Friday Not-So-Fun Link

Another short-term victory for the sue-your-customers business model:

The recording industry Thursday won the largest judgment so far against consumers who illegally download music over the Internet when a federal jury ordered a 30-year-old Minnesota woman to pay $222,000 for copyright infringement.

Full story here. Reason's coverage of the downloading wars is here.

Update: Declan McCullagh explains why the bill is so absurdly high.

Comments

[Bronwyn]

The only way illegal downloading is hurting the recording industry is the fact that their idiotic response to the practice has prompted me to stop buying any music at all.

[gaijin]

From the article:
"It's not helping their cause. It's like prosecuting marijuana users," said Bob Lefsetz, who writes a music-industry newsletter.

Huh?

[Copyright is evil]

Life will be so much better for everyone when we have returned to the day when all music is provided by traveling minstrels. Who needs recorded music anyway, because copyright is evil.

[J sub D]

This should be an interesting, somewhat heated discussion. On your mark, get set ...

[not trolling, i swear]

but, in all seriousness... aren't they sharing copywritten songs illegally?

[JMR]

Another short-term victory for the sue-your-customers business model

If they're not paying for the music, then they're not really customers, are they?

[Paul]

If they're not paying for the music, then they're not really customers, are they?

Touche. You're suing them to make them customers.

[Jesse Walker]

JMR: Only if they've never paid for music before and at no point in the future expect to pay for it again.

[ed]

the sue-your-customers business model

Call it quibbling, but "customers" don't steal. They buy. Serial downloaders don't buy a thing. They're common kleptomaniacs, and they think that since they can do it, they have a right to do it. If Reason is truly serious about abolishing copyright protections, then take the copyright notice off your home page and off your magazine, and let anyone, anywhere, freely copy and distribute your articles without compensation or attribution. In other words, let them share it.

[Jesse Walker]

...and are actually guilty, which isn't always the case with these suits, but that's another issue...

[ed]

?2007 Reason Magazine. All Rights Reserved.

Discuss.

[Dan T.]

Copyright infringement probably should require damages to be paid, but downloading music without paying for it is not stealing.

[Warren]

Gaht! Damnit! How fricking depressing. I could use a drink.

[carrick]

If Reason is truly serious about abolishing copyright protections, . . .

I don't recall seeing a single article or post by the Reason staff indicating that they believe intellectual property should be abolished.

While a clear majority of the commentors on H&R are in the anit-IP wing of the libertarian spectrum, the magazine has not indicated in any way that they are as well.

[Jesse Walker]

If Reason is truly serious about abolishing copyright protections, then take the copyright notice off your home page and off your magazine, and let anyone, anywhere, freely copy and distribute your articles without compensation or attribution.

What does attribution have to do with anything? Don't confuse copyright infringement with plagiarism. (Not that I'd sue a plagiarist - the proper response to that offense is public shaming.)

Anyway, I can't speak for Reason as an institution, but if you Google my name you'll find plenty of places where my articles were recirculated without my permission by readers reposting them on various Internet forums. I've never sued any of the people responsible for those unauthorized reprints, and I never will. They mean more readers for me and more, not less, traffic for this website.

Even if I did object to the recirculation, of course, I would not be so stupid as to try to prop up an unsustainable business model with lawsuits guaranteed to alienate the public. What the RIAA is doing is bad business regardless of whether it's in the right.

[Jozef]

List of the offending songs, as copied from The Consumerist:

* Guns N Roses "Welcome to the Jungle"; "November Rain"
* Vanessa Williams "Save the Best for Last"
* Janet Jackson "Let's What Awhile"
* Gloria Estefan "Here We Are"; "Coming Out of the Heart"; "Rhythm is Gonna Get You"
* Goo Goo Dolls "Iris"
* Journey "Faithfully"; "Don't Stop Believing"
* Sara McLachlan "Possession"; "Building a Mystery"
* Aerosmith "Cryin'"
* Linkin Park "One Step Closer
* Def Leppard "Pour Some Sugar on Me"
* Reba McEntire "One Honest Heart"
* Bryan Adams "Somebody"
* No Doubt "Bathwater"; "Hella Good"; "Different People"
* Sheryl Crow "Run Baby Run"
* Richard Marx "Now and Forever"
* Destiny's Child "Bills, Bills, Bills"
* Green Day "Basket Case"

[de stijl]

Jozef,

Well, for a thief, she is a decidedly mainstream thief.

[JW]

Touche. You're suing them to make them customers.

Not really. They're posting heads on pikes as a warning to all others.

$9,250 per infringement? That's not compensative or even punative. That's retribution in the form of economic rape.

[carrick]

A great article on CNET:

http://www.news.com/8301-13578_3-9791764-38.html?tag=nefd.blgs

JURY INSTRUCTION NO. 22: In this case, each plaintiff has elected to recover "statutory damages" instead of its actual damages and profits . . .

Even as a hardcore supporter of IP rights, this stinks. The RIAA did not try to get compensation for actual losses.

This is how a minor infringement turns into 6-figure penalties.

[Jamie Kelly]

Don't confuse copyright infringement with plagiarism.

He's not, Jesse. Plagiarism is passing off a person's ideas and writing as one's own. He's making a point about actual copying of actual copyrighted material, and even reason magazine would at some point object to the free photocopying and distribution of its work by whomever, to whomever, at any given time.
Downloaders of copyrighted music are thieves. No obfuscation on your part (i.e., "it means more traffic for me! Yay!") will change that.
If you don't agree with their business model, fine. And if the RIAA is shooting itself in the foot, then so be it. But don't excuse theft, especially wholesale theft.

[Jesse Walker]

Carrick: Thanks for the link - I just added it to the post.

Jamie: I know what plagiarism is. I'm not annoyed if someone posts my articles somewhere without my permission. I am annoyed if he does so without attribution.

I also know what theft is. Copyright infringement is not theft -- not morally and not legally.

[Jesse Walker]

Oh - and I also know what obfuscation is. Answering a direct question about how I'd feel if my work were recirculated without my permission doens't fit the bill.

[The Extispicator]

If this lady downloaded Richard Marx on purpose, she deserves prison, not merely a civil judgment.

[Jamie Kelly]

I'm not annoyed if someone posts my articles somewhere without my permission.

Maybe the people who sign your paychecks are.
I'm a journalist, and my bosses don't give a tin shit how I feel about how the material I wrote for them is distributed.

[Jamie Kelly]

Copyright infringement is not theft

Oh, then what is it? Jaywalking?

[Reinmoose]

The absurd thing here is that she was charged $222,000 for stealing 2 CDs worth of music. Anyone want to venture a guess as to whether or not you'd get the same sentence for stealing 2 CDs from a retailer?

[Jesse Walker]

Maybe the people who sign your paychecks are.

I can't speak for my bosses, just for me. Reason as an institution does not have a position on intellectual property rights and publishes a range of views on the topic.

That said, it's clear that all that unauthorized recirculation drives traffic to the website and brings attention to the other work we do.

Oh, then what is it? Jaywalking?

It's copyright infringement, a civil offense. You'll notice that she wasn't tried for larceny.

[ChrisO]

Probably no biggie--the next stop for this woman will undoubtedly be a bankrutcy attorney.

[Lamar]

"Call it quibbling, but "customers" don't steal."

Call it quibbling, ed, but copyright infringement isn't stealing. So get it f*cking right before you quibble.

[Lamar]

"?2007 Reason Magazine. All Rights Reserved."

Gee whiz, ed, I'd first have to know how many local folks Reason sued for printing out a copy a certain story. Do you know the answer, ed?

BTW: I appreciate ed making the idiotic points so that the more intelligent of us can set the parameters of the debate.

[Another Phil]

Only if they've never paid for music before and at no point in the future expect to pay for it again.

What? They're being sued for illegally sharing particular music. What does their past or future music purchases have to do with it?

...and are actually guilty, which isn't always the case with these suits, but that's another issue...

The award seems excessive to me, but read some articles about the case. It looks like she was guilty. The prosecution had her IP address, the MAC address of her cable modem, and her username. Sure, you could come up with ways that all of these were spoofed, but that's not the most plausible explanation.

If you don't like the terms by which a product is being sold, don't buy the product! Don't claim that you have a right to it on whatever terms you want.

[ed]

copyright infringement isn't stealing

Yes, it is. Touch a nerve, did I?

[Rhywun]

Maybe the people who sign your paychecks are.

I'm sure I've read numerous times that more exposure, even free exposure, equals more dollars down the road.

[Jamie Kelly]

... it's clear that all that unauthorized recirculation drives traffic to the website and brings attention to the other work we do.

Happy for you. But not so here in local journalism land, where TV talking heads and morning-show radio morons routinely read our newspaper on the air, thereby diminishing the public's need to read our newspaper. Thereby, as well, hurting our circulation and diminishing our advertising dollars.
That's theft, dude. Theft of our efforts, theft of our work. You call it "copyright infringement," a civil offense, and I agree. Why don't we just call it "civil theft."

[Lamar]

$220,000 isn't even an interest payment on what it cost the RIAA to get Sonny Bono's lips around its dick. I can only imagine how much the rest of Congress cost.

[Rhywun]

Anyone care to comment on the plaintiff's lawyer's argument that users making a copy of their own music for their own use is also theft?

[Lamar]

Jamie Kelly: Why don't we call balloons pop-tarts? Sometimes they both come in pink, so....same thing, right?

The reason it isn't called theft is because (1) you aren't being deprived of any concrete thing, only a potential, hypothetical profit. (2) There is no fair use for theft.

Can you imagine if somebody stole your car....but lo, it turns out that he needed your car to try out some new rims for his other car, and so you lose your car to him? WTF?

[Rhywun]

TV talking heads and morning-show radio morons routinely read our newspaper on the air, thereby diminishing the public's need to read our newspaper.

Bullshit. They don't "read" your articles on the air. At most, they give a summary. When I hear a summary of an article I want to know more about on the morning news, and I go read the whole article, I *inevitably* read other articles.

[eeww]

Hey, Sonny's been dead a long time now

[Jozef]

Anyone care to comment on the plaintiff's lawyer's argument that users making a copy of their own music for their own use is also theft?

Actually, that was one of RIAA's witnesses, a legal representative of Sony. She claimed that ripping your CDs is theft

[gaijin]

where TV talking heads and morning-show radio morons routinely read our newspaper on the air

Do you guys, like, make up your own news?

[carrick]

Actually, that was one of RIAA's witnesses, a legal representative of Sony. She claimed that ripping your CDs is theft

This is the biggest problem with the RIAA right now. It's one thing to vigorously defend your copyrights. It's another to attempt to undermine the entire concept of fair use.

[Jamie Kelly]

Anyone care to comment on the plaintiff's lawyer's argument that users making a copy of their own music for their own use is also theft?

Well, if you're under no contractual obligations -- i.e., if you're a corporation of one -- obviously you can't steal from yourself.
However, if you are under a contractual obligation, and one of the terms of that contract is that you not copy the music for any reason, then theoretically you could be guilty of copyright infringement. But there's no goddamn way any corporate entity would make that demand.

[Rhywun]

Actually, that was one of RIAA's witnesses

I stand corrected! Nevertheless, I hope no one took her seriously.

[JW]

Anyone care to comment on the plaintiff's lawyer's argument that users making a copy of their own music for their own use is also theft?

Careful. He might sue you for using "words" to describe his "idea."

Hopefully, he never finds out about these places called "libraries" that allow people to read books that they didn't pay for.

[Geoff Nathan]

Just thought I'd point out that Reason actually does 'publish' most of its content for free, available for download, on the web. Unlike the RIAA's companies. And somehow it probably doesn't do >$200,000 worth of damage to Reason. So whatever Reason's editorial policy on this question, they are certainly not hypocritical.
And again, even if this copyright infringement is the same as theft, it's very petty theft--as someone above noted, who gets fined hundreds of thousands of dollars for stealing a $30 item?

[Another Phil]

Call it quibbling, but "customers" don't steal.

Call it quibbling, ed, but copyright infringement isn't stealing. So get it f*cking right before you quibble.

OK. Let's grant your premise. Copyright infringement isn't stealing. Do you have a right to someone else's copyrighted material? I say that you don't without the permission of the copyright owner. Getting that permission usually involves paying for it.

[Rhywun]

But there's no goddamn way any corporate entity would make that demand.

Apparently, Sony would.

[Jamie Kelly]

Bullshit. They don't "read" your articles on the air. At most, they give a summary.

How much did the crystal ball and tea leaves cost you? Or do you have an astral projection machine?
When some fuckstain gets on the air and reads quotes from sources that we've gathered ourselves, what do you call that, dumbass?

Do you guys, like, make up your own news?
We gather and report information. That's called "news." It's all the rage these days.

[Jesse Walker]

What? They're being sued for illegally sharing particular music. What does their past or future music purchases have to do with it?

It makes them customers of the music industry. Someone was challenging my use of the phrase "sue-your-customers," and I was explaining why I thought it was appropriate.

It looks like she was guilty.

Yeah, I agree. But that wasn't true of everyone the RIAA has served with papers.

[Rhywun]

How much did the crystal ball and tea leaves cost you?

I'm making an educated guess based on the fact that I've lived all over and have NEVER seen the morning newsheads directly quoting a newspaper. Perhaps the fact they haven't been sued yet is an indication that they're DOING NOTHING WRONG. Dumbass.

[Lamar]

The story repeats a lot of the industry-inspired myths from calling infringement "stealing" and "piracy" to assuming without much evidence that illegal downloading is causing the decline in CD sales or that illegal downloading is hurting profits overall. Notice who the paper quotes? BigChampagne, a copyright infringement troll company and Russ Crupnick of market researcher NPD Group (who's client is EMI). The person speaking in favor of the lady was a guy who sounded wacky with this marijuana analogy.

[Lamar]

"How much did the crystal ball and tea leaves cost you?"

Looks to me like the African Make-Up-Crazy-Shit bug crawled up someone's ass.

[Reinmoose]

SONY is a bunch of fuckwads. I decided years ago to never buy another thing from them after the stunts they pulled with the minidisc player, the DRM, and the shitty software they forced you to use with it, that would always crash and insisted on converting MP3s into their shit-sounding ATRACIII format.

[Lamar]

"When some fuckstain gets on the air and reads quotes from sources that we've gathered ourselves, what do you call that, dumbass?"

Libel, if the person isn't really a fuckstain.

[MP]

How can the acquisition of a copyrighted work without the consent of the rights holder not be considered stealing? Isn't that was stealing is, acquisition without consent?

[Reinmoose]

How can the acquisition of a copyrighted work without the consent of the rights holder not be considered stealing? Isn't that was stealing is, acquisition without consent?

If I record something off the radio, is that stealing? The TV?

[Lamar]

"Isn't that was stealing is, acquisition without consent?"

NO!! Stealing requires the intent to permanently deprive the other of the item. By definition, making a copy of something does not deprive the owner of the item.

[Jamie Kelly]

Perhaps the fact they haven't been sued yet is an indication that they're DOING NOTHING WRONG.

Our lawyer has had some nice, friendly chats with the competing media in my town.
No, we haven't sued ... yet. But we put the screws on them.
Dumbass.

[Jamie Kelly]

If I record something off the radio, is that stealing? The TV?

Originally, yes. Until the RIAA and others finally ceded the effort to try to enforce it, and agreed to "let" people do so for home use.

[An Ottawa Reader]

Music-industry executives privately acknowledged the Thomas verdict would do nothing to stem the tide of stealing. If anything, they said, such cases are a continuing distraction for the real task, which is to increase legal sales, especially online.

"You can't stomp it out. People are going to get it one way or another," said a senior executive at a major label who said he would be fired if his name were printed.

A ray of hope, though a thin one. At least some industry types are starting to realize suing "pirates" who have no money doesn't make any business sense.

(Copied without permission. The Seattle Times can sue me if they like, but I doubt they will.)

But not so here in local journalism land, where TV talking heads and morning-show radio morons routinely read our newspaper on the air, thereby diminishing the public's need to read our newspaper.

How different is quoting your paper on the air different from a link to it at (say) reason? IIRC, few papers even bother charging readers of their websites any more. The New York Times just stopped doing so, and the Wall Street Journal will probably soon follow.

A solution music industry types might try: finance their distribution sites with advertising, like newspaper sites do.

[carrick]

How can the acquisition of a copyrighted work without the consent of the rights holder not be considered stealing?

Here goes a poor analogy, but:

There is a difference between stealing your delivery truck and smashing it to pieces with a sledge hammer.

In both cases, you can't make your deliveries tomorrow. But in one case, it was literally taken from you. In the other, its value was destroyed, even though it was left with you.

Copyright infringement is intended to prevent someone from destroying the commercial value of a creative work. Distribution of unauthorizied copies of a creative work destroys its value without actually "stealing" it.

[JMR]

What does attribution have to do with anything? Don't confuse copyright infringement with plagiarism. (Not that I'd sue a plagiarist - the proper response to that offense is public shaming.)

questioncopyright.org has an essay (among several good essays) that addresses this frequent conflation of copying and attribution (what the author calls "creditright") and how a relaxing of copyright-based distribution restrictions makes it easier to detect plagarism.

[J sub D]

Wow, that was fun reading!

Is this the first time in legal history that technology has rendered a section of law irrelevant or obsolete? Probably not. I'm a strong supportter of IP rights. That said, the present legal and technological realities are incompatible. Digital formatting of video, text and audio has changed the landscape that copyright battles are fought on. Like it or not, a new legal framework needs to be worked out that will probably relegate the okd one to the scrap bin. Like all lawmaking, it's gonna be an ugly process, but the system as it stands now, requires a major overhaul or replacement.

[Jamie Kelly]

Looks to me like the African Make-Up-Crazy-Shit bug crawled up someone's ass.

I think it's of the Australian variety.

[Lamar]

Jamie Kelly: Lawyerly chats aren't "the screws." Hell, I could claim I put the screws to my toilet bowl this morning.

And Jamie Kelly again, for the loss: Time shifting of TV shows is A-OK, regardless of what the RIAA (I think you mean the MPAA) thinks about it. It used to be fair use, but now it's statutory.

[Lamar]

"I think it's of the Australian variety."

😎

[Jamie Kelly]

How different is quoting your paper on the air different from a link to it at (say) reason?

Because providing a "fair use" synopsis and a link brings you to our Web site, where we have many fun and spendid advertisements for you to click on.
http://www.missoulian.com

[Another Phil]

Stealing requires the intent to permanently deprive the other of the item

I've read this countless times. What is the source of this definition? Because I can't find it. Stealing is taking the property of others without their permission. No intent to permanently deprive is required. I'm guessing you don't think intellectual property is actual property though, so, even if we agree on a definition of theft, we'll still have that problem.

I'll still love you though.

[Lamar]

Calling copyright infringement stealing is sort of like the idea of Christian Rock. Since the true issue isn't very sexy, somebody decided to throw in the new hip lingo all the kids are using. Infringement isn't cool sounding? Call it stealing, theft, piracy.... all of which connote depriving somebody of something, probably with violence.

Don't try and claim the high road when you have to make up bogus words to sell your ideas.

[MP]

Copyright infringement is intended to prevent someone from destroying the commercial value of a creative work. Distribution of unauthorizied copies of a creative work destroys its value without actually "stealing" it.

So when I take a copy of a retailer's credit card records, I haven't actually stolen anything, I've simply reduced the value of the data to that retailer?

I'm sticking my original definition of stealing as "acquisition without consent". Stating that copying isn't thievery because the original is still in possession of the rights holder doesn't pass my smell test.

[anonymous newspaper reporter]

"I'm making an educated guess based on the fact that I've lived all over and have NEVER seen the morning newsheads directly quoting a newspaper"

I've only been a few places, and I see it all the time. Perhaps you can't tell because they don't announce that they're stealing a quote from the newspaper, but they often are. If you work for a newspaper, you'll notice. They don't always steal quotes, usually they just paraphrase, but it's still stealing. Of course, my newspaper doesn't own the news, but when the local newscast has the exact same stories we have, with the exact same information, and almost the exact same wording, I'm not ready to believe that they just happened to do all of the same reporting we did. Radio is usually worse than teevee on this.

[Lamar]

"What is the source of this definition? Because I can't find it."

It's common law, so there isn't one single source. Let me try and find one though.

[Lamar]

"I'm sticking my original definition of stealing as 'acquisition without consent'."

That is NOT the definition, despite however much you wish it to be so. These words already have definitions. You can't just make up your own.

[carrick]

So when I take a copy of a retailer's credit card records, I haven't actually stolen anything, I've simply reduced the value of the data to that retailer?

So you broke into a secure system and copied confidential information that is not accessible to the public.

This is not comparable to infringing the copyright on a publicly accessible creative work.

[Lamar]

Here's a definition.

[David]

Libel, if the person isn't really a fuckstain.

You could make the argument that everyone at least starts out as a fuckstain. An interuterine fuckstain, but still.

[Jamie Kelly]

Let's start from a very basic premise of mine.
Can someone here -- Lamar? -- admit that a person sitting at home downloading shitloads of music over a P2P network is doing something wrong?
I'll be here trying to extract my Austrialian Make Up Shit Bug, which I believe has now reach my colon.

[Lamar]

"admit that a person sitting at home downloading shitloads of music over a P2P network is doing something wrong?"

Possibly. I put my music on there in the very hopes that somebody will download it. Still, probably not a lot of innocent downloading going on in college campuses, for example.

[carrick]

Please don't confuse data crimes with civil copyright issues. It's hard enough to discuss copyright by itself.

[An Ottawa Reader]

...providing a "fair use" synopsis and a link brings you to our Web site, where we have many fun and spendid advertisements for you to click on.
http://www.missoulian.com

(clicks)

Ooh! Casa Pablo's Salsa!

[MP]

This is not comparable to infringing the copyright on a publicly accessible creative work.

Why not? Data is data. According to Lamar's referenced definition, you can't steal data from someone because they aren't permanently deprived of it. So are you both saying that the appropriation of copies of data are not theft?

And if you're not saying that, how do you squeeze data appropriation under your theft umbrella? That definition is totally inadequate for the digital era.

[MP]

Please don't confuse data crimes with civil copyright issues. It's hard enough to discuss copyright by itself.

They are the same. You're the rights holder in either case. It's irrelevant whether you've made that information more generally available or available only to your employees.

[carrick]

Why not? Data is data.

I disagree completely.

And if you're not saying that, how do you squeeze data appropriation under your theft umbrella?

Because laws regarding computer intrusions and misappropriaton of confidential data are now on the books and these are now crimes . . .

Because data is not just data, the information stored therein makes a difference.

[Another Phil]

I understand now. Lamar is using a legal definition. Go to any regular English language dictionary online though, and you won't find the bit about permanently depriving the owner of its use.

So, fine, in a legal sense, "copyright infringement" may not equal "theft," but in a common-language sense it does. Also, I don't see how someone has a right to take copyrighted material without paying for it simply because they don't like the price being charged.

[Lamar]

MP: You really are confusing things quite a bit. Just because "data is data" (which I disagree with), doesn't mean obtaining data in different ways for different purposes should be called the same thing.

[Jamie Kelly]

Ooh! Casa Pablo's Salsa!

DUDE, that shit rules. Buy tons of it. They ship, too. Best salsa not only in Missoula, Montana, but the whole freakin' world.

[Sal Paradise]

After looking at the song list, this woman has been punished enough!

[carrick]

Because a novel is not equivalent to confidential bank records.

It doesn't matter if the content is on paper or in a bit stream. The content is what determines criminal versus civil infractions.

[Lamar]

"So, fine, in a legal sense, 'copyright infringement' may not equal 'theft,' but in a common-language sense it does."

Then how do you account for fair use? Like I said before, if somebody steals your car, can they be innocent (and keep the car) because they needed the car for scholarly purposes?

Industry types have made a big push to put the wrong words in people's mouths, and not being the most articulate or intelligent country, we go for it. So, it isn't a surprise that people use the wrong words for things.

[Aresen]

I'm strongly in favor of protecting intellectual property, including pursuing those who illegally download.

However, if the $9,250 figure is correct, I have to agree with JW and Carrick @ 2:33. This is excessive.

At most, she should have had 3 - 10 times the legitimate price charged as punitive damages, plus costs for a Small Debt Court (or whatever the state court equivalent is) action.

[Lamar]

And this is a court case we're talking about. Don't get on my case for using the legal definition. We're talking about a goddam legal concept. Hell, why don't we just start referring to contracts as blood-pacts?

[Jamie Kelly]

After looking at the song list, this woman has been punished enough!

Not if she enjoys it.
I'd say the best punishment, based on her downloads, would be to lock her in a room with Schoenberg's tone poems blaring at 120 db.

[Another Phil]

I wasn't getting on your case. I was just trying to make sure we were all talking about the same thing.

[MP]

Because laws regarding computer intrusions and misappropriaton of confidential data are now on the books and these are now crimes.

So let's be clear...you don't consider that theft? And I don't mean legaleeze theft. I mean theft as it is commonly defined.

Because Jesse sure as heck wasn't talking about the legaleeze definition when he said "not morally".

[Lamar]

Sorry, I just don't like to be manipulated, and I feel that's what all this talk of thievery, piracy and stealing is meant to do....to make copyright infringement out to be worse than it really is.

[Cracker\'s Boy]

Data is data. And "stealing data" shouldn't (necessarily) be a crime. USING the stolen data to __________ (fill in the blank) COULD be crime:

A. Using it to access another's bank account for the purpose of taking money SHOULD be a crime.
B. (If) using it can be shown to have produced a loss of revenue (then it) SHOULD be a crime.
C. etc etc etc.

CB

[Jamie Kelly]

Lamar:
I agree that the judgment is way the fuck over the top. WAY the fuck over the top.
Time for reform of the statutes that would lead to this abysmal punishment.

[carrick]

Then how do you account for fair use?

Lamar has this part right.

Copyright protection covers the unauthorized copying AND distributing of protected creative works.

The magnitude of an infringement is a function of how much of the creative work is copied and what the financial impact is to the owner of the copyright.

The fair use doctrine specifically defines exemptions to the copyright protection to allow scholarly work or critical reviews of the original work.

While it may be acceptable to say colloquially that an original work has been "stolen", copyright infringement is not legally theft.

[Lamar]

MP: Repeat after me: Theft means that you deprive somebody of something. It's illegal, because you've taken away somebody's ability to exclusively use that private property. That's the whole reason it is illegal.

[Lamar]

OK, old chaps. Excellent joust. Gotta run.

[MP]

It doesn't matter if the content is on paper or in a bit stream. The content is what determines criminal versus civil infractions.

The content is irrelevant. It is the legal (and moral) rights to the content that is relevant. As a content producer, I have 100% rights (both morally and legally) to control how my content is distributed.

I just can't swallow Jesse's stance.

[MP]

Theft means that you deprive somebody of something. It's illegal, because you've taken away somebody's ability to exclusively use that private property. That's the whole reason it is illegal.

Lamar...to bad you've already run...but I'll ask again...is data appropriation theft (in the common usage of the word)?

[carrick]

So let's be clear...you don't consider that theft? And I don't mean legaleeze theft.

I absolutely call that theft.

Unauthorized copying of confidential financial records . . theft

Industrial espionage of trade secrets . . . theft

Making a digital copy of a copyrighted move . . . not theft

Copied off the air for later viewing in your own home . . fair use

Distribution over the internet to anyone with a fat pipe . . civil copyright infringement

Not that complicated.

[JMR]

Repeat after me: Theft means that you deprive somebody of something. It's illegal, because you've taken away somebody's ability to exclusively use that private property.

Much of the case of the folks looking to loosen up copyright is based on the premise that non-scarce resources (like a song recording) are not scarce, not "property", that the whole reason property rights arose in the first place was the scarcity of property, and that using the term "property" for intangible things frames the debate incorrectly or disingenuously.

[Another Phil]

No question, the copyright holders (and their proxies) want to paint the infringements in the worst possible light. However, a lot of people want to download music without paying for it when its owners aren't offering it for free. People redistributing copyrighted material without the owners permission aren't simply "sharing" it. Calling it sharing is designed to make it appear less wrong than it really is.

[MP]

Making a digital copy of a copyrighted move . . . not theft

What caused you to make this (arbitrary) leap? So if I copy Windows Vista, it's not theft?

[Another Phil]

Much of the case of the folks looking to loosen up copyright is based on the premise that non-scarce resources (like a song recording) are not scarce, not "property", that the whole reason property rights arose in the first place was the scarcity of property, and that using the term "property" for intangible things frames the debate incorrectly or disingenuously.

OK. Let's not call it "property." As its creator, should you be able to dictate the terms of its distribution though?

[J sub D]

Does anyone think that "joyriding" isn't auto theft? The "prtmanently deprive" definition seems to indicate it isn't. Yet joyriders are often prosecuted for Grand Theft Auto. Hmmm.

[carrick]

What caused you to make this (arbitrary) leap? So if I copy Windows Vista, it's not theft?

Windows come with an EULA that says it can't be copied.

Putting one copy of vista on two computers at home would be a contract violation.

Putting out on the Internet would be a copyright infringement in addition to a contract violation.

[JMR]

OK. Let's not call it "property." As its creator, should you be able to dictate the terms of its distribution though?

That's the question. I hate to weasel, but I haven't come to comprehensive and firm conclusions on this question.

[MP]

Windows come with an EULA that says it can't be copied.

A DVD comes with an FBI warning, both on the box and in a splash screen when you play it. So it can't be copied either. But I can rip it, decrypt it, and make it publicly available. And that's not theft?

You're still drawing an arbitrary line between theft and non-theft simply based on content, not on rights.

[Jamie Kelly]

Do I own my own feces?

Isn't that the stupidist fucking question?

Do you want to download my feces?

Where are my meds?

[carrick]

From the federal government at:

http://www.copyright.gov/circs/circ1.html#wwp

Copyright protects "original works of authorship" that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:

literary works;
musical works, including any accompanying words
dramatic works, including any accompanying music
pantomimes and choreographic works
pictorial, graphic, and sculptural works
motion pictures and other audiovisual works
sound recordings
architectural works

A common short-hand would be "creative works".

[MP]

As its creator, should you be able to dictate the terms of its distribution though?

Ab-so-friggin'-lutely. I don't even understand why this is a debatable point. Seems obvious to me.

[carrick]

You're still drawing an arbitrary line between theft and non-theft simply based on content, not on rights.

Yes. And the difference results in criminal versus civil penalties.

[AnonCowHerd]

I think many are missing some of the facts in this case. The defendant didn't download music, she "made available" music she purchased on CD. Her lawyer showed proof of her CD purchases (and I believe a Best Buy employee testified that she was a regular music buyer). Her infringement was in the making available realm.

[carrick]

MP, your are now arguing with someone who has spent many, many hours on Reason saying that all forms of intellectual property are vital to the proper operation of a civil society.

I try very hard to avoid using colloquial terms like stealing and sharing because they are too fuzzy and usually obscure the issues at hand.

Copyright infringement is a civil infraction not a criminal infraction. While it may be morally equivalent to "stealing" someone future income, it is not legally theft.

I think it is much more productive to focus on the issues associated with infringing someone right to control the distribution a creative work and leave words like theft out of the picture.

[MP]

Yes. And the difference results in criminal versus civil penalties.

I am not, nor have I ever been, debating the legaleeze meaning of theft. I'm unconcerned if the legal infrastructure dictates civil vs. criminal penalties.

My gripe is with Jesse's statement regarding morality and it's implied meaning that content creators have no moral right to dictate the terms of the distribution of their content. I find that position to be bullocks.

[carrick]

I think many are missing some of the facts in this case. The defendant didn't download music, she "made available" music she purchased on CD. Her lawyer showed proof of her CD purchases (and I believe a Best Buy employee testified that she was a regular music buyer). Her infringement was in the making available realm.

I have ripped many of my CDs. In fact I have been listening to a home-made, greates-hits CD during this entire thread. This is fair use, period, regardless of what those fuckers at the RIAA say.

But, I don't distribute my stuff to anyone else. Not one-at-a-time on CDs or over-the-Internet to anyone that can connect. That is where infringement occurs.

[carrick]

My gripe is with Jesse's statement regarding morality

I disgree with that statement as well.

[carrick]

A DVD comes with an FBI warning, both on the box and in a splash screen when you play it. So it can't be copied either. But I can rip it, decrypt it, and make it publicly available. And that's not theft?

No it's not theft. But, the DCMA makes it a civil infraction by the mere act of attempting to defeat the copy-protection on the DVD.

This law is the first step in the process to gut fair use.

[Aresen]

Jamie Kelly | October 5, 2007, 4:11pm | #

Do I own my own feces?

I could name several art stores who would love to talk to you.

[An Ottawa Reader]

All fooling aside, I'm surprised nobody's refered to the economic literature on copying. Hal Varian of Berkeley has a working paper on his website about "Copying and Copyright," a nice non-technical survey of the subject. You can get it (free, no less) at:

http://people.ischool.berkeley.edu/~hal/Papers/2004/copying-and-copyright.pdf

A quote at length I think constitutes fair use:

"...[As] most information is born digital and that digital information is typically very easy to copy and distribute, it is conceivable that copyright laws may become almost impossible to enforce. Are there ways for sellers to support themselves in such an environment? It is worth considering some of the options. Here is a brief list of business models that might work in a world without effective copyright.

[List, which isn't that brief actually. Possibilities abound.]

"All of these business models have their problems, of course, and none is likely to yield any sort of social optimum. On the other hand, it should be kept in mind that copyright is a second-best solution to intellectual property provision as well.

"Perhaps the ultimate saving grace is that the same technological advances that are making
digital content inexpensive to copy are also helping to reduce the fixed cost of content
creation. Hundreds of thousands of people are giving away digital content, from blogs to
garage video to open source software. The increased availability of content due the
reduction in the cost of creating and distributing it will presumably increase competition and reduce the price consumers pay for legitimate access to content. This trend may serve to counterbalance some of the forces that have lend for increased copyright protection."

[MP]

No it's not theft. But, the DCMA makes it a civil infraction by the mere act of attempting to defeat the copy-protection on the DVD.

Can I safely assume that every time you use the word "theft" you are referring to the legal definition? If so, I really think you should qualify that every time.

I don't really care to debate the legal definition of theft. I consider any unauthorized acquisition/distribution (which is considerably different from the concept of fair use) to be theft. If you want to use other words, then fine. But it is a morally illegitimate act to acquire/distribute content without the acquiescence of the content producer.

And regarding fair use, although I feel that a content producer has a right to contractually obligate a consumer to only consume content in a particular way, I don't feel that it is an obvious moral right deserving of a legal framework beyond basic contract enforcement.

[waldo]

I've always assumed that sharing things that weren't yours was not exactly up to you...

bootlegging movies on a street is the same thing, except the defendant didn't make a profit and the downloaders didn't get a physical object, just the in many 1's and 0's

It's all just because you can do it without a risk. It's easy, it's almost risk free! Why not download movies and songs, why not share them out? Free stuff for the taking!

Argue all you want over whether it's "illegal" and "theft" according to legal def's - you're taking something that you didn't pay for

if you still think dling and sharing is a-okay, then i'm at a loss

[carrick]

Can I safely assume that every time you use the word "theft" you are referring to the legal definition? If so, I really think you should qualify that every time.

When talking about copyright, I restrict myself to "infrigement". This eliminates the problem.

But it is a morally illegitimate act to acquire/distribute content without the acquiescence of the content producer.

Yes and no. The purchase and resale and resale and resale ad nauseum of a CD gets the content creator no compensation past the first purchase. One could argue this has an impact on future sales of new CDs, but this is clearly legitimate under copyright law today.

And regarding fair use, although I feel that a content producer has a right to contractually obligate a consumer to only consume content in a particular way, . . .

Yes and no. You have no real right to prevent me from watching a movie that I purchased in the manner that I choose so long as I am not distributing it to anyone else. If I want to rip it, chop it, and show it my wall as a collage, that is my right under fair use.

[carrick]

MP, note that a key aspect of showing infringement is that the holder of the copyright has to prove financial harm.

In this case, "harm" was "proven" by the mere fact that the content was accessible via the Internet. This resulted in "statutory damages" instead of proven actual damages.

So even though I am vehemently opposed to "file sharing" on the Interent, this case worries the hell out of me.

[MP]

Argue all you want over whether it's "illegal" and "theft" according to legal def's - you're taking something that you didn't pay for

That's why it bugs me so much when people start getting into a semantic debate over the legal definition of "theft". When debating the general concept of IP, it should be pretty clear that the debate is one concerning moral rights, not legal ones.

You have no real right to prevent me from watching a movie that I purchased in the manner that I choose so long as I am not distributing it to anyone else.

All I'm saying is that one has the moral right to draft a contract that dictates those usage terms. Fair use is a legal construct that dictates the valid terms of such a contract. There is no moral basis for fair use which supersedes the moral right to mutual contract. However, there are sound practical reasons for having the Fair Use legal construct, which is why people are typically willing to accept it and put aside their fundamental moral right to mutual contract on any terms.

[carrick]

When debating the general concept of IP, it should be pretty clear that the debate is one concerning moral rights, not legal ones.

What constitutes copyright infringement is a very clearly defined by the legal system.

I have argued that owning Intellection Property is a natural right, just like owning Physical Property. This argument is certainly made on moral grounds.

But when we are talking specifically about the result of a trial like the one we talked about today, we are strictly talking about the legal ramifications of current copyright law unless you specifically tell me you are talking about deficiencies in the current law.

By the way, I think Fair Use is a moral construct as much as a legal construct.

[carrick]

I'm done for the day, I hope to continue this discussion with you in the future MP.

[MP]

I'm done for the day, I hope to continue this discussion with you in the future MP.

Maybe next time I'll stay on topic instead of getting pissed at Jesse when he says there's no moral right to IP. Have a good weekend all, I'm out too.

[x]

"Does anyone think that "joyriding" isn't auto theft? The "prtmanently deprive" definition seems to indicate it isn't. Yet joyriders are often prosecuted for Grand Theft Auto. Hmmm."

Indeed "joyriding" isn't auto theft, at least in California. It's a separate offense. If the prosecution can't convince the jury that the perps wouldn't have returned the car, then he/she doesn't get a conviction.

[Jesse Walker]

My gripe is with Jesse's statement regarding morality

I don't really want to get into this, especially at 6:20 on a Friday afternoon. But do you actually think that copying something is morally equivalent to taking it?

[MP]

I don't really want to get into this, especially at 6:20 on a Friday afternoon. But do you actually think that copying something is morally equivalent to taking it?

When it comes to IP, yes.

Let's imagine that CDs were sold in open unsealed packages. Are you saying that walking into a store and taking a physical CD is not morally equivalent to walking in with a laptop and making a digitally perfect copy? What makes matter (a physical CD) sacrosanct but bits (the data on the CD) free? Especially when the matter is practically worthless.

And remember Jesse, when you say "taking it", aren't you referring to taking a copy? When we're talking about IP, we're talking about copies. The transport mechanism is inconsequential. You don't buy a CD because it makes a nice shiny coaster. You are paying for content. I don't understand why you are so wedded to the transport mechanism.

[Lamar]

"But do you actually think that copying something is morally equivalent to taking it?

When it comes to IP, yes."

Well that's a f*ckedup thing to say.

(1) Would you prefer I steal your CDs or make illegal copies of them?

(2) Better yet, let's say you made perfectly legal backup copies of all your CDs. Would you prefer I steal your original copies or make illegal copies of them? You'd still have the content, so what's the beef?

Repeat after me: There's a difference between illegally copying something you have and stealing yours so that you don't have it anymore.

[Bobster]

Picard:
Earl Grey Tea. Hot.

Lawyer:
You didn't pay for that!

[Tom]

"(2) Better yet, let's say you made perfectly legal backup copies of all your CDs. Would you prefer I steal your original copies or make illegal copies of them? You'd still have the content, so what's the beef?"

What the heck is the point of this analogy? The "you" in this scenario is not the relevant party here. MP himself might prefer that you make copies of the content, rather than steal his discs. But who cares? MP isn't the owner of the content's copyright, so in the realm of this debate, his "preference" is irrelevant.

MP = possessor of the shiny plastic discs
X = possessor of the exclusive right to reproduce and distribute the content

Whether or not you agree that copying is equivalent to "taking," your analogy is pointless. Because the "taking" or "not-taking" that's at issue here involves X, not MP.

If you wish to argue that copying something is not "morally equivalent to taking it," you need to focus on X and demonstrate that this something was not taken from him.

(I happen to think that, yes, something has been taken from X: the exclusivity of his right.)

[Jesse Walker]

MP: What Lamar said (except the rude "fucked-up thing to say" bit). Taking removes your property; you don't have access to it anymore. Copying does not. It may, under certain circumstances, reduce the value of your property, but if that were theft you could defend zoning laws as anti-larceny devices.

[Lamar]

The question is whether illegally copying something is the moral equivalent of stealing something. There is a clear moral distinction in that stealing deprives somebody of the item, and such a distinction is written into the common law and most penal codes.

MP and Tom have attempted to make assumptions to reduce that distinction by assuming the physical CD holds zero value. There is clearly value in having the original as opposed to a copy. To ignore this reality, they have chosen to focus on the harm or depravation caused to the IP rights holder.

This is still a poor argument because it rests on the incorrect assumption that somebody who illegally copies a song would have bought that song or CD. Even if we could know for sure that 50% of those people would have gone and made a successful purchase of the illegally copied item, we would still be left with a valid moral distinction.

The law recognizes this distinction in a number of ways. First and foremost, the only criminal aspect of copyright law deals with bootlegging, where the target is not just a copy of the content, but a business model that takes advantage of people buying the CD but not in a way that sends money to the rights holder. Illegal copying is a civil offense, even though Congress clearly had the criminal aspects of bootlegging on its mind.

Second, saying that there is no moral distinction rests on the assumption that more illegal copies in circulation causes a reduction in sales of the item. Single songs from a CD can act like advertising. I have personally bought hundreds of CDs after hearing a single song that I liked, though I didn't ask if the person who had the song on his computer bought it legally, I suspect not. While it is within the rights holder's purview to refuse viral marketing, one cannot claim with certainty that they also don't benefit from it.

So when we're talking about the moral distinction between illegal copying and stealing, we have three important points: (1) the copier gets something lesser in value, (2) the item owner is not deprived of his property, and (3) the rights holder only potentially may have been harmed.

And the F word still looks better to me with the asterix.

[MP]

I want to respond to both Jesse and Lamar, but I'll wait for the next IP thread.

Until next time. Excelsior!

(yes Stan, I'm an IP thief)

[Tom]

"The question is whether illegally copying something is the moral equivalent of stealing something."

Right. I understand that. All I was saying is that the analogy you presented (11:50 p.m., 10/5) does not properly allow us to examine any equivalence.

Aside from the closing parenthetical, my post was merely about a rhetorical flaw.

[Lamar]

Please Tom, you claimed that the person who had their CDs stolen wasn't relevant to the morals of illegal copying, when the whole inquiry was a comparison of illegal copying and stealing. You can't compare stealing to illegal copying without looking at the person stolen from.

You're the one trying to say there is no moral distinction between copying and stealing as long as you don't bother to compare copying to stealing.......??!!

[Tom]

"Please Tom, you claimed that the person who had their CDs stolen wasn't relevant to the morals of illegal copying,"

No, I simply claimed that your analogy was not adequate to make the comparison that would need to be made for assessing equivalence.

I'm not sure why you're getting so worked up here. Step back a second. Imagine not that I'm some foe who may disagree with your ultimate point, but that I am merely, say, a debate coach or a moot-court judge.

We are examining a proposition: Are copying and stealing morally equivalent? They may or may not be. But we cannot properly judge their equivalence by using this framework: "Would MP prefer that I steal his CDs, or that I make illegal copies of them?"

Stealing MP's discs affects MP. Copying MP's discs affects not-MP. (I.e., the copying affects a copyright holder somewhere.)

Two different parties are affected. Thus MP's preference is irrelevant. Your analogy does not service the question at hand.

Look, you could be entirely correct: Stealing and unauthorized copying may not be morally equivalent at all. This may very well be the most fundamental of universal truths. All I was saying is that we can not get to it via the particular analogy you presented.

[Lamar]

"Stealing MP's discs affects MP. Copying MP's discs affects not-MP. (I.e., the copying affects a copyright holder somewhere.)"

That's where you're wrong. Stealing MP's discs affects MP and possibly the rights holder. Copying MP's discs does not affect MP and possibly affects the rights holder.

Thus, the harm inflicted upon MP that is not inflicted upon him via copying is most certainly relevant. MP is trying to factor out the reasons that stealing is distinct from copying, then proclaim that stealing and copying are the same. It can't be done, coach.

[Lamar]

I should have added to my first paragraph that only in stealing is there certain harm. In illegal copying, there is only potential harm, but that potential harm is also present in stealing. We are left comparing the moral distinction between an act containing certain harm plus potential harm vs. an act only containing potential harm.

[Tom]

You're still not getting my point.

You asked MP which scenario HE preferred: having his discs stolen, or having his discs copied.

You asked which scenario HE preferred.

You asked which scenario HE preferred.

You seemed to think that MP's preference in this matter would somehow illustrate something about the moral equivalence of the two acts.

I was simply noting that MP's preference does not, in fact, illustrate anything about the moral equivalence of the two acts.

I've now written it five different ways to Sunday -- quite literally -- and you still don't seem to be understanding my point.

You asked which scenario HE preferred.

Do you realize that's what you did?

[Tom]

Can I say it again?

You asked which scenario he preferred.

All right?

MP had written that "copying something is morally equivalent to taking it ... When it comes to IP, yes."

You declared that to be "a fucked up thing to say," then posed this hypothetical:

"Would you prefer I steal your original copies or make illegal copies of them? You'd still have the content, so what's the beef?"

And then I posted with a simple response: that this question about MP's preferences does not address the issue of moral equivalence.

At least I thought it was a simple response.

Christ.

[Tom]

While I'm wary of moving on until I'm certain you've understood the flaw in your Oct. 5 post, I will address this from your latest:

"Stealing MP's discs affects MP and possibly the rights holder."

No, stealing MP's discs does not affect the rightsholder in any way.

I'm starting to get the impression you have some basic misapprehension about the nature of copyright.

[Lamar]

"You asked which scenario HE preferred."

To latch onto that as if it were the only part of our discussion is silly. Asking MP whether he preferred his discs stolen or merely copied was a way to illustrate the deprivation aspect of stealing with is not a concrete part of copying.

And if stealing the content on MP's discs does not affect the rights holder is anyway, how does copying his discs? This is not my point, as both stealing his discs and copying his discs have ramifications for the rights holder (both reduce the likelihood that I'll buy the CDs). While this is not a legal distinction, you'll find that we already discussed the legal implications. There's no doubt that, legally, there is an important and undeniable distinction between illegal copying and stealing.

If you read the posts above, the main objection to my argument was that I was using the legal differences in copyright and larceny laws to support the idea that there is a moral difference. Your johnny-come-lately posts don't even address that whole aspect. The legal aspect is cut and dry...there is a very clear distinction in the law. If that's your angle, good luck.

I understand copyright, at least academically, having received the highest grade out of a class of 110 in one of the top IP lawschools in the country, with William Patry, a reknown expert in the field. I think I have an idea how copyright works, as well as the history of IP protection starting from the Statute of Anne. I've written articles on extending copyright protection to folk art and even a neat little short story on the long forgotten art of self help in copyright enforcement.

Your flaw is that you latched on to the tail end of a reasoned debate, and failed to include the previously discussed legal aspect in your questioning of my later posts.

But perhaps it would be more instructive if you just stated why you think stealing, which deprives somebody of property, is morally equivalent to illegal copying, which only potentially deprives somebody of property. That'd be a good place to start.

[Tom]

"But perhaps it would be more instructive if you just stated why you think stealing, which deprives somebody of property, is morally equivalent to illegal copying,"

I didn't say I think that. In fact, I wrote:

"Look, you could be entirely correct: Stealing and unauthorized copying may not be morally equivalent at all. This may very well be the most fundamental of universal truths. All I was saying is that we can not get to it via the particular analogy you presented."

I think you believe I slipped into this thread to stealthily make some larger point. I didn't. I jumped in to say, "Whoa, not a serviceable analogy" after -- yes -- reading your entire discussion with MP. I was right there with you guys. I'd enjoyed the debate up to that point. But I saw it take a clumsy turn with that post, and thought I'd be so brash as to step in and play referee.

That's all.

I don't have a fully formed stance on the whole copying = stealing tangent. I've gone back and forth over the years, and really have ever engaged only it because it's become such a dependably distracting side argument in the post-Napster debates online. It's far less interesting to me than the real issues, but half the time it's this semantics battle that seems to invariably get fought instead. I understand why it's crucial to establish the terms of a debate -- so that the debate even takes place in the proper arena in the first place -- but still I find it dreary.

I don't think it's necessary to establish that copying = stealing to properly argue in favor of IP rights. Most IP proponents know this too, I think, which is why they get frustrated with this part of the debate. I'm not saying it's what you did here, but many of our opponents glom onto some casual use of language at some point, turn the debate into an argument about words, and the whole thing winds up grinding gears and never getting anywhere.

I'm pretty sure you and I are flying solo here at this point, so like MP, I'll look forward to engaging you in the next fur-flying copyright thread...

[Lamar]

"But I saw it take a clumsy turn with that post"

Was it a clumsy illustration pointing out distinctions in the (non-legal) harmed caused by different actions, or a clumsy understanding on your part which lead you to brashly assume it was a poor analogy?

You'll most certainly notice that I think the non-legal aspect of this whole argument is rather bogus.