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.

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.

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.

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.

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!

He wrote:

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.

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.

The Canadian government is considering a law to ban camcording movies shows in theaters. Not surprisingly, piracy advocates are unhappy. The first sentence I read about this is the funniest:

From p2pnet.com:

Can you castigate an entire nation for the ill deeds of a few? Hollywood says you can and so, apparently, does the current Canadian government.

Castigate? How will a law that criminalizes the recording of illegal copies of movies “castigate” the entire nation? How many people use a camcorder in movie theaters for legal reasons? How many people use a camcorder in a movie theater at all?

But wait, the author of the above quote states how it will:

I’d also suggest the techniques being used to apprehend the alleged criminals are likely to cause more trouble for the audience than the bad guys.

Sending ushers equipped with night vision goggles creeping down corridors trying to spot camcording criminals is far more likely to interfere with the audience viewing pleasures than to result in the capture of illicit copiers.

I’d say that the cause of the night-vision-equipped ushers were the illegal recorders. But this example of his is not a real, and piracy advocates are not trying to save movie-goers from Rainbow Six ushers. They want to prevent the passage of laws that will explicitely forbid this obvious method of violating the property rights of movie makers.