performance of a director’s staging of one of Shakespeare’s scripts, and using an idea that a competitor has expressed … I guess that acting as the beach DJ, selling videos of the performance, or reprinting the competitor’s brochures might not work so well.
A Fable
Once upon a time, a long time ago, there was a very rich man who liked to whistle. He was actually very good at it, and would make up elaborate tunes that he would whistle as he strolled through town with his bodyguards. One day, he heard a shopkeeper whistling, and realized the song was one of his, the rich man’s, tunes.
This outraged the rich man. His creations belonged to him and only him, he decided. If someone else wanted to whistle them, they would have to pay him a fee. When confronted with this demand, the shopkeeper merely laughed and kept on whistling. And so the rich man ordered his bodyguards to beat the shopkeeper, smashing his face until his lips were so bruised and torn that whistling was impossible.
As it turned out, this shopkeeper was not the only person in town who liked whistling tunes that the rich man had composed. Whenever the rich man heard other people engaging in such unauthorized whistling, he would send his bodyguards after them. But of course there were too many people in this town for such a strategy to be widely effective. The offensive whistling continued more or less unabated.
But being a clever fellow, the rich man realized there were better ways to go about enforcing his will. He went to the town council and suggested that tunes created by any individual should be legally protected. If someone was caught whistling someone else’s tune, the town constable and his deputies should force that person to pay the tune’s originator a fee.
When the town council wondered, quite reasonably, why they should spend public time, money, and manpower on such a trivial matter, the rich man had a very reasonable answer. He invited the entire town council to a lavish banquet at his mansion, plied them with fine foods and rare wines, and then explained his thoughts:
Didn’t they like listening to whistled tunes? Didn’t they want to encourage the creation of as many tunes as possible? Further, didn’t they want town trade to prosper from the legal sales of a new items, such as whistled tunes?
Well, of course the town council wanted all of these things. And the rich man’s arguments seemed all the more reasonable for having been presented after a splendid meal and excellent drink. The council members immediately held an impromptu meeting and voted in a new law exactly as the rich man had proposed.
And while the rich man would’ve preferred that everyone lived happily ever after at this point (and always told the story that way), this was not the case. Every time someone was beaten and fined by the constable’s deputies for whistling an unauthorized tune, town citizens began to dislike both whistling and the rich man just a bit more. Everyone became very aware of what they were whistling and who was listening to them, and so whistling — all whistling, authorized and unauthorized — occurred more rarely, only quietly, and usually in private.
When the rich man noticed the relative lack of whistling in the town’s streets, he began to suspect something dishonest. He sent his bodyguards out in disguise to spy on citizens, and discovered the covert unauthorized whistling, both of his tunes and possibly other people’s tunes. Clearly this was a serious problem, and so he persuaded the town council to work even harder to enforce the laws that they had created. New deputies were hired and sent out in disguise to punish unauthorized whistling.
Eventually, townspeople stopped whistling altogether. Instead, they started to hum tunes. The rich man heard this newfangled music-making and was outraged.
And the whole story happened again, and again, and again.
Re: A Fable
I think this fable does a really good job at pointing out something that is at the heart of the ongoing debate over intellectual property, which is that much of it comes down to (I really can’t think of a less goofy way to say it) “the kind of world we want to live in.”
There are clearly some people who think the most important thing is to protect, by any means necessary, the “rights” of content creators to keep other people from using their creations unless the users first give them money. Other people think that it’s more important to allow, and even encourage, users to find ways to distribute as widely as possible, and even expand on, the original content, especially if such distribution can be done easily and cheaply.
Those in the first camp seem convinced that if their intellectual property “rights” aren’t enforced in much the same way as they’ve been enforced in the recent past (at least in the US), then content creators will stop creating content (and not only that, but that “it just wouldn’t be fair”). Those in the second camp seem equally convinced that while the world will certainly look different under their model, artists and others will continue to create content, and that in fact the world will be a much nicer place for all of us to live in.
Let me preface this by saying I am not partial to either camp.
But the only flaw I see with equating ‘files’ to real property is that, real property is a ‘one-time’ use thing. Pizza or Soda once it is ate or drank it is gone. A television set once you give it to some one, you can no longer benifit from it. With files, you can retain the file and copy it to your hearts content. Imagine if that were true with other stuff. You go to your local convience store and purchase a single bottle of soda, and then walk outside and duplicate it into a six pack to share with your friends, boy that would realy piss off the soda manufacture. Essientially if this was true with tangible goods, you would only ever need to purchase one bottle of soda your entire life.
I guess what they are trying to do is have thier infinite non-tangible goods have the same rights as a finite tangible good.
And yes, it would be absolutely silly if I got fined for letting my friend have a sip of my soda, or taking a bite of my slice of pizza.
The whole matter really boils down to the fact that we as a people can not be trusted to buy a digital copy of anything without the temptation of wanting to share it with others.
There is no simple solution to this, other then we as a society just need to be more trustworthy. If I buy a digital copy of something, I just need to keep it to myself.
But so many problems exist, If a person really wanted to, they could get all thier songs for free. Just by recording them all of the radio. Time consuming it would be, but according to how the laws are set up, it would be legally free.
This battle will not have any clear winners ever, and many, many people will suffer in the mean time.
just my ramblings…..
Disparishun makes an excellent point. There is nothing magical about a physical object that makes it any different than an intangible “object” in terms of ownership.
For example, simply because a car is a physical object that can be owned, doesn’t mean that someone else can’t hop in and drive it away. There is nothing special about the car being a physical object owned by a person that prevents its theft. Rather, there are rights associated with ownership of the car and those rights are enforceable against any other person. The same holds true with intangible property. The nature of the rights may be different, but they are still enforceable.
Re: Re:
“There is nothing magical about a physical object that makes it any different than an intangible “object” in terms of ownership.”
You’re right. In terms of ownership, it doesn’t matter. When a thief steals your car, you still own the car, you just don’t have possession of it anymore. Therefore, the car has been stolen.
When someone pirates a copy of software, the owner of the software retains both ownership and possession. In this case, the software has not been stolen, since the owner retains possession. Infringement, however, did occur, because the owner’s rights were violated.
Stop assuming that everyone arguing against you believes the owner of IP suddenly has no rights. It’s unfounded and foolish on your part.
The "difference" with copyright
The main difference with copyright and your examples is that copyrighted works are “easily copied”. Hence the term copy right. The original intent was to protect the content from being copied without right. Fair use is one right. Sharing songs that you purchased – copying them – violates copyright. I don’t think there is any argument there. The argument comes in what the penalty should be and if technology has outpaced copyright. It is plainly too EASY to copy these things. A new business model is the solution.
Re: The "difference" with copyright
I think you nailed a big piece of it: “It is plainly too EASY to copy these things.” And if it’s easy and seems harmless to everyone, people most likely going to do it regardless of the law. It the similar to jaywalking across a small street with no cars coming and no one else around, or driving past the speed limit on a 6-lane highway with no traffic.
Re: Re: Theft of the Consumers Property Rights
Given that => “It is plainly too EASY to copy these things.”
In theory, we live in a “Free Market” system. There is no guarantee that you as a creator of content can derive revenue from your product. If technology makes reproduction essentially a zero cost operation that’s the way it goes. Welcome to capitalism.
While the creator of content may assert property ownership, we are also missing a critical point in this copyright analysis. That is that the copyright owner has an alleged right to “protect” his/her content by increasingly depriving the consumer of his/her right to fair use. This is a violation of due process. The copyright holder does not have the right to deprive the consumer of fair use. This theft of the Consumers property rights.
The examples posted by Mike point to how “slippery slope” this discussion has become. When we have these slippery slope discussions it is a clear reflection that the concepts of patents and copyright are opaque and broken and are in need of revision.
Re: Re: Re: Theft of the Consumers Property Rights
As much as I hate the MPAA/RIAA and their ilk and how they constantly call Copyright Infringement stealing, I have to say that you don’t have any RIGHT to Fair Use. Fair Use is a set of wickets that can allow you to violate copy rights.
In an easier to understand example, Self Defense is an allowed violation of Murder. That doesn’t mean you have the RIGHT to kill people, it just means that if you commit murder, but it was in self defense, you are allowed to go free.
What the aforementioned ilk are trying to do is remove Fair Use (slowly but surely) which is, in my opinion, bad– but not a violation of anyone’s rights.
Re: Re: Re:2 Theft of the Consumers Property Rights
Fair use is not theft, so we will have to disagree.
Here is my counter slippery slope example:
If I buy a book I can read it at anytime, I can read it anywhere assuming that I have light and when I am done, I can sell/give it away.
Copyright owners are now asserting that I do not have a right to view content at any time, they assert that time shifting is illegal. Content owners say that I can’t watch a DVD bought in the US in Europe. Content owners now claim that I don’t have a right a sell/give away my legally acquired content. These are all a diminution of my historic rights to use the product as I wish.
Copyright used to be limited to a limited period of time and to limited content when originally established as long. Now it has expanded in time and scope before it falls into the public domain. While this isn’t technically theft by the content producer, it does represent a aggrandizement by the content owners to claim rights that they did not posses and to further increase draconian restrictions on the consumer.
Also how do you address the fact that content producers now claim that they have a “right” to trespass onto your computer to make a unilateral declaration on whether you are violation of their draconian restriction. Remember the Sony rootkit debacle???
These are all deprivations of the consumers fair use, hence theft of the consumers property. Theft can be a two way street.
Re: Re: Re:2 Theft of the Consumers Property Rights
Fair use is defined in law as exemptions to copyright, i.e. uses where copyright law does not apply, not allowed violations.
Careful with use of the term "real property"
INAL, but the term “real property” has a pretty specific legal meaning (land, buildings … real estate) as I remember it from my business law class.
http://en.wikipedia.org/wiki/Real_property
Perhaps a better term would be “actual property”, or the other legal term “personal property”.
I don’t mean to be pedantic, but in the discussion of legal rights, I think we need to agree on meaning.
Re:Absurdly weak examples. by Cygnus
While I do not always agree with what Mike has to say, I do agree in principle here with his examples. If we take your counter arguments one at a time.
“1. The soda, the book, and the paper.”
I agree, I own “a single copy” of the work. However, why should I not, for example leave that original copy in a safe, and play the music on my IPOD? The RIAA would love to “require that I must purchase another copy, for each device I play the music on. Why not, as well claim that I have a different CD for each CD player I use? And when I am done with the music “AS LONG AS I DELETE ALL COPIES” can I not sell the original to someone else. M$ for example restricts how many times I can completely upgrade to new hardware, without checking with them. Even if I honestly wipe the old HD every time. The manufacturer of a video tape does not demand I buy a new tape, ever time I get a new player.
“2. Music on the Beach” The NFL restricts how big a TV can be used to watch that stupid game at the end of the season, and how many people can watch it, despite that fact that those same people:
a)See all the commercials, just like the would in there own homes.
b)Could all watch the game on enormous sets at home (if they all owned them).
Basically, I should be able to play a radio or TV as loud as I please, for my own enjoyment, and without regard to who else sees it. I should not be required to add sound deadening just so the neighbors can’t hear.
“3. Shakespeare. ” The point here is that at the rate copyright is expanding, were are lucky Shakespeare is in public domain. I keep expecting Coke to demand a cut from ever Salvation Army Santa, since they dress up in a coke advertising costume.
“4. Ideas are protectable” Ya, patents are a good example, We are back to Santa, and how wish-lists are patented.
From what I can see, yes people deserve reward for there ideas, and work. No question. But that reward needs to reasonable, and of a fixed duration. Mickey Mouse is way past reasonable.
Re: Re:Absurdly weak examples. by Cygnus
Let’s put aside what the RIAA or Microsoft want. You are absolutely correct that both would like to distort copyright law.
>>
>> why should I not, for example leave that original copy in a
>> safe, and play the music on my IPOD?
>>
You can. That is fair use.
>>
>>And when I am done with the music “AS LONG AS I DELETE ALL
>>COPIES” can I not sell the original to someone else.
>>
Who says? The copyright is exhausted in that one copy. You can resell it so long as you don’t retain a copy. That should be evident by the existence of CD re-sale shops.
>>
>> M$ for example restricts how many times I can completely
>>upgrade to new hardware, without checking with them.
>>
Software is special. If you read your EULA, you’re not buying a copy of the software but, rather, you are buying a license to use the software. The license is a contract between you and the owner and will have varying terms.
>>
>> The NFL restricts…
>>
That is their right as the copyright owner; they are free to license their rights on their terms. The commercials are irrelevant to this discussion.
>>
>> …that at the rate copyright is expanding…
>>
Agreed. The copyright term is ridiculously long. Thank Disney and Congress’ inability to say no to that company for that.
what has been stolen
Nothing has or could be stolen a band go in the studio and record a song that is then released some one puts it on a fileshaer so whats stolen the master is still there the written material is still there nothing has gone the band have a hit No one all over the world. now take away the fileshear still nothing stolen however no hit not number one because people no fileshear people didnt get to hear it like it and buy it.
Mike i totally agree with you as to section 10-6 (whatever that is ) is in US law not all over the world. so next time at least link to where the rest of us world citizens can find it.
Just one thing (cause I could go on about this stuff forever): There is an inherent hypocracy with the way a lot of these laws are written (yes, I have read them). But none of these issues are new or novel (like the recording industry wants you to believe).
For instance, the audio home recording act allows you to make copies of audio recordings (and hand them out to others, like friends and family) so long as it is non-commercial activity. It just doesn’t apply to some digital devices such as computers. Some standalone burners are compliant with the law, and you don’t need to “keep it to yourself”. It was the law for years that you could copy a tape or cassette (or whatever) and give it to a friend. You still can! How is it stealing to copy a CD with a computer, but perfectly legal if you use a samsung cd/dvd recorder? And how is it stealing to copy an Mp3 to a computer, but ok to copy the same Mp3 to tape and hand it out to your hundred closest friends?
“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.” – Thomas Jefferson
Is file-sharing stealing?
This whole issue with file sharing is obviously a complicated one. I am not a lawyer nor do I pretend to be one. Obviously, the old laws are not robust enough to deal with the new technology.
I remember that my friends and I always used to joke about getting busted for recording songs off the radio. Technically it was illegal, but lot’s of kids my age did it when we were young. No one was going to bust us for it. Similarly, when Napster made the big time in the late 90’s, I was fresh out of college and getting all the music I wanted for free off the internet was great. However, the lawsuits started, Napster was shut down, people were prosecuted. It forced me to really look at what music sharing on the internet was.
I evaluated the whole situation and hence forth I no longer download music off the internet. There are all kinds of debates about what the law says or what “technically” violates a copyright and what loop holes you can find. In the end, all these are there to make one feel better about what they are doing, or, in the rare event avoid prosecution. I came to the conclusion that what I was doing was wrong.
If I was the artist that spent my time and intellectual creativity to come up with a form of entertainment that I could make a living off, I would not want people taking my idea and giving it away. Granted, there are artists who don’t care. Ask a band who is barely getting by about what they think. Tell them that they may not be able to travel to the next gig if they don’t sell more albums. Of course when big bands like Korn, Green Day, or Dave Matthews Band say that they don’t care, there are already sitting on a pile of money. Furthermore, what if you were a producer at the company that spent millions of dollars recording an artist only to see all your work being given away by poor college students. Your job may be on the line.
With all that said, I agree that there is a lot greed in the recording industry. It is by the big record companies that are the problem. It’s too bad that the band itself can’t have more control over their art and what becomes of it. I think that CD’s are expensive and too much money is put into the wrong pockets. I think that with the dawn of the internet and file sharing, a more economical approach will come into force. iTunes is on the right track. A small fee for just the music you want. Bands are still able to offer their own stuff for free on their own sites.
Lastly, I don’t have the answer for everything. This whole thing is just my .02. I just think it’s both silly that the the recording industry and it’s lawyers are trying to make the past laws work for this new technology. At the same time, I think it’s sad that so many people don’t see that getting all and any music they want for free is wrong.
“Absurdly weak examples. by Cygnus” You are going way too deep into the examples. The point of the article is to demonstrate that Copyright Law and Property Law are seperate and different. No matter how much the entertainment industry wants it to be one in the same.
but, seriously...
i’m all for lynching the riaa and the mpaa. i think the dmca is the one of the worst (if not *the* worst) laws ever and should be thrown out. still, is there no end to your rationalization for stealing? with all of your legal tanglings and interpretations, you’re just as bad as the enemy. just because there’s legalese on both sides’ arguments, doesn’t change the fact that it’s stealing. at least be honest about it.
I OWN IT!!!
I bought it, I own it! If I am not to distribute (free gift 2 friends), charge me $2 as a “rental fee”!
The problem with several of your examples is that you are twisting the “creator” of the “value item” with the “seller” of the “value item”.
Your pizza shop example is a good example. You claim that the pizza shop gives the coke for free and did so without Coca-Cola’s permission. While Coca-Cola is the creator of the coke being given they are not the seller. Coca-Cola has “sold” their “rights” to that specific drink when they sold or gave it to the pizza shop. At this point it belongs to the pizza shop, not Coke, and they are allowed to do most anything they want with it. This applies to several of your examples.
Despite what the entertainment industry wants it to be, the question of copyright becomes a matter of not whether you can use/dispose of the original that you obtained the rights too (glass of coke, newspaper, book, DVD, CD, etc) but whether you have the rights to duplicate that original and then give away or sell that duplicate.
There is a difference between right of first sale and duplication. Your examples cover right of first sale but not duplication.
The last example (Sprint/Verizon) comes closest but still does not demonstrate your point. If Sprint were to successfully have copyrighted a phrase for the all-you-can-eat and then Verizon copied that phrase then Verizon would have problems.
Really Bad Examples
In all of your points you missed one key ingredient, someone already paid for those products. In the case of the pizza, the pizza shop bought the products from a distributor. In music’s case, the initial product was bought once (or stolen from the artist/label) and copied and distributed. The artist did not get paid for any of the copies. Therein lies the problem. The person got something for free that has value. Music has value. Just because a way exists to get something for free that you normally have to pay for, does not mean it is not stealing. That person STOLE a copy of a song because they did not pay for it. Very Simple.
I am sure that if technology existed to create a copy of a physical object like a car or something, we wouldnt even be having this discussion. If I could walk by a car dealer and create a physical copy of a car rather than buy one, did I still do something illegal? If that were even remotely possible in reality, you bet I did. Sooner or later the law will catch up but until then the theifs that just want to be greedy and get something they want for free will keep trying to justify it.
Re: Really Bad Examples
I no longer download bootleg music off the Internet, not because I give a damn about Sony’s bottom line, but because the potential consequences far outweigh the potential enjoyment derived from bootleg music that I haven’t paid for.
So what do I do instead? I buy the occasional .99 cent song from Itunes, and I buy $1 used music CDs from thrift stores and garage sales. I also check out CDs from the library, copy them to my hard drive for listening on my IPOD at some later date and time, and then I return the CDs to the library.
This last action of mine likely violates some aspect of the copyright laws. I do not share this music with anyone, no file sharing or burning CDs for friends, but I am storing a large number of music files (archiving, in the archaic terms of the copyright laws) on my hard drives, music that I did not pay for, since I borrowed the CDs from the library.
Either way, except for the minimal amount of music buying that I do on Itunes, the music companies and recording artists see no profit from me. So where do I fit into the grand scheme of lawbreakers? Just curious.
Re: Re: Really Bad Examples
I love this. At $0.99 a song.. tell me how much would it cost to legally fill a, oh– I dunno, 60gig iPod? Assuming 150 songs per 1 gig, that’s 9000 songs, so, roughly $9000? Does that seem reasonable to you?
Now, Why do the used CDs cost $1? Could you sell it to a CD store for the $20 they ask? They’d laugh at you… now, let’s say you copied the used $1 CD onto a brand new CD (then destroyed the original, of course), and replicated the CD label and stuck it on the burned copy.. then put the copied (yet unused) CD back into the original jewel case, complete with booklet and art, and tried to sell to a CD store for $20. They’d still laugh at you.
What we are being sold is not worth what they are selling it for, but because they artificially make it scarce, they can charge more than the market would allow if let to it’s own devices.
I don’t think there is legally anything wrong with that– since you aren’t “making available”. The library better prepare for a big fat lawsuit by the MPAA though. Go warn them. (It’s your fault, after all):P
Re: Re: Re: Really Bad Examples
I don’t think there is legally anything wrong with that– since you aren’t “making available”. The library better prepare for a big fat lawsuit by the MPAA though. Go warn them. (It’s your fault, after all):P
Dear RIAA and MPAA goons:
I live in Manhattan. Come find me.
Re: Really Bad Examples
“In all of your points you missed one key ingredient, someone already paid for those products.”
Since the **AAs aren’rt giving away their content (except, maybe, as screener DVDs), someone who put it on the P2P network must have bought it, right? So, how does your argument stand in light that someone has already bought this music?
Aside from that, as Mike notes above, he’s disproving the “3 prongs of theft” and making the point that copyright and property rights are not equivalent and, thus, infringment is not theft (even if you maintain that infringment is wrong).
Re: Really Bad Examples by A Broke Musician
The newspaper example doesn’t fit with your first paragraph response. The newspaper was paid for, but the articles inside are (I’d imagine) copyright to the author(s).
If I pick up a newspaper that is left behind and, regardless of what day/month/year it is, read the articles – I did not pay to read those articles. Should have I not paid for a copy of that newspaper?
The newspaper, to me, is very synonymous with music.
With regard to your second paragraph about copying physical objects if it were possible and the example of walking past a car dealership and making a copy of a car in there (if the technology existed) – personally I wouldn’t view this as stealing. That is: IF the technology to do this existed.
The original is still sitting in the car dealership, they have not had anything stolen – but I have the technology to make a copy of whatever physical object it is. Obviously I would have had to pay for that technology to do that and it is to my advantage after paying for it.
The second example in your post, I think, strongly shows that the industries trying to eradicate file sharing are going about it the wrong way. If I could create a copy of, for example, a car in a dealership – what would the dealership owner do? Of course they will complain. Say that I “stole” the car – even though the original is sitting right there in their possession.
What should be seen in such a scenario is that the price of the car in the dealership should be reasonable enough that I wouldn’t need to, or have the desire to, create a copy.
Because, let’s face it, if I can create a copy for next to nothing as an individual the dealership can create a copy for a fraction of a percent of what I can.
Re: Re: Really Bad Examples by A Broke Musician
When considering the newspaper example, I can see there is a difference that a “copy” is not made, therefore the original purchaser in a way forfeits the product when they leave it behind.
But can’t I go to a library and bring up old newspapers and make copies? How does this help the authors and publishers of those articles?
In any case, newpapers are probably not subject to copyright laws like music is. Or are they? I don’t really know. It’s just interesting to compare it to music.
Hello again, Techdirt.
I try really hard not to fall into the obvious trap of talking about IP, copyrights, and trademarks– because it’s quite clear that neither side will come to terms with the other side’s views.
That being said, I can’t help myself on this one.
1. It’s not stealing. It never will be stealing. Just like “Assault” is attempting to cause harm to someone and actually succeeding in said attack is “Battery”. They’re legal terms, which may (incorrectly) be swapped willy-nilly in everyday speech, but for serious discussions to be had, the correct legal terms must be adhered to, or communication breaks down and no one get anywhere. So, to clear the waters (again):
Stealing != Copyright Infringement
However, both *are* illegal. No one ever disputes that.
2. The point of Copyrights were to spark innovation by allowing the creator first rights (or, a lawful monopoly) to his/her creation. Note: “To Spark Innovation”.
Now, someone explain to me how innovation is sparked when you can create something and then live off of it for the of your natural life, and then your children can live off of it for most of their natural lives?? Or, how about when one company hordes many (questionable) patents, and then uses them to cripple businesses that are already up and running– when the hording company has no intent of actually creating the product? It looks to me as if copyright and IP laws are being used OPPOSITE the way they were designed.
Since we are in the habit of telling fables it seems, I’ve one to help you understand:
A man long ago discovers a tree that grows apples. He grows apples and sells them to his village, and becomes very wealthy. One day, a enterprising young boy figures out that if you plant a seed of an apple, it will grow into a tree and make many apples. So, he goes out and buys an apple from the farm, takes the seeds and grows his won tree. He tells the entire village, gives them an apple from his tree, and everyone makes their own apple trees…
Should the farmer, using his wealth, persuade the village council to make growing apples illegal? Did the boy steal from the man when he made an exact replica of the apple buy growing his own at home? Did he steal from the farmer when he passed out the apples he grew to the village, and told them how to make their own?
Food for thought.
Lunch is over. It’s been fun.
@ Cygnus
You make good points, but it is rather redundant since Mike examples were flawed from the beginning (to which he expressed later in the post).
See, he’s showing real life examples of physical property and how copyright laws doesn’t apply…just as his argument states that intellectual property shouldn’t be treated like physical property.
Why have you posted like 8 times in this thread, called Mike self-centered and his views weak at best, yet you’ve spent the entire time validating what he said?
I know, we’re not perfect…but this is a really big goof on your part. And do us all a favor, don’t argue with my post if your plan on agreeing with it.
“When someone pirates a copy of software, the owner of the software retains both ownership and possession. In this case, the software has not been stolen, since the owner retains possession. Infringement, however, did occur, because the owner’s rights were violated.”
So their rights have been stolen, right?
Re: Re:
No, their rights have been infringed. If their rights had been stolen, then they wouldn’t have them anymore. They owner retains their rights over the infringed material, which is why it is possible to sue for copyright infringement.
Re: Re:
For Pete’s sake man! You can’t steal a right!! You can infringe upon it!
If I *could* steal your rights (for example, free speech), when I was done I’d have *two* rights of free speech. Does that make *any* sense? Let’s stop being silly, please?
Note: If there was supposed to be a “/sarcasm” in your post– sorry for treating it as a serious comment. 😛
why is this such a big deal?
There used to be a lot of copying of music when the stadard was cassette tapes. I used to copy them and give them away to friends. People used to SELL mix tapes on the sidewalks of NYC. The recording industry never paid attention to it. Why is it such a big deal now? How is on-line music sharing any different? I still buy music if it’s worth it, but most of the garbage that the industry pushes these days isn’t worth the price. Just like it was back then, if I like just one song, I will find someone who already has it(or like we used to do, dupe it from the radio)and get them to give me a copy. This is such garbage!
Re: why is this such a big deal?
It’s an issue because their business is failing and they need to place blame.
Re: Re: why is this such a big deal?
exactly, perhaps they should spend more time and money looking into thier own business model and figuring out where they are going wrong. The book business isn’t freaking out about people sharing books, mostly because books are still inexpensive and most times they are a good product. If 98% of books had one good chapter and the rest was crap, people would stop buying them as well!
Re: Re: Re: why is this such a big deal?
“If 98% of books had one good chapter and the rest was crap”
Some might argue this is close to truth, particularly in the vast sea of fiction novels.
Mike, you fail to prove your point
Mike:
None of your examples hold water in an argument of why file sharing music is not theft.
* I go to the pizza shop and they offer me a free soda with two slices. The soda has value, but I just got it for free, and did so without Coca-Cola granting permission. I don’t think anyone would claim this is stealing or even wrong or immoral.
1) The Soda is already paid for. If the payee wishes to take a loss on a product they bought, then they have the right to make that choice. I don’t know about you, but I’ve received free (to me) music in the past. That in and of itself doesn’t mean it was free to the provider.
2) Once the Soda is consumed, it can’t be redistributed. Unless, Mike, you’d like for me to regurgitate it so you can drink it. This example fails to prove your point.
* My friend lets me borrow a book, which I read. The book has value. I got it for free, without the permission of the book author or publisher.
1) This is the best, and probably the only example you have that comes close to supporting your arguments of why consuming a product of another without remuneration and/or permission, is permissible. However in this example, you don’t get to keep the books you borrow and re-use them, neither are you allowed to make copies and distribute or keep them for your self. If you give permission to someone else to copy the book while it is under your control, then you are liable for their crime. For those reasons alone, the example fails to prove your point.
* I get on a train and pick up the newspaper that a passenger left behind. The newspaper has value. I got it for free, without the newspaper company granting permission. I don’t think anyone would claim that’s stealing.
1) The newspaper contains advertising which helps pay for such usage, or for the event that one no longer finds it useful and gives it way. This same scenario occurs when I buy an album, listen to it a number of times, and then give the album to a friend as a present. As such a point, I give up my discretionary rights to use the contents of the album or newspaper. This example does not prove your point.
* I go to the beach. The people sitting next to me are playing music on their stereo, that I can hear. The music has value, but I just got it for free, without the permission of the record label.
1) In this scenario, you don’t get to keep the music you heard it and use it again. And if you do manage to use a recording device, you would be benefiting from discretionary usage of a product that you did not pay for, and hence, stealing. Furthermore, the nature of music is that it must be heard, and for any one to assume that I must pay for music that just happens to be playing is absurd. To also assume that I can record such information and use it at my discretion just because it’s available, is also absurd. Dish Network content falling on my property does not give me the right to receive and use it without permission or payment. Again, the example fails.
* I go see “Shakespeare in the Park.” I get to see something of great value for free, without permission of William Shakespeare.
1) William Shakespeare’s work is in the public domain.
2) The manuscript printer was paid for his services of providing a copy of the play, regardless of where the content came from. Again, you fail to prove your point.
* Verizon sees that Sprint is going to announce an “all you can eat plan” and decides to introduce its own similar plan. Verizon got that idea for a bundle from Sprint for “free” and certainly without Sprint’s permission. Yet, we call that competition, not stealing.
1) Please correct me if I’m wrong, but ideas are neither patentable nor copyrightable.
2) Songs are not ideas, they are sometimes the product of hours of tireless effort by highly skilled individuals, who deserve to be paid for their efforts.
Re: Mike, you fail to prove your point
DMeans, I think my response to Cygnus covers many of your points as well:
http://www.techdirt.com/article.php?sid=20080219/014250290#c579
Once I buy it ... it's mine.
I but a copy of an item, it’s mine to do with what I want including giving the original or a copy to someone else.
If someone else buys a copy, it’s theirs to do with whatever they want including giving me the original or a copy.
Re: Re:Absurdly weak examples. by Cygnus
Cygnus, I think one of us is misunderstanding the other, an I am honestly not sure which of us that is.
“
>>
>>And when I am done with the music “AS LONG AS I DELETE ALL
>>COPIES” can I not sell the original to someone else.
>>
Who says? The copyright is exhausted in that one copy. You can resell it so long as you don’t retain a copy. That should be evident by the existence of CD re-sale shops.”
I think that was my point, I should be able to resell the CD, as long as any copy (on my IPOD for example) is destroyed. I believe, on occasion, I have heard of record companies/performers blocking resales on ebay/used record shops.
My point here, is that I purchased a copy. It is mine to use, however I choose, in public or private (I mean in public, not FOR PUBLIC, if you see the distinction I am trying to make), until I no longer wish to own that one copy. At which point I should be free to resell it. I am not sure how the laws are written/were intended, I can only comment on what seems fair and reasonable to me.
An example from previous TECH DIRT postings, If I were playing music in my house with the windows open, I should not be required to charge admission from any friends in the house, and forward that money to the **IA. Nor should I be required to collect money from my neighbors, who happen to hear the music. It is still played for myself, and my friends. Any accidental public reception “should” not be a problem, even if my neighbor happens to run a shop, and their customers hear the music. The same “should” be true for playing music on a public beach. (Not that I would do this, out of courtesy to others who might be disturbed, but that is me).
The more thingschange the more they stay the same. A couple of hundred years ago somebody would make a song, and then earn money with it singing it for shows and taverns. Then time went by and someone said hey I can put this on an object of some sorts and then people can pay to hear it anytime. The object was hard to copy or make. Now the object is easy and music companies who don’t provide much of anything are suffering. Ah-well to bad. Record Companies are like some mortgage brokers I’ve known, they make a bunch of money doing nothing but be a middle man and jack up the price.
How about a poll?
Hey Mike. I don’t know if you’ll read this comment way down here, but I think you should set up a poll “Is file sharing equal stealing/theft?” I’d like to see what percentage of the readers here believe it is and isn’t.
Re #70
You would need at least 3 categories.
Those who understand the law “It is copyright infringement”, those who do not understand the law “It is theft / stealing”, and those who DGAF “I do what I want” (imagine the Cartman voice for that last one from South Park).
hornets nest
Wow Mike! You’ve stirred up a hornets nest this time. I’m feeling a bit frisky so I’ll throw my two cents in.
To me the key is the differences between the fact that some goods are scarce and some goods are infinite. Content, such as music, video, and text. Are infinite.
Before the dawn of the digital age content creators and providers were the only ones who could reliably get their hands on equipment capable of making high-quality reproductions. Analog media degrades with each copy. Digital does not (perceptibly). Now any soccer mom with a computer at home can churn out a dozen copies of whatever content she wants and hand them out to every on that shows up to the soccer game. This costs the content industry money. Each person who receives the content in this fashion now has no reason what so ever to go out and pay for it.
THIS, is where opinions on the issue divide. The content industries say that their loss of profit is due to the theft of their content. The file sharers tend to say the content industries loss of profit is because they haven’t adjusted to a change in the capabilities of the average consumer.
This is the problem the content industries are wrestling with. While I CAN’T copy a 20 ounce bottle of coke. I CAN copy a Metalica album. One is scarce. The other is not only not scarce but is literally infinite. They are DIFFERENT.
Is this difference enough to determine whether or not one is stealing and the other is not? Really that just depends. Stealing means what we want it to mean. Even at a conceptual level it’s meaning can change. The real question, in my mind, is not whether or not it IS stealing but rather whether or not it SHOULD be stealing.
If a steal the coke from the pizza joint when the staff isn’t looking they lose money EVEN THOUGH THEY WERE GIVING IT AWAY FREE. After all they were only giving them away free to entice people to come in an buy something. Perhaps the end lose is small but that is still one less coke they have on hand to offer that special with. Thus taking scarce goods without permission of the current owner will, without exception, result in loss of profits for SOME ONE.
If a friend of mine gives me a copy of the latest White Stripes album the recording industry also loses profits. However, they don’t HAVE to. The newspaper is the key because in each news paper, as some one above pointed out, has advertisements in it and the advertisements are worth more with every pair of eyeballs that sees them. The music and movie industry could switch to a business model such as this. They could make money even when the music is shared. Hell they could make more money when it is shared than when it isn’t.
This, IMO, is the fine line that separates theft and content sharing. With a theft money WILL BE lost and there is really no way around that. You could put advertisements on coke bottles but how many people would see each coke bottle. With content sharing money doesn’t have to be lost.
They don’t even have to develop and deploy such a distribution system. There are people out there that would love to try it (myself for example). But the RIAA and MPAA are focused on trying to make people buy CDs. They assess extremely high and completely unreasonable royalties from any service that doesn’t involve straight sales of the songs.
If they would just realize that the reason Napster, Kazaa, and others were so successful is not because of them being free, but rather because they are convenient. If the service would be convenient enough people wouldn’t want to share the music they wouldn’t need or even want to make copies for each of their devices. They could carry around a cellphone/ipod sized wifi/gsm/G3 based player that would play their music over any set of speakers/headphones they own. Let them play whatever song they want as many times as they want, setup play lists, etc etc. Just pop in with an advertisement every now and then at the beginning of a song. You don’t have the problem of trying to play the most popular songs before and after a commercial break like with radio because the songs being played are EXACTLY the ones the user wanted to hear. the content takes up no space on the users hard drive, leaves them with no need to convert between formats, can not be lost as long as they remember their user name and password, will work on any of the transceivers they own as long as the sim number or whatever is added to their account, and wouldn’t need DRM because there would be no reason to make copies of the music to begin with (which opens up the option of interoperability in the player market).
*shrug*
And here I am, an outsider, coming up with this. I just can’t feel sympathy for a group of companies hell bent on digging their own graves… especially when people are falling over themselves to get the content industry to stop.
Re: hornets nest
Hey Wolferz,
Nice to see an intelligent comment so late in this discussion, especially from one who seems to have actually read the full article and doesn’t resort to ridiculous “communist” arguments.
However, there’s a few good points you raised that I have to refute:
“If a friend of mine gives me a copy of the latest White Stripes album the recording industry also loses profits.”
This is one of the most contentious points that tends to get raised, and it’s a very grey area. I’m glad you brought up The White Stripes actually as it’s a great example from my own life.
I’m not a huge rock fan, being more into underground hip-hop and electronic music, but I do enjoy a bit of rock and metal. I have, however, given up on much of the junk sold on TV and radio. Just before the White Stripes’ Elephant was released, a friend gave me a copy, which I listened to several times and liked. The same friend also gave me a copy of their next album, which again I liked.
So far, 2 free albums, a few hours of entertainment and I’ve not paid anything. Why? I do some DJ work and was concentrating on buying music that fit into my sets. I was also boycotting the major labels (a boycott which continues to this day), and I was under the impression that the White Stripes were major label (they’re actually on V2 in the UK, technically an independent).
What happened next? I joined eMusic, whose selection and prices are just right for me. I have now bought all of The White Stripes’ albums including those I had copied previously, along with a DVD and several remixes.
In other words, while for some time I had “stolen” their work, as soon as there was the opportunity to legally buy for a reasonable price, V” and The White Stripes made at least 5x the money they’d have made if I had just bought “Elephant” when it came out. In fact, thanks to pricing and my own buying habits, I may never have bought Elephant and started listening to the band in the first place.
This is the biggest thing the music industry seems to miss – music is its own advertisement and people will always buy if the offer is right (in my case, less than £5 / album, DRM free).
“If a steal the coke from the pizza joint when the staff isn’t looking they lose money EVEN THOUGH THEY WERE GIVING IT AWAY FREE.”
Again, with music, there are some people who just give it away for the hell of it. However, the reality is that most people give their friends copies by saying “hey, check this out, you might like it!”. The friend may go on to buy CDs or T-shirts or live gig tickets or DVDs or whatever. This is one of Mike’s regular arguments – just as the Coke is being used as an incentive to buy pizza, music can be used as an incentive to buy other, less scarce goods. it’s just happening now without the blessing of the music industry – figures show that while CD sales are going down, sales of everything else music related are going UP.
“If they would just realize that the reason Napster, Kazaa, and others were so successful is not because of them being free, but rather because they are convenient.”
Exactly. if only they’d realised this a decade ago, the music industry may be more successful and vibrant. Thanks to Amazon and the like, it’s only now that people are starting to get anywhere near the service they deserved from the beginning. The RIAA are losing money thanks to lawsuits, DRM, rootkits and horrible business management, not the fact that people have taken their tape trading online.
If Jefferson supported copyright, who are we to disagree?
Monopolies may be allowed to persons for their own productions in
literature, and their own inventions in the arts, for a term not
exceeding __ years, but for no longer term, and no other purpose…” –Thomas
Jefferson to James Madison, 1789. ME 7:450
He was of course against unlimited copyright (and patent) protection but he agreed that there should be some period where a monopoly was granted.
Now, about that brand new song you just downloaded…..
We must all choose between what is right and what is easy.
Same Thing or Different ?
I buy 2 slices of pizza and the coke is free. I some how paid the owner for the coke but it was just made to look like I got it free. This is a business model. I buy access on the internet. I can without any problem view, download, copy or print a lot of (c)opyright material ( newspapers, magazines, catalogs, music etc. So if it’s being made available to me, for which I paid for it, then why is it wrong for me to download and use it ? Haven’t we paid for it ? If the RIAA and MPAA don’t want us to use it then why do they make it ? Stop making music and movies or change you business plan. #1. Promote your product and make a fair profit on it . Then get on with the next project. Take you head out of your ass and get a life.
Studio’s are hurt because advertising revenue is down (TiVo) the writers strike (all about payment for digial showings) and the fracturing of the audience. What is their response? Reality TV.
Tug-of-War
This debate is like a tug of war with an infinitely long rope: both sides believe they are right, or at least want their opinion to be right, but the reality is somewhere in-between. Since opinions don’t need to have any strong backing, they just keep running in opposite directions.
I’m bored with this debate. At a certain point, the tug-of-war must end or both sides will be so far away from reality that there will be no saving them.
Tug of War
This is not really specifically directed at you.
Just more of a general thought.
I just cannot see how anyone can hope to defeat the basic economic principles.
Infinitely available = Price of Zero.
It could still have value.
By all means.
It just has a price of Zero.
If somebody wants to disagree, they need to start paying me for the air they are breathing, because I value that air.
Killer, if you produced that air that everyone needed and without you, there would be no air, wouldn’t you expect to get paid?
One would imagine that a content creator would feel the same way. Some will indeed stop making their content if they are not paid. Would you stop creating air?
I am an auto technician or any other service provider. Why after I have performed my services (or in my case performed maintenance to your vehicle) don’t I get royalties every time you use your car? Because after the service has been performed and payment has been rendered, business is concluded. So after the entertainment or other “intellectual” service has been performed it merits constant payment? Somebody splainme that.
Re: Re:
Sigh….
Your property in this case would be your knowledge of auto mechanics, and you essentially charge a licensing fee to your customers when you repair a vehicle.
You don’t get to charge a fee for the continued use of the car because you do not have any ownership claim to the car whatsoever.
It’s simple: If you own something, you are allowed to charge for it’s use by others.
"sharing"
People, please stop using the word “sharing” to make yourself feel better about stealing.
If I share a book with someone, I can’t read it as long as they have it. If I share my pizza with someone, I no longer have the whole thing.
Re: "sharing"
“People, please stop using the word “sharing” to make yourself feel better about stealing.”
“Sharing” as you describe it, is not stealing, but it is infringement. If music that was shared was stolen, then the original owner would no longer have the music.
And that makes you a music thief! Don’t believe me;
http://www.p2pnet.net/story/13597
http://www.p2pnet.net/story/12842
Well, if we come up with examples...
Friend of mine made love to her friend but forgot to use protection. The child she had 9 months later is extremely valuable, yet her friend gave it to her for free. 😉
Which reminds me… Do parents have copyrights over the genes of their offspring?
Re: Well, if we come up with examples...
This is another sore point that points to the absurdity of the current patent/copyright law. Researchers have started to claim that they have patents on genes! Additionally, some doctors who have developed a “cure” for an illness are now claiming that they own the cure. If I remember, the particular illness in question was caused by a natural vitamin deficiency so the cure was to provide the natural vitamin that you can buy over-the-counter in your drugstore, yet the medical professional who “discovered” this was evidently claiming copyright/patent ownership.
Re: Well, if we come up with examples...
Here is a link to a NY Times Article published June 23, 2006 Justices Drop Consideration of Boundaries for Patents.
Another Ranting against the Music Industry.
Recently, I mentioned how the Loudness war could potentially be affecting CD Sales.
I found some incredible tracks from Paul Van Dyk, I have to stand behind that ascertation… Have you heard him recently? Sounds like he hired Bono…
Paul VanDyk seems to be re-inventing himself and crossing over into href=”http://www.youtube.com/watch?v=bO0PMclabt4″> alternative rock. Interesting crossover, nonetheless.
I wonder if he’s crossing over to create the remixes… (Read: Is there no good music to do a remix of? So does he create an original to make a remix of..? That’s a lot of extra work.)
Check out Paul Van Dyk Let Go (Single Edit) It’s well engineered, and plays well on my $4,000 stereo system.
I also met him recently while on tour, which was real awesome. Why don’t more artists pursue this?
I really hope his portfolio starts getting some airtime stateside.
If I was a US-based Label, I’d be worried if Europe started pushing their music stateside. I imported Westlife four years ago and really liked it. Maybe it comes down to the process of bringing the talent to market is broken. Starting with A&R, to production to retail.
So the German stuff is well engineered and doesn’t make me want to hit my head against a wall every time I buy poorly produced US crap.
Next time, I plan to sue you guys for making me buy a good stereo system and providing me with shit content.
Re a couple of you
“Would you stop creating air?”
Nope, because it makes peoples lives better (or in this case livable).
But thats the difference, I like doing things and making people happy, where as some of you are .. well, too darn greedy to care.
There are plenty of business models that would allow musicians to make money from them giving away their music to everyone for free.
If you do not know any of these business models by now, you are obviously new here and I will simply direct you to look through a bit of the archives of TechDirt, as plenty have been suggested.
To post #85 washthesandout, are you suggesting that even though you are sharing your pizza with your friend, they are stealing it from you!?!?!?
God thats twisted. Why share at all if you are that greedy.
Re: Re a couple of you
No, dipshit. I’m saying if I share it, I no longer have the whole thing.
“Were it so, we’d have no need for lawyers.”
If it weren’t for Lawyers, we wouldn’t need Lawyers!
“Also how do you address the fact that content producers now claim that they have a “right” to trespass onto your computer to make a unilateral declaration on whether you are violation of their draconian restriction. Remember the Sony rootkit debacle???”
Exactly! They violated my rights and made it possible for a virus to infect my, paid for by me, PC. A whole week-end to get it back to the way it was. I better start downloading movies and music just to make sure they weren’t made by me.
After all, when you download a file, it isn’t necessarily what it seems to say it is. Hence, the reason we do get infected with viruses and malware and such.
When sony et al pays for my PC, they may do/install what they want with it. They may even share what is on it if they like. After all, they would have paid for it making it theirs.
Sell me media that lasts. Why should I have to buy the same album again and again?
eg. Pink Floyd-The Wall
I purchased 3 LPs’, 4 cassettes, 2 discs, I do not own a playable copy, on any media, today.
How much of that money went to Floyd? How much of that money went into research & development of the rootkit/drm? No, I will not purchase that album again, or any other for that matter. I don’t need music or movies. Nor rock/movie stars.
If only James Dean had lived another 50 years, my life would be so different today. Yours too!
What is the original Mona Lisa worth? A copy? If everyone had a copy, what would the original be worth? Any less? Does the value come from limited viewing?
There are a lot of problems with the arguments for and against “piracy”. At least, to my non-legal (and therefore perhaps hopelessly common sense grounded) mind.
The problem the *AAs are in complete denial of what the real issue is. The problem is not you “steal” a digital copy or I “steal” buying a bootleg DVD from a street vendor. The real issue is that technology has advanced to the point that the content distributors are no longer able to stand in between the content creators and the content consumers, and make money on the “distribution” of the content.
This is an industry that was born within the last 70-80 years, as the result of a technological advancement. A technology (let’s call it “recording”, lets set aside the medium that allowed it, since it has continuously evolved) was invented that allowed a corporation to capture something that previously could not be duplicated without live performance.
Prior to this invention, musicians and actors around the world made a living traveling around from town to town performing the popular songs and plays of the day. These artists may not have been immensely wealthy, but they were able to make a reasonable living. The more talented and ambitious ones were able to develop a level of celebrity and wealth that comes from working hard in your chosen craft. But it was rare for any one musician or actor to become wealthy well in extreme excess of the general population and their peers.
Recording Technologies allowed corporations to capture one recording, pay one artist a “royalty”, then distribute it to the public endlessly. What was the end result? 1 Artist became much wealthier at the expense of hundreds of others, (the public now wanted to hear Artist A, not the song or play) and a corporation that previously didn’t exist controlled the content that the Artist previously controlled. (Please note, I’m not trying to make this a political system argument like the earlier “essence of communism” posts). Prior to the invention of recording, hundreds or thousands of artists might have been able to make a reasonable living performing a song or play for the enjoyment of the public. And many often did.
Now, if you aren’t THAT artist, you starve. If you’re fortunate enough to become THAT artist, you have wealth well in excess of any contribution that you’ve made to your profession.
We see it over and over again with Musical Groups. A good band works its way through the circuits, hones their craft, hungry and yearning for success. They have talent, make it big, and receive millions of dollars in a very short period of time. They’re never able to recapture the essence of what made them successful in the first place (The “sellout” effect). Yet they continue to make millions while other acts are struggling to gain the public attention.
As I see it, the technological advances of the last 25 years have simply removed the *AAs from the equation. The control of content is back in the hands of the Artists. If it means you can no longer be Green Day or U2 and rest on your previous success, so be it. Thats the essence of being in business. If you stop producing, you stop growing. If you stop growing, you die.
The return of control of content to the Artist means that if you want to make a living as an artist, you are going to tour, you are going to perform night after night reproducing your works for the public. Your fans will want to hear your works, so they’ll buy your CDs. Their friends will want to hear you, so they’ll get a free copy of your “hit” song. If you’re good, there is now one more person standing in line at your next show. If you’re not talented, that person won’t be in line. The Artist may not become obscenely wealthy, but more than likely, if they have any level of talent, they’ll make a respectful living. Certainly more than they’d make as a waiter or bartender while waiting to attract the attention of an A&R rep under the “old” system.
The only “person” who loses in this equation is the Corporation who suddenly found themselves obsolete. The *AAs are simply the latest Buggy Whip, Camera Film, Typewriter, Betamax, HD-DVD company to find themselves on the wrong end of technologic advancement.
Its not that much different than the Buggy Whip manufacturers that tried to outlaw cars in major cities when they found themselves on the wrong end of advancement.
Re: Technological Advancement
Good post.
The Artist may not become obscenely wealthy, but more than likely, if they have any level of talent, they’ll make a respectful living. Certainly more than they’d make as a waiter or bartender
Thinking like this will cause talented people decide that they will take their skills and do something else, causing less music to actually be created.
Re: Re:
You are correct, but only to a point. Those with less talent, desire, or determination will do something else. Much like the count millions of artists in the country today that have day jobs of some level to make a living.
Someone with true talent, drive, and ability will find a way to make a living and ultimately become successful at their chosen craft. Thats economics at its purest and most basic level.
By removing the middle layer that controls (or attempts to control) the distribution of their work, the artist is free to seek the opportunities that provide the most reward. In the case of musicians, I would assume that to mean touring and live performances as a primary means of building recognition. This will allow the recordings and merchandise to ultimately build up a reasonable revenue stream. (just as an example).
The benefit to all artists, however, is that their ultimate success will be based on their own determination and talent. Under the current system you not only need determination and talent, but you also have to be lucky enough to be “discovered” by some A&R rep who signs you to a label. They then control your content distribution.
More artists will benefit in the long run, since more artists would be able to make a reasonable/sustainable living as artists rather than waiters. The top 1% could potentially be negatively affected, since the concentration of wealth at the very top in a “winner takes all” economy that currently exists may no longer be there.
Re #96, 97
#96, LaTuFu
I like the write up.
I agree.
#97, Coward
Any proof? Or just a baseless claim?
Because I actually have a friend (ex-next door neighbor) who has a band. It is him and his brother. They are by no means large.
But you know what? He keeps making songs.
He has a small following in the area but never really made it big. He has a normal day job over in Wisconsin now. But he still makes songs (no longer with his brother).
Soooo, I think you are wrong and that is just a baseless claim.
Killer, will they all stop? Of course not, but some will. Things that pay more attract better talent.
Looking at it another way...
The other reason I have a difficult time accepting the *AAs assertions is that there are several examples of Business Models that worked when piracy was acknowledged and even encouraged.
The Grateful Dead are a prime example of a musical act that embraced music sharing and trading. Granted the technology was different 30 years ago, but they openly allowed amateur recorders to attend their concerts and record the performances. They demanded nothing more than the purchase of a ticket, and the assurance that if the tapes were distributed to fans, they would not be sold.
Did it affect their sales? I would argue no. Here is a band that it can be argued turned out no relevant studio recordings from 1975-1987, yet consistently remained one of the top grossing tours year in and year out for almost 30 years. I would submit this was due in large part to the constant stream of new fans they attracted from the sharing of their concert recordings by other fans.
I’m not saying this is a model that will work for all acts, but there are clearly lessons to be learned from this extremely successful example. Its one that the Dave Matthews Band has used as a Blueprint for their business model. Implemented a little differently, but with similar results.
The Way It Will Be..
I personally LOVE this debate.
After reading the 100+ comments I have my own 2/100ths of a dollar.
Fast forward to the year 2015 (hopefully much, much sooner) and we have a market where the Content Creator communicates DIRECTLY with the Consumer.
The only reason the *AAs existed in the first place was to ‘protect the rights to copy’, aka generate revenue for each copy of a copyrighted material distributed or iradicate it altogether.
Think back to the 50’s 60’s 70’s where record labels were there, as the middle man, to HELP the talented artist. This meant, advertise, promote, produced copies of LPs (vinyls), and financial back a tour, furthering promotion all for monetary consent.
Going BACK to the future of the entertainment industry, and we no longer see the need for this ‘middle man’ aka, the record labels. Recording studios don’t ask for royalties if I take my band into the studio, record an album, and copy and give it out or sell it. They could care less. The transaction was made, both parties have got what they wanted.
However, now we live in an age where the entire world is connected by the internet, and if not you know someone who knows someone, and that advertisement spread by word of mouth is equally as powerful. “Hey, checkout this new album by _______”
Many artists today, are creating their music, and distributing throughout the internet via, PureVolume, MySpace, etc. straight to the consumer. There is no more need for a physical medium.
Originally there where no LP recorders unless you had the money to own an LP manufacturing and duplicating factory.
Then, the medium switched to cassettes which were easier to obtain and record upon.
Then CDs which were better sound quality.
And, now today where you can directly download the music you want and put it on your portable digital device and plug it into your home stereo, car, or headphones. There are no reasons anymore to own the CD unless simple you like looking at a hard copy, because you can’t even copy it without first putting it into a computer, then burning it, and if you have a computer; its much more convenient to just download what you want.
Legally or illegally.
More often than not, the hard choice is usually the right choice.
Jon Healy's article "File ‘sharing’ or ‘stea
I finally got around to reading the article. After reading it, it occurred to me that we have a highly structured argument that favors the concept that the RIAA and MPPA are “victims”.
We seem to be overlooking two analytical points in this debate. 1) the public domain and 2) the evolution of the copyright.
1. There is a possibility that some of the content that is being shared is in the public domain. To share content in the public domain would be legal. However, this possibility seems to receive little press so we never hear of legal file sharing uses.
2. Copyright law has evolved to give enhanced “protection” to the content producers. Under the original 1790 copyright law the maximum period for copyright was 28 years. That means that everything before 1980 would now be in the public domain and could be shared if the law had not been changed. So we have a situation where something that was legal yesterday (in a sense) is now illegal.
It is now illegal because the content producers had congress pass a self serving law that protects their interests. So for me the question degenerates not to the issue of file sharing being illegal or legal, but to the fact that we have an unjust law that should be repealed to restore our rights.
Whose Business models ...
One issue which needs to be factored into all of this discussion is that copyright was originally formulated to protect the creators of works and allow a living to be made creating but with corrections for society benefit (things like doctrine of first sale, expiry dates and the like). However, as reproduction was limited, intermediaries built a business of production and distribution – often in exchange for copyrights – and the publishing model also often taking the lions share of the profits and risks. Costless reproduction threatens the publishing model but probably benefits the artists through either a simple mechanism of micro payment for the original work direct to the artist or greater value placed on non reproducable work such as the live concert. We now have a situation that the legal drive is splitting apart the relatioship between publisher and the published but the money and power is with the publishers which is driving the defense of what is rapidly becoming an indefensible buisness model built around a legally enforced, rather than actual scarcity. A good article on this is at http://www.kk.org/thetechnium/archives/2008/01/better_than_fre.php
The best way to avert the catastrophic...
…digression is to simply name things with their proper name. “Intellectual property” is an oxymoron. The name is intellectual monopoly. It’s regarding intellectual creations, and it’s a series of monopoly privileges. Ergo, intellectual monopoly.
That’s what it is.
Taking out the trash
The complicated and self-deluding arguments that people offer to defend taking without paying for something properly for sale are old and tired, and discredited in courts all over the world.
Legal and fair online digital distribution of media and entertainment has been around for years now and this whole issue now rests on whether a just society can allow the taking without paying of product that is intended for sale. The world’s governments will see to it that the promise of online commerce and digital distribution is not lost to a band of online pirates and that, at the end of the day, is the point. Real fans of music, movies and books online put their money where their mouth is. The rest of you are rubbish.
Define "Stealing"
From the definition of theft:
The actus reus of theft is usually defined as an unauthorised taking, keeping or using of another’s property which must be accompanied by a mens rea of dishonesty and/or the intent to permanently deprive the owner or the person with rightful possession of that property or its use.
If theft=stealing…
File sharing does not includes a “mens rea of dishonesty and/or the intent to permanently deprive the owner (sic) of that property or its use” since the file sharer continues to retain possession of the property in question.
Just my CCY0.02.
Filesharing = Reality; Deal with it.
Irrespective of all the bickering and moral high grounds on either side of the argument: File sharing is a reality and will go on no matter what. Technology has made it possible and people cannot be kept from discovering the -let’s face it- technically and realistically easiest way to obtain a copy of a book, film, piece of music they want to try out/keep/enjoy.
I don’t think users will get scared out of filesharing anytime soon. Just as much as they weren’t scared to use Compact Cassettes back in the day. I think if law wants to keep up with reality, it must somehow address the present change.
Just as much as there is no natural right to steal, there is no unalienable right to make money from a product…
really
We all should be paying Al Gore for using his internet. If a seed from a tree lands in your yard and grows fruit, you didn’t steel the fruit. Saying file sharing is stealing is fucking ridiculous, completely fucking ridiculous. These greedy assholes who have been exploiting musicians for decades just can’t think of a new way to work with a system that would totally help them if they embraced it. They keep releasing crappier and crappier music then blame computers for lack of sales instead of talentless hacks who are more concerned with image than good music. None of these guys are hurting at all. They are just greedy. They are actually producing far more CDs, DVDs and crap than they did 15 years ago. Now there’s blue ray, psps, xboxes, the list of mediums the industry produces is ludicrous. The fact that some people would actually argue in favor of the industry just shows you how completely brainwashed our society is.
A matter already decided
The United States Supreme Court has already decided this, ruling in Dowling v. United States (1985) that:
“The phonorecords in question were not “stolen, converted or taken by fraud” for purposes of [section] 2314. The section’s language clearly contemplates a physical identity between the items unlawfully obtained and those eventually transported, and hence some prior physical taking of the subject goods. Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple “goods, wares, [or] merchandise,” interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.”
see http://en.wikipedia.org/wiki/Dowling_v._United_States_%281985%29
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spot on. music was a product, but should now act as advertising for a bands tour. music is placed on youtube and you listen to it a million times for free, but the second you download that song, illegal? also, it’s not stealing, its creating a copy of a PAID FOR work.
Supreme court case: Metro-Goldwyn-Mayer v. Grokster,
?deliberate unlawful copying is no less an unlawful taking of property than garden-variety THEFT.?
Justice Breyer,
Justices Stevens
Justice O?Connor
Foundation v. American Broadcasting Cos.,
?The fair use doctrine is not a license for corporate theft,
It is stealing
As the author said…
You just pointed out a difference between IP and TP (Tangible Property) and try to use it as a reason why IP and TP are the same thing. The fact that, unlike TP, IP is not limited in terms of quantity or duration is the reason why they can’t be treated in the same way – they aren’t the same things!
That was the author’s entire point. He also warned that all of these arguments can be turned around in this way.
Theft of the Consumers Property Rights
There is a BIG difference between:
1.) Plaintiff having to assert and prove a fair use violation. (innocent until proven guilty)
and
2.) Defendant having to assert and prove a fair use exception. (guilty until proven innocent)
As an original songwriter & classical pianist & composer, I can state with authority that the current spoon-fed vapidity of American Idol reality TV show culture has eroded aspirations of seriously talented musicians because the circus atmosphere these forums promote are anathema to most talented, original musicians. Additionally,these forums can only be accessed through extreme youth-status or celebrity connections. The absurdity–the tragedy–of a generation of gadget-indoctrinated, groomed “consumers” taking all cues from the tech “provider” corporatocracy, which has enriched itself– multi- billionaire rich– by simply providing a billboard or sounding board or broadcasting forum– the very raison d’etre for the internet “experience” began with music as the creative content — so those actually creating original musical compositions-(strangely the tech or services are never free from charge)–is a huge reason we are suffering a dearth of high quality original music. Many of those of us who write have little opportunity to promote,market, etc. BECAUSE we are writing, keeping our skills up, recording, refining– we need a workable model, a real musicians union, a major labor movement to empower our musician community to sell our hard-earned, unique intellectual property without fear of copyright infringement or piracy. The top-down 1% of the 1% celebritocracy sven-gali model benefits malleable unformed talent or cynical shallow pop types but is destroying the incentive to devote oneself to a lifetime of high-quality, possibly immortal music. Historically, the great musicians have been able to profit over their lifetimes & it has enriched humanity immeasurably. Think the Gershwins, Cole Porter, DUKE Ellington, & Beethoven, Mozart, Debussey etc. Made $ via selling scores, performances, & usually had patrons & commissions.
The Beatles & other rock bands were only able to continue songwriting because recording sales freed them from the body -damaging & soul -killing rigors of constant touring. New models need solutions that work for the content-CREATORS, whose unique inventiveness make it all possible. Musicians unite, & fight for your right to profit on the internet, in clubs, everywhere ppl use, enjoy,or exploit your talents!