Mac Musings

Loss vs. Harm

Dan Knight - 2001.08.15

In his article, Theft in the Computer World, Andrew Hill raises some provocative issues. We won't use the name of this article's author, just in case the RIAA is looking for an admitted MP3 user to pick on. We've edited his thoughts slightly and present his case, which we follow with our analysis of the issues involved.

There is a fundamental difference between theft of intellectual property and theft of physical property.

I have done both.

I've taken pens from work; that's theft. I've downloaded songs from Napster. Well, I used to; it's pretty useless now.

The songs I liked, I went out and bought. Many I thought were useless and trashed. Many of the songs I downloaded were ones I already owned. I have about 500 CDs and about 400 albums (the black vinyl things). [Therein lies an interesting discussion: If I own the vinyl, do I have the right to download the MP3 and rip a CD?]

I feel confident that if I were dragged in front of a judge and jury, and I were able to produce an original showing I had rights to use the intellectual property, I'd walk out of court a free man.

I was studiously downloading and archiving the work of an obscure artist. I did this because I liked his music, and it was not available for sale.

If it was available for sale, I would buy it.

Record companies regularly retire huge sections of their back catalogue because it is not economical to distribute and stock their entire catalogue in stores.

How can a record publishing firm reasonably demonstrate loss for something they are not prepared to sell me?

While working in a school setting for a major computer manufacturer I had the opportunity to participate in a conversation, I actually acted as a sort of translator, between a group of 14 year old students and the Rabbi who was assigned to watch them since the regular teacher was away.

The students were discussing the new multi-gig hard drives they had purchased and the warez they had recently downloaded.

They were having this discussion in front of one of the religious leaders of their community, who was completely unaware of the discussion they were having.

He innocently asked why they needed these large hard drives.

They attempted to explain that they needed them for all the software they had. He persisted and asked why his 500 MB hard drive was perfectly adequate for all the writing he had ever done and would ever do - why this wasn't good enough for them.

The students were making fun of one of their number who actually made a point of buying all the games he played instead of just downloading them.

I am about halfway between the age of the high school students in the class and their teacher. They both turned to me to try and explain to the other side what they were talking about.

What ensued was a very interesting discussion.

Once the Rabbi understood that what the students were discussing was the contravention of a commandment, the nature and complexion of the discussion changed dramatically. He became quite upset that what they were discussing was causal theft.

Of course, the students didn't see it this way. They argued that since what they were sharing was a copy, no one actually lost anything.

The Rabbi attempted to tell them that theft was theft - they were stealing from the individuals and families who originally authored the work.

The interesting thing is that he wasn't exactly sure of himself.

You see, if I take something from you, I have it and you don't. However, if you have an MP3 and give me a copy, we both have a copy.

With intellectual property, we've separated the concepts of loss from harm. It's not exactly biblical anymore. You can still have your original, and I can have a copy.

It becomes more difficult to demonstrate harm if you can't demonstrate loss.

We are working our brains around the concept of intellectual property. Culturally, it's a relatively new thing. And most of the world isn't on the same page as North America and Europe yet. They may never be.

If you write a song, and I walk down the street whistling it, that's okay. If I rent a hall, charge admission, and whistle the same song, I owe you royalties.

The act is exactly the same in both cases. Only the surroundings and situation change. I'm still just whistling Dixie.

This is a very hard concept to explain to my six-year-old son. It doesn't completely make sense.

We are fundamentally redefining property, and that's hard to do with intellectual property, because the rules aren't hard and fast.

Here's an interesting thought: If the concept of a Public Library were arise today, it would never fly. It would die the death of a million lawyers.

"The government is going to buy books, CDs, records, and other intellectual property and share it freely with its citizen's because the cost of reproducing media is so expensive."

Wow, what a crazy idea; it would never happen.

I could argue that Napster had a net benefit on the music industry, but I can't prove it, other than anecdotally. As an almost 40-year-old man, my prime record (CD) buying days are over. I never bought so many CDs as when I was downloading and finding new stuff from Napster. I've completely stopped buying CDs since Napster died.

When the record companies are arguing a case for loss and harm, are they counting every single download? Are they counting the downloads that I already own the vinyl for? I'm not buying those again; they don't count as loss.

Are they counting the downloads that I listen to once and trash? These are something I would never actually buy. They don't count as loss.

Are they counting the music that they own but isn't available for commercial sale? That doesn't count as loss. If it's not part of their published catalog, they're not losing anything when I download a copy.

Are they counting the stuff I download and then subsequently go out and buy? Those don't count as loss, either. I bought the CD.

What exactly are they counting? The number of tracks that don't fall into one of the above categories is exactly zero.

Loss vs. harm. It's an interesting concept. If you can successfully distill it down so you can explain it to my six-year-old son or a class full of high school students, you might have some success selling it to the public at large.

Until then, people will continue to download and share software and especially music.

But then again, what do I know, I'm just whistling Dixie.

I am a writer and a publisher. I worked for over eight years in the publishing industry. I am not a lawyer or an expert on copyright law, but I've had my share of exposure to it.

Mass Piracy

I know of at least one case where a publisher reprinted an entire book without the permission of my employer and distributed hundreds of thousands of copies for sale at supermarket checkouts.

In that case, do the same principles of harm and loss apply? The pirate publisher didn't steal copies of the book from our warehouse or threaten the author. Was there harm? Was there loss?

Yes, there was harm and loss. As with MP3s and software, the content of the book was copyrighted. The author owns that copyright and is allowed to negotiate a fair fee for publication of his content. The pirate publisher never obtained permission to publish their cheap edition of this book, depriving the rightful publisher of a licensing fee and the author of royalty on perhaps a quarter million books. Even at a few pennies a copy, the unauthorized reproduction of this work deprived the author of his rights and income.

Was the author harmed? Aren't we only talking about potential income? Would as many copies of the book have been sold at the authorized publisher's higher price and with their smaller distribution system?

None of that matters. The material was copyrighted, and the pirate publisher violated copyright. Whether the book was in or out of print is irrelevant; the author was deprived of his rights.

Casual Copying

Copyright law allows for casual copying - photocopying pages from a book for personal use, copying a favorite album to tape so you can listen to it in the car, recording a favorite movie or TV program, and making backup copies of your software are all legal.

Correctly or not, Napster argued that they were simply facilitating fair use of music listeners already owned by allowing MP3 sharing on the Internet. Even if they could have somehow limited downloads to those who already owned the music on tape, vinyl, or CD, the question would arise whether they had a right to use someone else's copy of that music.

Of course, we all know that's not how Napster was used. Sure, some people used it that way, but others used it to download favorite tracks, to give a better listen to a tune they'd heard on the radio, to create their own compilation CDs, etc.

As most of us know, this kind of thing has been going on since the era of reel-to-reel tape: borrow an album, make a copy, give the album back. I know of people who used to tape hours of music off the radio to create tapes of their favorites long before Napster and MP3s. There have always been ways to get free music.

A Matter of Scale

Napster didn't come to that attention of the record companies because it was illegal; small scale unauthorized copying has been going on for decades. No, Napster got their attention because is provided a centralized agent that facilitated personal copying on a massive scale. From a more mercenary perspective, the record companies saw Napster as a potential revenue source that was possibly siphoning off corporate profits.

Was there a loss? Was harm done? As the author of the letter notes, those who download MP3s often end up buying the same music on CD. Some studies have shown that the sale of CDs has declined since Napster was scaled back, giving credence to the argument that Napster was actually good for the record companies.

But that isn't the point. Copyrighted material was being widely duplicated without permission - but only on the individual level. Napster was not pirating music; individuals were, yet no individual user was worth the RIAA's time and legal effort.

Robin Hood

The most common arguments justifying such copyright violation are that the record companies are huge and don't need the money, downloading doesn't negatively impact sales, and the record companies don't treat the bands fairly, so they deserve to suffer.

In short, Napster users are modern day Robin Hoods, stealing from the rich record companies and giving to the poor artists - not. Napster users are not supporting the artists, although one frequently discussed alternative is letting users contribute funds to their favorite performers, kind of an electronic tip jar.

But that's not the point. Whether the record companies treat their artists well or poorly does not justify us ripping them of. Neither does the size of their bank accounts. Wrong is wrong, and copyright is copyright.

That brings us full circle to the concept of "intellectual property." Copyright has been around for centuries; it is far from a new concept in Western civilization. Recent changes in copyright law have all favored the big corporations, but again that doesn't justify theft.

For a Six-Year-Old

How do you explain copyright so a six-year-old understands it? Better yet, how do you explain copyright so an MP3 collector understands it?

Copyright allows the creator of a work (author, musician, lyricist, artist, photographer, etc.) to decide how that work will be distributed. An artist may decide to produce 100 copies of a lithograph and destroy the plates. A lyricist may choose to put a song in the public domain. A writer may decide that a book may not be published until after his death.

Copyright enables the creator of a work to benefit from that work by controlling distribution. It theoretically prevents pirate publishers from reprinting a book or duplicating a CD without the artist's permission. It lets the creative spirit behind the work contract with a publisher and earn a fee from their creative work.

For instance, if a first grader makes a very nice Valentine or Mother's Day card for Mom, it wouldn't be right for Mom to sell the card to Hallmark, American Greetings, etc. without the child's permission. I think that's an example a six-year-old could understand.

Copyright law allows some very specific exceptions to that control. For instance, you can quote from a work when writing a review of it, you can make a personal backup copy of music or software, and you can make a private copy for research purposes. You cannot create a stack of copies to hand out in the classroom without permission. By analogy, you shouldn't be able to rip an MP3 and put it on a server where just anyone can download it.

No, that's not the same thing as stealing a loaf of bread or taking a pen from the company supply closet. There is no physical item being stolen, but that doesn't mean there is no harm, no loss. Freely distributing copyrighted material without permission not only violates copyright, it may also deprive the artist of income. It's theft of potential income.

For a six-year-old, it's like telling her that if she cleans her room before bedtime, you'll make a banana split - and then going into her bedroom and cleaning it before she has the opportunity to earn her treat.

Sense and Nonsense

I'm not going to make the argument of the software publishers and recording industry that every unauthorized copy is a lost sale. That's nonsense, as is the argument that no sales are lost because of piracy. Sure, there are even some software and CD sales that can be attributed to piracy, but they pale in comparison to the warez and MP3 trading taking place on the Internet.

With or without Napster, music fans will continue trading MP3s over the Internet. That's inevitable. Some people will buy CDs because of it; others will decide they don't need to buy CDs because of it.

Who wins? Who loses? Nobody wins. Fans get lower quality copies of the music, record companies feel they are being taken advantage of, and the artists their fans are ripping them off. Sure, a few more fans may buy CDs after listening to the MP3s, but what is the end cost of all the ill will generated?

The sensible thing would be for the record companies and artists to get involved with creating MP3s. They could offer free downloads of lower quality tracks to entice buyers, then sell full CDs or individual tracks of highest quality MP3s online. But instead of seeing MP3s as a powerful marketing tool, the record companies (at least most of them) want to find a way to profit from each MP3 download or completely stop the flow of music.

Believe it or not, that won't stop with Napster and MP3s. They are working on ways to make CDs that you can listen to but not duplicate or rip tracks from. They are devising schemes that will allow limited copying of MP3-like tracks and allowing their use only on a drive or computer with a specific serial number.

Whatever happens with Napster and MP3s in the short term, you may soon find it impossible to borrow an album from a friend and dub a tape or rip an MP3. The widespread blatant disregard of copyright law has convinced Microsoft, the RIAA, and others that the only way to keep you from violating copyright is to make unlimited copying impossible.

That will be a real loss and cause irreparable harm to the industries and end users alike.

As for the pirated book mentioned earlier, it provides an example of why the RIAA doesn't go after small scale pirates. After looking over the whole situation, determining legal costs, and projecting a possible settlement, my employer decided that it wasn't worth pursuing the case, since the probable settlement would be eaten up by legal costs. Instead of sending a message that piracy is bad and copyright violation will be punished, they essentially told the pirate publisher that they had done a bad thing, but they could get away with it and keep their ill gotten gains because there would be no profit in a law suit.

I'm sure they'll keep that in mind next time the decide which publisher they can steal material from. At least the RIAA is trying to send the message that piracy is bad.

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Dan Knight has been using Macs since 1986, sold Macs for several years, supported them for many more years, and has been publishing Low End Mac since April 1997. If you find Dan's articles helpful, please consider making a donation to his tip jar.

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