What You Steal

The Premise
A month ago I engaged in an interesting conversation with Luke Bergeron on his blog, mispeled.net, about copyright law. My interest was prompted in large part by Luke’s incisive generational examination of the question of piracy.

Here’s how Luke initially framed the issue:

The real issue goes beyond digital piracy to copyright itself. Now, I don’t believe that digital file sharing, even of copyrighted materials, is theft. That’s probably a generational thing, but we’re gonna do our best to suss out as much meaning as possible. Keep in mind, this entry is a fluid conversation, so comment if you wanna participate.

So, theft seems to me like it is inherently defined by the taking of something from someone else, depriving them of it. Theft is a physical concept, based on a starvation economy, that there is a finite amount of resources to go around, and possessing resources means someone else will not possess them.

Last week I read a post on The Millions called Confessions of a Book Pirate. On the subject of piracy the confessor had this to say:

In truth, I think it is clear that morally, the act of pirating a product is, in fact, the moral equivalent of stealing… although that nagging question of what the person who has been stolen from is missing still lingers.

Two days ago I read a post from Marian Schembari on Digital Book World, called
A Gen Y Reaction to Macmillan’s Piracy Plan. In her comprehensive rant, Marian had this to say about piracy:

I’m not condoning piracy (sort of), but if major publishers are only going to look at the “legal” side of things and spend precious time and money fighting the inevitable, they are going to crash and burn.

I’m poor, I understand technology, and I guarantee I can find any book online, for free, in 10 minutes or less. You can delete and sue all you want, but at the end of the day the internet is a wide and limitless place, meaning it’s a waste of time, money and energy to fight it.

In response to Marian’s post, Debbie Stier of HarperStudio/HarperCollins wrote a post on her company blog, congratulating Marian for stating her overall case regarding Macmillan, and for giving insight into the Gen Y perspective.

Here’s the bottom line for me — whether you agree or not with Marian Schembari’s views on piracy, she has given us a glimpse into the psyche of a Gen Y reader. I appreciate her honesty. I believe this is a gift. I think we should listen.

I agree with Debbie. We should listen. But then we should reply.  

The Response
To do any less is to treat Marian and Gen Y and Luke and anyone else who shares their views about piracy and content theft with condescension. We don’t pat seasoned peers on the head for showing us that they can put sentences together. We read those sentences, unpack them, take them apart — even hack them to bloody pieces — to see if they hold up.

Debbie’s right that it took courage for Marian to express her opinion, but the fact that Marian can express an opinion is not what’s important. It’s the resulting process of engagement — the conversation that takes place following the assertion of that opinion — that matters. And here I mean to single out not Gen Y but Gen X and the Baby Boom generation. Replacing wisdom and knowledge with the measuring of intelligence and facts may facilitate competition, but we lose something in that egocentric trade. While it’s true that some lessons have to be learned by each individual in each generation, it’s not true of all lessons. More importantly, it’s not true of the process of critical thinking itself, where critical thought can compound over time to produce generational benefits. (See also: penicillin; democracy.)

I also don’t think anyone should capitulate to generational opinion simply because a certain percentage of any generation has its fingers in its ears. If that was the right course of action we’d still have segregation in this country. It’s true that a certain percentage of every generation really does want to steal simply for the sake of stealing, but that doesn’t mean we should throw Marian and Luke or anyone else out with the Gen Y bathwater. What we should do is engage in a conversation so we can pass on the benefit of whatever meager wisdom we’ve accrued, while also testing our own assumptions. What’s happening with digital content is new in a very real way, which means we all need to talk this through.

I’ve stated my views on the question of piracy and content theft here and here. I’ve made the case that stealing is stealing: if it’s not yours, and it’s not being given away free, and you end up with it, then you stole it — and that’s true whether it’s a physical object, a digital file, or an idea.

But I also understand that it’s hard to make this case to Gen Y when massive corporations like Google are attempting to steal copyright authority from millions of authors covered by existing law. If Google can simply make a deal with another group (the Authors Guild) which obligates all authors under copyright to opt out of that deal, why can’t Marian make a deal with Luke to borrow his entire CD collection — and implicitly require the recording artists to opt out by imposing effective DRM? More to the point, is Google actually stealing anything when they scan a book and make it available online? Shouldn’t we actually applaud Sergey Brin for preserving the cultural history of Earth from fire and flood?

And speaking of the Amazon/Macmillan knife fight this past weekend, wasn’t Amazon actually stealing control of Macmillan’s products by selling those products at a price lower than Macmillan wanted? And even if they were, wasn’t that good for consumers? Didn’t it make books cheap?

The Conversation
My point here is that making Marian and Luke and Gen Y feel great about themselves because they can walk and chew gum at the same time congratulates them for meeting an absurdly low bar. These are serious people expression serious ideas and opinions. What they want is to be taken seriously, and to demonstrate the ability to think things through, and we should want that for them as well.

Look again at the conversation I had with Luke on his site. Look at the seriousness with which he engaged on the issues. That’s somebody who wants to know, and that’s someone who should be part of this conversation because in ten years Luke may be writing the books our grandchildren read. Or he may be setting public policy. Or leading a fight against a critical erosion of civil rights.

Why should Boomers and Gen Xer’s take the time to do this? Well, if you’re a consumer or consumer advocate, you can help Marian and Luke see that there are useful arguments against DRM that do not excuse theft or piracy as a cultural or generational right. Likewise, if you’re in publishing you can help Marian and Luke see that even though someone like Cory Doctorow is passionate about anti-DRM politics, his reasoning is a fraud.

All of which would mean we could get on with the more important matter of finding a workable solution to the problems of piracy and DRM, as well as address the massive generational transition that is currently clouding both of those issues. I want Marian and Luke not simply to be assertive and confident, I want them to be smart and right and to prove to me that they’re right. I want them, in ten or twenty years, to be able to take apart the charlatans they run across, for their own benefit, for my benefit, and for their benefit of society. But they’re not going to be able to do that if we refuse to engage them on the merits of their ideas.

The Question
In the DRM debate the obvious point we need to engage on is the premise stated throughout the above quotes: that copying digital content is not stealing. If Gen Y is wrong, it needs to be proven through argument. If they’re right, the same requirement holds. It’s not enough to just say that theft is inevitable or that it can’t be stopped any more than it’s enough to say that it’s immoral and wrong. Both sides have to argue the case on the merits.

The reason this is important is precisely because these issues have never been dealt with before. Ownership questions regarding digital content and theft are so new as to be without precedent. While applicable laws have been added to the books, those laws, like all new laws, are an opening salvo in what will probably be a long-running legal debate. As with laws that used to exploit or abuse members of minority groups, new laws covering digital content may simply be an attempt by established forces to stop right from trumping wrong. Then again, they may actually protect individual rights and be good for society as a whole.

I think Marian and Luke are interested in being part of the answer to these questions. I don’t think they’re asking for a free pass. When they ask what is being stolen if someone takes possession of a copy of a digital file, they’re asking a serious question. And to their credit I think it’s exactly the right question to ask.

We all agree that stealing a can of beans from a grocery store is theft, for two reasons. First, there’s a can of bean missing from the store. Second, we have a can of beans in our hands that we didn’t pay for. On the other hand, when we copy a digital file the original file is still there, and we don’t actually have a new object in our possession. So what’s actually being stolen?

The problem here is that asking what is being stolen almost compels a response that describes a physical object. It’s the same problem you run into if you try to define right and wrong by asking if anyone got hurt. It implies physical injury or physical loss, yet I think we all agree that PTSD or emotional trauma can be as damaging as a broken arm. Just as someone can be hurt emotionally, economically and in ways other than through physical injury to the body, the theft of digital content may involve stealing things that are not physical objects.

To see why, let’s look at two situations in which, as with digital content, we see no physical object being appropriated. Maybe by looking at non-digital examples we can gain some insight into what a person is being deprived of if we avail ourselves of a copy of their digital content.

First, let’s say you live in an apartment complex. Across the hall your retrograde neighbor still has the local newspaper delivered each morning. You also know that he sleeps until noon. If you get up each morning and take his paper into your house, read it, then carefully reassemble it and put it back in front of his door, was anything stolen?

Second, let’s say you’re a huge RHCP fan. You know they’re playing at a nearby venue, but you don’t have the money for tickets. You gripe to a friend, who says he knows how to sneak in without having to pay. The concert takes place as scheduled, nothing is different except that you and your friend are there. Was anything stolen?

The answer in the first example is that you stole a service you didn’t pay for. The people who made the newspaper and delivered it were paid by your neighbor to make the contents of that paper available to him on a certain schedule. Even though you didn’t disrupt that deal, you profited yourself by not having to pay for delivery. In doing so you not only saved yourself money, you also denied the creators of the paper the right to control their content in a way that they determined, and that’s true even if you would not otherwise have paid to read the paper yourself.

In the second example you stole an experience. Everyone around you had to pay for that experience, but you got it free. You didn’t alter the experience by stealing it, and you didn’t leave with anything in your hand, but in the same way that you denied the newspaper creators the right to control their product, you denied the band the right to control the experience it created.

Are these examples convincing? Maybe, but maybe not. If the assumption is, as Luke first stated, that only objects can be stolen, then neither of these examples holds any weight precisely because they don’t involve the theft of objects. But I think there might be another way to show that they do involve theft.

As is usually the case when downloading digital content, in neither of these instances did you ask anyone for permission first. You had the social approval of your friend when you sneaked into the venue — which is analogous to the social approval provided by content pirates themselves — but you didn’t call the manager of the venue or the band’s manager and ask permission to sneak in, just as you didn’t call your neighbor or the newspaper and ask if it was okay to read the paper without paying for it.

The reason you didn’t do this is because you knew that they would mind, even if you yourself are convinced that you’re not doing anything wrong. Free newspapers and free concerts are announced as such: that’s how you know they’re free. Things that have prices attached to them, whether you agree with those prices or not, are not free. You can steal them — meaning you acquire them at no cost — but you can’t take them and not pay for them and then say you didn’t steal them any more than you can walk into a store filled with physical objects and declare them all free.

And you know this. And you know you know this. And I know you know this.

My Answer
Which means we’re not only having a conversation about theft, we’re also having a conversation about power. And that’s maybe the most important part of Marian’s post. It’s her declaration that Gen Y can’t be stopped, and she may well be right. At least, I don’t think anyone outside Gen Y can convince Gen Y not to strip the countryside bare.

What I am hopeful of is that Gen Y itself may recognize that there is a long-term cost to redefining content theft as legal, ethical, or even socially acceptable behavior. I’m also hopeful that it will ultimately be members of Gen Y who make this case to their peers. But none of that is going to happen (or happen soon) if we don’t engage the issue first. Today, right now, the obligation is on those people who believe that copying digital files without permission is theft to make that case. To that end the most important thing that can be said about piracy is that it is theft. There can be no equivocation on this point, because equivocation amounts to permission.

What Gen Y needs to be thinking about now, while they have all this power — and they do have an incredible amount of power — is that they are not simply exercising that power today. They are establishing a set of rules that everyone is going to have to live with in the future, and that includes their children. One day, maybe not too far down the road, Marian or Luke will have kids of her own, and those children may decide to create something (and it’s all going to be digital at that point). Maybe they’ll even try to start a small collective of artists and make a go of it in business, but that’s not going to be economically possible if the cultural norm says that copying digital content is not stealing.

Great generations aren’t great because they get away with whatever they can get away with. They’re great because they aspire to more than the minimum standard the law requires. To each member of Gen Y, and to anyone who is wrestling with the question of content piracy, I would simply say that you need to answer this question yourself, and to think about the long-term consequences of the answer you choose.

Don’t pass the buck and let someone else do your thinking for you. Luke isn’t doing that. Marian isn’t. Even the mysterious pirate confessor isn’t. Be your own compass. When civilizations do break down — as we’re seeing now in Haiti — ethics may become relative. But making ethics relative when there is no emergency simply reverses the equation, engineering a breakdown that would otherwise not have taken place.

If a crime is inflicted on you in the forest and no one can hear you scream, it’s still a crime. Even if nobody will ever know that you stole an MP3 or a e-book by downloading it from a website, it should matter that you know. And you should want it to matter, because the only people it really doesn’t matter to are sociopaths and psychopaths.

Doing the right thing takes more guts than flexing your generational biceps or kicking a corrupt corporation in the groin. It’s easy to take something for nothing, and Marian’s right that you can almost certainly get away with it. The odds are long that anything directly punitive will ever happen to you as a result of content theft.

The problem, however, is that you’re not just stealing content and you’re not just stealing from someone else. You’re also stealing from yourself.

— Mark Barrett

Ditchwalk Delivered via Email

Comments

  1. says

    Actually it’s illegal for a manufacturer to control the price a retailer sells something at. It’s most certainly not in any way, shape, or form, theft for Amazon to sell Macmillan’s books cheaper. They are taking a loss for that. A manufacturer and in this case that’s a publisher can set the SUGGESTED retail price for their product, but they cannot control the price it is ultimately sold for. Macmillan kept insisting and pushing for that and that is what started the knife fight. Macmillan, IMO was the one that was in the wrong.

    The primary problem with piracy seen as some kind of “right” is that if we eventually move books mainly to digital then there is no real compensation for writers. Many other types of artists have other monetization models but writers just do not. Nor should they be expected to. I believe these torrent sites should be shut down. It wouldn’t take very much to make it really freaking hard to find something free on the internet that shouldn’t be free since most people are going to torrent sites which work through some kind of legal loophole since the torrent site isn’t actually “hosting” the file.

    Bottom line though, no matter what people think they are “entitled to,” the day I can’t make money from my writing is the day I stop sharing it with people. Now I’m not famous so that might not matter to a lot of people, but if I do the work, I expect to be paid, and I expect people not to think that writing is just some hobby that isn’t worthy of payment like all other hard work.

    • says

      Actually it’s illegal for a manufacturer to control the price a retailer sells something at. It’s most certainly not in any way, shape, or form, theft for Amazon to sell Macmillan’s books cheaper.

      That’s something I didn’t know — and I’m curious about the thinking behind it. For example, in the gaming industry I know that Nintendo controls the price of its Wii across all markets. You won’t find the Wii selling at a loss at Target or Wal-Mart, even during Christmas. (The stores get around this restriction by offering gift cards for $50, meaning you effectively save that amount on the purchase price, but you don’t ever see the price of the product discounted by that same amount.)

      The primary problem with piracy seen as some kind of “right” is that if we eventually move books mainly to digital then there is no real compensation for writers.

      You’re right, of course, and it’s a point I’ve made in earlier posts. As a former radical youth I more than sympathize with the desire to tweak corporate America’s nose — and particularly the music industry for sticking consumers with $15 CD prices when they held a monopoly on distribution. But in the end, it’s the artists/craftspeople who suffer, and not just the megazillionaires like Bono and U2. I’m talking about the people living honestly on the margins.

      • says

        The reason it works that way in the video game industry (according to my somewhat limited understanding here) is that Nintendo won’t sell through channels that won’t sell the price they set at retail. So actually I should have been careful about how I phrased what I was saying. Because technically Nintendo IS controlling the selling price. But that’s by refusing to let someone distribute their gaming systems if they don’t agree.

        Macmillan seemed to be trying to do the same thing with Amazon and Amazon called their bluff.

        Most video-gaming stores NEED to be able to sell the Wii. Amazon doesn’t necessarily NEED to sell books published by any one publisher.

        And in comment to your second comment:

        I think one thing indies in any venue have going for them whether it’s books or music is the “sympathy card.” By making it clear, we are NOT big corporations and your purchase DOES make a difference in us being able to continue doing this, I think it helps some. Because indies sort of ARE by definition “thumbing their nose at big corporations” by choosing to go indie. So it’s like we’re on the same team.

        • says

          [quote]Macmillan seemed to be trying to do the same thing with Amazon and Amazon called their bluff. [/quote]

          This is not really what Macmillan was trying to do. Macmillan is arguing that electronic content should not be sold under the wholesale/retail model, but under a distribution agency model. It’s not about the price. It’s about changing the business model for digital content as opposed to physical content because, as all of the people hating on Macmillan love to point out, electronic books are different from physical books.

          Also, Amazon’s concern is not that all digital books should be $9.99 or less. Go to the Kindle Bookstore, select any category of books, and sort the books by Price: High to Low and see for yourself. There are e-books offered for sale on there for over $300.

  2. says

    Mark,

    It’s funny that you should choose the example of reading the neighbor’s newspaper because, until very recently, I delivered newspapers for a living. It started out as a second job, but even after retiring, it was a job that allowed my days free while making a reasonable amount of money. The stealing of services by reading a newspaper you’ve not paid for is more common than you might think, but the relevance here goes even beyond that, because some months ago, I decided to stop dragging myself out of bed every morning at 1:00 and began, instead, to take my writing and publication more seriously.

    If you buy one of my books, slice the spine off, scan it in a high-speed scanner, and put it online for free; or if you use the power of your humongous purchasing capability to put ebooks in front of readers as loss leaders (and refuse to sell any products at all from any publisher who disagrees); or if you advocate for simply pricing ebooks so low that piracy becomes moot, then you are sailing in the same ship with any other pirate. You are getting readers accustomed to fiction that is free or nearly so.

    I’ve heard all the arguments about how this will increase readership, establish a fan base, spread the news about new writers, etc. But one of the implacable laws of an open marketplace is that no one will produce a good, service, product, or experience that cannot be sold at a profit. If I can gather more rice in the time it takes to make a wooden bowl than you are willing to give me for the bowl, then I’m going to stop making bowls and start gathering rice.

    And when authors can no longer sustain themselves by their writing, then writing will cease to be a profession. It will be a hobby. Not a way to make money, but a way to spend money. Yes, I will always write, just as I always have in the past, but I will not be able to make that writing available to readers, nor will I be able to spend anywhere near the time and energy on it that I can now, and neither will any other writer. Fiction will disappear.

    What is being stolen? An entire art form, piece by piece.

    Levi Montgomery

    • says

      Hi Levi,

      I’ve heard all the arguments about how this will increase readership, establish a fan base, spread the news about new writers, etc. But one of the implacable laws of an open marketplace is that no one will produce a good, service, product, or experience that cannot be sold at a profit.

      I think the arguments about giving content away are misleading, and at times intentionally so. (Not surprisingly, I have a blog draft on the subject that I hope to complete before the turn of the millennium.)

      Profit motive is not inherently bad. Even Marian in her piece alludes to it obliquely when she says “I’m poor.” The term ‘starving artist’ is not a fiction, and the idea that someone’s content can be legally (or morally) appropriated without compensation only increases the likelihood of starvation.

      What is being stolen? An entire art form, piece by piece.

      Something always rises from the ashes, but here the need for resurrection seems driven not by calamity or cultural tumult, but by the very greed that Gen Y advocates of free content deride in corporate copyright holders.

    • says

      Thanks for engaging with us, Mark. Actually talking to us means so much more than just a pat on the head.

      Well, the pat on the head comment wasn’t actually aimed at you — but still, I’ll take the compliment. :-)

  3. says

    Great post, Mark! (But, wow; really, really, reeeeeallly long!)

    I titled Marian’s post the way I did for a reason — “A Gen Y Reaction to Macmillan’s Piracy Plan” — hoping it would spur a discussion from a generational perspective, and it’s been interesting to see how it’s played out, first on Debbie’s Facebook page, and then on the HarperStudio blog. I noted on the latter that the reaction from some quarters suggests the publishing industry clearly has a lot more problems than piracy to worry about.

    Your point about Google’s copyright theft needs to be highlighted, bolded and put on posters somewhere because I believe it’s a critical and overlooked piece of the piracy and sense of entitlement puzzle. Both Marian’s generation and my own kids’ have grown up with a completely different perception of rights and ownership, and her point about PSA’s being laughable and ineffective reminded me of my own perception of Nancy Reagan’s “Just Say No!”

    Choosing to dismiss her POV as “wrong” instead of engaging her to understand the full context of her rationale is a dangerous mistake for anyone who’s serious about figuring out what to do about casual piracy.

    • says

      Great post, Mark! (But, wow; really, really, reeeeeallly long!)

      Thanks, Guy. I know I tend to write long at times, but I do it for a reason. Actually, for several reasons.

      First, I don’t ever want somebody to read my stuff and not understand the points I’m making. Maybe I could slice off half of the above and a majority of people would still get it, but I want everybody to get it.

      Second, the world is full of pithy and trite sayings — and the world ignores them utterly. Brevity may be useful in marketing and bullet points and elevator pitches, but if you’re really talking about something of substance, and you’re really trying to put an argument together, you have to commit to the subject matter first.

      Third, there are always a few readers who read anything simply as an opportunity to pounce. You leave out one aspect of an issue and they see it and pound you on it. By the same token, there are also some readers who will feel that maybe you left something out because you didn’t want to deal with it, or because you don’t know how to deal with it.

      So yeah — like this reply — I tend to write long if I think the subject matter calls for it.

      On the flip side, here’s what doesn’t happen to me much. I don’t get many notes from people who don’t understand what I said. I don’t get many notes from people asking for clarifications. I don’t get many notes from people telling me I missed something, or that I’m just flat wrong.

      If the length means that some people won’t dig in, particularly on issues like this, then I’m willing to lose them to Twitter or whatever else eases their ADD. On some issues I want to talk as a means of finding answers and building consensus and moving the ball. And in my experience that means making my case as bulletproof as I can.

      So: thank you for slogging it out. There’s a merit badge in it for you down the line. :-)

      I noted on the latter that the reaction from some quarters suggests the publishing industry clearly has a lot more problems than piracy to worry about.

      I’ve got a post coming up about that point. I think piracy in publishing is probably the least of the business’s existing problems, and I also think publishing has a built-in defense against it. More soon.

      Choosing to dismiss her POV as “wrong” instead of engaging her to understand the full context of her rationale is a dangerous mistake for anyone who’s serious about figuring out what to do about casual piracy.

      I don’t know if most people forget what it was like to be young as they age, but I haven’t. It’s all still with me. I was an angry young man at one time, and there wasn’t a lot you could tell me that I wanted to hear — and I sure wasn’t going to listen to an authority figure tell me what was right and wrong. The one thing I wanted then, more than anything, was to be taken seriously, and you aren’t being taken seriously when you’re being lectured to.

      So I take Marian (and Luke) seriously. They deserve it. There are plenty of Gen Y blowhards who don’t deserve it, so this isn’t a feel-good attitude I’m projecting. You gotta earn it; they earned it.

  4. Alice says

    Thank you for this post, as a member Gen Y I’ll tell you it has some of the best arguments I’ve ever read. The ethics approach (“If a crime is inflicted on you in the forest and no one can hear you scream, it’s still a crime”) was really great. And yes, thank for answering, not only listening.

    From my point of view, the best thing the industry can do to convince Gen Y about the dangers of piracy is providing real data instead of just lecturing. The best approach would probably be taking the stand and saying “this author’s previous book sold x copies, his new one sold only y”. Don’t talk in total numbers, like “we made 5% less profit than last year”. That won’t do, it’ll only make Gen Y answer that the real problem is the industry, that those things wouldn’t happen if you didn’t “waste” so much money on things they don’t “approve”.

    For example, during this whole Amazon-Macmillan discussion, the best argument I read was from an author writing about how many copies his ebook sold, with real data that proved to me that the ebook market isn’t big enough yet, and at least in the beggining ebooks won’t be very cheap because of the costs involved in production, and because the whole cheaper-because-you’ll-sell-more effect hasn’t taken place yet. That’s what I needed to know. That (plus the knowledge that publishing doesn’t have money for aggressive pricing tactics like Apple or Amazon) made me fully believe the reasons Macmillan had for increasing ebook prices. (Although with hope that those prices would be revised if the ebook market does grow)

    Real data is the answer, in my opinion. If someone decided to make a research about how many ebook sales are indeed lost hardcover sales it’d REALLY help too.

    • says

      Hi Alice,

      Thanks for stopping by. :-)

      From my point of view, the best thing the industry can do to convince Gen Y about the dangers of piracy is providing real data instead of just lecturing.

      I agree with you, but there are some problems with collecting relevant data. Everyone agrees that piracy has some effect, but nobody knows hot to quantify that effect. A bit part of the problem — which everyone also agrees with — is that pirated content does not equal lost sales. You can’t say that Product Z was pirated 10,000 times, and that equals 10,000 lost sales, because it’s quite clear that the 10K people who pirated Product Z would not have bought it if that was their only means of acquisition.

      Having said that, I think there is one data-driven question that does need to be asked, and as I alluded to in my reply to the comment above I’ll be posting about that soon.

      In the absence of hard numbers — or maybe even if we had them — I think everyone needs to take a step back and ask themselves, personally, if pirating content is helping or hurting. It’s easy, it’s free, and if it was only three people doing it it probably wouldn’t matter. But it’s not three people, it’s 3 million, or 30 million, and all those acts are adding up to trouble for the artists who create the content everyone loves to steal.

      Morality and ethics are considered passe by much of our culture. As the quote goes, “If you ain’t cheatin’, you ain’t tryin’.” If winning, or getting away with something, or coming out ahead, are the only metrics that matter, then yeah — everybody should steal everything they can get their hands on. But I also think it’s pretty clear that that probably wouldn’t turn out so well.

  5. says

    First of all, Napoleon’s generation was great, because they got away with what they could get away with; the Roman Empire was great because they took everything they could get away with taking; the Huns were great because they got away with everything they could get away with; the Arab raiders’ descendants still occupy so much of the Middle East because they got away with what they could get away with. Secondly, the owner — OWNER — of the item places it out there for digital download copying, so the owner has consented to its distribution. This would be akin to, in your newspaper example, the neighbor saying, “Hey, I’m through with the newspaper. You wanna read it?” The newspaper doesn’t know they’re selling to the local public library. They don’t say, “This is the local public library edition, so we’ll just print headlines so we whet curiosity and make people buy legitimate copies.” They just sell the papers. They can’t control it after that. So the library buys one copy of the paper and twenty people read it; are those twenty people thieves?

    On a more philosophical level, let’s look at your notion that there is a philosophical assignment of rights for certain intangibles. The man with the A.A. gets the job over the man with the M.A. because he knows the right people; the man with the A.A. stole the job — he’s a thief! — when karma, or some ethereal force has dictated that, because we are raised to believe hard work pays off and not politics, this man with the A.A. doesn’t have enough education on paper to get the job. If that’s the basis of the agenda you’re pressing, then the world is brimming with these little inequities, and we’re all roasting in hell.

    The fact is, once it’s out there and people have paid for it, you can’t tell them what to do with it with any realistic idea of enforcement unless you’re ready for the Liberal Fascist totalitarian state.

    • says

      Ilya,

      First of all, Napoleon’s generation was great, because they got away with what they could get away with….

      Obviously I should have been more specific. By ‘great’ I didn’t mean victorious, or even historically significant. I meant forward looking in a more modern sense. Killing anything that moves and taking everything you find afterward is certainly one way to go about living, but we seem to have moved on from that — at least on a global scale.

      Secondly, the owner — OWNER — of the item places it out there for digital download copying, so the owner has consented to its distribution.

      Not if the person who bought the content did so by agreeing not to put it out there for other people to access. (Didn’t all of this get settled rather one-sidedly in the Napster case?)

      So the library buys one copy of the paper and twenty people read it; are those twenty people thieves?

      You’re quite right that libraries are an exception, which I also mentioned here:

      http://www.ditchwalk.com/2009/11/15/emperor-brin/

      But they’re an exception. And they involve tradeoffs, including going down to the library versus stealing whatever you want through the broadband connection in your home.

      If that’s the basis of the agenda you’re pressing, then the world is brimming with these little inequities, and we’re all roasting in hell.

      The agenda I’m pressing is that taking something you didn’t pay for is stealing, no matter how neatly you dress it up, no matter how many excuses you offer, and now matter how clever you are in making the case for your conduct. The world is certainly full of inequities, as it’s full of thieves. I’m simply arguing for the voluntary refusal to be a thief.

      The fact is, once it’s out there and people have paid for it, you can’t tell them what to do with it with any realistic idea of enforcement unless you’re ready for the Liberal Fascist totalitarian state.

      You’re right that you can’t legislate behavior. If people want to steal they’ll steal. But it’s still stealing. As to the state’s possible response, that’s actually a concern of mine — as noted here:

      http://www.ditchwalk.com/2009/10/29/the-bigger-picture/

  6. says

    Great piece Mark. I spoke to this yesterday over on our blog as well. Stealing is stealing, doesn’t matter whether it has a tangible product attached to it or not. If Gen Y things they are “entitled” then they have a long rough road of hard lessons to learn. There is labour behind digital content and those who laboured to create that content deserve to get paid for doing so. If an author wants to offer free content as a loss-leader — no matter the rationale — then that is the author’s business decision, but …

    As a consumer, if I buy some digital content, I want to be able to use it as I see fit, which means if I have multiple ereaders and PCs, I want to be able to read it on whatever equipment I have, whenever I want to. If I want to share it with someone else, I’ll buy another copy. But don’t lock me into a format or a device and then restrict the way I can enjoy the product I bought and paid for. This is what ticks me off about iTunes. I love the one stop shopping, but I don’t like the proprietary format or the nightmare it is to authorize my equipment.

    As for the pricing wars, well, I agree to some extent. Macmillan has the right to set their suggested retail price. If they want that specific pricing structure held with their “retailers” then they can enter into an agreement with those retailers and the retailers or “shop owners” have the right to say no and not stock the product. Amazon has the right to say that they don’t agree with the pricing structure and refuse to sell the product, and Macmillan has the right to say, “too bad.” Sony ebook readers — at least at Christmas time — had a fixed price across all retailers; there was no sale price or markdown. Retailers agreed to that arrangement because they knew ereaders would be hot and wouldn’t need to be discounted. Same with the Wii. However, books are a different animal and product quality varies as do manufacturing costs. If a hardback is $25.00 and a paperback is $15.00 then reason would dictate that an ebook would be less. The physical book has certain costs associated with it that an ebook doesn’t. Some costs are stripped away and others are added. We take away warehousing, distributors, production costs, and remaindering costs while we add in staff to do the ebook conversions as well as software costs, but what we know we get is a cheaper product in the long run. Consumers aren’t “that” stupid.

    I expect to pay a certain price for a silk suit, but I also expect not to pay that same price for a polyester suit. I know the production costs are the same, the suit still has to be manufactured, but the materials are cheaper and I expect that cost savings to be passed on. I am buying cheaper materials and so I expect a cheaper price. My print books are listed at $7.99; my ebooks are listed at $1.99. Because of their length — being novellas — I make the same profit from each. One is more expensive because there are specific costs associated with the physical product that don’t apply to the digital content in my business model.

    Now I am not talking about raping the Publisher here, I am talking about an adjusted retail price for an ebook. It’s a simple calculation. I am not getting a physical book so don’t charge me for one, especially if you are going to restrict the way I read it.

    Both Amazon and Macmillan are guilty of price-fixing here, and both Amazon and Macmillan are in the right to some degree, as well. Macmillan has the right to set their suggested retail price and they have the right enter into an agreement with the retailer to disallow discounts. Amazon has the right to refuse such an agreement and refuse to stock the product. Macmillan controls their content and Amazon controls the way they run their shop. I like one stop shopping. I like the services Amazon provides to me as a consumer to the tune of thousands of dollars a year, and I like the service they provide to their Indie authors. So in reality, I decide.

    The consumer has the right to decide what product they want to buy, where they want to buy it, and what they want to pay for it. The powers that be can slap each other around if they want to. Adobe and Apple are in a slapfest now as well over the DRM issue. The consumer doesn’t give a rat’s ass. They want product. They want to enjoy their product, and they want a good price. If they decide to steal it, well, then they have committed a crime, simple as that. The psychopathology behind it is irrelevant.

    • says

      There is labour behind digital content and those who laboured to create that content deserve to get paid for doing so.

      I don’t disagree, and I do understand the context in what you’re saying here, but I’m going to put a slightly different spin on it. I think the people who make things have the right to set the price that they want to sell those things for. If you make chairs you get to say whether your chairs sell for $5 or $5,000. Whether that’s a profitable business, or fair to the consumer, doesn’t matter: you made it, you get to set the price and control what happens to your chairs in the marketplace.

      I obviously think the same holds true for digital content. The reason content theft does hurt someone is because it denies the creator of that content the right to set their own price — meaning, more broadly, the right to control their products in the market.

      One reason why this is important is because it provides a motive for content creators to keep creating. But another reason it’s important is because it provides a basis for an orderly market. If you can’t trust the value of something (say, gold), then there won’t be a market where you can buy and sell that product.

      As an aside, the publishing business wants to blame piracy for disorder in its market, but that’s a red herring. It’s the internet itself — not the piracy on the internet — which is destabilizing the publishing business. I think the music industry was actually damaged by piracy to a fair degree, but even then I think the internet also exposed institutional problems in that business. See also:

      http://www.ditchwalk.com/2009/08/28/why-the-book-biz-should-be-scared/

      This is what ticks me off about iTunes. I love the one stop shopping, but I don’t like the proprietary format or the nightmare it is to authorize my equipment.

      I think iTunes is fair in that it allows you to have your content on multiple devices — which implies permission to share across users. I think mild sharing (say, with one or two people) replicates the real-world habits people have with CD’s and books that they own: they might loan it out once or twice (not for copying, just for personal use), and then take it back.

      Where I personally left the iTunes/iPod parade was on the subject of quality. I started noticing I wasn’t enjoying the music the way I normally did, and when I compared the iTunes sampling rate to full CD audio I could hear what was missing. It’s a good service, but in the end I think it’s a lousy product.

      If they want that specific pricing structure held with their “retailers” then they can enter into an agreement with those retailers and the retailers or “shop owners” have the right to say no and not stock the product.

      Completely agree. Everything is negotiable, and the point is not that people shouldn’t leverage their advantages in negotiation. Stealing or simply doing what you want with someone else’s products is not negotiating, and it disadvantages content creators/owners be preventing the opportunity for negotiation.

      It’s a simple calculation. I am not getting a physical book so don’t charge me for one, especially if you are going to restrict the way I read it.

      Agreed. And isn’t it funny that at the end of the day, the publishers don’t seem to be making any arugments about the value of the content that writers create? The price of an e-book isn’t been justified based on the wonderful words it contains, or as a product, but simply as a mechanism to keep the price high for hardcover books. Not that publishing can’t try to save it’s own backside by any means available, but still…defining the content as inherently worthless stings a bit.

      In a way it feels like content is really only tolerated as a means to get consumers to buy the object: it has no meaning unto itself. The fact that the product publishers make — the hardcover as an object (or even the paperback) — is no longer going to be the dominant means of content dispersal is the real problem, and yet it’s the one problem publishing seems determined not to deal with effectively. (See also earlier comments about fishing and logging.)

      • says

        Ah, you said Mark. That’s why I believe that authors should get a higher percentage of royalties on ebooks either from their publisher or they should keep the rights and do it themselves.

        That’s what I love about ebooks. I have dispensed with the pretty packaging. I don’t need it, I don’t want it, I certainly don’t feel like paying the publisher for it. My only concern is with the words the author put on the page. That’s what I want to pay for. Ebooks do that, especially ebooks where author royalties are higher. That is a business model I can support.

      • says

        Objection!

        The argument for ebook pricing related to hardcovers has everything to do with valuing the content therein, as well as valuing the content’s creator. Authors who get hardcover deals typically get higher advances than paperback-original authors, because the expectation is that they will sell more books, and if those hardcover sales are cannibalized by low-priced ebooks, they get will paid less for their future work. Plain and simple.

        That’s why paperbacks aren’t simultaneously released with hardcovers, and that’s why Macmillan (and others) have been fighting Amazon over the artificial $9.99 price point, and when Apple entered the picture and introduced an alternative, that’s why they jumped on it.

        There’s a certain sense of entitlement to the “ebooks should be immediate and cheap” crowd that’s both willfully reductive, and devalues books and authors. I mean, seriously, is 99.9% of what’s free on the Kindle or Smashwords comparable to even the most middling mid-list author? Answer: Hell no.

        • says

          Guy,

          Objection noted. :-)

          The argument for ebook pricing related to hardcovers has everything to do with valuing the content therein, as well as valuing the content’s creator.

          I think what I meant was that a publisher doesn’t care if the book they’re publishing is important in a literary or cultural sense — they only care that the content attracts attention to the product, which is what I believe you are also saying. If a really good writer establishes a track record of importance or commercial success, that brand has value. By the same token, however, you can be a complete moron and end up with your own big-time hardcover deal solely on the basis of your capacity to move books as a celebrity.

          Here’s what I said above:

          [Ditchwalk] In a way it feels like content is really only tolerated as a means to get consumers to buy the object: it has no meaning unto itself.

          The idea is that content equals marketing to a publisher. It doesn’t equal meaning. Publishers like to talk about being cultural trendsetters, but for many (if not most) of them all that goes in crapper when they think they can shovel some steaming pile of hype onto the lusty public. And I’m not saying I blame them: it’s business.

        • says

          That is true, but with the advent of digital content, the business model has to change. Maybe the whole advance thing and the whole you deserve a hardcover and you don’t paradigm has become seriously outdated. Certainly, the waste associated with the old model is seriously outdated and unwarranted. Lots of people buy used books, and in that case the author makes nothing except for the original sale. With ebooks there is the potential to sell more via the immediacy and adjusted retail price model. No one is devaluing the author’s work. Packaging is a heafty cost.

          There is a way to make it all work, but everyone has to stop clinging to the old way as if it were some irrefutable dogma. People hate change, but the fact is change can be good, but the powers that be have to embrace it. The same money can be made, the author can still achieve the value on their work that they desire, and the consumer can be made happy. It can work.

          It’s not about educating the consumer on how the publishing industry’s current business model works. Consumers don’t care about that, all they see is this = this much, so why doesn’t this = this much. And there will come a day when it will not be ecologically sound to create paper books. Shouldn’t the publishing industry start thinking about that now? Now seems like a good time so that the business model can change incrementally with no loss of profit or value.

          I bought an ereader, and it has revolutionized the way I read books now. I would have normally bought 5 paper books last month, one of them being a hardcover if I knew I would want to keep it. But I didn’t buy 5 paper books last month. I bought 9 ebooks, and next month I will probably buy more. I spent less than I would have on paper books, and I don’t have to deal with the physical copy after I am done with it. Next month, I will probably spend more … and more and more. Why? The convenience and the immediacy … and there is no waste. I bought authors I never heard of. I bought debut books. I would never do that with paper books until it was in the bargain rack for much less than 9.99.

          Is 9.99 the right number. I don’t know. I don’t think anyone really knows because the model hasn’t been looked at. Everyone is too busy arguing about it. It still has to be less than the physical book for obvious reasons, and I am sure the number is somewhere in the middle. And it can’t be an arbitrary number. The entire cost to profit ratio has to be looked at an adjusted as well.

          • says

            I also think we have to come at this from a different POV, less content-centric. It’s not about the content, it’s about the packaging and the costs associated with it. That is where the reduction can take place.

            Silk suit or polyester suit … Hardcover, softcover, ebook … the content is the same, it’s the packaging that’s different.

            I am still me no matter what suit I wear. The content has a fixed cost: advance, editor salary etc. The packaging is the variable and the one that can be used to adjust the retail price. The art is the same, and the consumer can decide if they want to pay for that art in a fancy guilded frame or as in an ebook, no frame. They can still appreciate the art. Neither the art nor the author is devalued. Only the packaging is.

  7. says

    Hi, Mark. I’m an attorney who started as a computer programmer and filmmaker; I went to law school in large part because of the cultural and legal battles I saw played out on sites like Slashdot and BoingBoing. I’m here to ask you (and your correspondents) to stop arguing about whether copyright infringement is “stealing.” Instead, argue about whether copyright infringement as it is commonly practiced is *wrong*.

    Here’s the deal: in most cases, copying copyrighted stuff without permission is unarguably “copyright infringement,” a violation of Title 17, c. 5, of the U.S. Code (http://www.copyright.gov/title17/92chap5.html). In most cases it is also, unarguably, not a violation of any crime known as theft (see, for example, http://www.mass.gov/legis/laws/mgl/266-30.htm).

    So when you invest a lot of importance in whether copyright infringement is stealing, you are investing in an analogy: the crime of copyright infringement is like the crime of theft, and the crime of theft is wrong, so copyright infringement is wrong.

    It makes sense to look for an analogy, because there are lots of complex issues in copyright and it would be nice to simplify them with a universal cultural intuition. The problem is that both links in your analogy introduce the very complexity you were trying to avoid.

    Link 1: As you acknowledge, infringement is like theft in that you obtain something that the owner has a right to charge for or deny you, but is unlike theft in that the owner does not lose a possession. So before we decide how persuasive your analogy is, we have to argue about how much less harmful it is to copy something than to deprive the owner of it.

    Link 2: Theft itself is not always wrong. There is no universal cultural agreement about whether it is wrong to steal something that the owner doesn’t value very much, like water from a hose or leftover food from a corporate event or extra ketchup packets from a fast food chain; or whether it is wrong to steal from an evil person (how many movie plots are based on a sympathetic thief stealing from a morally bankrupt mark?); or whether it is wrong to steal under an unjust property system (think of Robin Hood stealing the King’s deer); or whether it is wrong to steal in relatively harmless ways for fun (think of students picking the lock on a college boathouse to steal a canoe for the evening).

    So at the end of your metaphor, you’re back asking the same questions that drive the copyright debate: how much financial harm does copying do? does it matter whose rights are being infringed on? does it matter if artists are upset about it, whether or not they are hurt financially? is this intellectual property scheme the best way to accomplish our goals as a society?

    I think there are strong arguments on both sides of those questions, whereas I’m guessing you think there are only strong arguments on one side of them, so we probably have a lot to talk about. But I’m not trying to argue about them in this comment. I’m just saying that arguing about the word stealing brings you no closer than you were when you started to answering the fundamental question: are violations of the copyright statute immoral, and is it a good statute? We don’t need metaphors to stealing a can of beans to try to figure out whether infringement might deprive authors of money, or whether it might legitimately piss them off, or whether there are other ways for artists to make a living that would be better for society. So let’s talk about that.

    (Notice that, if infringement does come to be seen as wrong in our culture, it will certainly be colloquially referred to as stealing. So when you argue that it is stealing and therefore wrong, you’re begging the cultural question. Demonstrate that it’s wrong, and the question of whether it’s stealing will solve itself.)

    —-

    This is a sidetrack from my main point, so think of it as a separate comment. Your discussion of taking the neighbor’s newspaper, or breaking into a concert, is a good example of why the stealing metaphor isn’t helpful. Taking the neighbor’s newspaper from the front steps is literally stealing from the neighbor, just like stealing their car for a joyride before they wake up. It falls under the theft statute, not the copyright infringement statute. It’s wrong not because it has anything to do with the newspaper company, but because it deprived your neighbor of actual property for a few hours. Once he puts it in the recycling bin, it is both legal and moral to pull it out and read it, whether it deprives the newspaper company of money or not. So your real point is that there are rights we care about protecting even if violations cause no physical harm — which is a great point, but has nothing to do with whether infringement is theft. (The next question would be, “is *this* a right we care about protecting even if violations cause no physical harm?”)

    Breaking into a concert, on the other hand, just isn’t stealing. That’s why you wouldn’t say “I stole a concert last night” (unless you were Carmen Sandiego). You would say “I broke into a concert last night.” It’s the crime of trespass, and it has its own rationales and penalties. Copyright infringement is actually a lot like trespass, and we could learn a lot from that analogy, but we wouldn’t learn that copyright infringement or trespass is theft.

    Again, what you’re really trying to get at isn’t, “copying something is stealing.” What you’re trying to get at is, “copying something is wrong, even though no one loses physical property they already had.” So let’s talk about that.

    • says

      Hi Jack,

      And since I’m not saying that at an airport, I’ll assume I’m not breaking any existing laws….

      I’m here to ask you (and your correspondents) to stop arguing about whether copyright infringement is “stealing.” Instead, argue about whether copyright infringement as it is commonly practiced is *wrong*.

      I take it at face value that you know the legalities involved in the debate. It should be fairly clear, however, that much of what is being talked about here is colloquial — a layman’s usage of terms which also have specific legal meaning. When people say that copying digital content isn’t stealing, they simply mean it isn’t wrong. My point in reply is that it is wrong — regardless of the specific legalities involved.

      So when you invest a lot of importance in whether copyright infringement is stealing, you are investing in an analogy: the crime of copyright infringement is like the crime of theft, and the crime of theft is wrong, so copyright infringement is wrong.

      Again, I think the entire debate — relative to your legal definitions — is an analogy. Unfortunately, short of a compulsory continuing-education course along these lines, I think most people are going to continue to question whether or not something is being stolen, as opposed to infringed. (In another sense I’m not sure it matters. ‘Stolen’ could be changed to ‘illegal’ and I think much of the conversation would still make sense to most people.)

      Link 1: As you acknowledge, infringement is like theft in that you obtain something that the owner has a right to charge for or deny you, but is unlike theft in that the owner does not lose a possession. So before we decide how persuasive your analogy is, we have to argue about how much less harmful it is to copy something than to deprive the owner of it.

      I disagree. I don’t think we have to argue about relative crimes or illegalities. I think we can simply cut to the chase and say that copying a product that someone doesn’t want you to copy is wrong/illegal. We don’t have to say that it’s not as bad as stealing a disabled person’s wheelchair, and we don’t have to say that it’s worse than letting your parking meter run out.

      That might be important in establishing some hierarchy, particularly relative to reasonable punishments, but it’s not important as to the unethical and/or illegal nature of the act.

      Link 2: Theft itself is not always wrong. There is no universal cultural agreement about whether it is wrong to steal something that the owner doesn’t value very much….

      I won’t argue your examples. Rather I’ll simply point out that in the case of copyright infringement the majority of people who own those copyrights clearly seem to be saying that they do value what is being stolen/infringed. And if we’re going to get bogged down over my claim that the majority feels this way, I’ll reduce it to just me. I care very much.

      I’m just saying that arguing about the word stealing brings you no closer than you were when you started to answering the fundamental question: are violations of the copyright statute immoral, and is it a good statute?

      I’m not backing up and asking if the copyright statute is a good statute. I think it’s a good statute. I’m sure it’s got issues, but in the main I’m not complaining, or advocating for change. I’m advocating that people respect it and not copy stuff that they don’t have a legal right to copy.

      Demonstrate that it’s wrong, and the question of whether it’s stealing will solve itself.)

      Okay. Copyright law says (I think) that you’re not allowed to copy and sell or copy and distribute stuff that you don’t hold the copyright to, unless you have the copyright holder’s permission. So if I have the copyright to a story, and I don’t want you to copy the story and sell it yourself or distribute it freely, and you do that, I think it’s wrong. If you go ahead and do it, I think you’re stealing from me — both in terms of lost opportunities to market my product, and in terms of my legal right to control that product.

      I also don’t think I have to prove a direct cost to me to get you to honor copyright law. I might need that if i wanted to sue for my losses, but not if I simply want copyright law upheld.

      Breaking into a concert, on the other hand, just isn’t stealing. That’s why you wouldn’t say “I stole a concert last night” (unless you were Carmen Sandiego). You would say “I broke into a concert last night.” It’s the crime of trespass, and it has its own rationales and penalties.

      Again, I have to disagree here. I may not know the legal terms for each illegal activity, but your example would hold even if there was no concert at the venue. You’re effectively saying that whether you break into the place when it’s empty or during a concert you’re only guilty of trespass. I’m saying that when you break in during a concert you’re guilty of something more, and that’s stealing an experience that other people had to pay for. If you want to tell me there’s no such crime, that’s fine — but you can’t tell me that’s not a relevant difference, particularly from the point of view of the people who put that experience together creatively and economically.

      • says

        You make some reasonable points about the actual impacts of copyright infringement, and the irrelevance of labels we put on it. I’m not arguing about a lot of that. I’m just asking you to let go of the word “stealing.”

        This is the line that got me going in your original post: “In the DRM debate the obvious point we need to engage on is the premise stated throughout the above quotes: that copying digital content is not stealing.”

        I have the sort of masochism that has led me to sit through way too many copyright debates, and the point where they engage on the definition of stealing is always the point where useful conversation ends. I think it’s because stealing emphatically means “taking physical property” to some people, and emphatically means “depriving me of a right” to other people. Both of those are colloquially legitimate, but imperfect, definitions (one’s too narrow and the other’s too broad). The conversation can’t move forward until you pick one, and neither side has an incentive to abandon their definition for the other one. So you end up with a lot of frustrated statements like, “I don’t care what you say, it’s still stealing” — “it’s just wrong, because it’s illegal” — or “it’s just wrong, because it’s wrong” (if you examine your response, and your original post, with an opponent’s eye, you’ll see a lot of phrases that could be read this way). To all of those arguments, a sufficient answer is, “nuh uh.”

        So forget trying to explain why copyright is stealing, and all the baggage like “what you steal.” Present your same basic thoughts from this thesis: “Whatever crime it is, copyright infringement is morally wrong, because it hurts these people, in these ways …” (This can obviously include non-physical harms, like the harm of knowing that your wishes are not being respected regarding something you made.)

        I know this seems like a small point, but you all are having a more serious, thoughtful conversation than most people, and it kills me to see it go down the dead end of “stealing.”

        (Again, this is aside from my main point.) I should warn you that you can’t get far in the moral argument without having to talk about whether the copyright law is a good law, and whether the industries that generate copyrighted works are good industries. For example —

        (1) The purpose of copyright, enshrined in the Constitution, is not to protect the moral rights of artists but “To promote the progress of science and useful arts.” So, in cases where infringement promotes rather than detracts from the progress of the useful arts, is it still immoral? Is it immoral to violate a law in order to effect its purpose?

        (2) Copyright grants dramatically more protection to creators than it did when our nation was founded — it lasts 70 years after the death of the author compared to a flat 28 years. There is good evidence that this extension happened because of campaign contributions to legislators from major rightsholders, rather than because of a considered decision that it was best for the nation (this isn’t a shocking claim in America, of course). Some of the moral arguments you might want to make will have less persuasive force when your children are dead of old age, or when you are claiming the protection of a law purchased through legalized corruption.

        (3) By the same token, the economic cost of copyright has dramatically increased since our nation was founded, because the cost of making copies has fallen. Copyright is an economic incentive policy that imposes an inefficiency: in technical terms, societal wealth is lost every time someone values a copy at more than it costs to produce the copy, but less than it costs to purchase the license from the copyright holder, and therefore doesn’t receive a copy. For example, if an mp3 is worth 50 cents to me, and costs 0 cents to copy, but I’m unable to give iTunes 50 cents and copy the song, then our total economic wealth is less by 50 cents. (If you don’t believe me, add up how much I think my possessions are worth, and how much Apple thinks their possessions are worth, before and after the transaction. Leave aside Apple’s valuation of the mp3 itself, which would go up rather than down if it could charge everyone exactly what it was worth to them.) If I copy the song from bittorrent, the country regains that wealth (again, add it up). This isn’t a small thing, either — for example, if you look at the recording industry’s own figures, about 13 songs are downloaded for every one lost sale, which suggests that the economic benefits to downloaders of copying songs are dramatically larger than the economic costs to the record labels. That doesn’t mean it’s morally right, but it means that advocating a system in which you charge for each copy — instead of looking for alternate ways to reward artists — may not be morally right either.

        I’ve put each of these points in much too simplified forms. At best, I only hope to convince you that this is a complex issue, and you should be looking for more complex solutions than compulsory continuing education that most violations of existing copyright law are morally wrong.

        • says

          Jack,

          I’m just asking you to let go of the word “stealing.”

          I understand, and don’t disagree that the conversation should move in the direction of concrete and specific terminology. My concern at present is that doing so would disconnect the conversation from the majority of the people who are talking about this issue using imprecise terminology.

          I think what I would say to further pin this down is that you’re talking about a threshold that isn’t recognized in everyday existence, and that’s the legal threshold (both figurative and literal) that is crossed when the legal system becomes involved in a matter. For example, I think most people do not know that the legal definition of assault in many jurisdictions does not require physical violence, but only the threat of violence (backed up by some credible assumption that the threat could be carried out). Hence the need for both assault and battery when charging someone with actual physical abuse of another person.

          In order to decrease violence between people we could insist that everyone understand this distinction first, or, we could ask them not to hit each other. By analogy, in using the word steal I’m asking people not to commit copyright infringement — and I think most people understand that.

          Both of those are colloquially legitimate, but imperfect, definitions (one’s too narrow and the other’s too broad). The conversation can’t move forward until you pick one, and neither side has an incentive to abandon their definition for the other one.

          I don’t disagree with any of this. But in the end, as I noted in the original post, there’s another way of looking at this which makes it baldly obvious that people know they are infringing/stealing: they don’t ask for permission up front. This is a crime of opportunity, it’s easy, everyone’s almost guaranteed they won’t get caught, many people genuinely feel they’re not hurting anyone by doing this, and it’s socially sanctioned by a giant flashing neon sign that says YOU GOTTA RIP TO BE HIP!

          I’m making the case against that view.

          So you end up with a lot of frustrated statements like, “I don’t care what you say, it’s still stealing” — “it’s just wrong, because it’s illegal” — or “it’s just wrong, because it’s wrong” (if you examine your response, and your original post, with an opponent’s eye, you’ll see a lot of phrases that could be read this way). To all of those arguments, a sufficient answer is, “nuh uh.”

          In my own defense, I actually made this same point in the post. See the first paragraph, fourth and fifth sentences, under the The Question subhead.

          Present your same basic thoughts from this thesis: “Whatever crime it is, copyright infringement is morally wrong, because it hurts these people, in these ways …” (This can obviously include non-physical harms, like the harm of knowing that your wishes are not being respected regarding something you made.)

          I think I tried to make that case, but I don’t know that I’m so eager to vacate any rights I might have relative to copyright ownership. And I’m not so sure the Napster decision doesn’t at least imply that I do have those rights, and/or that copyright infringement is stealing. (I’m not going to debate the point, but I can suggest you read Steven Knopper’s book on the music industry. Serch for his name on this site.)

          (Again, this is aside from my main point.) I should warn you that you can’t get far in the moral argument without having to talk about whether the copyright law is a good law, and whether the industries that generate copyrighted works are good industries.

          Yeah, Luke’s got that covered. :-)

          There is good evidence that this extension happened because of campaign contributions to legislators from major rightsholders, rather than because of a considered decision that it was best for the nation (this isn’t a shocking claim in America, of course).

          I’m aware of the extension, I’m generally against it, and I tend to think it was passed simply as a means of ensuring revenue for corporations — which is clearly not what the copyright act was for. If the extension was voided it would be fine with me.

          I’ve put each of these points in much too simplified forms. At best, I only hope to convince you that this is a complex issue, and you should be looking for more complex solutions than compulsory continuing education that most violations of existing copyright law are morally wrong.

          I want to thank you for your contribution to this thread and to this dialogue. I can only assure you that I hear what you’re saying, even if I have a concern that acting on your advice would be the equivalent of going by the book when improvisation is required.

  8. Adam says

    Nice, albeit lengthy post. :o)

    I can see why Gen Y gets confused about pirating books, music, movies, etc when it sees Google scan and index all the books it wants even if the publishers and authors complain and Google says it is ok.

    Sort of a “do as I say not do as I do…”

    • says

      Hi Adam,

      You’re right about the hypocrisy at all levels of the tech/content industry. Abuses can even be codified into law when predatory producers (think music) sign artists to exploitative contracts. Those same producers will then turn around and go after fans who create bootlegs in order to protect their ‘investment’.

      Fortunately, Google got shot down recently, so hopefully that will help raise consciousness about what’s ethical in the pursuit of the all-mighty dollar:

      http://www.ditchwalk.com/2011/03/22/google-books-settlement-rejected/

      As to the length of the post, that’s nothing. :-)

      Try this: http://www.ditchwalk.com/2011/01/19/two-spaces-after-a-period/

      I like to think of Ditchwalk as filling the long-blog-post niche. I know there are plenty of short-post writers out there — indeed, according to most marketing consultants that’s the secret of blogging success. I also know I can’t compete with Twitter for brevity. So i just let it rip.

  9. Kurt says

    My take on this is pretty simple..
    We get paid for our ideas, the only problem is that it is often too expensive for the general public.
    If the proprietor and the consumers would compromise and meet, i don’t think piracy would be a problem.

  10. Michael says

    Well, it is true that a product owner, or publisher, cannot generally require a retailer to maintain a certain price for a product or publication, it is true the the owner does not have to continue to sell to the retailer. There has always been an unspoken tension that upheld a wholesale/retail margin or spread, and upheld the market value of the product as well.

    As a consumer I appreciate a good deal just like the next guy, but as a manufacturer who owns brands of products that are sold wholesale to resellers, it is always a sticky subject and a bit of a balancing act.

    It took me years to figure out how to set my own retail pricing to allow my wholesale accounts who buy in bulk to undersell me on purpose so that they don’t lose customers to me, and then make everyone happy. I expect with books and printed, copyrighted materials it is more difficult because there are standard industry margins that everyone was expected to operate within… but Amazon has already rocked that boat and changed that forever.

    As far as the question “who does it hurt” when something is obtained through piracy, the answer is: the person who created the item who owns the rights to the intellectual property. That doesn’t last forever, and that’s why we have public domain… but someone who creates something has the right to receive the benefit from it, not just to have people take it without paying for it, until public domain becomes effective under law. So, you can have a lot of things for free… you just have to wait for them. If you don’t want to wait, then you pay for the privilege of instant gratification.

  11. Alexandra Dianne Cooper says

    Copyright infringement is also stealing that’s happening now in the entertainment industry. Although people could benefit it because you could use it for free or at a non-authoritative seller at a very cheap price, The thing here is that the maker’s side or the one who made the concept work will be left behind. If we keep on stealing things and we will definitely wipe all leaving no one left to do the right way. We should always be aware of it because we are the ones who could stop it by not letting them succeed. That is why I stick my mind on my carp fishing gear business because at least I know it can be stolen but at a lesser chance.

  12. Terry O'Sullivan says

    Copyright infringement is literally illegal since you are using something that is owned by others. If you really intend to use the item, you must consult the owner first, pay him or offer him something.

    Article 61 of the Agreement on Trade-Related Aspects of Intellectual Property Rights requires that signatory countries establish criminal procedures and penalties in cases of “willful trademark counterfeiting or copyright piracy on a commercial scale”. More recently copyright holders have demanded that states provide criminal sanctions for all types of copyright infringement.

    Terry O’Sullivan
    Placenta, CA

  13. James Thorne says

    I tend to agree with you. Stealing is stealing and certainly downloading software,ebooks,etc without paying for them is stealing. It is exactly the same as walking into a bookstore, taking a book and walking out without paying.

    However, kids that grew up with the internet (where free rules) don’t see it that way. They don’t see it as stealing, or if they do they don’t think they will ever get caught.

    Risk/reward.

    It also does not help that normal people perceive large corporations to fleece them. So there is almost a Robin Hood type mentality where it is fine to steal from the “rich” corporations.

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  2. […] anything – all I’m suggesting is that you’ll understand this post a little better if you read this, this, and this first. If you don’t want to, that’s okay. But don’t say I didn’t warm […]

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