| On piracy and copyright and file sharing and free speech |
[Jan. 29th, 2012|12:17 pm] |
Home taping is killing live music. Isn’t that what those old adverts used to say? The ones supposed to shame those of us with a drawer full of bootleg cassettes in our student rooms? I don’t recall such campaigns doing much good. But I also remember why we had those cassettes and why such small-scale, furtive illegality bears no comparison with the massive digital piracy that’s now going on and which so many people seem to think is somehow acceptable or excusable.
We copied those tapes because we were broke. I was, in 1983, and I am not talking about not having the cash to buy everything that I might want. I am talking about not having the money to buy the essential necessities of life. After paying my hall fees out of my student grant (which included daily breakfast and six other meals a week), I had £17.30 a week to live on, by which I mean buy clothes, food, books and everything else I might need. At the time, unemployment benefit was £25.40. And that was just in term time. Outside term, I worked in supermarkets, pubs, hotels and old folks’ homes, often two jobs at a time, as well as studying for the upcoming term. So no, I couldn’t afford legitimate music.
But here’s the thing back then, and it was the same for everyone I knew. As soon as we could afford to, we did buy legitimate copies of the music we loved. Being able to do that was almost a rite of passage and definitely a cause for celebration. Not least because the quality was so much better but also because we knew what we were doing was morally suspect, if not outright wrong. When we didn’t need to do it, we stopped.
In more recent decades, I’ve known pals with computer hard-drives loaded with illegal copies of UK and US TV programmes and films. This was because they had no legitimate way of seeing them; their local TV stations and cinemas weren’t showing them and at the time, because Amazon seemed convinced that the Balkans were still a war zone, they couldn’t buy anything online for local delivery. Once again, these friends worked very hard to get hold of legitimate copies, unhappy with the necessity of dodgy downloads. I’ve bought boxsets and books here in the UK and shipped them overseas. As soon as local conditions allow, those friends make legitimate purchases because they all understand that supporting the creative minds behind the things they loved would mean more of the same in the future.
That’s what copyright does. As Katherine Kerr says in her blog post which I urge you to read in full The Founding Fathers established copyright protections with a short term to encourage writers and artists to create works ultimately for "the public good."
... I doubt if it ever occurred to them that poor people might write books and thus need the money from the sale of those books to fund the next project. Fortunately, other legislators did realize it.
...Copyright frees the writer, in particular, from dependence on the patronage of the rich. ...Books that would appeal to those "lower orders" were in short supply as well -- until copyright. Books by and for women were most definitely in short supply ...
This is not to say that copyright law is all wonderful. It’s highly complex, nationally and internationally and has been badly skewed by successive interventions by powerful special interests. I absolutely agree that it needs reform and I wish those campaigning for change every success. Mind you, I’m not convinced we’ll see much change until legislators at the highest levels really understand the need for change and are also prepared to take on those powerful interests, like, oh, for example, Disney. I’m not holding my breath, given those Rules for Life that include ‘Never start a land war in Asia’ also include ‘Don’t mess with the Mouse’.
Anyway, what has that got to do with the immorality of someone offering someone else an illegal digital copy of an author’s book, depriving that author and their publisher of at least the chance of legitimate revenue?
Deciding that a whole body of law has serious flaws is not an excuse for ignoring those aspects of it which are clear and straightforward, especially not when ignoring it is for one’s own personal gain. I object on both practical and moral grounds to the damage done to the UK dairy industry by the monopolistic practises and buying power of the big supermarkets. This does not entitle me to take a pint of milk from Tesco’s without paying for it. That is still theft. Or to give a technological example, for the benefit of those arguing with me on their iPads and iPhones – disapproving of the conditions in Apple’s Chinese factories doesn’t entitle me to help myself from the nearest Apple Store.
Ah but copyright law restricts free speech, I have recently been told. It is certainly true that restrictive regimes have used and abused various copyright laws to restrict and muzzle opposition. Yes, thanks, I know all about the history of samizdat publishing.
Once again, I ask, what’s the relevance of this entirely separate and yes, necessary debate, to the question at hand? How does how protecting my legitimate right to stop others illegally using my work for their own personal profit restricts anyone else’s free speech?
Since I’ve yet to get any satisfactory answer to that, let’s consider another entirely irrelevant argument that keeps being made. The file transferring technology that we now have offers so many varied and valid uses, not least enabling those under repressive regimes to share their thoughts and organise dissent. So do those undoubted benefits mean we have to tolerate the flood of digital piracy as a regrettable but inevitable consequence?
In what other sphere are abuses of technology ignored for the sake of its legitimate uses? I live in rural England where farmers and others have many and varied, legal uses for shotguns. I’ve yet to see any thug using a sawn-off to rob a bank given a free pass by the police.
Because what we are talking about here is illegality. And I am thoroughly sick of the supposed defence that file-sharing sites aren’t actually hosting the illegal files, they’re just putting the people who want to share them in touch with each other. Right, and pimps don’t prostitute their own bodies and fences disposing of stolen goods don’t actually go housebreaking. That doesn’t make what they do any less morally and legally reprehensible.
No, I am not in favour of SOPA or PIPA or similar. These are all fundamentally flawed attempts at legislation made by people with no real understanding of the complexities and realities involved. It’s on a par with the UK government’s response to the last outbreak of Foot and Mouth disease here; when the slaughter-and-cremate policy they insisted on was so outdated that procedures included instructions on requisitioning wooden sleepers and coal from local railway marshalling yards to build pyres. Yes, really. They were relying on plans made in the age of steam trains. But I digress.
Once there is the will, there must surely be a way to do something to address this very real and growing problem. Law courts can generally distinguish between those innocently caught up in handling stolen property and those who make a career out of knowingly engaging with organised and wholesale theft. Why can we not see those behind these file-sharing sites, claiming their hands are so clean, in court being asked to explain on what basis they imagined the latest John Grisham best-seller wouldn’t be subject to copyright and thus showing people where to find a digital copy for free was all so fine and dandy?
Because writers and artists are being deprived of their legitimate income. No, I don’t equate every illegal download with a lost sale but a percentage surely are. No, I don’t blame digital piracy for the way writers’ incomes have plummeted in this past decade. This is down to a perfect storm of changes in retailing and short-sighted moves by individual publishers and legislators resulting in a slew of unintended, destructive consequences. No, I won’t digress on all that here. If you want to know more, find me at a convention some time but be warned, you will end up feeling that the Wedding Guest collared by The Ancient Mariner got off lightly.
We have to deal with the situation we’re now in and the cold, hard facts are writers’ incomes are now under such pressure and publishers’ margins have been trimmed so finely, that even a small drop in sales lost to digital piracy can make the difference between contracts being renewed or writers being dropped. Forget the money for a moment. The current situation is bad for readers and the wider world of literature. Great writers are made, not born. Enduring and important works of literature emerge once authors have learned their craft and honed their skills in exploring and conveying the essential truths of the human condition. No one can do that if their writing career is cut off at the knees after two books.
Actually, no, let’s not forget the money. Because whether or not you care if any writers earn a living wage or not, let’s consider who is really raking in the cash from illegal piracy. Individuals like Kim Dotcom, who’s apparently made millions out of Megaupload, after his earlier convictions for computer fraud and insider trading. Then there’s the student facing extradition from the UK to the US over his website offering links to pirated TV shows and films, which was earning him £15,000 a month in advertising revenue. Okay, let’s say a book site wouldn’t get the same traffic. Reduce that by a factor of ten. That’s still £1500 a month for such a parasite abusing other people’s creativity.
How about the latest massive ebook piracy operation; a very slickly deceptive site from a cabal of thieving scum, offering unlimited downloads for a monthly subscription of $14.95, ‘just like Netflix’. No, not like Neflix (and I do hope their lawyers are aware of this) because not a penny of those revenues was going to authors or publishers and all those links were to wholly illegal downloads.
This operation has enraged me more than any other in recent times, because I can so easily see innocent new owners of a kindle/nook/kobo/whatever, with little Net savvy or understanding of publishing being duped. People like my Dad who’s contemplating an ereader on account of aging eyesight, a book lover who would never dream of actively seeking out illegal downloads. Someone like him could easily think this was an entirely legitimate site, just like Netflix, not least because he was honestly paying his monthly fee and the way such sites mouth pious platitudes about observing the Digital Millenium Copyright Act and here’s how to notify them of unintended infringement. Right, infringement of that brand new Patrician Cornwell bestseller which they had no reason to believe was under copyright.
Granted, such sites comply with DMCA takedown notices. Yes, they do, because it’s no skin off their nose if the people they’ve duped into handing over their cash can’t actually find the books they want next week. But why should the onus be on publishers and authors to police this theft of their intellectual property and then to laboriously issue those DMCA notices, a separate one for each of the separate formats in which any individual title is offered. This now takes up entire working days for editorial and legal departments, adding still more to a publisher’s losses.
And since we’re talking money, let’s consider how hard up someone must be to need to find illegal downloads, in the same way that we poverty-stricken students would club together to buy a pack of C90 cassette tapes. If you are able to afford to buy an ereader, still an non-trivial and discretionary expense, surely you cannot be that hard up. Okay, some people will get them as gifts who might struggle to find the price of a fancy coffee to spend on a new book. Then there are no end of free and entirely legitimate downloads available. Not just copyright-expired material though Project Gutenberg but offers and promotions from the publishers themselves.
I am no enemy of ‘free’. I choose to offer some of my own writing without expecting payment. Head on over to the Solaris blog for a copy of ‘The Wizard’s Coming’ if you like. Yes, this sort of thing is excellent advertising and a valuable promotional tool, more than ever in this digital age. The difference is, I have chosen to do this. My rights to earn a legitimate return from my own work have not been illegally and immorally ignored by someone out to line their own pockets.
I am a great fan and a lifelong user of libraries and while I value my Public Lending Right money from the UK, Irish and other European governments, I would donate my own books to libraries without any such recompense. I never mind seeing my own books in second-hand shops, even though I won’t earn a penny from resale. I see that as another way for my work to gain greater currency and circulation. The difference is libraries, physical or digital, are regulated and second hand copies of physical books are always going to be limited in number. Digital piracy downloads can add up to tens of thousands within hours.
Forget debates on cultural differences and history behind copyright or whether or not authors should write for art or money or the uses and abuses of technology. How is the current situation when amoral third parties can profit so massively from wholly illegal behaviour in any way acceptable? Answer me that and I’ll give you a free book. |
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| Comments: |
The feeling that the.music and video publishers are raking it in has translated to the belief that content should be free and the publishers will support the creators because some content has been overpriced and because people have allowed their thinking to become lazy on this subject. Piracy goes down as fairly priced and convenient content becomes available - but the fences stealing and selling content win in both scenarios. We don't need Sopa, Pipa or Acta to deal with them, we need the existing laws enforced. And to quote the Oatmeal, no more stealsies.
Brilliant post. Thank you. I'm spreading the signal with links.
This is an excellently written and well-balanced essay on what I'm coming to believe is one of the crucial social-economic questions of our time. With your permission, I'd like to tweet its existence.
Please link/share/tweet as you wish. It's also on my wordpress blog.
Thanks for this, I share most of your beliefs but I must say that the publishers (not all of them of course) sometimes make it hard to honestly buy an ebook you want to enjoy serenely... I'm an avid reader, with a minimum of two books a week (more often four) and most of that has now been redirected to ebooks because I simply don't have the space and I've been moving several times those last years. Most of my ebooks have been acquired legitimately, I must have bought more than five hundreds of them in fact (which I have not all read unfortunately) but I simply refuse to buy much DRMed works, they're inconvenient, they don't work on all my devices unless I enter a grey area by removing the DRM for my personal usage, and they also say that the publisher consider me a thief... an incompetent thief at that since the tools necessary to remove all those DRMs are easy enough to use that almost anyone with a minimum of computer knowledge can do it. The only persons inconvenienced by those pseudo measures of protection are -- as everyone in the field know very well -- the legitimate consumers.
There's also the problem that not being an US (or even UK) resident a lot of books are difficult to access beyond Amazon (and I don't have a Kindle, I like my books to stay where they are, thank you).
All these reasons means that I also have some illegal files, not that I don't wish to help their authors. I do hope that the situation will improve in the next years and that the publishing industry will, like the music industry before it, realize that DRMs are just a bad idea (they don't seem to have done their homework on the subject though so I don't hold much hope against that).
Of course the immoral creeps that profit from the situation to gain fortunes on the back of the authors are parasites that should be prosecuted, but the publishers (some of them) are the ones who created a good part of the situation that allows those creeps to prosper. A good offer, rich, open and trusting the customer to comport himself correctly with the files would do much to alleviate the problem.
--
Jedaï
![[User Picture]](http://l-userpic.livejournal.com/49137232/10673965) | From: ![[info]](http://l-stat.livejournal.com/img/userinfo.gif?v=92.1) jemck
2012-01-30 06:40 am (UTC)
Re: Great post | (Link)
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Agreed. You really would have thought publishers would have learned from Music's errors on DRM etc, and territorial issues definitely need addressing.
I have a whole bloody cabinet full of CD's that are gathering dust because I've loaded the tracks I like from each of them onto my Iphone. I don't have any digital music where I don't have a physical recording of the song that I bought and paid for. Because doing that is pretty nearly the only way of insuring that the artist got paid
The same goes for e-books: they are all either paid for through a mechanism where I know a royalty was paid, or they're in the public domain.
Doing anything else is patently unfair to the artists who created those works.
It can be argued, however, that by copying from a CD onto your MP3 player of choice, you are stealing, because that is not the format that it was sold to you as, and that you need to purchase the electronic format version of the same material.
The US Supreme Court ruled in 1984 [Sony Corp. v. Universal City Studios - 464 U.S. 417] that recordings of copyrighted material made for private, non-commercial use fell within the area of "fair use," and therefore did not violate copyright. The case addressed the use of video cassette recorders to record television broadcasts, but has been subsequently held to apply to recording music broadcast over the radio and to transferring music from an LP to a cassette. The key element is that the recording must be for personal, non-commercial use ONLY. It can't be shared, resold, or played in public performance without that act becoming a copyright violation
In fact, the RIAA site itself states:
However, burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns so long as:
The copy is made from an authorized original CD that you legitimately own, and
The copy is just for your personal use. It’s not a personal use – in fact, it’s illegal – to give away the copy or lend it to others for copying.
So yeah, I am doing it right.
Edited at 2012-01-30 03:52 am (UTC)
| From: jemck
2012-01-30 06:55 am (UTC)
new realities | (Link)
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We do the same with our CDs and then we have the disc as the ultimate backup, unlike a pal who lost hundreds of quids worth of legal downloads when his laptop was nicked, back in the very early days of digital music when proving what he'd bought turned out to be very problematic.
But I digress. Content providers need to get wise to newrealities. Some do.
I'd love to know how much illegal game downloads have been cut since Steam launched for instance.
I've bought a couple of 'double-play' DVDs recently which included a digital copy for my own use. How long before hardcopy books come with an ebook licence code?
![[User Picture]](http://l-userpic.livejournal.com/53918596/6618838) | From: brock_tn
2012-01-30 11:28 am (UTC)
Re: new realities | (Link)
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A fair number of books from Baen Publishing come with a CD full of E-books in the back of the book. All of which are DRM free.
I think David Weber was the first Baen author to have a hardcover novel sold with a CD full of his backlist included.
| From: brock_tn
2012-01-30 06:43 pm (UTC)
Re: new realities | (Link)
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Something else I've just run across: 17 U.S.C. 1008, as legislated in the Audio Home Recording Act of 1992, states explicitly that making analog or digital copies of recorded music for personal, non-commercial use, does not constitute copyright infringement, and that no cause of action is to be found in making such copies.
The actual text of the statute is as follows:
§ 1008. Prohibition on certain infringement actions
No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.
Title 17, United States Code, is the formal name for the Federal statutes governing copyright.
Most people neglect that the music industry sometime in the early 1980s negotiated a license fee settlement on every manufactured blank cassette sold to compensate for lost revenues. This is known as the "blank cassette levy". There's also one on CD-Rs. http://www.pcmag.com/article2/0,2817,2067411,00.aspI'm not sure what jurisdictions it covers or how the monies are distributed. JJB
| From: jemck
2012-01-30 09:52 am (UTC)
Re: One oversight... | (Link)
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That's very interesting - if I had ever known that, I'd assuredly forgotten.
![[User Picture]](http://l-userpic.livejournal.com/72611448/15129772) | From: jjbrannon
2012-01-31 09:03 pm (UTC)
Re: One oversight... | (Link)
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Further research indicates that the UK forbids copying entirely. http://en.wikipedia.org/wiki/Blank_media_levySo why aren't such levies applied to every hard-drive and memory device? Not that this approach overcomes the moral deficit of theft, but it does move toward compensating creators, criticisms considered. JJB
| From: jemck
2012-02-01 08:50 am (UTC)
Re: One oversight... | (Link)
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One recommendation of the Hargreaves Report (UK Govt review of copyright/IP law) is that 'format shifting' for personal use is made legal.
It's the DRM that kills me... I only very recently (last few weeks) got an ereader, and I've already excitedly spent over £25 on books I ended up not being able to read due to one DRM problem or another :(( Once bitten, twice shy.
Now I either avoid taking a risk on a new book I can't get easily without DRM, or where it's made possible with a tipjar or whatever, I head for the illegal download and send money to the author directly. I feel ashamed. I find it embarassing that I am even taking this position, having advocated authors and reading and respect for copyright for a lot of my life. But I also feel jipped. There is no need whatsoever for it to be this hard, the technology itself has no barriers.
I buy songs online all the time, it's so easy. Why not books? Can we just assume the average consumer feels good about paying legitimately for things, if it is made easy for them to do so.
Authors and publishers are struggling - setting up barriers to purchase seems incredible.
In those circs, yes, if you've already paid for something and then find it's no use to you - I think I would probably do the same.
Systems implemented by people who do not undertand either the tech behind them or the uses the customers wish to make of said systems? History is full of disaster stories - and executive continue to demonstrate that since they don't know that history, they are indeed doomed to repeat it...
1) The "we were broke" is not a reason. It's a reason no more legitimate than "I want it" because it's THE SAME REASON. If you feel making your crappy little cassettes was justifiable (and I come from that era and made them myself) then you're agreeing that the kids who do it today are justifiable. The scale is larger, but if it's wrong in large scale it's wrong in small scale.
2) "How is the current situation when amoral third parties can profit so massively from wholly illegal behaviour in any way acceptable? Answer me that and I’ll give you a free book." In short? Because the measures necessary to actually STOP it are worse than the disease. Note this doesn't make the pirate's behavior correct, just means that in order to truly stop it you'd have to do more damage than you'd do good -- which in my opinion makes it "acceptable". Not good, not preferable, but acceptable.
My take on pirates is that they're rude. But a lot of those supporting it use the exact same justification of price -- and there is some reason to believe they MEAN it, at least to some extent. That's why iTunes makes lots of money; reasonable prices and convenience.
'because we were broke' is an explanation, it is not an excuse. I don't claim what I did was justifiable.
I think the large scale copying now current *is* different because we're not talking about individuals making copies for their personal use.
Illegal filesharing is big business - the scale is so huge and these third parties are making huge sums of money - the latest outfit to be shut down just last week were raking in eight million euro a year.
I agree that recently proposed remedies would do far more damage than good. A great deal more could also be done with existing regulation and systems, as a UK High Court judge pointed out last year when finding against an ISP for not acting sooner against another bunch of pirates.
When they protested tech difficulties, he pointed out how they had managed to act swiftly and efficiently without any such difficulties when the police had alerted them to a kiddie-pr0n site.
The best route for publishers is definitely to make legit access at a reasonable price as widely available as possible, sorting out the nonsenses and eg Amazon price hikes that currently arise in some countries, which drive fans who would love to buy legit ebooks to torrent sites because they have no other option.
It does baffle so many of us writers that publishers have failed to learn these lessons from the music industry
The way in which you wrote the initial part of your discussion does read, to me, as trying to say that the cassette era was materially different and morally different from the current era.
There were money-making pirates back in THAT era, too. Yes, today's pirates can make more because they're now able to trade in the PURE goods (the data/information) rather than having to go the inefficient route of actually making physical copies and selling them (although there's still a lot of that going on -- my wife actually got suckered into buying such a pirate copy of a movie because it looked legit, just a few months ago), but there's no material difference there.
The illegal filesharing is larger, but no different in essence, and I don't like any of the new laws that are created to deal with it. I've been involved in this stuff since very early on. I warned three of the top labels in *1991* that this was going to happen; none of them even bothered to mail me back. I presume they passed the letter around and laughed at it and threw it away.
The publishers haven't learned, in many cases, because the MUSIC industry hasn't learned. The RIAA and MPAA are STILL trying the same approaches, trying to get passed ever more draconian laws, rather than recognizing that the paradigm has entirely changed.
There IS no stuffing that genie back in the bottle and if you want to make money from IP now, you need to -- honestly speaking -- recognize that IP *is*, and *has always been*, nothing but a social construct -- and right now, the society is saying that it doesn't like the way IP has been being used, and they're taking it away from you if you're not using it in a way that they approve of.
The general public seems to reasonably approve of your IP being used to give you, the inventor, money personally. It seems to less approve of giving it to a corporation who's not the actual producer, but will do so if the prices are good and the CONVENINENCE is good (thus, while most if not all of the stuff available on iTunes is also available for free download elsewhere, iTunes still does lots of business because people like the idea of being able to get ALL of it in one convenient commercial site for resonable prices). The general public apparently now LAUGHS at your puny legal approaches -- and that, too, is a legitimate change, because law only gets its force from the cooperation of the public.
Of course, the society also hasn't adjusted its terminology and self-perception to the point that this can be safely verbalized in a legal and public medium like that of the lawmakers -- especially since large corporations are notoriously terrible about actually adjusting to change.
There are key differences here.
The majority people have long made a distinction between small-scale personal-use illicit copying and the industrial scale counterfeiting that results in dodgy DVDs being sold in bars and similar marketplaces, where the illegality for the sake of pure profit/greed has long since been exposed.
Current illegal filesharing is comparable to the latter - and can exploit digital media on a scale that's an order of magnitude greater with out the need to produce and transport physical illegal copies of DVDs and CDs.
That's what those of us whose livelihoods depend on our IP need to make people aware of.
I agree the music industry has failed to learn from its mistakes - I have friends who've worked at high levels in that business. My point is that publishing should have learned from those failures - and as I have already said, making legit access to decent products is the clearly sensible route.
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