http://questioncopyright.org/minute_memes/copying_is_not_theft

Who cries for these business models now?

I would never deny the human cost of dying business models or vanishing professions. It sucks to have trained to be a reporter, only to realize that the print news industry is going away. It’s painful to build cars and be replaced by a robot. There’s no denying the stresses involved here.

But in this case, what we’re justifying, in the name of a dying business model, is outright censorship. I can think of no other word for it when, say, someone writes a book and you’re not allowed to distribute a translation of it without their (or their publisher’s) permission. Four hundred years ago, you could do that. Today, you can’t, even though today we have the means to distribute such a translation around the world at no cost — so in other words, the price we pay for the restriction is, if anything, higher than it has ever been before.

That’s why I’m wary of the word “balance” when it comes to this issue, as in people who talk about how we have to “balance” the rights of creators against the rights of consumers. What’s there to balance? The right to prevent people from sharing things is not some kind of natural right, and it’s disturbing that we’ve somehow come to the point where people argue that it is. If someone doesn’t want something to be copied, they shouldn’t release it. It’s not like copyright was actually paying for most creativity anyway: it wasn’t, nor should it have been expected to, since that’s not what it was designed to do. But even if it had been, that would still be no excuse for censorship and for the criminalization of the basic human acts like sharing.

Creators and consumers are a) on the same side, and b) often the same people at different times. It’s the monopolists we need to worry about.

“The corollary is that it new business models must be able to capitalise on larger audiences who are not paying for access.”

Maybe, maybe not. I’m just saying, we don’t have to do anything special to make this happen. Either it will or it won’t. There certainly won’t be any dropoff in creativity or access to creative work either way. So let’s set up an environment that favors freedom, and then let those business models that can flourish in that environment spring up. Nothing “must” happen either way, any more than a particular species “must” evolve when an environment changes. New species will spring up, but that is a response to the environment, not to some external sense of necessity, if you see what I mean.

Best,
-Karl

My intent was to acknowledge that widespread copying can lead to increased profits in some cases, but that it’s hardly a given.

Current business models generally monetise by controlling access to media. So a larger audience due to copying doesn’t necessarily mean more profit. The corollary is that it new business models must be able to capitalise on larger audiences who are not paying for access.

Understanding, participating, and benefiting in this new market will require a cultural shift (for companies and consumers).

Copying is by definition “expanding the audience” though. I don’t think there’s any stretch there — people copy things because they want to see/hear those things themselves, and to share those things with other people. That is, precisely, expanding the audience. So whatever other effects copying has, it certainly has that one.

1. Copying an item does not equate to stealing the item, because you are not depriving the owner of the original.

2. Copying an item may impact income of the distributor (and author), but this impact can’t generally be objectively quantified.

3. Copyright restrictions aim to control all use in order to sustain a particular (increasingly unviable) business model.

In regard to the second point, the effect of widespread copying could be negative or positive. It’s as much a stretch to call copying “stealing potential profits” as it is to call it “expanding the audience”.

“If someone produces a product (a movie) with the express intent of selling that product, and only makes it available via channels that require payment (theatres, video stores, etc), and you bypass those channels (download a torrent) and watch the movie, then you have stolen it. You didn’t pay for it, when there was an expectation that you would.”

And:

“Our society bestows upon creators a power (their rights), which is that they may control the means of distribution and consumption of something they create. They can choose to give it away, they can choose to not show it to anyone, or they can choose to sell it, or some combination of these. Some aspects of copyright law probably give them more power than they deserve (nobody forthwith can create a product I have described but not made), but in essence the idea of theft and stealing is based on the intent of the creator.”

Maxxor, there’s a much deeper question here:

This “expecation” is changing — changing back to what it was in the millennia before copyright, actually. The idea that someone should have the right to control what other people do with their own copies of something is an historical oddity, and it’s also a form of censorship (which is not surprising, since copyright descends from a older censorship statute).

If an author or artist wants to control what happens to copies of something they made, then they shouldn’t release it. You shouldn’t get to have it both ways: release it and at the same time prevent it from having a life of its own (that is, from taking on the life that its audience wants to give it). The fact that some creators have been able to have it both ways for a while is just an accident of the centralized distribution methods we used from the invention of the printing press to when Internet came along.

By the way, copyright was not designed to subsidize creation, and mostly doesn’t. It was designed explicitly to subsidize *distribution*, and it did that fairly effectively for as long as distribution required high up-front investments (like pulping dead trees into paper and composing text at a printing press). Now that distribution has both negligible up-front costs and zero marginal costs, the subsidy is no longer necessary. The only reason we keep it around is that so many people buy into this mythological story of how copyright was designed to support the artist. As that story starts to break down (as it must, because it is a fiction), support for the system will inevitably break down too.

Support for a particular business model dear to the publishing industry is no excuse for censorship, or for preventing people from sharing.

1. It’s 1989 and you’ve missed an episode of McGyver, so you borrow a tape from a friend who recorded it. You make a copy because their sister wants the tape back.

2. It’s 2006 and you download an episode of Serenity because you usually live in the US and watch it on cable at a friend’s house, but you are travelling and it’s not screening in the UK.

Are these both cases of stealing? Is it stealing if you buy the DVD when it comes out? Would it be stealing if you had cable back in the US? What if instead of downloading it, you visited your friend and they had it on TiVo? What if you didn’t skip the ads? What if watched the episode on YouTube? What if the YouTube video was later pulled for copyright infringement?

The big difference between these two examples is that copying technology is now higher-quality, easier, faster, and more accessible. Technologies will continue to improve, and it’s futile to try to protect markets that become unviable as a result.

We need to work out ways for content producers to make a living in this new (copy-enabled) environment. Instead, we have aggressive copyright lawsuits, rampant defensive patenting, pharmaceutical monopolies, and people convincing kids that they’re thieves.

Unfortunately, there is no fair use policy under Australian law and it is illegal to sell second-hand games in other countries (such as Japan). In regards to lending, I picked up the nearest DVD and found this notice on the back:

WARNING: This DVD is protected by law in Australia and New Zealand. Any unauthorised copying, hiring, lending, or public performance of this DVD is illegal.

That’s pretty draconian. Especially when “public performance” means having more than four people in the room. Is it legally enforcable? I don’t know.

To the best of my knowledge, large-scale lending isn’t priced differently in Australia. At least not once something is available via normal retail channels (pre-release items are often more expensive).

I meant for the car and food examples to be conceptual, and not in reference to current law. Manufacturers have mechanisms and rights to stamp out all forms of copying, but should they be able to?

There are two seperate issues here: large-scale piracy for commercial benefit and copying material for non-commercial, personal use. I don’t think that people would argue for “wholesale” decriminalisation (for both), but I do think a lot of people would like to see personal use decriminalised.

If you hand-build a replica of your favourite car with no intention to sell it as the original, what right does anyone have to demand money from you, or take it away from you? If you create a collage of your favourite video game art and hang it on your bedroom wall, what right does anyone have to make you take it down? If cheap copying and distribution becomes possible, what right does anyone have to control what can and can’t be copied? People who are going to lose money? How would money even be relevant when such technology is available?

Under current laws, food would be subject to copyright if it is genetically modified (and things are headed that way). It sounds ludicrous that someone in a developing nation should have to check the genetic code of the food they want to duplicate… and that the outcome determines if their copying is “right” or “wrong”?

The distribution model for old arcade ROMs is that you buy an old arcade machine or circuit board. It’s prohibitively expensive for many individuals, but that is the only distribution mechanism sanctioned by the manufacturer. Another condition is that no other copies (eg. those required for emulators) of the ROM are made. Is it really fair to assert distribution intentions when they contrast with owner rights? When you buy items marked “not for resale”… is that enforceable? Should it be?

My point is that with increasingly cheap copying, the world will have to change. Moreover, we will be directing that change with how we deal with copyright now (in the digital world) – so this is an important issue. Copying will only ever get easier and cheaper. Trying to impose restrictions and higher penalties is doomed to fail. We need to stop being protectionist and work out how to make money without depending on copyright enforcement.

It isn’t how things work now, but that doesn’t mean it isn’t how things should work. The reason that pharmaceuticals strike such a chord is that these companies are exercising control that they shouldn’t have.

I guess my point in all of this is that the act of copying (duplication) is stealing when it goes against the distribution intentions of the original distributor (i.e. that you pay for it). You can’t call something ‘sharing’ if the person you are taking from wasn’t offering it for free. It’s stealing, even if you write a little song about it. As Rich says, the anti-piracy messages are strong because it is so easy to not realise that these sorts of activities *are* theft. Obviously ‘copying’ is not the culprit – there are plenty of products whose license does encourage copying, like FOSS. Copying just happens to be a means of piracy for some types of digital goods.

If you could copy a car for personal use, should the automotive industry be able to stop you? Of course – if you copied one of *their* cars. Just because you *can* copy something, it doesn’t mean that the creators lose all ownership. All you have done is skipped the ‘means of production’ step – they still have a right to the ownership of all the fruits that have come from the thousands of hours they have put into research and design, the modifications they made during testing, not to mention all the technologies which they themselves have had to license to manufacture the car. All of these things are bundled into the ‘cost’ of something when you buy it. Being able to duplicate only removes one of the sub-costs (manufacture).

If you were to design, test, and build your own car however, you can go nuts with your duplicator.

Nobody owns the patent on a potato: the only costs there are manufacture (growing it) and distribution (shipping/transport etc). Your duplicator solves that, so would it be ethical for the farming community to stop you? Probably not from a legal standpoint, but I can see them being fairly upset that their generations old farm just became worthless, and that they probably need to move to the city to earn money. Not saying free and abundant food is bad, just that the world would have to change a lot if it happened.

Don’t get me wrong – I don’t think anyone who steals music or software or whatever is a hardcore criminal who deserves jail time. I get pretty disgusted seeing Time Warner or RIAA going after old ladies that burned a CD for their grandkids. Saying that copying music or movies or software (for personal use) is a milder class of crime than say, robbing a bank or printing counterfeit money is completely different to saying that it *isn’t* theft at all. Apart from my MAME cabinet (the contents of which are of varying levels of legality), I am a fairly mild offender of ‘copy piracy’, yet I still acknowledge that it is wrong, and feel guilty about it. I don’t pretend that I am in the right, or think it is justified.

Digital distribution payment models exist for music and movies, but they are (generally) pretty lame. Distribution models for old arcade ROMs don’t exist at all. I would be interested in new ways for producers and consumers to strike a deal without having consumers feel like they are a criminal. I can’t however, see how consumers can expect wholesale copying and piracy to be ‘decriminalised’, especially when digital payment models already exist for those products.

P.S. You raise a good point about pharmaceuticals which strikes an uncomfortable midpoint between ethics and copyright/patenting. There is definitely injustice involved, but current law doesn’t seem to detect it.

In order to maximise profit for shareholders, pharmaceutical companies: spend more money on marketing than on research, and assert global monopolies over important vaccines and treatments.

Look at the inordinate relative costs of medicines in the developing world (especially for AIDS medication and treatment in South Africa). Demand is high and countires face trade sanctions if they manufacture copies, so the IP-holders fleece them with impunity!

Depriving people of medicine in order to maximise profits is an entirely new level of wrong compared to people who pirate software or download movies (or seek to produce generic medicines).