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.
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.
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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.
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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).
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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.
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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.
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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.
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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
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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.
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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.
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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.....
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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?
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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.
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"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.
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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.
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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.
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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.
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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?
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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"!
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Re: Re: Re: Re: 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.
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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.
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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.
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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.
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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.
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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.
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Re: Re: Re: Re: 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.
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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?
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@ 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.
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"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?
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Re: Re: Re: Re: Re: 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.
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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.
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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!
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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.
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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.
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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.
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Re: Re: Re: Re: Re: 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.
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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. :P
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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.
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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.
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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.
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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).
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Re: why is this such a big deal?
It's an issue because their business is failing and they need to place blame.
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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!
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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.
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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
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Re: Re: Re: Re: Re: Re: 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
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