Copying isn’t theft

15 thoughts on “Copying isn’t theft”

1. IMO, if the majority of people think it’s okay, then yes it should become legal. After all, that’s what the government is there for… To make decisions on behalf of the people.

   I don’t think most people think it’s okay though. They might tell themselves it is, but if they’re really honest, they know that it’s something they really should be paying for. Regardless of what it is, you’re getting something you haven’t paid for, that has a price. The creators end up not getting any money for you consuming/using their stuff and as such, miss out on earnings.

   Without those earnings, there’s less incentive to create and we’ll all just end up sharing the same crap. What are you, a communist? 😛

   Interesting article. I’ve got an ebook on piracy/youth culture and how it’s changed consumerism if you’re interested (downloaded :D).

2. I can’t believe somebody wrote a whole song about copying vs theft, and missed actual point about what is being stolen.

   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.

   Whether copying ‘creates another’ or not is irrelevant. It didn’t create another create a copy of the money you were expected to pay, and give it to the original creator(s).

   When there isn’t a physical object involved (i.e. watching a movie), people tend to blur the lines a lot more with respect to ‘theft’ and ‘stealing’ – It feels different (for instance) to stealing and then wearing a pair of shoes. The ‘fearmongering’ anti-piracy material is there to remind people that watching a movie without paying the expected fee is also stealing.

   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. The advent of the Internet as a new (unregulated) distribution channel, had changed the balance of what feels ‘fair’ in the relationship between consumer and producer. Rather than making ill-advised little songs about copying and theft and expecting the balance of power to shift more towards the consumers for no reason, we should be working on providing new ways and incentives for creators to distribute their products such that the balance between consumer and producer feels fair.

   There. I said it.

   1. Is lending a DVD to a friend stealing because it means that they won’t need to buy the movie themselves? Is selling a DVD you own to someone stealing because copyright holders won’t get royalties on that sale? Is donating clothing stealing because you are depriving Kmart of potential sales? Of course not.

      The above concepts are ridiculous, and so is asserting that sharing (via copying) is necessarily stealing. It isn’t reasonable to expect that someone who downloads a copy of a movie would have paid for it. In fact it’s more likely that are downloading it because they would not pay for it.

      Despite visible opposition displayed here, I know that there’s a lot of passive and self-justified non-compliance with copyright law. How many people opposed to piracy have never used a video recorder, burnt mix CDs for friends, downloaded an emulator and classic games, or used pirated software? There’s often a reasonable excuse: I didn’t know that was illegal. However there are a plethora of unreasonable excuses: I don’t want it enough to buy it; I only like this one song; It’s too expensive; I’ll buy it later when I have the money (if I like it).

      And how many people actually follow through with purchases for all items they have “sampled”? I don’t think that these people are evil. I think that they make up their own rules and their own ethical codes because current legislation grossly simplies a complex issue and relegates them to the same status as malicious criminals – which they are not.

      Justification for deprivation of sales (not “stealing”) must be in terms of actual scale and impact. It’s crazy to bust kids for lending CDs to their friends. It’s reasonable to crack down on huge crime rings that manufacture and sell pirate DVDs. It’s crazy to sue someone because your music is playing in the background when they are bitching about life in their YouTube video. It’s reasonable to sue someone who charges people to download your song as a ring-tone.

      Semantics aside, I can’t buy that copying is stealing even in a practical sense. There may be some level of deprivation of sales, but it’s nowhere near 1:1 (let alone 1:2,100 to 425,000) due to kids sharing music. I’m sure that music pirates have collections of music that they would never buy at the sale price. Punishment should be moderated based on actual damages.

      As I said in the post above: “We need to reasonably weigh economic considerations against freedoms (to create and share).”

3. On a related note…

   I often find that people I know who are so verbally opposed to piracy find some way to justify their personal use of pirate software while berating me for my idealogical stance.

   I don’t use software if: I can’t afford it or feel that the price is too high, or I disagree with terms of the software license. In contrast, a lot of people seem pretty happy to use pirate versions because the retail version is too expensive or restricted.

   They are actually contributing to the perpetuation of high-priced commercial software; the retail price doesn’t affect them because they can use pirate software when they “need” to.

   I don’t use Visual Studio, Flash IDE, Photoshop, Mac OS X (hacked), Final Cut Pro – or any other industry standard software that is beyond my means. I use and support Free and Open Source Software (FOSS) instead, even though it is often lacking in many areas.

   If more users refused to use pirate software, FOSS would greatly benefit from the additional market. Maybe commercial vendors would need to drop their prices or release their products as FOSS.

4. I think there’s a difference between agreeing with copyright and breaking it for your own uses. Yes, many people download music etc, but they might still think it’s wrong.

   I myself *might* have done a lot of what’s listed, but I still think it’s wrong. I still feel guilty for not paying the creator. At the end of the day, the digital content we’re talking about costs a lot of money to create. If more piracy = less money for the creators, then the quality and quantity of new, original content being produced is going to fall.

   That’s one of the reasons why open source software is not as mainstream, because of the poor quality due to a lack of remuneration for the creators. (I know there is some good quality FOSS)

   I do agree with you on the grey area comments you made, but the original post read more like a black and white issue to me, hence my opposition. While I think things should be deregulated somewhat, I don’t think we should move to a completely copyright-free society. The pharmaceutical companies are a good example, I think, of how important it is to allow the original creators to recoup their investment in order to promote further development. They also have the right to make a profit. Maybe we should go from 99 year copyright to something more reasonable like the 10 year guarantee for pharma companies.

   NB: The ad you mention is very strongly worded since people wouldn’t listen at all otherwise.

5. The pharmaceuticals industry presents an excellent case against current intellectual property legislation.

   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).

6. Lending a DVD to a friend is no problem – part of what you pay for when you buy such products is a fair use policy, which includes lending, having friends around to watch a movie etc. Large scale lending is priced differently (e.g. for libraries). Buyer’s rights include being able to on-sell items unless explicitly prohibited, so selling a DVD to a friend or giving clothing to a second hand store is fine. Competition with KMart is just the same as any other business competing with KMart.

   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.

7. This may become a mess, but here’s a point-by-point response.

   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.

8. Consider the following:

   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.

9. Maxxor wrote:

   “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.

10. Keeping things on topic, here’s a summary of my key points:

    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”.

11. Yup. Nice summary.

    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.

12. True.

    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).

13. We should also be willing to face the fact that sometimes business models just die. An entire rubber-farming industry vanished practically overnight when synthetic substitutes came along. The professional cashier, which used to be a rather prestigious position requiring fast arithmetic ability, went away with the invention of the mechanical cash register (even before the computer). People used to deliver ice door to door; then someone invented the refrigerator.

    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

14. By the way, Nina Paley turned her song into a video:

    http://questioncopyright.org/minute_memes/copying_is_not_theft

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