- 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Traditional Copyright Law Is Obsolete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and wax audio recordings is obsolete the digital era.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.
