There is no right to copy music
Last December, a Washington Post editorial suggested that the RIAA was going after individuals for copying music from legally-purchased CDs to their computers. This story made big news, but it turned out to be completely false. The RIAA was going after individuals who were distributing music online, not people who were just making copies of their music. The Washington Post issued a correction to the editorial, but the story didn’t die there. Despite the facts proving the story wrong, there are some that still think the RIAA believes that they think every individual who rips his CD collection to his personal iPod is a thief and a potential target for a lawsuit.
What is the basis for this belief? Well, one of the things behind it seem to be the fact that the RIAA hasn’t come out and said that an individual has a right to make copies of music – even for personal use. As stated on one of their sites:
Beyond that, there’s no legal “right” to copy the copyrighted music on a CD onto a CD-R. However, burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns so long as:
- The copy is made from an authorized original CD that you legitimately own
- The copy is just for your personal use. It’s not a personal use – in fact, it’s illegal – to give away the copy or lend it to others for copying.
A writer at Wired who has written many posts on this issue had the following evaluation of the quote above:
Taken apart, what does it mean? Ripping MP3s is unauthorized. Under copyright law, anything unauthorized is infringing, unless the Fair Use doctrine defends the action as “non-infringing.” But the RIAA doesn’t believe that Fair Use covers MP3 ripping. So when they say unauthorized, they mean “infringing.” But that infringement won’t “usually” bother them until you start distributing.
So, since the RIAA won’t say that ripping mp3s is a right, they are saying that it’s not a right. And that must mean that they think it should be illegal. Therefore, the RIAA is totally against mp3 ripping (and presumably, only doesn’t go after iPod users because of the negative press it would generate).
I think that this type of logic isn’t fair because it takes some things out of context, but it raises a good question. Is copying music for your own personal use a right? Or in other words, do you have a right to make copies of music you purchase, regardless of what the creator of that music thinks? I’ve thought about it for a while, and I’ve come up with my answer: No. There is no right to copy someone else’s music.
But why?
In Objectivism: The Philosophy of Ayn Rand, Leonard Peikoff wrote (page 356):
All such claims involve a contradiction: if my right to life entails a right to your labor or its product, you cannot have a right to liberty or property. If my unearned claim is not satisfied, my “right” is violated; if it is satisfied—as a matter of right, regardless of your choice—then your right to life is violated; you become a rightless creature, who functions by my or society’s permission. Free milk for part of the population, as one political theorist puts the point, means slave labor for the rest. The “right to enslave,” Ayn Rand observes, is a contradiction in terms; it means the right to infringe rights.
Even if you disagree with Ayn Rand’s view of rights, I don’t think there is any getting away from a fact in the quote above: Two people can’t have a right to the same thing. For example, if I have a right to the money I earn from my job AND my neighbor’s kid has a right to an education that is partially paid with my money, we can’t both be right. Either I get my money, or the neighbor’s kid does. To pick one option necessarily negates the other.
The rights of two individuals cannot conflict, otherwise they wouldn’t be rights.
When it comes to music, I believe that the music artist who creates the music has the right to that music. To have a right to your music means the ability to control its distribution and to guarantee that you are properly attributed. It is because of this that I think there cannot be a right to copy an artist’s music. To have a right to copy their music, independent of the terms in which you obtained their music, necessarily negates their right to control their property.
I like illustrations, so here’s a quick example (from my trusty GTD pad):
Here is an artist who wants to sell his music and a buyer. The artist is putting a condition on the sale, forbidding the buyer to make any copies. In this case, the buyer would have no right to copy that music, even to his iPod. He made an agreement with the artist not to do so. To say that the buyer has a right to make a copy of that music (regardless of the agreement he just made with the artist) is to say that the artist has no right to make that type of agreement when selling his own property.
Context is essential
To honestly answer the question “Do I have a right to copy my music?” a proper context has to be established. What music are you talking about? Were there any stipulations on the purchase? Is the copying for your or another person? If you’re just copying your own CD in a private folder on your own computer to listen for yourself, the answer is probably yes. If you’re copying your CD into a P2P folder in order to distribute the music to other P2P users (similar to the Jammie Thomas or the Thomas Howell case), then the answer is definitely no. It all depends on each particular situation.
But if the “Do I have a right to copy my music?” is meant to be asked without any context, as if the right existed regardless of the wishes of the artist, copyright law, or the conditions on the sale of the music, then the answer is absolutely no. There is no such right to copy music.
Why aren’t others saying this?
Well, some have. Or at least, there have been a lot of people who have backed off of the RIAA on this issue when it was shown that the Washington Post’s story was wrong. Still, I’ve read a lot of the criticism expressed against the RIAA on other sites on this question, especially on Wired, p2pnet, and the Recording Industry vs The People, and I don’t think it is warranted. The RIAA is in a lose-lose situation when asked to answer the question without establishing some context. If the RIAA won’t say copying music is a right, critics will supply a situation in which copying music is ok (like copying a CD to your iPod) and say that the RIAA is against that. And if the RIAA says that copying music is a right, critics will supply a situation in which copying music is wrong (like P2P file “sharers”) and try to use the RIAA’s words against them.
In general, most of the criticism I’ve seen directed at the RIAA has been like this. It looks really bad, but once you look deeper you’ll find a fact or two missing. And if you consider concepts like individual rights and intellectual property, you might not think the RIAA was wrong at all. It’s a shame, too, because there are valid reasons to disagree with the RIAA. But not this time.
Update 1/31/2008: Corrected typo.
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McCain, Fox News, and “Fair Use”
A copyright infringement argument has sprung up between John McCain and Fox News recently. On a Republican presidential debate hosted by Fox News, John McCain had a sharp criticism of Hillary Clinton’s attempt to give $1 million of taxpayer dollars to a Woodstock museum. McCain had the following to say about Woodstock:
I wasn’t there. I’m sure it was a cultural and pharmaceutical event. I was tied up at the time.
That’s pretty funny, and I laughed when I heard it. McCain quickly took the 25-30 seconds of the debate video and made a presidential ad out of it. In response, Fox News issued a cease-and-desist letter to McCain’s office, telling him that he was not allowed to use Fox’s coverage for his presidential ad. McCain used the clip anyway, and now many groups with wildly different views on politics have come together to denounce Fox for trying to stop McCain from using their clip. Mitt Romney even made it a point to inform Fox News that he’s going to use their footage without their persmission. Most of the criticism leveled against Fox seems to be centered around the idea of “fair use.” Since the video clip shown was so short (30 seconds out of a 90+ minute debate), it was not shown for commercial purposes, and because the clip contains information an issue that is very important to our society, Fox News should not be able to stop McCain from showing the clip.
I agree that McCain has not violated Fox News’ copyright, but I don’t agree with most of the arguments I’ve heard against Fox. This is not easy for me to explain, but I’ll try now.
I believe that Fox News is the rightful owner of the debate video that was broadcast on its network, and Fox is well within its rights to stop any action that prevents it from exercising its control over its intellectual property. The “2007 Republican Presidential Debate hosted by Fox News” (or whatever it is called) is a piece of property created and owned by Fox News, and if you want to use that property you have to get Fox’s permission. So how can I say McCain to use a clip of that video without Fox’s permission? One sentence in Ayn Rand’s Capitalism: The Unknown Ideal completely changed the way I saw intellectual property, and I think it might make this issue easier to understand:
The inheritance of material property represents a dynamic claim on a static amount of wealth; the inheritance of intellectual property represents a static claim on a dynamic process of production.
Since owning material property is to possess control over something that exists, an owner of material property can cut that property up and still claim rights over every piece. For example, if you own a stick of butter and you cut it in half, you now own two half-sticks of butter. Your property right is claim on a specific piece of property, and by splitting it you merely changed the makeup of the object that you already own. Intellectual property cannot be cut up in the same way, however. An owner of a piece of intellectual property cannot necessarily cut up that property and then claim the same ownership rights over the pieces as he or she does on the whole. For example, an author cannot take one sentence out of a copyrighted book and claim to own the right over that sentence based on his copyright over the entire book. Ownership of a piece of intellectual property is the abilty to control the production of that property. Taking small bits out of a copyrighted work, like McCain did when he took the 30 second clip from Fox’s debate, does not harm Fox’s ability to control its property. Fox owns the publication rights of the debate, but it does not own the publication rights over every single word that was uttered on that tape.
This is not a limitation of copyright; it’s the definition of copyright. To own a copyright on a work is to own the copyright on that work, not every word or note that makes up the work. Many people think that the taking the concept of copyright to the “extreme” means that intellectual property owners will be able to stop anyone from seeing, hearing, or even talking about that content without explicit permission from the owner, but that’s not the truth. Copyright covers works created by individuals, and that’s all. Did McCain’s 30-second clip infringe on Fox’s ownership of the 90-minute debate? No.
Or did I, for that matter, violate the copyrights owned by the estate of Ayn Rand when I posted one sentence she wrote. No, I did not. Imagine what blogging would turn into if single sentences could be copyrighted!
I think this type of confusion about copyright comes from the backwards way that people often view copyright. Instead of treating copyright as the way to protect an individual’s creation, people treat it as a set of restrictions on what an individual can do. I think the latter approach lends itself to the idea that there has to be some “fair” balance between complete restrictions and no restrictions. Rights cannot be balanced, though. The only valid question is whether Fox has the right to control that clip.
I see one valid way for Fox to stop presidential candidates from using its video like this. All it has to do is make presidential candidates agree not to use the video in anyway in exchange for a spot on the debate. It wouldn’t stop people like you or me from using clips, but it would have given Fox a valid argument to use against McCain.
Tags: [copyright, fair use, fox news, intellectual property, mccain]Comments
Jammie Thomas and the RIAA
About two weeks ago, Jammie Thomas was found guilty of copyright infringement for making 24 songs available on a peer-to-peer “file-sharing” network. The RIAA has been going after people who distribute music online for a couple years ago, but everybody before Thomas decided to settle the case for about $3,000. Thomas rejected the offer and took it to court, and for her trouble she was found guilty and hit with a judgement of $222,000. I bet she wishes she had just taken the first offer! Now Thomas is appealing that ruling on the grounds that the $222,000 constitutes an excessive and unconstitutional penalty. Since the 24 songs she was found guilty for distributing could have been purchased for $24, the actual damages to the property owners for her actions is a drop in the bucket compared to the money she’ll have to pay to satisfy the judgment leveled against her.
I disagree, and I think the logic she’s using in her appeal is a good example of the type of rationalization music pirates use when they choose to steal someone’s music. These people only consider a loss to be a sale that didn’t happen because an individual chose to download the music instead. Like in Thomas’ case, the 24 songs in the case can be purchased for $24, so the damages were $24. But in most cases of music piracy, the individual who steals the music has no intention of ever purchasing the music. Therefore, since the artist did not lose out on a sale, then piracy is ok and does not damage the artist. In fact, it’s good for the artist because it could lead to increased exposure to the artist!
What this argument ignores is the artist’s right to own and control his own creations. The real damage music piracy inflicts is the loss of the artist’s ability to set the conditions by which his property is traded. It’s that control that allows the selling of music at all. How can an artist sell his music when everybody can just take it? He can’t. He just has to accept whatever terms the music pirate dictates and live with it. This, in effect, makes the music worthless.
If you think that $222,000 is a lot of money compared to the crime, look at some of the artists whose music was included in the 24 songs brought up in trial. Now compare the $222,000 to the amount of revenue the 24 songs have brought in to the music industry. Does the court’s ruling seem excessive now?
All this being said, I don’t like the fact that Thomas (a single mother of 2) has to bear such a huge financial hardship. But I also don’t like lots of cases I see of people making mistakes that are easily avoidable. Life has so much to offer, so why give that up for to be a martyr for a cause like fighting the RIAA in a file-sharing case? Even if you don’t agree with copyright, the law is clear and the penalties are harsh. We’ve all seen the FBI warning that pops up before movies. If you don’t want to be the target of a RIAA court case, all you have to do is not steal music. That’s not very hard.
Tags: [intellectual property, jammie thomas, riaa]Comments
Dismuke on “free markets”
A couple months ago, someone on the webcaster-side of the net radio royalty rate debate suggested that I read a post titled “An Unfree Market” written by Dismuke. I read it then, along with many other posts and articles on the issue, but I always remembered Dismuke’s response because of the way he tried to defend the idea of a “free market” while also trying to argue that the government should force low music royalty rates on music labels.
The two positions contradict one another, so in order to do so he twisted the idea of a “free market” into one that better suited his pro-government-regulation position. There are some arguments Dismuke made that I would like to address.
What is a free market?
A free market is a market where transactions occur only when the seller and buyer voluntarily agree to make the sale. The price for any product is ultimately up to the seller to set, and the amount that any buyer is willing to pay for that product is ultimately up to the buyer to set. The only way for a sale to occur is when the two sides can agree to terms. The only role the government plays in this type of market is to protect the freedom of all parties involved.
I’ve written this before, but that’s where the “free” in “free market” comes from. All parties are free to exercise their own judgment without being coerced into any deal.
This is where webcasters break with the ideas behind a free market. In a free market, the owner of a copyrighted song would be able to set his own publishing rate for any webcaster to play the song, and the webcaster would be free to accept the rate, walk away and never play the song, or negotiate a lower rate. Unfortunately, current U.S. law does not operate this way. Currently, if a webcaster does not like the rate the song-owner asks for, the webcaster can ask for “permission” from the government to play the song without the song-owner’s permission. The government has arbitrarily established a royalty rate that all webcasters can pay music labels, regardless of whether the music labels agree to the rate or not.
This special deal webcasters can make with the government violates the principles behind a free market. It takes away the freedom music owners have to set their own rates.
Webcasters love this arrangment, though, because the rates established by the goverment were much lower than major music labels wanted. That is, they were lower until the CRB’s recent decision to dramatically raise the royalty rates. So, when webcasters ask you to “save net radio” they’re not trying to bring back the free market. They’re really asking is that you pressure your government representatives to continue government intrusion into the free market.
So, how did Dismuke explain a free market? He doesn’t, except to throw out three facts about free markets:
1.) Free markets don’t allow prices to be set by judges on a government board,
2.) Free markets do not allow special privilege for certain industries to be set by the government, and
3.) In a free market, prices fluctuate according to supply and demand.
These are all true facts, but these facts by themselves do not define what a free market is. He never explains what he means by “free market,” leaving it to the reader to assume it is what he says it is. But if the the term “free market” is explained simply as a system where people are allowed to make their own agreements with one another without government influence, it’s easy to see how Dismuke’s call for government coercion in the music royalty rate business is in direct conflict with the free market.
Now, I can see how the first fact he gave could be considered an acknowledgement that the government should not be setting royalty rates. He wrote:
For the judges to attempt to cloak their rationalizations using free market verbiage is absurd and drops context in a massive sort of way because the entire process they are part of and the results of their decision is the exact opposite of a free market.
The results of the CRB decision are the exact opposite of a free market precisely because the process is the exact opposite of a free market. No matter what decision the CRB makes, it will be a result of a process that takes away the freedom of the owners to establish their own rates. Dismuke does not elaborate on this nor argue for the abolishment of the CRB and the special privilege they give webcasters.
Special privilege for certain industries?
Dismuke, like many webcasters, believe that is is unfair that the CRB’s royalty rates are much higher for internet streaming than the rates established for AM/FM radio. They claim that this is an example of the government giving the over-air radio industry advantages over the online radio industry. Dismuke wrote:
On what twisted logic can one say that the value of a given recording being streamed is somehow different depending on whether the stream originates from an FM broadcaster or whether it originates from a station such as mine?
The value is different because the owners of the music being streams want a higher rate for internet transmissions.
If they were able to set the royalty rate for broadcasting their music (as they would be able to in a free market) they would set a higher rate. In setting the higher rate for internet broadcasting the government is not giving over-air radio a special privelege. It is refusing to grant internet radio a special privelege over the music owners: The ability to set their own royalty rate for somebody else’s music.
It can be argued that the music owners should want to lower royalty rates for music broadcast over the internet, but the final decision to allow the broadcast should be theirs to make.
Fluctuating Prices
Dismuke explains how prices fluctate in a free market, and correctly points out that it is not a guarantee that rates would increase every year (like the CRB ruling has declared) in a free market. He wrote:
For a person to know what the market price for a given good or service in the year 2010 ought to be would require nothing short of psychic powers or omniscience.
What’s missing here is the fact that the violation of the free market is not in the CRB’s rate increases, but the fact that the CRB exists at all. Would Dismuke maintain his objection to the CRB’s psychic powers if they set the 2010 royalty rate to what he wished instead of what the music owners wished?
If so - then the next question is this: which copyrighted sound recording?
Do the judges on the CRB actually mean to suggest that the market value of all copyright sound recordings is identical?
Again, what’s missing here is the fact that the violation of the free market is the CRB’s blanket royalty rate for all music, but the fact that the CRB exists at all. Yes, in a free market the rates for unpopular music would probably be lower than rates for popular music, but in such a market the government would be setting royalty rates at all. But he wants the CRB’s lower rates, not a free market.
Pricing smaller labels out of the market?
For the CRB to price such copyright holders out of the market for Internet radio airplay does them a profound injustice - especially since the purpose of the CRB is to look out for the property rights and best interests of all copyright holders, not just copyright holders who happen to be the major mass market labels which control the RIAA.
The government pricing someone out of the market sounds bad, and definitely anti-free-market. But there is one little fact that Dismuke is not telling you:
Copyright holders are still able to negotiate their own royalty rates with whomever they wish.
In other words, music owners are still free to negotiate their own deals with broadcasters. If a band wanted to play their music on Radio Dismuke for a rate that is much lower than the CRB’s rates, they are free to do so (assuming they haven’t already sold their music to another party). If a deal can’t be worked out, though, the webcaster can go around the music owner and broadcast under the government’s rate.
So, nobody has been “priced out of the market” by the CRB’s higher rates. Music labels can still charge lower rates if they wish.
Freeloaders?
Aside from the implication that small webcasters such as myself are a bunch of mooching freeloaders, on the surface, this almost sounds reasonable.
I think this is a case where the term “freeloader” deserves to be defined. The dictionary.com definition of freeloader is “someone who takes advantage of the generosity of others.” Freeloaders do not steal from people, they just take everything that is offered. When I think of a freeloader, I think of the irresponsible cousin or uncle on television whose asks to stay for a few days to “get back on his feet,” but stays for weeks because the family doesn’t know a polite way to ask him to leave.
I definitely agree that the term “freeloader” does not fit webcasters who are trying to “save net radio.” In fact, freeloader is too good of a term to describe them. These webcasters are not taking advantage of the music owner’s generosity, they are trying to steal the music out from under the music owner. The tool they are using for this heist is not a lockpick, a crowbar, or a club. Their tools are the government, which they want to use to invalidate the music owner’s right to control their intellectual property, and you, who they plan to use to pressure the government to do what they want.
Webcasters will be quick to point out that they pay royalty rates, and their payment is money the industry would not have received had they not started their internet broadcast. What they’re not telling you is that the record companies don’t want them to sell their music at them at the rate they’re paying, and the issue at hand is whether the record companies should have the right to tell them no.
Here’s a quick example: Imagine two guys, Dan and Mike. Mike buys a brand new car for $20,000. Dan steals the car one day, sells it for $500, walks home, and gives the money to Mike while saying “I helped you out, this is money you didn’t have before I sold it.” The problem between Dan and Mike would not be the amount of money Dan sold the car for, but the fact that Dan sold Mike’s car without permission.
I don’t know enough about how the creation of the compulsory license for internet broadcasting has affected that industry to know if it is wrong for webcasters to take advantage of the license to play music without first getting permission from the owner. So long as the webcaster pays the royalty rates dutifully, I’m inclined to believe that they’re just mixed up in this mess of a system our government has created. However, if a webcaster - or anybody else - takes another step forward and becomes an advocate for this system that steals the private property from music owners, he has become part of the problem.
“Beyond Disgusting”
Dismuke wrote (emphasis mine):
The task of the Library of Congress and the Copyright Royalty Board is to protect the property rights and interests of all copyright holders. The fact that the judges on the CRB chose to use their authority to create an arbitrary rate scheme which will price a great many copyright holders out of the market for valuable Internet radio airplay so that some copyright holders with political pull can be protected from emerging forms of competition - well, that is disgraceful. And the fact that they attempt to use the honorable term “free market” as a rationalization for their decrees is beyond disgusting.
If it is “beyond disgusting” that someone would misuse the term “free market” when issuing their ruling, then how should one describe the way that webcasters argue for a completely anti-free-market system? The paragraph above is just like his entire post. His first sentence states that the task of the Library of Congress and the CRB should be to protect the property rights of all copyright owners (which should mean that property owners should be able to set their own rate for their own property), and then in the next sentence he complains that the arbitrary rate the judges picked is not low enough for webcasters (nevermind what the property owners want). He complains about the political pull of some record companies, all the while trying to build up political pull of his own. And all of this is surrounding a statement that is completely false (the idea that anybody will be priced out of internet radio).
If Dismuke was really concerned about the property rights of music owners and if he really believed that the free market was “honorable,” he would advocate for the elimination of the CRB and the compulsory license for internet broadcasts.
Why I Wrote This
I know I’ve written a lot about the internet radio, even before writing this huge post. One of the things that motivates me to keep doing it is the frustration I feel in when essential points in issues like these are ignored in favor of emotion-based arguments or outright lies. Instead of arguing whether intellectual property owners should have the right to control their own property, we get “Save Net Radio!” What is “net radio?” Who are we saving it from? How will it be saved with this government action? The questions raised by a context-dropping call like “Save Net Radio” lines up the issue perfectly for those who want to fill in their own answers without really addressing the issue at all.
Edit 6/21/2007: Very stupid spelling errors fixed.
Edit 6/22/2007: I should have probably made this clear above, but the link to Gus Van Horn’s site is not meant to imply that I’m replying to something he wrote. I’m linking to a comment someone else wrote.
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Compulsory licenses
I just read “G8 Summit Strengthens IP Protection; May Undercut Compulsory Licensing” over at IP-Watch.com. I normally don’t visit this site often, but the “compulsory license” in the article’s title grabbed my attention. I’ve argued against the compulsory license the United States government grants webcasters, but this was the first time I’ve seen the term “compulsory license” used in a different issue, so I thought that I might address the term by itself.
A “compulsory license” is a license that allows individuals to use or receive someone’s intellectual property without consent of the owner of that property. It’s called a “compulsory” license precisely because the owner is compelled (through government force) to accept whatever terms the government sets, regardless of his will. Regardless of whether the terms increase or (more likely) decrease the money the owner would have received had he set his own terms, compulsory licenses are essentially a take-over of someone else’s property. The government may acknowledge “ownership” of some piece of intellectual property, but they won’t allow owner to control it.
And when we are dealing with intellectual property, what else does a property owner have if he can’t control what is done with that property? Nothing.
The term “compulsory license” is just a tool for people to advocate for the theft of people’s intellectual property without saying so. To have a “license” to do something means you have permission, but permission from whom? The person who created and owned the property, or the government? People who push compulsory licenses for anything, whether it’s music royalty rates or new drugs, believe the government should be the one who grants permission.
Tags: [compulsory licenses, intellectual property, internet radio]Comments
AllofMp3.com interview on p2pnet
AllofMp3.com is a Russia-based company that sells music at a fraction of the cost one would expect to pay from an online store in the United States. How do they save money? Well, in Russia, one apparently does not need the permission of the copyright owners to sell their music. That is what AllofMp3.com claims, at least. Russia’s refusal to respect copyrights is a large point of contention between itself and the United States, and AllofMp3.com is often the main example of legalized piracy in Russia.
An executive at AllofMp3 participated in an interview at p2pnet.net. If you want to read how the anti-IP crowd treats issues like this, read it and see. The article and interview is supposed to be sympathetic to AllofMp3’s side, but I think it’s a great example of the problems with their arguments. On the page you will see paragraph after paragraph of talk about all of the good AllofMp3 does for copyright owners and its legality, there is only one sentence that actually pertains to the issue at hand:
AllofMp3.com:
The Russian Copyright Law provides non-profit Russian Licensing Societies with a right to grant licenses and to collect royalties for the use of music without necessarily obtaining permission from the copyright owners.
Like every other intellectual property debate today, the two sides split depending on their answer to one question: Should a artist be able to own and control what he creates? If the answer is yes, then companies like AllofMp3.com should be shut down. If not, then it really doesn’t matter what the copyright owner wants and any talk of the “benefits” that cheap or free music might bring to copyright owners is irrelevant.
Tags: [allofmp3, intellectual property]Comments
Piracy has no place in a free market
Jerry Kirkpatrick wrote an article titled “The Market Function of Piracy” and posted it at his blog and at the Ludwig von Mises Institute. In it, he argues that pirating copyrighted products brings a marketing benefit to the sellers of those products. He compares pirated copies to “free examples” and tries to explain how those samples can help to increase knowledge and interest. He also states on his site that he believes in laissez-faire capitalism (for economic and moral reasons) and that his interest is in applying them. I think that his positions on the “market function” of stealing property is not consistent with his stance on capitalism, and I’ll explain why. It might be easier to start by explaining what some of the terms in question mean.
A free market is a market where individuals can sell or purchase products only by mutual, voluntary consent. The “free” in “free market” means that all people are free to exercise their own judgment, and that no individual has the right to force another individual to do something without his consent. A seller offers a product for a price that he chooses, and a potential buyer’s only options are to meet the seller’s price or walk away. In a free market, no individual may be forced to do anything against his own will.
Piracy is a term usually used to identify the theft of intellectual property. For example, if you download or upload a movie or song illegally on a p2p network, you’re “pirating” that product. Piracy is stealing.
Just looking at what these two terms mean, it’s obvious that the two can’t go together. Theft has no place in a free market. A free market depends on individuals being free to set their own prices for their own property, and piracy is the theft of someone’s property without their consent. A “pirate” does not want to meet the creator’s terms for the products they want, so they take it and run.
So how do people get around these obvious contradictions? Based on what I’ve read from Kirkpatrick’s article and others, I’d say that most people seem to change the definition of “piracy” to something that boils down to “a harmless act of sharing movies and music between a small minority of people.” Some people believe that it is harmless because the creators of the music and movies never had the right to own them, while others believe that it is harmless because it doesn’t really cause the creators to lose any money. And some in the latter group, like Kirkpatrick, believe that the piracy might even be beneficial to the creators. He wrote:
The pirated product functions as a free sample that the innovator does not have to fund.
Treating a stolen copy of a product as a “free sample” ignores the owner’s right to that product. A free sample is a product that is offered voluntarily by someone, while a stolen copy of a product is a copy of a product that was taken from the owner involuntarily. Kirkpatrick may be trying to get around this by claiming that the stolen copy “functions” as a free sample, but his wording does not change the fact that it is a a stolen copy that was taken without permission from the owner by means of force. I think that a requirement for any advocate of laissez-faire capitalism (which I consider myself) is a zero-tolerance policy on theft.
He also wrote (emphasis mine):
Knock-offs are pirated products. Because they are usually cheaper than the original, knock-offs tend to appeal to a more price-conscious segment of the market; that is, the buyers of pirated products are probably not legitimate prospects for the innovative new product, either because they cannot afford, or do not want to pay, the higher price. Message to the innovative marketer? Either drop the price of the new product or produce a cheaper version—or be the first to exploit a new technology, something the movie and recording industries chose not to do.[2] Many, including these two industries, would rather sue than practice good marketing.
I’ll see if I can explain this correctly: People steal movies and music because they want the product without paying for it. Who is to blame? The music and movie industry, because they didn’t market their product to the pirate segment of the population properly. This segment offers a unique marketing challenge in that if they don’t like your terms they’ll take your product anyway, but hey, that’s the industry’s problem. The industry needs to reach out to these thieves to persuade them to purchase the product legally.
Tags: [intellectual property, piracy]Comments
GPL depends on copyright?
There are a lot of things that I want to write about the open-source movement, and the favorite software license of its advocates: the GPL. I don’t have a lot of time to write right now, so I’ll try to sum it up in a few sentences.
There is a movement of people who are against the concept of copyright, patents, and other intellectual property. They believe that the creator of a work does not have the right to tell another individual not to copy his music, writing, software, or any other creation that is not physical property. Their favorite software license is the GPL, which allows users to copy and distribute code freely with only one stipulation: Any works you create that are derived from the GPL’d code must have the same GPL “protections.” What type of protections? Protections from distributing the code in any form that does not allow full copying and editing. Applying the GPL to software essentially protects that software from being owned by any individual. (And when I say “owned,” I mean the ability of an individual to control what is done with that software.)
So why am I bringing this up? Well, there was a recent debate that started on Slashdot between two individuals on the question of whether the GPL depends on copyright in order to oppose copyright. The debate started with with a post arguing that the GPL depends on copyright. Someone wrote a response disagreeing with that position, and the original poster responded to that. The debate is interesting, mostly because it’s one issue that I actually find myself in agreement with the GPL advocate!
The basic argument of copyright abolitionists is that people should be free to share when sharing does not result in any diminution of supply. The GPL simply uses copyright law in a jiujitsu-like manner to enforce this principle, in a legal environment where sharing is prohibited by default and must be explicitly permitted to be legal. All the GPL does is create a space where permission to share is enforced.
I agree that the GPL does not depend on copyright law. Those who don’t believe in copyright think that everybody should be able to copy and distribute other people’s works without permission. Of course, they can’t make anybody do that because it goes contrary to current law. So, in a clever move, they convince people to give up their rights to their intellectual property voluntarily, and then use copyright law to enforce that decision. What’s important to note here is not that they are using copyright law to enforce the GPL, but that they want the government to enforce the GPL. They would be even happier if they could achieve their goals with laws that specifically forbid copyright, but they haven’t gotten the government to go along with that. Yet.
I think that most people tend to dismiss or ignore the ideas behind the GPL and the open-source movement, and the GPL-uses-copyright argument is one of the reasons. They look at the GPL text and say, “Nothing here violates anybody’s rights.” And they’re right, so long as developers have the choice to use the GPL or not. If you look at the ideas behind the GPL, especially on the GNU’s philosophy page, you’ll see that GPL advocates are not fighting for the rights of developers to make that choice. The GPL is not just another software license.
Tags: [GPL, intellectual property]Comments
More on Canadian camcording
I’m surprised that there are people who are against Canada passing a law that outlaws camcording in movie theaters. Has the idea of “fair use” and the desire to create “backups” extended to where some people think an individual is within his rights to record what he sees in a movie theater?
From michaelgeist.ca
The question demonstrates the impact of the media blitz on camcording - there has been no independent evidence put forward about Canadian industry or government losses (nor any reference to India that I can recall) yet that is how the question is framed.
I don’t think there is any “independent evidence” about losses taken on by the movie industry that would stop movie pirates from copying movies. I also don’t know how the movie industry determines what is a “loss,” but I wouldn’t be surprised if the movie industry loses more than it claims. When movies are copied and distributed online without permission, the movie industry loses more than the just price of the tickets they would have sold had a viewer saw the movie in the theater. They lose their right to the movie itself. People who want to see the movie no longer have to deal with the movie industry to watch a movie; they can instead just go online and get a copy from a pirate. The movie is, in essence, taken out of the free market.
Sure, the percentage of people who would watch a movie online illegal is pretty low. The vast majority of people are still going to meet the movie industry’s terms if they want to see a movie. However, if governments do not protect intellectual property, I think it’s only going to get worse.
And by the way, what “media blitz?”
A question that needs answering is not whether camcording is a good thing - it obviously is not (particularly in the way that it degrades the quality of the film) - but rather whether there is an impact on the Canadian film industry such that this issue should leap to the front on the line for the Minister of Canadian Heritage.
Note how the main objection the author raises about the illegal copy is its quality.
I think it is valid to question whether a law against movie camcording should be enacted, but only on the grounds that camcording in theaters is already made illegal by existing copyright law. And, most importantly, that the government of Canada enforces that law.
Tags: [intellectual property, movie industry, piracy]Comments
Explanation of Digg.com controvery
Via LGF, here is an article titled “The First Amendment vs. Patents in Web 2.0.” I have issues with the title, but I think it gives a good explanation of the controversy. Here was my favorite part:
As for Diggers, like self-obsessed post-adolescents everywhere, they are justifying their deed as an act of liberation, arguing that copy protection is evil, and — applying the same defense corporate crooks used 20 years ago with gullible juries — that they really weren’t stealing anything more than a bunch of numbers.
[…]
It is this: all information is not equal in value. Some of it was created with considerable investment in time and money that needs to be paid back. Other information is the product of creative minds that deserve to be rewarded for their contributions to humanity. And still more is vitally important to the ongoing employment of thousands of people and the families they support.
I have a busy weekend coming up, but I still hope to find the time to comment on this issue.
Tags: [digg, intellectual property, patents]