"I Have All the Music from 1950-2010. Do You Want a Copy?"

A fantastic, subtle essay at Cato Unbound on copyright from Rasmus Fleischer, Swedish historian and impresario of sharing site The Pirate Bay. If you're like me, you really don't know what to think about copyright law. It's obviously broken, but is there anything about it that can be salvaged for the digital realm?

Fleischer reconfigures the issue thusly:

The real dispute is not between proponents and opponents of copyright as a whole. It is between believers and non-believers. Believers in copyright keep dreaming about building a digital simulation of a 20th-century copyright economy, based on scarcity and with distinct limits between broadcasting and unit sales. I don't believe such a stabilization will ever occur, but I fear that this vision of copyright utopia is triggering an escalation of technology regulations running out of control and ruining civil liberties. Accepting a laissez-faire attitude regarding software development and communication infrastructure can prevent such an escalation.

One more reason the believers can't ever win: Remember that old bit of jargon, the sneakernet? You're part of the sneakernet (a subset of the darknet[PDF]) when you store stuff on a CD or a flash drive and then put it in your pocket and walk it over to a friend. Portable storage capacity is booming, which leads to this question, from Swedish filesharing researcher Daniel Johansson: "When music fans can say, 'I have all the music from 1950-2010, do you want a copy?', [something they will probably be able to do in a scant few years] what kind of business models will be viable in such a reality?"

It's dense, but worth it. Read the whole thing.

Comments

Warren | June 10, 2008, 12:55pm | #

It's obviously broken, but is there anything about it that can be salvaged for the digital realm?

NO. And even if there is, it shouldn't be. Copyright is an abomination undermining property law. Scrap the whole thing.

R C Dean | June 10, 2008, 1:01pm | #

Accepting a laissez-faire attitude regarding software development and communication infrastructure can prevent such an escalation.

Without forcing me to read the WFA, can anyone pull the bits about how content creators will feed themselves?

There may be (at least) three economic models here:

(1) Software (possible revenue streams from free software include upgrades/servicing, perhaps).

(2) Music (possible revenue streams from music include live performances).

(3) Writing (beats the hell out of me. If a writer can't charge per copy/publication rights, what does he charge for?)

fyodor | June 10, 2008, 1:11pm | #

(2) Music (possible revenue streams from music include live performances).

Don't know what the future holds, but the current spike in fuel prices makes for a double whammy for musicians in the digital/copyrightless world.

grylliade | June 10, 2008, 1:12pm | #

(3) Writing (beats the hell out of me. If a writer can't charge per copy/publication rights, what does he charge for?)

Ask the writers at the Baen Free Library. Most bookworms I know (myself included) will pay extra for a physical book; there's one possible revenue stream.

Warren | June 10, 2008, 1:16pm | #

R C Dean
I haven't RTFA, but see any business that doesn't operate under the copyrite paradigm. The world does not suffer for lack of fashion designers despite the fact that Sears can put their designs on the rack two weeks after they're unveiled and not pay a penny for them. Nor was there a dearth of books or music prior to the government granted monopoly we call copyright. As for software, open source exists already, if we shitcanned copyright, it would get a thousand times better.

Fluffy | June 10, 2008, 1:20pm | #

We already have access to more film, music, text and images than we can possibly incorporate into our lives. Retreating from this paradigm of abundance to the old paradigm of scarcity is simply not an alternative. Adding more “content” will strictly speaking produce no value — whether culturally or economically.

I think this is closely related to RC Dean's comment:

Without forcing me to read the WFA, can anyone pull the bits about how content creators will feed themselves?

The answer is that they won't. There will be a dramatic crash in the number of creators supporting themselves by producing content.

Creators face two severe challenges from the digital media era, and only one of them is piracy. The other one is excessive supply.

It has become amazingly inexpensive to create and distribute digital content. More content is being created than at any time in the past.

Also, digital content tends to live forever. Records, VHS tapes and books used to disappear into attics and landfills, churning limiting the total amount of content available to be consumed at any moment in time. Digital stuff simply gets stored and indexed and is always available. Some of the value of hard-copy copyrighted content was the value of finding that content; it was easier to just buy a new copy of a book than scrounge around trying to find a used one or trying to get a friend to lend it to you. In the digital era all old content is instantly available if you can type its name and hit the search button.

I'm a copyright "believer" but I don't see any way to maintain the old system where there was enough money in content creation to maintain a large number of marginal writers and musicians. That's just over.

Dave W. | June 10, 2008, 1:21pm | #

I think the revenue model is that the coyright holder charges for uses prominent enough that they can be tracked. Hollywood movie soundtrack. Television ad. Satellite radio station (there is only one now I gather). Internet radio stations having large numbers of listeners. FM station having a certain amount of power. Syndicated radio or tv show. Sales through Internet distributors that do a certain threshold amount of business.

KMW quotes this guy on the futility of drawing "distinct limits between broadcasting and unit sales" for coyright law purposes. Hogwash! It is easy to draw these limits reasonably well if you are willing to make less favorable rules for the rich companies (with a strong profit motive) than the kid who walks around with a flashdrive in his pocket (and no real profit motive).

I gather from KMW's comments generally that she is sort of a shoeshine gal for the moneyed class, which is why she sees futility where there is none.

Look at it this way: for years there has been rough justice in who pays state sales tax and who does not, based on who is really in business and who is a casual seller. By law and practice, copyright law can and should do a similar thing.

J | June 10, 2008, 1:25pm | #

Book owners for now still like buying books, but I could believe it will disappear.

Music, on the other hand, I see a real problem for. Not all musicians are bands or singers, some just write electronic music. DJs can spin their own records, but its not the same.

I understand the analogy with fashion designers but it's not apt. The design is imitated, but there is a second layer of product that loses the brand name (which I don't think is valuable, but some do which increases profit). There is no second layer of music for something digitally distributed. It's all the first layer after a song is recorded and uploaded.

val | June 10, 2008, 1:26pm | #

Copyright does have its purpose no? If I write a book called Val's Great Adventures and begin disitributing it digitally and physically only to find that Warren, ripped of my book an is now selling it as Warren's Great Adventures, simply replacing Val with Warren, should I not have recourse under law? Yes its about damn time content creators and distributors caught up with the digital age, but scrap copyright all together?

Reinmoose | June 10, 2008, 1:29pm | #

We have always found a way to make money off of things - we always will. The music industry has a bunch of alternatives that they currently aren't using (with the possible exception of SONY.) The issue is that record labels and movie studios want the government to step in and make their suffering business models work well again, by force.

Paul | June 10, 2008, 1:33pm | #

The answer is that they won't. There will be a dramatic crash in the number of creators supporting themselves by producing content.

What about the possibility that creation will return to a mode where the creators are mostly non-profit? I'm not suggesting what value this would have, but if my European history serves me correctly, writers were horrified at the suggestion that one would earn money from their writing. It was suggested that it would be the 'ruin of all letters' or some such thing.

Might we create a model where it is almost impossible to make money on resultant material from creative endeavor?

I've been on the fence regarding the concept of open file sharing and zero copyright. Yet I don't like content providers locking me out of the very content I agreed to purchase. I bought this cd, goddamnit, I'm going to play it in my car, on my home stereo, on my computer, in my MP3 player. So at the same time I'm very concerned with the draconian response to digital copyrighting, hence I buy no music online.

TrickyVic | June 10, 2008, 1:39pm | #

The anti-copyright movement is mostly people who don't want to pay for music, they want it free. It's all about getting something for nothing. Isn't that anti-capitolism?

Paul | June 10, 2008, 1:44pm | #

Isn't that anti-capitolism?

Could be. It could also be human nature. Wanting to get something for free is certainly nothing new. When we enshrine getting stuf for free in the law, however, that's a different story.

There's a funny thing in human nature, though. It seems to me that when getting something for free (copying music) takes very little effort, we're inclined to quit referring to it as stealing.

Jake Boone | June 10, 2008, 1:44pm | #

TrickyVic,

Don't conflate those who see philosophical problems with the current copyright regime with thieving.

Of course, libertarians are just Republicans who want to smoke pot, so what do I know?

LibertyMark | June 10, 2008, 1:46pm | #

What’s valuable is supplying a context where people can come together to create meaning out of abundance.

I found this sentence to be so profound that it almost choked me up.

I have also been a believer in copyrights, since I want to reward the people that create the music that I love so much. So, I have completely embraced the digital music scene by ripping my own huge collection of CDs, and by subscribing to services like Rhapsody.

But this abundance has a dark side. There's so much music to listen to that I almost never have the experience of totally falling in love with a particular recording like I used to. There's not enough time...

So now I'm a 40-year-old guy going with my teenage nephews to the Warped Tour because that is the context that gives meaning to some of the music I like. They say I'm a pretty cool dude for 40.

LarryA | June 10, 2008, 1:49pm | #

Digital stuff simply gets stored and indexed and is always available. Some of the value of hard-copy copyrighted content was the value of finding that content; it was easier to just buy a new copy of a book than scrounge around trying to find a used one or trying to get a friend to lend it to you.

It was only easier to buy a new book if it was still in print. The only books that stayed in print were the bigger authors.

In the digital era all old content is instantly available if you can type its name and hit the search button.

This favors the marginal authors more than the big names. It also favors niche artists, since their followers can find their work, no matter how thinly spread the niche clients are.

I'm a copyright "believer" but I don't see any way to maintain the old system where there was enough money in content creation to maintain a large number of marginal writers and musicians.

I see the new technology as spreading the wealth. Instead of a few megasellers hyped by the major media, I think you’ll have more customers searching successfully for books and music from niches they really enjoy.

As the cost of reproduction plummets so will price. That will both make piracy less attractive and leave more of the proceeds for the creative process.

Copyright will have to change, but all is not lost.

There will be a dramatic crash in the number of creators supporting themselves by producing content.

Only a small percentage of creators have ever supported themselves by creating content. I predict that the long-tail part of the process will enable more creators to make some portion of their income creatively.

I hope so, as I’m one of them.

squarooticus | June 10, 2008, 1:50pm | #

They say I'm a pretty cool dude for 40.

I bet your mom said you were handsome when you were 13, too. :-)

robc | June 10, 2008, 1:51pm | #

we're inclined to quit referring to it as stealing.

I think this inclination is because nothing is being taken from anyone. Copying digital stuff produces another copy. No stealing is being done.

Interestingly, re: the capitalism question, if you properly define capitalism as the people with capital controlling the means of production then copying digitial media is a form of capitalism. My CD burner is a means of production, I, not the state, control it. :)

Paul | June 10, 2008, 1:55pm | #

Only a small percentage of creators have ever supported themselves by creating content.

I disagree with this. I think there are a large number of people who support themselves with their content. I think maybe you meant to write "a small percentage of creators have become extremely welathy by creating content"?


That I could agree with.

T | June 10, 2008, 1:56pm | #

So at the same time I'm very concerned with the draconian response to digital copyrighting, hence I buy no music online.

Buy from Amazon. No bullshit DRM involved.

Part of the solution to paying content providers is going to be direct connection with users. Skip the distribution channel and sell directly to the end user. You are much more likely to make money relying on the generosity of your fan base when the money goes directly to you than when it gets funneled through Sony BMG.

TrickyVic | June 10, 2008, 1:56pm | #

"""Don't conflate those who see philosophical problems with the current copyright regime with thieving."""

Is that saying you don't want something for nothing?

I do agree that the copyright system could be overhauled. I'm for DRM if, and only if they can do it right, and I have seen a good one yet. However, It's not pro-buisness to try to keep creators from making money from their creations.

LibertyMark | June 10, 2008, 1:57pm | #

I bet your mom said you were handsome when you were 13, too.

Yes. I believed my mother. But with the nephews, the fact that I always buy the tickets might have something to do with it.

Elemenope | June 10, 2008, 2:03pm | #

I found this sentence to be so profound that it almost choked me up.

This quote sent my snark opportunity meter into the red zone. Seriously, I almost blew a gasket restraining myself.

But you're a cool forty-year-old, so I'll let it slide.

TrickyVic | June 10, 2008, 2:03pm | #

"""I think this inclination is because nothing is being taken from anyone. Copying digital stuff produces another copy. No stealing is being done.""""

Not really true, you are taking the money the item would produce if sold, albeit not exactly the same as stealing a CD from a store. But if everybody copied, the creator couldn't make a living. You can't discuss a better solution when it starts with fuck the creators.

Jake Boone | June 10, 2008, 2:04pm | #

"""Don't conflate those who see philosophical problems with the current copyright regime with thieving."""

Is that saying you don't want something for nothing?

Of course not. It's perfectly capitalist to want to minimize the amount you pay for something. Why buy the cow, etc. But if you hear a good joke, and tell it to your friends, you aren't thieving, even if some comedian is making a living telling that joke, because you aren't depriving him of something that's his.

LibertyMark | June 10, 2008, 2:05pm | #

Buy from Amazon. No bullshit DRM involved.

Very true. But if I want a DRM-free copy, I prefer to still buy the CD in physical form. Most of the time you still get liner notes.

But what I have really embraced is actually riddled with the bullshit DRM: subscription music from Rhapsody. I love music, so it's like having an all-you-can eat buffet. I don't have to think about what to buy, I just listen to my heart's content.

When I want a DRM-free copy for use in my car, I put on my gray hat and use one of the stream-ripping programs like Fleischer mentions in the article to get MP3s that are all tagged up and ready to go.

Brandybuck | June 10, 2008, 2:10pm | #

As an Open Source developer I've discovered that copyright does serve one useful purposes It requires that your warranty disclaimer remain attached to your software. It is an unfortunate fact that our society is very litigious. A warranty disclaimer isn't proof against lawsuit, but it's better than nothing.

Two other areas that Open Source developers say copyright is useful:

Attribution: Copyright keeps your name attached to the software. That's not a big deal in my mind, because pretending that you wrote someone else's software is fraud, with or without copyright.

Enforced Sharing: The GPL (and other copyleft licenses) use copyright to impose "sharing" requirements on third parties. I disagree with this. GNU shouldn't be using copyright to impose contractual terms on people. If you don't want people using your software in ways you disapprove of, use a real contract! It's highly hypocritical of them to deride software ownership at the same time they are using copyrights to impose controls over their software.

LibertyMark | June 10, 2008, 2:11pm | #

Elemenope, what the hell is wrong with you? Let the snark fly. That's why I come here.

UCrawford | June 10, 2008, 2:15pm | #

"what kind of business models will be viable in such a reality?"

I suspect that it will look something like what Radiohead's been doing. They've cut the middleman (the record company) out of the process and started marketing their records directly to fans instead. While this isn't without its drawbacks (they took a lot of ribbing for their pricing idea on their first online release) they apparently made a lot of money in album sales even with that scheme and were able to keep most of the proceeds for themselves.

http://www.gigwise.com/news.asp?contentid=37720

Basically, it seems that the people copyright law protects the most are the record companies...who are arguably the least important people in the music industry. In the 50's and 60's artists needed them to distribute their product (which they did while taking a whopping cut). Now that we have the Internet and the ability to market to fans the labels aren't nearly as important and the end result of laxer copyright laws seems to be cheaper music and the artists keeping more of the money they earn.

robc | June 10, 2008, 2:19pm | #

You can't discuss a better solution when it starts with fuck the creators.

You cant discuss a better solution until people start properly distinguishing between theft and copyright violation. Both can (and maybe should be) criminal acts, but they arent the same thing, they arent even like the same.

I will stick with "fuck the creators" until the creators stop using the terms piracy and theft.

Copyright/Patents are an add on to natural law. The constitution even makes it clear that it isnt "real" property, they are especially creating these rules because they would be useful. Which I think they are. But to treat copyright violations as a form of theft is totally wrong.

Jake Boone | June 10, 2008, 2:20pm | #

Not really true, you are taking the money the item would produce if sold, albeit not exactly the same as stealing a CD from a store.

See, I think this is exactly wrong. If you download "Nasal Ned and his Nasty Nosepickers" debut album, Ned is no worse off than he was before you woke up this morning. He's been deprived of nothing.

Affecting Ned's potential market (even negatively) is not a crime. If it were, those Apple vs. PC ads would have gotten some folks arrested.

squarooticus | June 10, 2008, 2:27pm | #

Brandybuck:

Enforced Sharing: The GPL (and other copyleft licenses) use copyright to impose "sharing" requirements on third parties. I disagree with this. GNU shouldn't be using copyright to impose contractual terms on people. If you don't want people using your software in ways you disapprove of, use a real contract! It's highly hypocritical of them to deride software ownership at the same time they are using copyrights to impose controls over their software.

I think you're missing the point of the GPL. Read up on "copyleft", which is RMS's snarky response to copyright. IIRC, Stallman would be perfectly happy to live in a world without copyright, i.e. one in which releasing someone else's source code was not an illegal act. Since he doesn't live in such a world, he twisted the copyright system to create a subset of software for which closing the source violates copyright. In essence, he's using the proprietary software industry's noxious State-enforced rules against them.

I release my own software under the GPL for the same reason, but with an additional proviso that it can be copied without restriction in any jurisdiction in which the notion of a government-enforced copyright privilege does not exist.

Elemenope | June 10, 2008, 2:29pm | #

Elemenope, what the hell is wrong with you? Let the snark fly. That's why I come here.

That's good to hear, but I already hit my snark quota for the day.

Elmer | June 10, 2008, 2:33pm | #

Without forcing me to read the WFA, can anyone pull the bits about how content creators will feed themselves?

Smellisvision replaces Television!!

Eric S. | June 10, 2008, 2:34pm | #

I miss Oink

Fluffy | June 10, 2008, 2:36pm | #

Ned is no worse off than he was before you woke up this morning. He's been deprived of nothing.

But you could also say that if Ned is holding a concert, and you don't buy a concert ticket but attend anyway because you climb in through the bathroom window of the club, Ned has also not been deprived of anything. He was going to perform anyway, and he's no worse off than if you had stayed home.

The point is that you have secured something you have not earned or paid for, and that Ned would not have chosen to give you for free.

Invisible Finger | June 10, 2008, 2:40pm | #

Maybe artists and their fetishists known as public school teachers will return to the scum-of-the-earth status they had prior to the 16th century.

Rhywun | June 10, 2008, 2:44pm | #

I think there'll just be a lot less content creators in the future. DRM is dead--there is no protection that cannot be circumvented and there never will be. In a world with essentially zero scarcity, content is just worth a lot less than it used to be.

robc | June 10, 2008, 2:44pm | #

Fluffy,

The concert scenario is trespassing. Ned, as renter of the concert hall, "owns" the building for the night.

Ned does not own the CD my friend purchased or the bits on my computer. If I reorganize some bits (so that they match the bits on the CD) thats my business, they are my bits. I havent taken any bits from Ned.

It is still a copyright violation, but it isnt theft. Whether or not copyright should exist or not is another matter.

Invisible Finger | June 10, 2008, 2:45pm | #

The point is that you have secured something you have not earned or paid for

Why isn't Ned performing on a "pay as you exit" basis?

Don Marti | June 10, 2008, 2:47pm | #

Information wants to be $5.99

Russ 2000 | June 10, 2008, 2:49pm | #

Ned, as renter of the concert hall, "owns" the building for the night.

No. The promoter rented the concert hall, and it was the promoter's job to provide security so freeloaders couldn't get in. The promoter is at fault, not a "trespasser".

Jake Boone | June 10, 2008, 2:51pm | #

[...]if Ned is holding a concert, and you don't buy a concert ticket but attend anyway because you climb in through the bathroom window of the club[...]

Ah, but the club is (I will assume) private property, and has right of exclusion. If I enter the bathroom window, I'm trespassing. We already have laws against that.

However, if the club is next door to a public park (or some privately-owned space that I have access to), and I'm hanging out there while Ned plays, I'm not harming him a whit by listening to the music from outside.

The thing is, and this is what differentiates stealing from copyright infringement, that music is simply data. It's information, not an object you can take away from someone. You can't own information, and it's idiocy to try and pass laws to support the pretense that you can.

robc | June 10, 2008, 3:01pm | #

Jake,

The other obvious example is the bleachers on the roofs outside of Wrigley. That pissed off the Cubs for years until they finally worked out an agreement. I believe the homeowners now pay the Cubs a cut in return for the Cubs not putting up a big ass wall.

Fluffy | June 10, 2008, 3:01pm | #

The concert scenario is trespassing. Ned, as renter of the concert hall, "owns" the building for the night.

This distinction doesn't matter.

The standard that was offered for why piracy isn't theft is that Ned doesn't lose anything and isn't any worse off than he was before. If you sneak into his concert, he also doesn't lose anything and he also isn't worse off than he was before.

In fact, I think the concept of private real property could be undermined just as neatly as some of you are seeking to undermine intellectual property. If someone wanders onto your private estate when you are out of the country, and hangs out in the woods for a while, you haven't lost anything and you aren't any worse off than you were before. So your private real property right shouldn't be enforced, right?

Reinmoose | June 10, 2008, 3:05pm | #

Here's something I've always wondered.

Let's assume that downloading music via a file-sharing program is stealing.

So say that you bought a CD that later became unplayable - is it stealing to resort to a file sharing program to re-download the music you already bought?

Fluffy | June 10, 2008, 3:06pm | #

It's information, not an object you can take away from someone.

Labor isn't an object, either. Can you steal labor?

If you promise to pay someone if they labor, and then you renege, did you steal from that person?

If you sneak into someone's concert, I would assert that you are stealing their labor because you are enjoying their labor without paying for it, even though the laborer made it clear that only paying customers could enjoy that labor. You're stealing it even if Ned doesn't know you're there, even if Ned would have performed anyway, and even if Ned made a lot of money from actual paying customers while you snuck in.

And a recording of music, to me, is simply the labor of music performance made tangible by technology. It's not "just data", because if it was random data you wouldn't want it. You want it because it's data that records a performance you want to enjoy. The difference between random data and a recording of music is labor, labor that you want to steal.

robc | June 10, 2008, 3:06pm | #

Fluffy,

The grass on my private estate is very sensative, walking on it damages it. :)

The standard that was offered for why piracy isn't theft

Piracy IS theft.
Copyright violation isnt theft.

robc | June 10, 2008, 3:08pm | #

If you promise to pay someone if they labor, and then you renege, did you steal from that person?

Nope. But you did violate a contract. I have had cleints that didnt pay, I couldnt send them to jail for theft, at best I could sue them.

TallDave | June 10, 2008, 3:08pm | #

Just wait till you can carry around a petabyte in your shirt pocket.

Jake Boone | June 10, 2008, 3:09pm | #

Fluffy,

If anyone here was arguing that trespassing and theft were the same thing, you'd have an excellent point.

But we aren't.

The club issue is one of trespassing, not theft. The "private estate" issue is also one of trespassing, not theft. Theft and trespassing are different... as are theft and copyright infringement!

Russ 2000 | June 10, 2008, 3:09pm | #

in return for the Cubs not putting up a big ass wall.

The Cubs can't put up a big ass wall because the building is landmarked so the city won't let them.

When property rights battle property rights...

Lamar | June 10, 2008, 3:10pm | #

O'er the horizon is a world where musicians will have to get real jobs. Those who can survive based on live performances, i.e., getting paid for services rendered, will do well. Those who have a weak audience will no longer be able to rely on fake scarcity to pay the bills.

I welcome a culling of the herd. 90% of all musicians are completely worthless. They aren't good musicians, and nearest I can tell, the only product they have to sell is that they are young and sexy. Why are we using copyright law to prop this garbage up? Is there some Constitutional imperative that forces Congress to subsidize the hip and buff?

robc | June 10, 2008, 3:10pm | #

if it was random data you wouldn't want it.

From a discussion this last weekend - assuming an infinite universe (bad assumption) somewhere within the entropy of the universe is a random series of bits that exactly corresponds to the video of the Lucy Liu-Drew Barrymore-Cameron Diaz lesbian threesome that was (probably) never filmed while on the set of Charlie's Angels.

I might be interested in that random data.

Episiarch | June 10, 2008, 3:10pm | #

There will be plenty of content creators. Why? I'll explain. Did anyone watch the South Park where the internet phenomenons from YouTube were waiting in line to collect their "Internet money", but hadn't figured out how yet?

YouTube makes money through ads that pay for page hits, etc. You might put up "Chocolate Rain" and get 8 million hits, but that only makes money for YouTube, not for you.

Someone smart (like me, but less lazy) will create a competitor for YouTube that pays the uploader of content a (small) percentage of the ad page hit revenue (this could have cutoffs like no percentage for less than 1000 hits, etc.). For most people this would be vanishingly small. But if you are a hit, the payoff could be quite lucrative.

This would pull tons of people to your site away from YouTube; because if they are otherwise the same, but a surprise hit on your site will actually pay off, they want their upload to be on your--and only your--website.

You will also get even more content as people make stuff just on the hope that it is a surprise hit, because there is a financial possibility.

Warren | June 10, 2008, 3:15pm | #

Jake,
Thanks for carrying the torch. It's nice to have company. Being too free-market for libertarians can get real lonely.

If you sneak into his concert, he also doesn't lose anything and he also isn't worse off than he was before.
Patently false. You are taking up physical space. You're putting wear and tear on the facilities. You're crowding other people, obscuring their view. If the concert is sold out, then you are putting the occupancy over legal capacity. This is obvious and utterly distinct from copying information. You're not even trying.

J | June 10, 2008, 3:19pm | #

Epsi,

mp3.com used to run like that before it was bought out. Could get a lot of good music that way for free, and I think advertising paid for the pay per listen or download the artist got.

Reinmoose | June 10, 2008, 3:22pm | #

Epi-
I thought of that yesterday, as well.

Episiarch | June 10, 2008, 3:24pm | #

I thought of that yesterday, as well.

I thought of it the day before you thought of it. Whatever day that happens to be.

Fluffy | June 10, 2008, 3:26pm | #

Patently false. You are taking up physical space. You're putting wear and tear on the facilities. You're crowding other people, obscuring their view. If the concert is sold out, then you are putting the occupancy over legal capacity. This is obvious and utterly distinct from copying information. You're not even trying.

None of which has any effect on Ned's total take from the concert, which is all that is relevant to the analogy here.

The pro-theft forces say that stealing music isn't theft because nothing Ned physically possesses has been taken.

If you sneak into his concert, you also haven't physically taken anything of Ned's. You didn't buy a ticket, but if you stayed home you also would not have bought a ticket. Ned is out the amount of a ticket you did not buy - but the pro-theft forces think you can't consider the impact of money not spent because something was obtained for free. If we can't consider the fact that you enjoy possessing Ned's album without paying it theft, then we can't consider the fact that you enjoyed listening to his concert without paying for it theft, either.

And it's not "just trespassing". It's theft of services. It's trespassing if I sneak through the window in the middle of the night when the place is empty. If I do it during a concert, it's theft. http://en.wikipedia.org/wiki/Theft_of_services

Warren | June 10, 2008, 3:29pm | #

No it really is trespassing.

Lamar | June 10, 2008, 3:30pm | #

"mp3.com used to run like that before it was bought out."

MP3.com was essentially sued out of existence by Universal Music Group. The eventual buyer got some code and a domain name, but anything that made MP3.com innovative was stopped by Judge Jed Jackoff.

Reinmoose | June 10, 2008, 3:30pm | #

I thought of it the day before you thought of it. Whatever day that happens to be.

haha
I didn't mean for it to come out like that, but I really just meant I had the same thought.

Jake Boone | June 10, 2008, 3:40pm | #

If we can't consider the fact that you enjoy possessing Ned's album without paying it theft, then we can't consider the fact that you enjoyed listening to his concert without paying for it theft, either.

I accept your apology.

/colbert

Seriously, though, I take it that you consider me listening to the concert from the park next door to be theft, then?

Lamar | June 10, 2008, 3:49pm | #

"If you sneak into his concert, you also haven't physically taken anything of Ned's."

And your crime would be against the property owner. Let's nip this "theft of services" garbage in the bud. Has anybody ever been prosecuted or convicted for such a stunt? "Theft of Services" is a the charge when you steal cable, or disable the utility meter, or even hop the turnstile on the subway.

Regardless of whatever you may think of sneaking into a concert, it has absolutely nothing to do with copyright because there are no copies being made. But more importantly, the services are rendered to the owner of the establishment who pays for them, not to the patrons who go to the show.

Reinmoose | June 10, 2008, 3:56pm | #

If you send digital music to a friend as copies, you're stealing.

If you send digital music to a friend and then delete your copies, and then when the friend is done listening to the music sends it back to you and deletes their copies it is not stealing.

However, you can have the good exist in 2 places at the same time and will almost never be listened to in 2 places at the same time. If you set up your computer so that it could stream your music collection to anybody who has the password (your friends), and the song is never listened to by 2 people at the same time.... what then?

Fluffy | June 10, 2008, 3:58pm | #

Seriously, though, I take it that you consider me listening to the concert from the park next door to be theft, then?

No, because Ned is setting his music loose for you to hear it.

If I scatter pennies in a public park and you come by later and pick them up, it's not stealing. If I scatter pennies in my back yard, and you come into my yard and take them, it's stealing.

Now, you could counterargue that music broadcast over the airwaves is being similarly set free, and you would have a strong case. I think the bizarre set of laws that surround broadcasting and copyright are fundamentally illogical, so it's hard to reconcile them with anything sensible.

I just got my dander up here at the notion that piracy isn't theft.

And Warren, even if no gatecrasher case in history has ever been prosecuted as a theft, it's only because no one ever saw the need. It's clearly theft of services as that variety of theft is defined. For example, New York penal law states that a person is guilty of theft of services when:

9. With intent to avoid payment of the lawful charge for admission to any theatre or concert hall, or with intent to avoid payment of the lawful charge for admission to or use of a chair lift, gondola, rope-tow or similar mechanical device utilized in assisting skiers in transportation to a point of ski arrival or departure, he obtains or attempts to obtain such admission without payment of the lawful charge therefor.

http://law.onecle.com/new-york/penal/PEN0165.15_165.15.html

Reinmoose | June 10, 2008, 3:59pm | #

I guess what I'm trying to ask is - are those who scream "THEFT!" at every turn really just pissed off that it's easier to share music with others than it used to be?

robc | June 10, 2008, 3:59pm | #

If you send digital music to a friend as copies, you're stealing.


Nope. You are infringing upon copyrights.

robc | June 10, 2008, 4:01pm | #

I just got my dander up here at the notion that piracy isn't theft.


piracy is theft. It involves eye patches and swords and shit.

copyright infringement isnt theft. I get apparently the same amount pissed as you do. But Im right. They are completely different crimes with different names.

Reinmoose | June 10, 2008, 4:04pm | #

Ok, please replace the word "stealing" with "doing something illegal" in most instances in my 3:56 post.

robc | June 10, 2008, 4:06pm | #

Fluffy,

Now, you could counterargue that music broadcast over the airwaves is being similarly set free, and you would have a strong case.

Okay, strong case.

Now, only slightly less strong is when I broadcast said music over my stereo system. And, if it is plausibly okay for me to record that, then I see no reason I cant intercept the broadcast somewhere before it gets to my speakers, like while its still a digital signal.

You will notice that back in the days of casettes, the record companies didnt make a big deal about copying music. They didnt get blank casette sales banned or highly taxed. However, once digital media came about, suddenly copying became a big issue.

robc | June 10, 2008, 4:07pm | #

Reinmoose,

Ok, please replace the word "stealing" with "doing something illegal" in most instances in my 3:56 post.

Much better. Now that we have agreed to terminology, we can discuss the real question, "should it be illegal?"

Fluffy | June 10, 2008, 4:08pm | #

"Theft of Services" is a the charge when you steal cable, or disable the utility meter, or even hop the turnstile on the subway.

Regardless of whatever you may think of sneaking into a concert, it has absolutely nothing to do with copyright because there are no copies being made.

There are people on this thread asserting that it's impossible for a theft to occur unless a physical object is removed from one person by another person.

That viewpoint is effectively debunked if there are categories of theft which do not involve the physical loss of an object.

It's relevant to copyright because it involves finding a way to enjoy the fruits of a creation or performance without paying the fee to do so, and is therefore analogous to securing a copy of an album without paying for it.

Rhywun | June 10, 2008, 4:10pm | #

They didnt get blank casette sales banned or highly taxed.

No, but they did get a cut. It's just a matter of scale. The fact that the whole world can make themselves a copy is the only difference now, from the cassette days.

Episiarch | June 10, 2008, 4:14pm | #

Folks, not trying to be a dick, but you are arguing over something that is moot. Digital piracy cannot be stopped without methods so severe that they are effectively impossible.

You can argue about the semantics of theft and piracy and copyright if you want. But it's irrelevant. New paradigms will have to be thought of to take into account the digital world, which allows endless, effortless, full-quality reproduction of all media.

Fluffy | June 10, 2008, 4:16pm | #

Now, only slightly less strong is when I broadcast said music over my stereo system. And, if it is plausibly okay for me to record that, then I see no reason I cant intercept the broadcast somewhere before it gets to my speakers, like while its still a digital signal.

I don't think you understand my beef with broadcasting rules and copyright.

Essentially, broadcasters wanted a way to make money by giving away copyrighted music for free, building an audience that way, and selling ads.

So a regime was created where the broadcasters could give away music, and pay a licensing fee.

My beef is that in so doing, they have tangled the rest of us up in their copyright relationship to the original owner of the music.

As others have pointed out, if Ned was playing his music on the street corner for all to hear, he couldn't complain that I was hearing it for free. But in order to provide broadcasters with a way to make money, a bizarre system was put in place where the broadcaster is in effect sending the music out into that same public place, but somehow everyone is retaining the right to complain that I'm hearing it for free [and recording it].

So I guess I would say that I wouldn't have a problem if you guys were recording [in any medium] and exchanging music that has been broadcast. If that makes it impossible to run a broadcasting system, fuck 'em, I have no problem with that.

But if Ned is playing his music in private clubs and recording his music and selling it with DRM, and you sneak in to hear his concert, or copy his album and give it away, you stole from Ned. Sorry.

Lamar | June 10, 2008, 4:17pm | #

I see what you're saying, Fluffy. Part of the problem is that we are all using different meanings for "theft." In legal terms, theft is exclusively the taking of another's property without that person's consent with the intention of depriving them of that property permanently. There has to be property (services don't count) and a deprivation. That part is clear.

But "theft" and "stealing" have also come to generically refer to any unauthorized expropriation. How many times have we heard someone say, "he stole my idea!" The fact is that ideas are NOT protectible, and therefore "stealing" or "theft" are impossible. Yet people continue to use those terms.

"Theft of Services" is really a branch of fraud, not theft.

So, legally it is impossible for a theft to occur unless there is a deprivation of property. Of course, if we're just using the slang people use on the street, you have a point.

Jake Boone | June 10, 2008, 4:19pm | #

Have we established that "theft" and "copyright infringement" are different?

Now on to the meat of my personal opinion about copyright and music "piracy":
Once Ned sells a recording of his music, it's not his any more. Everything else follows from that.

robc | June 10, 2008, 4:21pm | #

But if Ned is playing his music in private clubs and recording his music and selling it with DRM, and you sneak in to hear his concert, or copy his album and give it away, you stole from Ned.

I dont necessarily disagree with you other than a certain use of word. Is it really that hard to type "copyright infringed" instead of "stole"?

Lamar | June 10, 2008, 4:21pm | #

"But if Ned is playing his music in private clubs and recording his music and selling it with DRM, and you sneak in to hear his concert, or copy his album and give it away, you stole from Ned."

If Ned is such an idiot that he truly thinks somebody copying his music is tantamount to armed bandits boarding a ship, kidnapping the crew and taking the treasure, then Ned has problems worse than copyright infringement.

I suspect Ned is smart enough to know that when people say "steal", "theft" and "piracy" in relation to copyright issues, they are conveying a value judgment, not an accurate assessment of the legal status.

R C Dean | June 10, 2008, 4:30pm | #

You can argue about the semantics of theft and piracy and copyright if you want.

We want. We want so much.

But it's irrelevant. New paradigms will have to be thought of to take into account the digital world, which allows endless, effortless, full-quality reproduction of all media.

I think that's probably right. I'm just wondering if it will lead to crash in the number of people who can devote themselves to creating content, especially writers. I haven't seen any suggestion above that strike me as being viable new economic models for our Brave New World of Nobody Gets Paid for Nuthin'.

I tend to find that comparing copyright to real property presents a lot of insights into both. People underestimate the artificiality of real property rights - they are all created from whole cloth by the sovereign, just as copyright is. They are, ultimately, intangible rights - rights to exclude, rights to rent, etc. - just as copyrights are.

Fluffy | June 10, 2008, 4:34pm | #

I suspect Ned is smart enough to know that when people say "steal", "theft" and "piracy" in relation to copyright issues, they are conveying a value judgment, not an accurate assessment of the legal status.

Maybe Ned is REALLY smart and realizes that all laws are value judgments.

The only reason to strenuously argue that copyright infringement isn't theft is if you're an infringer who doesn't like being called a thief.

"Theft of Services" is really a branch of fraud, not theft.

Sorry, but since it includes the word "theft" in it, that means I can employ the word "theft", and it's legally correct. It doesn't matter what the English common law history of the concept of theft is. It now applies to services because someone applied it.

robc | June 10, 2008, 4:36pm | #

RC Dean,

The problem is possibly semantic in nature. I say that I bought me house. That means I can (within certain limits) do whatever I want with it, including building an exact duplicate and giving it away.

I say I bought a CD. That means I can (within certain limits) do whatever I want with it, including building an exact duplicate and giving it away. Oh wait, no, in this case, that falls within those limits. Why?

I understand why. I even somewhat agree. It just points out the huge, gaping difference between "real" property and "intellectual" property. Yes, both are artificial, but IP is a whole magnitude more artificial.

robc | June 10, 2008, 4:37pm | #

Fluffy,

Is that a "the law is always right" argument? Huh, dont expect that here.

TrickyVic | June 10, 2008, 4:42pm | #

"""Of course not. It's perfectly capitalist to want to minimize the amount you pay for something. Why buy the cow, etc. But if you hear a good joke, and tell it to your friends, you aren't thieving, even if some comedian is making a living telling that joke, because you aren't depriving him of something that's his."""

I agree it is ok to attempt to minimize the amount you pay, that assumes you are still paying something. $18 for a CD is too high.

Sing somebody a song and you're not depriving the creator of anything. Give away bootleg copies of a Chris Rock CD and you are.

Musicians spend lots of money developing a song, rehearsal time alone isn't cheap. The recording studio is more expensive. Even if you do the recording yourself you must buy the gear. It costs money to produce the sound regardless of the format the song becomes, CD or file. The songwriter recoups (maybe, maybe not) by selling units of the song. People offering replication of the writers units at no charge will interfere with the writers ability to make money.

"""Once Ned sells a recording of his music, it's not his any more. Everything else follows from that."""

If Ned sells a CD, then that CD can be resold with no extra money going to Ned. But we are talking about selling your CD collection. We are talking about reproducing your collection, selling that, and keeping your collection.

""""See, I think this is exactly wrong. If you download "Nasal Ned and his Nasty Nosepickers" debut album, Ned is no worse off than he was before you woke up this morning. He's been deprived of nothing."""""

Ned was deprived of the money he would have made from the sale of the product.

Fluffy | June 10, 2008, 4:46pm | #

Is that a "the law is always right" argument? Huh, dont expect that here.

Um, no.

Lamar is the one trying to go technical, by asserting that while lowly people with no knowledge of the law might use their silly street slang to call all sorts of things "theft", really smart and informed people know that legally it can't be theft unless an object is physically taken.

And if he wants to argue from the law or the history of the law, I'll just point out that the law contains a type of theft that doesn't involve the physical removal of an object. And that if it contains one such example, it can contain more.

Jake Boone | June 10, 2008, 4:46pm | #

The only reason to strenuously argue that copyright infringement isn't theft is if you're an infringer who doesn't like being called a thief.

Okay, you're just being a total dick now. You know, I've never tried any illegal drug -- not cocaine, not heroin, not even marijuana -- yet I "strenuously argue" that it shouldn't be a crime all the fucking time. Why should it be any different with copyright? (For the record, I also oppose racism, sexism, and homophobia, which apparently means I secretly wish I was a lesbian black woman.)

But maybe I should just respond with an equally baseless claim that the only reason someone would strenuously argue that somebody owns stuff even after they've sold it or given it away must be because they're a fascist monopolist rent-seeker who doesn't like being called that.

Now can we seriously talk about the issues, or is it just gonna be ad hominems from here on out?

robc | June 10, 2008, 4:48pm | #

Fascist Monopolist Rent-Seeker would make a good band name.

Lamar | June 10, 2008, 4:49pm | #

"Maybe Ned is REALLY smart and realizes that all laws are value judgments."

Yes, and aside from wholesale bootlegging, or high dollar infringement, copyright violations have always been civil matters, which is the lowest offense we have. Stealing, theft and piracy, by contrast, are all crimes (and some are felonies). While all laws may be value judgments, NED recognizes that civil infractions carry much less moral condemnation than crimes and felonies....and this is the very reason that Fluffy and his ilk want to use the names of crimes and felonies. They use exaggerated but legal-sounding terms to display their disgust with infringers.

"The only reason to strenuously argue that copyright infringement isn't theft is if you're an infringer who doesn't like being called a thief."

You mean to say that anti-copyright folks have no legitimate beef with the attempt to frame copyright issues as criminal in nature? Seriously. You don't think calling copyright infringement (which is not sexy, but it IS the name of the act) something like "piracy" is an attempt to strengthen copyright laws and thereby take away rights previously held?

Jake Boone | June 10, 2008, 4:53pm | #

Ned was deprived of the money he would have made from the sale of the product.

I'd say that this argument fails for the same reason it fails if used as an argument to support banning used bookstores on behalf of publishers, or to support banning automobiles for the benefit of buggy-whip manufacturers.

Lamar | June 10, 2008, 4:57pm | #

"Lamar is the one trying to go technical, by asserting that while lowly people with no knowledge of the law might use their silly street slang to call all sorts of things "theft", really smart and informed people know that legally it can't be theft unless an object is physically taken."

Whoa, that really wasn't what I was getting at. The fact is that theft has a legal definition, and that legal definition does not encompass copyright infringement.

You seem to think that "theft of services", which includes the word "theft" is the same as theft. Quite simply, you are confusing a legal term with the same term used in a statute. While a statute is a law, politicians tend to create the names of their laws for shock effect rather than compatibility with existing legal definitions. See, for example, the Patriot Act. Since it has the word "patriot" in it, it must be patriotic for me to bug your telephone calls.

I didn't mean to say that "slang" is incorrect. I just think that when we're talking about the legal status of copyright laws, we should be using words that pertain to the world of copyright, not ones that the RIAA wishes were in the copyright world.

Brandybuck | June 10, 2008, 5:03pm | #

I think you're missing the point of the GPL.

No, I get the point of the GPL perfectly. That others may be using the GPL for pragmatic purposes does not negate the fact that Stallman and the FSF designed the GPL to be an instrument of their socialist ideology. Stallman has advocated taxing software to support Free Software developers, and has proposed replacing copyright laws with a form of copyleft. Given the opportunity to impose the GPL on all software, I have no doubt that the FSF would stomp all over our freedoms.

The four freedoms of the FSF cannot be guaranteed in a world without copyright or other form of coercive IP enforcement. Without the copyright of the GPL, nothing is stopping me from hording software. Nothing is preventing me from distributing binaries without source. Nothing is stopping me from slapping a NDA on top of the software. It is the coercive state behind copyright that enables Stallman's "social hack" to operate.

If the FSF really wanted free software, they would have used the BSD or MIT license. Who cares if someone "exploits" the software? It's *information* and can't be damage or destroyed.

Lamar | June 10, 2008, 5:05pm | #

I should note that the term "piracy" has been around for a long, long time in connection with copyright infringement. It appears to have come from lawyers trying to scare copyright owners into buying their services. Here. The argument isn't necessarily an historical argument. It's just an attempt to stop bogus framing of the issue. It's like people who call abortion murder. You know they have their mind made up, but no matter how often they call it murder, it just doesn't make it so.

James Anderson Merritt | June 10, 2008, 5:06pm | #

Whatever happened to the micropayment model?

The idea was to price access to a copyrighted work so low (small fractions of a penny, perhaps) that nobody would think twice about access, but to charge that pittance for EVERY access (every time you played a song or a portion of a song, for instance, or brought up a picture or a printed page for display). Eventually, "long tail" effects might result in a tidy compensation even for the most "marginal" content creator.

In theory, everyone would embrace the micropayment mechanism because 1) it would not be onerous; and 2) without it, content creators would have little incentive (other than scratching their own itches and exorcising their own demons) to create. This was a win-win.

To make micropayments work, what we needed was a way to stamp every piece of digital content with a code that identified the rights holder -- or, more properly, an account "bucket," to which royalties would be deposited, and from which money could be withdrawn only by the current rights-holder. And of course, we needed a mechanism to transfer micropayments securely and anonymously from those who digitally accessed a work to the respective rights-holder accounts.

There are a few other under-the-hood details that would need to be worked out (for instance, what should micropayments be for various kinds of access, in order to make the scheme roughly "revenue neutral" in comparison what we have now), but it would seem to me that such tidying up and subsequent development and promotion of a polished micropayments model could easily have happened in the 20-30 years since I first heard of the concept. What the hell happened? Did they stow the how-to-manual for micropayments with the blueprints for the flying car we were supposed to have by now?

ChicagoTom | June 10, 2008, 5:09pm | #

This Ned fellow seems to be getting a bad rap

Fluffy | June 10, 2008, 5:20pm | #

...This is the very reason that Fluffy and his ilk want to use the names of crimes and felonies. They use exaggerated but legal-sounding terms to display their disgust with infringers.

You see, I think it's exactly the reverse.

I actually think that violating a copyright is theft, so I'm calling it theft. You, on the other hand, are responding with "bogus framing" arguments asserting that since in the history of the English common law theft referred to objects, it can't possibly be theft because there's no physical object involved. And I'm trying to poke holes in that claim even on its own terms, because I'm trying to engage you on your own terms - namely, the way the law has treated different instances of people finding ways to obtain things without paying for them.

So to my mind, you're trying to use the fact that historically physical objects were all it was possible to steal to hide the activity of stealing by giving it a less-serious sounding name.

Fluffy | June 10, 2008, 5:21pm | #

Quite simply, you are confusing a legal term with the same term used in a statute.

By the way, this is a complete non sequitur, and I don't care what they taught you about it in law school.

kinnath | June 10, 2008, 5:24pm | #

Copyright infringement is copyright infringement not theft.

Copyright infringement may cause financial damage to the owner of the copyright or maybe not. It depends upon the nature of the creative work being copied, and the nature of the infringement.

The biggest problem with current copyright laws are not that copyright exists, but that copyright holders can sue for statutory damages that have no relationship to any real financial damages caused by the copyright infringement.

Rhywun | June 10, 2008, 5:28pm | #

Whatever happened to the micropayment model?

We're *still* not technologically capable of such a scheme. And I don't care how onerous it isn't, I'm not comfortable with the existence of the gargantuan agency that would be needed to keep track of all this.

Brett | June 10, 2008, 5:33pm | #

Something that's important to Fluffy's argument is this notion that the concert-goers have entered into a contract--by buying a ticket-- with the promoter or the artist which states that the only people permitted to hear the music, from within the venue, are people who have paid to do so. To sneak in through the bathroom window and listen to the music from within the venue would be a breach of contract because the artist is only performing under the assumption that everyone listening has paid. You're essentially scamming the artist without their knowledge.

As far as the people in the park next door; it becomes the responsibilty of the club to sufficiently soundproof their club so that artist don't feel like their being ripped off when they play there, and subsequently don't book their again...but the people in the park have done nothing wrong.

But, none of this has anything to do with copyright per se...

Seitz | June 10, 2008, 5:40pm | #

I prefer to still buy the CD in physical form. Most of the time you still get liner notes.

But what I have really embraced is actually riddled with the bullshit DRM: subscription music from Rhapsody. I love music, so it's like having an all-you-can eat buffet. I don't have to think about what to buy, I just listen to my heart's content.

I try to combine the two when possible. If there's a band I like that has a new CD coming out, or if I don't have their current CD, but I know they're coming in concert soon, I'll listen to the new stuff on Rhapsody, then I'll buy their CD at the show.

A couple of caveats: This is a lot easier to do in Chicago, where pretty much every band makes a tour stop when they're on the road. Second, it helps to like a lot of bands that play venues that hold 150 to 1,100 people or so. Part of the fun is that when you buy the CD from the band, often you're LITERALLY buying the CD from the band. But Rhapsody is a great tool for discovering new stuff before spending $15 on their CD. And I'll listen to a bunch of stuff on Rhapsody that I really don't care about owning. Emusic is a nice way to pick up stuff for pretty cheap as well, with no DRM restrictions (I got 40 songs per month for $10).

Russ 2000 | June 10, 2008, 5:45pm | #

Whatever happened to the micropayment model?

This outfit is doing it: lala.com

I don't think it's micro enough, but at least the idea isn't completely gone.

BLS | June 10, 2008, 6:00pm | #

TrickyVic said:
Ned was deprived of the money he would have made from the sale of the product.

This assumes that the particular downloader would have been willing to pay Ned's chosen price for the album, which is not necessarily the case. But putting that aside, how far are you willing to go to prevent that sort of deprivation?

Negative reviews of Ned's product might also cause someone who would otherwise have purchased the product not to buy it. Should we take steps to prevent negative reviews?

If I buy Ned's CD and decide that it sucks, so I sell my CD (without keeping a copy or any such shenanigans), and a customer who would have been perfectly willing to pay $18 for the new copy of Ned's CD instead pays $5 for my used copy, then Ned has been deprived of the money he would have made from the sale of the product. Should we take steps to prevent this deprivation?

Where do you draw the line and how do you justify that choice?

R C Dean | June 10, 2008, 6:10pm | #

I say that I bought me house. That means I can (within certain limits) do whatever I want with it, including building an exact duplicate and giving it away.

Let's say, for purposes of the hypothetical, that your contract with the architect states that he owns the design. In that case, the design is not your intellectual property, and you may not build another, identical house and give it away.

Just like the information on a music CD is not your intellectual property, and you may not make a copy and give it away.

I say I bought a CD. That means I can (within certain limits) do whatever I want with it, including building an exact duplicate and giving it away. Oh wait, no, in this case, that falls within those limits. Why?

Because, while you own the physical CD, you don't own the information on the CD, that's why. Just like, even though you own the house, you don't own the design for the house (in my hypothetical).

You can sell your house, and you can sell your CD. But, when you have agreed not to, you can't sell the intellectual property encoded/embodied in those objects.

James Butler | June 10, 2008, 6:16pm | #

I emotionally agree with Fluffy. That being said;

1) This is a huge difference between pre-digital copies and post-digital copies. When all we had was pen and paper, copies may have been perfect, content-wise, but they were distinctly different, execution-wise. When all we had were cassettes, people would pay for the album because it was higher quality and had bigger artwork, etc. A digital transfer with the digitized artwork is indistinguishable from the official product, and the incentive to purchase the official product has been removed, because you've already got a perfect copy. The copying concept is the same, but the copies have gotten so good that there is no more carrot to dangle in front of copiers-who-might-turn-into-purchasers.

This is why "it's okay to sit outside a venue and listen to a concert while it is 'theft' to sneak in without paying" because the value of the ticket includes visuals and higher quality audio. The artist has no control over those who don't mind the lesser experience, but they provide something of value to those who want to get up close and personal, and anyone who obtains that premium experience by subjagating the value exchange is "stealing" from the artist.

2) In the digital/perfect-copy world, digital recordings are not sold, they are licensed. Ergo, someone who passes an unauthorized copy of a digital recording to another is breaking the licensing agreement, not "stealing the product", which has come to be represented as the physical medai the content is distributed on. You are buying the physical CD media to enjoy the convenience, reliability and precise replication offered by that particular distribution method, but you are only licensing the content burned onto it for your personal use. If you are a broadcaster, then you are subject to additional regulations regarding the continuing "sharing" of that licensed content.

If you are a file-sharer, then you are dealing strictly with the content, not the distribution media, so the content becomes the only product in the equation, and your crime becomes defined as "theft" of that product.

I think "theft" occurs when something of value is taken from someone without an agreement. Yammer about what's been codified all you want, but if music has value, then "taking"