Miscellaneous Ramblings

Copyright Bullies May Win Some Battles but Must Lose Their War

Charles Moore - 2006.03.13 - Tip Jar

Charles Moore examines the simmering issue of intellectual property rights in a digital age of MP3s, CD-burners, and software cracks. Traditional copyright laws, he observes, simply don't work anymore.

Recently the Washington Post's Fred Reed posted Music Industry Souring on iPod, one of the most cogent and lucid analyses of the realities of the music sharing revolution that I've encountered.

Reed observes:

"As most know, the Recording Industry Association of America (RIAA) is upset over the illegal distribution of copyrighted music. It has said that if you get tired of your iPod and sell it with the songs still on it, you are violating US copyright laws and may be sued.

"As the RIAA told MTV, such a sale 'is a clear violation of US copyright law. The RIAA is monitoring this means of infringement. In short: seller beware.'

"The RIAA's position is not without logic. If you burn a copy of a CD and sell it, that's illegal. If you copy the music onto an iPod and sell it, what's the difference?

"The problem is that digital technology has made copyright law essentially unenforceable. Sharing (or, depending on your politics, 'stealing') music has become a way of life. Millions of people are online at any given time downloading music . . . I know respectable business people with 1,500, 3,000, even 4,000 downloaded songs."

Not to mention clergy, teachers, lawyers, and other pillars of the community.

Traditional Copyright Law Is Obsolete

The fundamental issue is that copyright legislation drafted back in the horse & buggy days of the movable type printing press and wax audio recordings is obsolete the digital era.

Even the RIAA has conceded that staying ahead of technologically advanced pirates presents a greater challenge than ever. "Cyberspace poses unparalleled opportunities for the industry - and unparalleled difficulties in copyright protection," said a RIAA statement "It's estimated that more than 100 million computers worldwide are connected to the Internet and most of them can download and store pirated copies of recorded music."

One peripherally relevant issue this relatively new reality poses: Should a company that makes software that may be used in the commission of illegal activities, but that also has legitimate and lawful uses, be held liable for what individual users do with it?

There are those who argue that gun manufacturers should be held legally liable for crimes committed with the weapons they make. I profoundly and vigorously disagree with that line of rationalization. If the gun-maker is held responsible for, say, a bank robbery committed with one of its weapons, why not the auto manufacturer that made the getaway vehicle? After all, infamous depression-era bank robber Clyde Barrow (partner of Bonnie Parker) once wrote a letter to Henry Ford telling him what a great getaway car the Ford V-8 made. Reductio ad absurdum.

The Digital Revolution

I fully understand why the established recording industry is more unhappy about the MP3/iPod revolution than they are about private copying, but the fact remains that it is a revolution, and I am skeptical that they will ever be able to effectively win out against it. The Internet and MP3s have "democratized" the dissemination of music as well as other forms of intellectual property, and as I noted at the beginning of this article, copyright legislation as we knew it in the 20th century is no longer adequate to deal with the technological realities of the 21st.

Tight legal control over ownership of intellectual property is no longer possible in this digital age.

These musings are not intended as advocacy or endorsement of music, software, or literary piracy. I am a producer of copyrighted material myself, and I don't dispute that piracy is both illegal and wrong. I am merely observing what I believe to be fact. Tight legal control over ownership of intellectual property is no longer possible in this digital age. It really hasn't been since Xerox popularized the photocopier.

The operative issue is not whether making photocopies of copyrighted material is a crime. Under existing copyright legislation, it is illegal with only a few limited personal use exceptions. However, there is a common law aspect to the development and evolution of legal conventions, and when schoolteachers and college professors routinely photocopy copyrighted material to use in class and advise their students to do the same; when ministers of religion routinely photocopy copyrighted material to distribute in church services; when everybody and their dog photocopies stuff from magazines and library books for personal reference or to hand out to their friends (not to mention all the stuff that gets scanned into computers and distributed over the Internet); I submit that current copyright law is no longer working or workable.

While few people will outright admit to being pirates, when my son operated a small Mac repair and consulting business I don't recall one computer that came through the shop - including those belonging to clergymen, lawyers, and schoolteachers - that didn't have pirated software on its hard drive.

Piracy Is Rampant

In Canada, where I live, various surveys have found that some 37-56% of business software in use is pirated. More depressing news for the Business Software Alliance (BSA) was revealed in a survey by Canada's Decima Research that indicated 43% of Canadians condone software piracy (closely corresponding to the national piracy rate), and that falsifying resumes and stealing chocolate bars were popularly considered more serious than software piracy here in the Great White North. Only 20% of respondents said they would report someone for unlawfully copying software.

A BSA survey of 1,026 Internet users found that nearly half have downloaded commercial software at some time, and that 81% who did have failed to pay for all the copies they made. In fact, 57% of those who have downloaded software seldom or never pay for the copyrighted works they download, according to the study conducted by Ipsos Public Affairs, and just 12% admitted to committing software piracy.

One workaround rationalization among some of those who fly the Jolly Roger in cyberspace (or in other venues of software freeloading) is that "all software ought to be free"" which is easy to say when you aren't the one writing the code or paying big bucks for someone else to write it.

While it may soothe the pricks of one's conscience to mutter, "How rich does Bill Gates need to be?", the fact is that 60% of the Software & Information Industry Association's 1,400 members have yearly revenues under $3 million.

Piracy &endash; Shoplifting

The RIAA contends that

"the downloading of an unauthorized MP3 file constitutes copyright infringement. It is equivalent to going into a record store and taking a copy of a single (or album) without paying. It deprives artists, writers and producers, among others, of compensation for their creations."

Well, not quite equivalent. For one thing, as Fred Reed observed, literally millions of people who would never dream of shoplifting a book, album, or packaged software item seem to have no ethical qualms about photocopying and making unauthorized copies of music or software.

How do we explain this? I think that most people who pirate software or music know that they are breaking the law, but they think of it more in the category of speeding on the highway in terms of seriousness as opposed to grand larceny.

...piracy is perceived as a victimless crime.

I think one reason is that piracy is perceived as a victimless crime. I know that music and software industry people will vigorously disagree, but if someone copies a song or software application, the copyright-holder may be out of revenue he or she might have realized if the item had been purchased (one vast gaping hole in the music/software/movie industries' complaint and assertions of what piracy is costing them is that people would only buy a tiny proportion of what's being freeloaded ) but is not left without something he or she once possessed and now doesn't (such as when a book, CD, or DVD is shoplifted). That is, the copyright holder is no worse off materially than he or she was prior to the piracy.

Again, I'm not trying to construct a moral justification or rationalization for piracy here - just illustrating that it is a stretch to call software or music piracy "stealing" in the sense most people think of theft.

Copyright Is a Social Construct

The average person would regard going into a store and pocketing a tangible piece of physical property as something unambiguously wrong and essentially different from copyright piracy. The human mind finds the concept of intellectual property much more abstract, slippery, and nebulous than the concept of physical property.

I think it would be accurate to suggest that when most consumers buy a book or CD recording, their gut perception is of having purchased a physical item more than the concept of its intellectual content. Although the cost of the physical medium represents a small fraction of the purchase price, the gut-perception is that property is something one can see and touch and keep - even for people who intellectually know better.

If a burglar breaks in and steals your CD and DVD collection, there is no mechanism in place by which you can restore it for the cost of the lost media, so in practical terms, the ol' gut has a point.

Intellectual Property &endash; Physical Property

In a philosophical sense, I don't buy the notion that intellectual property is equivalent to real property in the sense of unauthorized use. If someone makes an unauthorized copy of an article I write, I have not lost possession of the article myself, and I can still sell it. If someone steals my car or computer, I have suffered real loss, not just hypothetical loss.

Consequently, intellectual property piracy is a very tough issue to sort out ethically, and I suspect that most people don't really bother to try. My guess would be that very few people reading this could honestly say that they have never made a photocopy of copyrighted material, taped or ripped a favorite song from a friend's LP or CD, pirated a piece of software, or "forgotten" to pay a shareware fee.

So are we all thieves or not?

Personal Piracy a Low Risk Enterprise

Most of us never have to confront ourselves with that question. For one thing, notwithstanding the RIAA's and SPA's highly publicized lawsuit campaigns, piracy is a very low risk enterprise. The chance of an individual who pirates software or music for personal use getting caught and prosecuted is negligible. Piracy is generally conducted in private, and the hacker/cracker crowd can experiment with breaking copy-protection protocols to their heart's content in private as well.

The concept of real property and social/legal/ethical proscriptions against its theft have been developed over thousands of years of common law consensus, but the much more abstract concept of intellectual property - and particularly copyright - has no such ancient tradition or consensual basis. It was imposed recently and arbitrarily from the top down at the behest of vested interests and thus has far less social legitimacy (although I'm not suggesting that there should be no protection of intellectual property - only that the version that has been imposed is not necessarily an ideal or just one).

Copyright laws are merely an arbitrary and mutable legislative construct; they do not necessarily carry any objective moral weight.

Listening to rhetoric from the RIAA and its vested interest fellow travelers, you might infer that copyright laws were handed down on stone tablets by the Almighty. They were not, and not everyone in the world bestows upon the abstract concept of intellectual property rights the quasi-religious reverence they are accorded in litigation-happy North America. Copyright laws are merely an arbitrary and mutable legislative construct; they do not necessarily carry any objective moral weight.

The original US Copyright Act granted copyright-holders "the exclusive right to print, publish, and sell a copyrighted work" for 14 years with a second 14-year term possible, "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

There were no rights given to the copyright holder regarding the public performance of the work, nor could the holder control adaptations or derivative works. Thus, rather than representing some sort of categorical moral imperative, today's copyright legislation is rooted in power-politics, monopolism, and censorship, and has, in our time, been expanded in scope far beyond its original intent.

...copyright law has been expanded well beyond its moral justification, enforceability, and sustainability, and it now principally serves selfish and regressive commercial interests.

In an era of digital communication, I submit that copyright law has been expanded well beyond its moral justification, enforceability, and sustainability, and it now principally serves selfish and regressive commercial interests.

Why should the private interests of greedy corporations put the kibosh on entire technologies that offers a benefit to the common public good? That is what happened with digital audio tape, which had the recording interests wetting themselves in fearful anticipation of easy, unauthorized, high-quality copying of music - until they successfully and selfishly lobbied in the name of copyright protection for restrictions that effectively killed the technology for widespread use, even though it would have offered many legitimate benefits that had nothing to do with piracy.

Meanwhile, MP3 technology was ramping up to blindside them, with consequences we're all well aware of.

Unjust Laws

Some would (and do) argue that whatever the law says, breaking it is always wrong. That is a philosophical stance with considerable integrity, but it founders in the instance of unjust laws. History is littered with bad legislation, and many laws have been downright immoral. It's just not that simple.

Particularly in the area of laws governing commerce, the law usually has more to do with protecting vested interests that enjoy a political constituency then it does with absolute morality.

The self-righteous industry folks might be well advised to engage in some introspection about ethics themselves. For example, many people - this writer included - believe that the Digital Millennium Copyright Act (DMCA), which was lobbied strongly for by the software and movie industries, is one of the most heavy-handed and unjust pieces of commerce legislation that has ever been enacted in the US. The DMCA tramples traditional fair use rights underfoot and tilts the balance of copyright protection lopsidedly in the favor of corporate interests.

...distorted and adulterated by commercial interests to the detriment of the common good.

There are many, including this writer, who acknowledge and affirm the justice of copyright protection as it was originally conceived and implemented by the US founders but who perceive it as having been distorted and adulterated by commercial interests to the detriment of the common good.

Just who holds the moral high ground in the copyright wars is philosophically debatable, although the current legal realities are clear. Consumers of intellectual property are regarded as simply commercial prospects rather than stakeholders in the cultural intellectual property equation.

The tradition of common law has meant that laws are changed by practice. For instance, if someone uses my land as a right of way to the berry field or beach, they are technically trespassing - breaking the law. If this persists over an extended period of time and I do nothing to prevent it, a common law right of right of way will be established. The same can happen in the case of registered trademarks if they become generic terms (such as aspirin, which has become a generic term in the US but remains a Bayer trademark in Canada).

Unworkable Laws

As with the photocopying issue for print publishers, it's hard to imagine how the music recording industry can ultimately win this one. However much the letter of the law is on their side, the US courts do not and cannot control the entire Internet.

Fred Reed comments in his column:

"It isn't stoppable, at least by any means tried so far. When a large part of the population regards something as morally acceptable and the rest of the population doesn't much care (who is going to turn in the neighbor for downloading?), and the practice is cheap, easy and almost undetectable, it is going to happen. Stopping file-sharing is harder than enforcing Prohibition, which didn't work, either."

Just as the full weight of government enforcement proved impotent to stop the bootleg liquor trade during Prohibition, it's likely to meet with about the same degree of success against music and software piracy - and for the same reasons.

When lawbreaking reaches levels like this, is the law workable anymore?

As with the photocopying situation, the question must be asked: When lawbreaking reaches levels like this, is the law workable anymore?

Fred Reed again:

"The RIAA and its allies have tried everything. They have shut down various file-sharing programs, such as Napster, only to have others pop up. They have filed lawsuits against people who share files. It hasn't worked. They have wanted to tax blank CDs on the grounds that the purchaser might share files. They have suggested that computer manufacturers be forced to add hardware to prevent downloading. Nothing has worked."

And ultimately, nothing will.

One gets the distinct impression that the RIAA and its industry members would like nothing better than to turn back the clock to the days before user-recordable CDs, back when they had control. However, that's not going to happen. You can't uninvent technology, as desirable as that would be in some cases.

Which Is Morally Worse?

The real conundrum is how to ensure that creators of intellectual property can be fairly compensated for their work given the technological realities of our time.

If I had the answer to that question, I would likely not be writing this column.

However, I do know that jackbooting, totalitarian measures like suing 12-year-olds or their parents and grandparents, taxing all blank recordable media, and seeking to restrict and inhibit hardware technology because it's impossible to get at all the pirates is not only not the answer. It is unjust and plain wrong - a lot worse morally than unauthorized copying.

Our hard-won freedoms are far more important than the vested interests of record companies, rock bands, and software developers.

Are we to have a free exchange of information or not?

...if maintaining free information conduits on the Internet means that music and software publishers will have to put up with piracy, I say so be it.

As with free speech and having to hold our noses and put up with people saying things we may revile and find offensive, if maintaining free information conduits on the Internet means that music and software publishers will have to put up with piracy, I say so be it. The benefit to the common good far outweighs the problems it causes for vested interests.

Thinking About Solutions

Perhaps the orientation should be to abandon the futile fixation on prohibiting unauthorized private copying and think of more innovative means of compensation and protection. One potential system would be micropayments, which would allow the consumer's account to be centrally billed or debited for transaction amounts too small to be practical under present billing mechanisms.

For people like me, who would be inclined to download a song once in a blue moon, micropayments would be a much preferable solution to download service subscription fees. In fact, some might argue that Apple's iTunes Music Store motif is micropayments implemented, but I don't think a buck a song is nearly micro enough to stem the tide of unauthorized file sharing, and the payment mechanism is still the conventional credit card.

Another current issue that needs to be dealt with somewhat radically is the length of copyright before a work enters the public domain. The current 70 years after the original creator's death is absurd, and I'm not sure how that applies in the case of record companies holding the copyright on songs. I would suggest that somewhere between 14 and 25 years, living or dead, would be more appropriate.

...pharmaceutical companies that spend millions of dollars developing prescription drugs don't get anywhere near the exclusive rights protection that record companies do for works that they don't even create themselves.

Even pharmaceutical companies that spend millions of dollars developing prescription drugs don't get anywhere near the exclusive rights protection that record companies do for works that they don't even create themselves. It is, as I said, absurd.

In the software arena, there is also the issue of "abandonware". If a company is no longer interested in developing and supporting and selling a piece of software, I believe that they should be obliged to put it into the public domain after reasonable passage of time - say four-five years at most.

However, if one wants to use a piece of current commercial software, it's only fair ball to pay the developer's registration fee. I wouldn't use Microsoft Word or Office for production even if they were freeware (see Why I Live Microsoft Free), but if you do, then don't complain about Microsoft's astronomical license fees. There are plenty of alternatives to Microsoft software that sell for a lot less or are legitimately free.

My inclination is to use either freeware or reasonably priced shareware and software from companies whose business practices are ethical and whose attitude toward their customers is benevolent rather than antagonistic.

It's All About Control

The real underlying issues in this debate are about who will control the distribution of information in the digital age and the legitimacy of copyright laws themselves. There has been a revolution, and the technological clock can't be turned back, even if the legal one can through fascist-style legislative oppression.

This fight is ultimately about money and power and control - over what you will be able to see and read and watch and listen to, and how it will be delivered, and who will make money from it. It is about protection of vested interests.

Ultimately, legalities, ethics, and so on aside, in practical terms you can't defy gravity. If it so chooses, the government will be able to punish some pirates through great legal effort and suppression of civil liberty, but they won't end piracy. And even if they could, it would be tragically bad news for the freedoms of speech and information exchange.

What we need is a commitment to reality (even cognizance of reality) among lawmakers.

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Charles Moore has been a freelance journalist since 1987 and began writing for Mac websites in May 1998. His The Road Warrior column was a regular feature on MacOpinion, he is news editor at Applelinks.com and a columnist at MacPrices.net. If you find his articles helpful, please consider making a donation to his tip jar.

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